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94	https://www.mspb.gov/decisions/nonprecedential/Hartless_Vickie_L_DC-1221-22-0613-W-1_Final_Order.pdf	UNITED STATES OF AMERICA MERIT SYSTEMS PROTECTION BOARD VICKIE L HARTLESS, Appellant, v. DEPARTMENT OF HOMELAND SECURITY, Agency.DOCKET NUMBER DC-1221-22-0613-W-1 DATE: February 26, 2025 THIS FINAL ORDER IS NONPRECEDENTIAL1 Gary M Gilbert , Esquire, Renn Fowler , Esquire, and David Karman , Esquire, Silver Spring, Maryland, for the appellant. Kelleen O'Fallon , Esquire, Philadelphia, Pennsylvania, for the agency. Thomas Ziehnert , Esquire, and Bridget E. Feeney , Esquire, Springfield, 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A. Limon, Member Vice Chairman Kerner recused himself and did not participate in the adjudication of this appeal. 1 A nonprecedential order is one that the Board has determined does not add significantly to the body of MSPB case law. Parties may cite nonprecedential orders, but such orders have no precedential value; the Board and administrative judges are not required to follow or distinguish them in any future decisions. In contrast, a precedential decision issued as an Opinion and 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 and the agency has filed a cross petition for review of the initial decision, which granted in part the appellant’s request for corrective action in this individual right of action (IRA) appeal. Generally, we grant petitions such as these only in the following circumstances: the initial decision contains erroneous findings of material fact; the initial decision is based on an erroneous interpretation of statute or regulation or the erroneous application of the law to the facts of the case; the administrative judge’s rulings during either the course of the appeal or the initial decision were not consistent with required procedures or involved an abuse of discretion, and the resulting error affected the outcome of the case; or new and material evidence or legal argument is available that, despite the petitioner’s due diligence, was not available when the record closed. Title 5 of the Code of Federal Regulations, section 1201.115 (5 C.F.R. § 1201.115). After fully considering the filings in this appeal, we conclude that neither party has established any basis under section 1201.115 for granting the petition or cross petition for review. Therefore, we DENY the petition for review and the cross petition for review. Except as expressly MODIFIED to supplement the administrative judge’s explanation of the appropriate corrective action required of the agency, we AFFIRM the initial decision. DISCUSSION OF ARGUMENTS ON REVIEW We affirm the administrative judge’s contributing factor analysis. To prevail on the merits of an IRA appeal, an appellant must meet her initial burden of proving by preponderant evidence2 that (1) she made a protected disclosure described under 5 U.S.C. § 2302(b)(8) or engaged in protected activity 2 Preponderant evidence is the degree of relevant evidence that a reasonable person, considering the record as a whole, would accept as sufficient to find that a contested fact is more likely to be true than untrue. 5 C.F.R. § 1201.4(q).2 described under 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D); and (2) the disclosure or protected activity was a contributing factor in the agency’s decision to take or fail to take a personnel action as defined by 5 U.S.C. § 2302(a).3 Karnes v. Department of Justice , 2023 MSPB 12, ¶ 8. The appellant “may demonstrate that the disclosure or protected activity was a contributing factor in the personnel action through circumstantial evidence, such as evidence that—(A) the official taking the personnel action knew of the disclosure or protected activity; and (B) the personnel action occurred within a period of time such that a reasonable person could conclude that the disclosure or protected activity was a contributing factor in the personnel action.” 5 U.S.C. § 1221(e)(1)(A), (B); Karnes, 2023 MSPB 12, ¶ 8. Alternatively, an employee can demonstrate that a disclosure was a contributing factor in a personnel action through other circumstantial evidence, such as evidence pertaining to the strength or weakness of the agency’s reasons for taking the personnel action, whether the whistleblowing was personally directed at the proposing or deciding officials, and whether these individuals had a desire or motive to retaliate against the appellant. Dorney v. Department of the Army , 117 M.S.P.R. 480, ¶ 15 (2012). In the initial decision, the administrative judge made credibility determinations and concluded that the appellant did not prove by preponderant evidence that her whistleblowing disclosures and/or protected activity were a 3 The administrative judge made the following findings in the initial decision: (1) the appellant’s March 2018 disclosure to Congressional committee staff constituted a reasonable belief of a violation of law, rule, or regulation and an abuse of authority; (2) her April 2018 communications to the head of the Investigations Office and the OPR Director expressing her opposition to the decision not to investigate complaints of favoritism and discrimination against the acting OPR director constituted a reasonable belief of a violation of management directives; (3) her April 26, 2018 OIG complaint about the information described in the second whistleblowing disclosure constituted activity protected by 5 U.S.C. § 2302(b)(9)(C); and (4) the agency’s decision to eliminate her OPR Mission Support Director position during the realignment and the directed reassignment to a nonsupervisory position constituted personnel actions pursuant to 5 U.S.C. § 2302(a)(2). Initial Appeal File, Tab 72 at 25, 29-40. Neither party challenges these findings on review, and we affirm them herein.3 contributing factor in the elimination of her Mission Support Director position during the realignment because none of the decisionmakers had actual or constructive knowledge of her whistleblowing disclosures and protected activity and no one with such knowledge influenced any of the decisionmakers. Initial Appeal File (IAF), Tab 72, Initial Decision (ID) at 41-48. The administrative judge also considered the alternative method of proving contributing factor. ID at 48. He noted, among other things, that the realignment process began before the appellant made any whistleblowing disclosures or engaged in protected activity, the timing of the realignment and the inclusion of the Mission Support Director position in the realignment were not suspicious, and the position was identified early in the realignment process by a working group that did not include anyone with an apparent motive to retaliate or have any basis to know about the appellant’s whistleblowing disclosures or protected activity. Id. Regarding the directed reassignment, the administrative judge found that none of the decisionmakers had knowledge of her whistleblowing disclosures or OIG complaint at that time. ID at 44, 49-51. He found, however, that the appellant proved that her April 2018 whistleblowing disclosure was a contributing factor in the directed reassignment4 because the OPR Director, a recipient of that disclosure, made negative comments about the appellant to the Deputy Executive Assistant Administrator (DEAA) in February 2019, which influenced the DEAA not to return the appellant to OPR thereafter. ID at 50-51 (citing Karnes, 2023 MSPB 12, ¶¶ 19, 22). Importantly, the administrative judge noted that the influence in question occurred less than a year after the whistleblowing disclosure and the decision-making about where to place the 4 The administrative judge took a broad view of the directed reassignment personnel action. In pertinent part, the administrative judge explained that the “issue in this personnel action is the decision of where to put the appellant . . . after the realignment,” which encompassed the agency’s decision to move her to Training and Development in or around September 2019 and not to place her in the OPR Senior Advisor detail during the summer of 2019. ID at 49, 52. Neither party challenges the administrative judge’s broad view of the directed reassignment personnel action.4 appellant occurred in the months thereafter. ID at 51. Both parties challenged the administrative judge’s contributing factor analysis, but we are not persuaded by their assertions on review. For example, the appellant contends that agency witnesses lied about not having knowledge of her disclosures because, among other things, she “told counsel and others [that] she was contacting” Congressional committee staff, and there was “high-profile, well-publicized turmoil between the agency and Congress.” Petition for Review (PFR) File, Tab 4 at 7-10. She also asserts that it was “absurd,” “nonsensical,” and “unexplainable” that the agency decided not to return her, a “top rated, experienced employee,” to OPR, even though the job duties remained, there was a need for an experienced official to perform those duties, and the agency detailed other employees to fulfill those duties. Id. at 9-10. Notably, the appellant does not identify by name or title any individual whom she told of her disclosure to Congressional committee staff who was a decisionmaker in either of the personnel actions or who influenced the decisionmakers. Moreover, her generic assertion that “all agency witnesses feign[ed] no knowledge” of her disclosures, PFR File, Tab 4 at 10, is speculative, and an allegation based on speculation does not rise to the level of preponderant evidence, Duncan v. Department of the Air Force , 115 M.S.P.R. 275, ¶ 9 (2010), aff’d, 674 F.3d 1359 (Fed. Cir. 2012). Finally, her contention that the agency’s staffing decisions were “absurd,” “nonsensical,” and “unexplainable” does not, standing alone, satisfy the alternate method for proving contributing factor. In its cross petition for review, the agency asserts that the administrative judge erred when he found that the appellant proved that her April 2018 whistleblowing disclosure was a contributing factor in the directed reassignment because the DEAA’s failure to consider her for a detail to the Senior Advisor position during the summer of 2019 was not affected by “isolated comments” from the OPR Director 5 months earlier. PFR File, Tab 8 at 4, 20-24. The5 agency also asserts that the administrative judge’s reliance on Karnes—in which the Board found a direct relationship between a retaliatory recommendation and a subsequent reassignment—was misplaced because there was no relationship between the OPR Director’s “negative comments” about the appellant in February 2019 and the DEAA’s decision in July 2019 to assign the appellant to the Transportation Security Administration (TSA) Human Resources (HR) Academy. Id. at 22-23. The U.S. Supreme Court has adopted the term “cat’s paw” to describe a case in which a particular management official, acting because of an improper animus, influences another agency official who is unaware of the improper animus when implementing a personnel action. Karnes, 2023 MSPB 12, ¶ 19 (discussing Staub v. Proctor Hospital , 562 U.S. 411 (2011)). Under the cat’s paw theory, an appellant can establish that a prohibited animus toward a whistleblower was a contributing factor in a personnel action by showing by preponderant evidence that an individual with knowledge of the whistleblowing disclosure influenced the officials who are accused of taking the personnel actions. Id. We have considered the OPR Director’s negative comments about the appellant,5 the context in which he made those comments, the administrative judge’s discussion of this evidence, and the agency’s assertion that there was no relationship between the OPR Director’s negative comments about the appellant and subsequent staffing decisions. IAF, Tab 38 at 52-53; ID at 14, 50-51; PFR File, Tab 8 at 22-23. Although the DEAA testified that he understood that the OPR Director’s comments were “about keep[ing] a resource,” and the 5 The OPR Director’s negative comments about the appellant were contained in a February 6, 2019 email chain, in which he was advocating to keep employee A.B. in OPR. IAF, Tab 38 at 52. In pertinent part, the OPR Director stated, “[i]n addition to her competence, [A.B.] has been very beneficial for [O]PR culture, particularly in the wake of [the appellant] .” Id. (emphasis added). The OPR Director also stated that A.B. was a “high performing asset who would be valuable to the overall organization. When she does go to the [business management office], I’d only ask that she’d be placed well outside of [the appellant’s] orbit. I feel strongly that we owe this to [A.B.] ” Id.6 administrative judge generally found the DEAA credible,6 the administrative judge also found that the OPR Director’s negative comments about the appellant “would have made it clear to [the DEAA] that he did not want the appellant to return to OPR.” ID at 50-51; Hearing Transcript (HT) 3 at 184 (testimony of the DEAA). The Board will not disturb an administrative judge’s findings when he considered the evidence as a whole, drew appropriate inferences, and made reasoned conclusions on issues of credibility. Crosby v. U.S. Postal Service , 74 M.S.P.R. 98, 106 (1997); Broughton v. Department of Health and Human Services, 33 M.S.P.R. 357, 359 (1987). Accordingly, we agree with the administrative judge that, under the cat’s paw theory, the knowledge element is satisfied. Moreover, only 18 months passed between the appellant’s April 2018 disclosure to the OPR Director and the directed reassignment in October 2019. Thus, the timing element is also satisfied. See, e.g., Mastrullo v. Department of Labor, 123 M.S.P.R. 110, ¶ 21 (2015) (stating that the contributing factor element can be shown if the personnel action occurred within 1 to 2 years after the whistleblowing disclosure); Redschlag v. Department of the Army , 89 M.S.P.R. 589, ¶ 87 (2001) (finding that the appellant’s whistleblowing disclosures were a contributing factor in the removal when they were made approximately 21 months and then slightly over a year before the agency removed her). Therefore, we affirm the administrative judge’s finding that the appellant has proven contributing factor regarding her April 2018 whistleblowing disclosure and the directed reassignment through the knowledge/timing test. 6 The agency asks the Board to defer to the administrative judge’s credibility determinations and find that there were strong reasons for the agency to assign the appellant to the HR Academy independent of her whistleblowing disclosures. PFR File, Tab 8 at 23-24. The agency is conflating contributing factor analysis and the agency’s clear and convincing burden. We discuss the strength of the agency’s evidence and the administrative judge’s credibility determinations in our analysis of the agency’s clear and convincing burden, below.7 We agree with the administrative judge that the agency failed to prove by clear and convincing evidence that it would have directed the appellant’s reassignment absent her April 2018 whistleblowing disclosure. Even if, as here, the appellant established that she made a whistleblowing disclosure that was a contributing factor in the agency’s personnel action, the Board will not order corrective action if the agency can show by clear and convincing evidence7 that it would have taken the action absent the disclosure. 5 U.S.C. § 1221(e)(2); Karnes, 2023 MSPB 12, ¶ 23. In determining whether an agency has met this burden, the Board will consider all of the relevant factors, including the following: (1) the strength of the agency’s evidence in support of the action; (2) the existence and strength of any motive to retaliate on the part of the agency officials who were involved in the decision; and (3) any evidence that the agency takes similar actions against employees who are not whistleblowers but who are otherwise similarly situated. Carr v. Social Security Administration , 185 F.3d 1318, 1323 (Fed. Cir. 1999); Karnes, 2023 MSPB 12, ¶ 24. The Board does not view these factors as discrete elements, each of which the agency must prove by clear and convincing evidence. Rather, the Board will weigh the factors together to determine whether the evidence is clear and convincing as a whole. Karnes, 2023 MSPB 12, ¶ 24. The Board considers all of the evidence presented, including evidence that detracts from the conclusion that the agency met its burden. Id. Regarding the first factor, the administrative judge considered, in pertinent part, the strength of the agency’s reasons independent of the OPR Director’s influence and the strength of the OPR Director’s reasons independent of the appellant’s whistleblowing. ID at 53. The administrative judge acknowledged that the directed reassignment was the result of a number of decisions. Id. The 7 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. Karnes, 2023 MSPB 12, ¶ 23; 5 C.F.R. § 1209.4(e).8 administrative judge found that the agency had strong reasons for the realignment, the decision to include the appellant’s OPR Mission Support Director position in the realignment, and the decision to reassign the appellant in general terms. ID at 53-54. The administrative judge credited the testimony of the DEAA, and he found that the agency had strong reasons not to place the appellant in the HR Branch Chief position, and instead detail her to Training and Development (T&D) with the plan to have her develop a TSA HR Academy. ID at 53-54; see Haebe v. Department of Justice , 288 F.3d 1288, 1301 (Fed. Cir. 2002) (stating that the Board must defer to an administrative judge’s credibility determinations when they are based, explicitly or implicitly, on observing the demeanor of witnesses testifying at a hearing; the Board may overturn such determinations only when it has “sufficiently sound” reasons for doing so). The administrative judge also found that the agency had strong reasons for not placing the appellant in the Senior Advisor detail position advertised in February 2019 because, among other things, she was already on a detail to the Department of Homeland Security (DHS) through July 2019, and she did not indicate that she wanted to end her current detail. ID at 55-56. However, the administrative judge found that the agency did not have strong reasons for its failure to consider the appellant for the Senior Advisor detail during the summer of 2019. ID at 56-57. In pertinent part, the administrative judge found that the OPR Mission Support Director position and the Senior Advisor detail position at this time were “evolutionarily related,” meaning that the Senior Advisor detail position was “an evolution of the Mission Support Director position” and involved “many of the same duties.”8 Id. The administrative judge noted that, because the appellant needed a position and OPR 8 Importantly, the administrative judge found that the duties “overlapped in significant parts” because they both processed intakes, managed the database, worked on case management, liaised with other offices, handled requests from Congress, sat on working groups, had two direct reports occupying the same positions, were involved in business management office functions, and advised the Director. ID at 56-57.9 needed a Senior Advisor, it would have made sense to consider the appellant for the detail or at least gauge her interest, but neither occurred. ID at 57-58. Here, too, the administrative judge credited the DEAA’s testimony, and he found that the DEAA was genuinely trying to find a good fit for the appellant. ID at 58; Haebe, 288 F.3d at 1301. However, because the Senior Advisor detail was advertised in February 2019 at the J/K bands, the DEAA’s explanation for not considering the appellant during the summer of 2019—looking for a K-band or more senior level employee—was not a strong reason. ID at 58 (citing IAF, Tab 9 at 115). The administrative judge noted that there was no advertisement in the record for the Senior Advisor detail in July 2019, and, in any event, the appellant did not have to apply for any of the positions she moved between in 2019, and she could be placed in positions without applying. ID at 58-59. The administrative judge considered the appellant’s qualifications and the qualifications of the person who filled the Senior Advisor detail in July 2019, M.C., but he noted that the agency never considered the appellant or weighed the advantages or disadvantages of the different courses of action. ID at 59-60. The administrative judge acknowledged that the OPR Director’s “strong negative” opinions about the appellant would have resulted in the DEAA not considering her for the Senior Advisor detail in the summer of 2019. ID at 60. Accordingly, the administrative judge evaluated the basis for the OPR Director’s negative comments about the appellant.9 Importantly, the administrative judge found such a basis “weak,”10 except for the OPR Director’s view that the 9 For example, the OPR Director testified that his comments about the appellant were based on, among other things, some employees expressing to him that they did not like working with her, and his perception she did not get along with “a unit chief or two,” that she exhibited hostility due to the decision not to investigate the complaints against the Acting OPR Director, and that she was part of the “factionalization” in OPR. HT 6 at 124, 165-67, 176 -78 (testimony of the OPR Director). 10 The administrative judge noted that the OPR Director was not a direct witness to any alleged negative interactions with the appellant, he did not document any issues, the appellant denied the accusations, and there was no evidence from any of the individuals10 appellant was “factionalized” and part of the dysfunction in OPR, but the basis for this view was premised on her April 2018 whistleblowing disclosure and opposition to the decision not to investigate pending complaints. ID at 60-63. The administrative judge determined that the reasons for the OPR Director’s negative comments about the appellant were connected to her April 2018 whistleblowing disclosure, and these comments “fill[ed] in an important gap in the agency’s process” because it explained why the appellant was not considered for the Senior Advisor detail during the summer of 2019. ID at 62-63. He therefore concluded that this factor favored the appellant. ID at 63. Regarding the second factor, the administrative judge found that the OPR Director had some motive to retaliate because the disclosure reflected poorly on him and his supervisor, the Executive Administrative Assistant (EAA). ID at 65. The administrative judge also found that the OPR Director “demonstrated [a] strong dislike for the appellant and her impact on OPR,” which was related in part to her whistleblowing disclosure. Id. The administrative judge further found that there was other evidence of the OPR Director’s motive in February 2019. For example, the OPR Director did not respond to the appellant’s inquiry about the posted Senior Advisor detail and status of her OPR Mission Support Director position, which suggested that the appellant was interested in returning to OPR and the OPR Director did not want her to return. Id. Additionally, the OPR Director kept complaints from the appellant after her whistleblowing disclosure, which suggested that he was bothered by her opposition to the decision not to investigate pending complaints. ID at 65-66. Ultimately, the administrative judge concluded that this factor did not weigh strongly in either direction but favored the appellant. ID at 66. who allegedly complained about the appellant. ID at 61-62. Moreover, there was no evidence of any performance concerns, and the appellant was rated by multiple people as “achieved excellence,” which included an evaluation of her management. Id.11 Regarding the third factor, the administrative judge found that there was an absence of comparator evidence, likely due to the unique circumstances of the realignment and subsequent staffing decisions. ID at 66-67. Accordingly, he concluded that the absence of such evidence meant that the factor was removed from consideration and was a neutral factor. ID at 67 (citing Karnes, 2023 MSPB 12, ¶ 36). The administrative judge weighed the three factors and noted that this issue turned on the burden of proof. ID at 68. He stated that he was “not left with any firm conclusions” on whether the agency would have issued the directed reassignment absent the appellant’s April 2018 whistleblowing disclosure. ID at 69. Therefore, he concluded that the agency did not meet its burden. Id. In its cross petition for review, the agency asserts that the administrative judge “invented evidence” and “[i]gnored the overwhelming evidence” regarding the first factor. PFR File, Tab 8 at 24-27. For example, it asserts that the administrative judge erred when he relied on the OPR Director’s negative statements to “fill[] in an important gap in the agency’s process.” Id. at 24-25. Instead, the agency asserts that it provided strong reasons for assigning the appellant to the TSA HR Academy position, including, among other things, that the DEAA thought that she was an ideal candidate because of her recent experience, she wanted to stay at her previous detail assignment at DHS on a permanent basis, and the selectee, M.C., had experience in business process improvement and efficiency systems, and she submitted a resume. Id. at 25-26. Moreover, the DEAA testified that he did not discuss with the OPR Director the possibility of the appellant serving in the OPR detail assignment, and the “overwhelming evidence established” that the agency would have assigned the appellant to the TSA HR academy in the absence of the OPR Director’s comments. Id. at 27. Regarding the second factor, the agency asserts that the only motive that matters was the motive of the agency officials “involved in the relevant decision,” the OPR Director was not involved in the decision to assign12 the appellant to T&D, and the administrative judge erred in considering the OPR Director’s motives. Id. at 27-28 (emphasis in original). These arguments are not persuasive. Importantly, the first factor does not apply straightforwardly to this case because the personnel action was not disciplinary in nature and does not require supporting evidence of misconduct; instead, it is appropriate to consider the broader question of whether the agency had legitimate reasons for the directed reassignment and subsequent staffing decisions. Smith v. Department of the Army , 2022 MSPB 4, ¶ 23. The initial decision reflects the administrative judge’s methodical and thoughtful consideration of the relevant evidence leading up to and including the directed reassignment. ID at 52-63. We agree with the administrative judge’s conclusion that the agency’s reasons for not placing the appellant in the Senior Advisor detail position during the summer of 2019 were not strong and were largely due to the OPR Director’s input, which was based on the appellant’s whistleblowing disclosure and opposition to the decision not to investigate the pending complaints. Id. Accordingly, we affirm the administrative judge’s analysis and conclusion in this regard. See Crosby, 74 M.S.P.R. at 106; Broughton 33 M.S.P.R. at 359. Regarding the second factor, the Board has been cautioned against taking too narrow a view of this factor. Whitmore v. Department of Labor , 680 F.3d 1353, 1370 (Fed. Cir. 2012). Indeed, the U.S. Court of Appeals for the Federal Circuit directed the Board to consider any motive to retaliate on the part of the agency officials who ordered the action as well as that of any officials who influenced the action. Id. at 1371; Soto v. Department of Veterans Affairs , 2022 MSPB 6, ¶ 14; Aquino v. Department of Homeland Security , 121 M.S.P.R. 35, ¶ 29 (2014). Therefore, the administrative judge properly considered the OPR Director’s motive, and we agree with the administrative judge that this factor favors the appellant because the OPR Director had some motive to retaliate. ID at 65-66; see Whitmore, 680 F.3d at 1370-71 (stating that the appellant’s13 criticisms cast the agency, and by implication all of the responsible officials, in a highly critical light). Because we agree with the administrative judge that the first two factors weigh in the appellant’s favor and the third factor is neutral, we discern no error with the administrative judge’s conclusion that the agency failed to meet its burden to prove by clear and convincing evidence that it would have taken the directed reassignment personnel action absent the appellant’s April 2018 whistleblowing disclosure. ID at 68-69. We affirm the initial decision in this regard. The appellant has not shown that she is entitled to corrective action beyond that which the administrative judge ordered. When the Board finds reprisal based on whistleblowing, it is statutorily authorized to order broad relief, that is, such corrective action “as [it] considers appropriate.” 5 U.S.C. § 1221(e)(1); Gharati v. Department of the Army , 2022 MSPB 16, ¶ 15. If the Board orders corrective action, such corrective action “may include” that the individual be placed, as nearly as possible, in the position the individual would have been in had the prohibited personnel practice not occurred. 5 U.S.C. § 1221(g)(1)(A); Gharati, 2022 MSPB 16, ¶ 15. As set forth above, the alleged retaliatory personnel actions identified for adjudication in this IRA appeal were (1) the elimination of the appellant’s position, in or around November 2018, and (2) her directed reassignment in October 2019. E.g., IAF, Tab 1 at 15, Tab 8 at 13, Tab 11 at 3; ID at 25; PFR File, Tab 4 at 6. The administrative judge found that she met her burden of establishing a prima facie case of whistleblower reprisal only regarding the latter. ID at 41-51. For that October 2019 directed reassignment, he also found that the agency failed to rebut the appellant’s prima facie case of whistleblower reprisal. ID at 52-69. This conclusion primarily rests on his determination that the agency did not adequately explain why it selected M.C. over the appellant for the Senior Advisor detail assignment in August 2019, just before the appellant’s October14 2019 directed reassignment. Id. Put another way, the administrative judge determined that, had it not been for whistleblower reprisal, the agency would have selected the appellant for the August 2019 detail instead of directing her reassignment in October 2019. Accordingly, the administrative judge ordered the agency to correct the appellant’s personnel records to retroactively place her in the detail assignment for the period in which it was filled.11 ID at 70. He further ordered the agency to rescind the October 30, 2019, directed reassignment and to replace it with appropriate documentation reflecting reassignment to the appellant’s current position at the end of the detail assignment. ID at 71. The administrative judge acknowledged that, after the detail, the agency established and advertised a “permanent position in OPR,” which was filled by M.C. ID at 22, 56-57, 70. However, he determined that the appellant was not entitled to corrective action placing her in any further positions if she did not apply for them.12 ID at 70 (citing Gharati, 2022 MSPB 16, ¶¶ 19-20). The administrative judge also recognized that, to obtain a promotion as part of an order granting relief, the appellant must either identify a law mandating the promotion or clearly establish that she would have been promoted in the relevant period. ID at 70 n.21 (citing Dow v. General Services Administration , 117 M.S.P.R. 616, ¶ 18 (2012)); see Gharati, 2022 MSPB 16, ¶ 18 (setting forth that same standard). However, the administrative judge found that the appellant made no such showing. ID at 70 n.21. 11 Neither party explicitly challenges the administrative judge’s order for corrective action in this regard, and we affirm the order herein. 12 We understand that the “permanent position in OPR” was the SV-0343 K-band Supervisory Management and Program Analyst position, and it was also called the OPR Senior Advisor permanent position and the OPR Chief of Staff position. ID at 22; IAF, Tab 9 at 35-40; HT 1 at 14 (testimony of M.C.). The agency does not dispute that this OPR permanent position was a K-band position. PFR File, Tab 8 at 15.15 In her petition for review, the appellant asserts that the administrative judge erred in holding that she was not entitled to corrective action as to the permanent OPR position because, among other things, it was not announced in USAJOBS, and the agency prohibited her from applying because it was only available to K-band employees. PFR File, Tab 4 at 6, 12-19. The appellant also provides the following documentation with her petition for review: (1) an August 2020 vacancy announcement showing that the permanent OPR position was advertised as a voluntary lateral reassignment opportunity, which meant that only K-band employees could apply; (2) a May 16, 2023 Decision on Liability in her related Equal Employment Opportunity Commission matter in which a Supervisory Administrative Judge stated that the selectee for the OPR permanent position was “non-competitively selected”; (3) an agency determination in August 2020 that M.C., the selectee for the OPR permanent position, was “eligible and qualified for the non-competitive reassignment”; and (4) a November 25, 2019 email showing that the OPR Director contemplated making M.C. a permanent OPR Senior Advisor.13 PFR File, Tab 4 at 21-38, Tab 6 at 37. We are not persuaded by the appellant’s arguments, but modify the initial decision as follows to address the appropriate corrective action. Based on her arguments and evidence about relief, the appellant is essentially asking the Board to correct the agency’s reprisal, i.e., her nonselection 13 Under 5 C.F.R. § 1201.115, the Board generally will not consider evidence submitted for the first time with a petition for review absent a showing that it was unavailable before the record was closed before the administrative judge despite the party’s due diligence. Avansino v. U.S. Postal Service , 3 M.S.P.R. 211, 213-14 (1980). The appellant seems to argue on review that we should nevertheless consider the evidence she submitted for the first time on review because she lacked notice that the administrative judge would address the precise nature of relief during the initial proceedings, as opposed to subsequent compliance proceedings. PFR File, Tab 4 at 17-19. We need not further address the timeliness of the newly submitted evidence because we find it unavailing. Russo v. Veterans Administration , 3 M.S.P.R. 345, 349 (1980) (recognizing 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). 16 for the August 2019 detail in favor of her October 2019 reassignment, by placing her in a permanent K-band position that was not created until May 2020, posted until August 2020, and filled until September 2020. ID at 22; IAF, Tab 9 at 35-40; PFR File, Tab 4 at 21. In addition, she is suggesting that the Board do so despite acknowledging that she did not apply for the lateral K-band position because she was ineligible to apply as a J-band employee. E.g., PFR File, Tab 4 at 5-6. Finally, the appellant is arguing in favor of this additional corrective action, even though her placement in that position would amount to a promotion. In Gharati, 2022 MSPB 16, the Board considered a situation that is in many ways comparable. After finding that an employee’s reassignment and removal from a 4-year term appointment as a Fingerprint Specialist were based on whistleblower reprisal, the Board’s Final Order instructed the agency to cancel the reassignment and removal, and to retroactively restore the appellant, effective November 2012. Id., ¶ 3. During subsequent compliance proceedings, the administrative judge determined that the appellant’s relief must include placement in a permanent Latent Print Examiner position. Id., ¶ 16. The Board disagreed for several reasons. Among other things, the Board found that it would have been impossible for the Final Order to encompass appointment to a vacancy that did not arise until nearly 2 years after the retaliation and was unrelated to and independent from the employee’s position at the time relevant to the order. Id., ¶ 17. The Board further explained that, by its very nature, a term appointment expires by a certain date, and an agency is not obligated to offer an employee a permanent or other term position after that expiration. Id., ¶ 18. Turning back to this case, the detail assignment for which the agency selected M.C. over the appellant was also, by its very nature, temporary. See Dixon v. U.S. Postal Service , 64 M.S.P.R. 445, 450 (1994). In addition, the agency created, posted, and filled the permanent K-band position the appellant now seeks well after the matters properly before us in this IRA appeal, i.e., the appellant’s nonselection for the detail assignment and directed reassignment.17 Further, the administrative judge explained that the permanent position differed from the appellant’s prior roles with the agency as well as the original detail assignment that was filled by M.C., ID at 56-57, and the appellant has not given us any reason to conclude differently. Under these circumstances, we agree with the administrative judge’s limited grant of corrective action. Because the administrative judge found that the agency retaliated by directing her reassignment in October 2019 instead of selecting her for a detail assignment in August 2019, corrective action in the form of placement in that detail assignment was appropriate. At the end of that detail assignment, which was temporary by its very nature, the appellant was entitled to return to a permanent position. However, the appellant is not entitled to placement in a permanent position that did not exist at the time of the agency’s reprisal, nor is she entitled to placement in a permanent position for which she did not apply. Gharati, 2022 MSPB 16, ¶¶ 17, 19. She has also not shown, either below or on review, that she is entitled to promotion. Id., ¶ 18; Dow, 117 M.S.P.R. 616, ¶ 18. Thus, we concur with the administrative judge’s conclusion that the most appropriate permanent position for the appellant at the end of her detail assignment was the permanent position she already occupies. To the extent that the appellant is suggesting that the agency might have created and posted the permanent position that went to M.C. differently if the appellant had been in the detail assignment, such that the appellant could have been selected for that position, we will not order corrective action based on those assumptions. See Gharati, 2022 MSPB 16, ¶ 20. Similarly, we will not order any other corrective action based upon speculation about ways in which the appellant’s career trajectory may have differed if she had been placed in that detail assignment.18 ORDER We ORDER the agency to correct the appellant’s personnel records to retroactively place her in a detail to a J-Band position as a Senior Advisor in the Office of Professional Responsibility starting in August 2019 and overlapping with the detail to the Senior Advisor position filled at that time. We further ORDER the agency to rescind the October 30, 2019, directed reassignment and to replace it with appropriate documentation reflecting the above detail and a subsequent reassignment to the appellant’s current position. 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.14 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 14 Thus far, we have no reason to believe that the appellant is due any backpay or other benefits, but we make no findings on the matter at this time.19 believes that the agency did not fully carry out the Board’s Order. The petition should contain specific reasons why the appellant believes that the agency has not fully carried out the Board’s Order, and should include the dates and results of any communications with the agency. 5 C.F.R. § 1201.182(a). For agencies whose payroll is administered by either the National Finance Center of the Department of Agriculture (NFC) or the Defense Finance and Accounting Service (DFAS), two lists of the information and documentation necessary to process payments and adjustments resulting from a Board decision are attached. The agency is ORDERED to timely provide DFAS or NFC with all documentation necessary to process payments and adjustments resulting from the Board’s decision in accordance with the attached lists so that payment can be made within the 60-day period set forth above. NOTICE TO THE APPELLANT REGARDING YOUR RIGHT TO REQUEST ATTORNEY FEES AND COSTS You may be entitled to be paid by the agency for your reasonable attorney fees and costs. To be paid, you must meet the requirements set forth at title 5 of the United States Code (5 U.S.C.), sections 7701(g), 1221(g), or 1214(g). The regulations may be found at 5 C.F.R. §§ 1201.201, 1201.202, and 1201.203. If you believe you meet these requirements, you must file a motion for attorney fees and costs WITHIN 60 CALENDAR DAYS OF THE DATE OF THIS DECISION. You must file your motion for attorney fees and costs with the office that issued the initial decision on your appeal. 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 meet20 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, reasonable 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 RIGHTS15 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 15 Since the issuance of the initial decision in this matter, the Board may have updated the notice of review rights included in final decisions. As indicated in the notice, the Board cannot advise which option is most appropriate in any matter.21 forum with which to file. 5 U.S.C. § 7703(b). Although we offer the following summary of available appeal rights, the Merit Systems Protection Board does not provide legal advice on which option is most appropriate for your situation and the rights described below do not represent a statement of how courts will rule regarding which cases fall within their jurisdiction. If you wish to seek review of this final decision, you should immediately review the law applicable to your claims and carefully follow all filing time limits and requirements. Failure to file within the applicable time limit may result in the dismissal of your case by your chosen forum. Please read carefully each of the three main possible choices of review below to decide which one applies to your particular case. If you have questions about whether a particular forum is the appropriate one to review your case, you should contact that forum for more information. (1) Judicial review in general . As a general rule, an appellant seeking judicial review of a final Board order must file a petition for review with the U.S. Court of Appeals for the Federal Circuit, which must be received by the court within 60 calendar days of the date of issuance of this decision. 5 U.S.C. § 7703(b)(1)(A). If you submit a petition for review to the U.S. Court of Appeals for the Federal Circuit, you must submit your petition to the court at the following address: U.S. Court of Appeals for the Federal Circuit 717 Madison Place, N.W. Washington, D.C. 20439 Additional information about the U.S. Court of Appeals for the Federal Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.22 If you are interested in securing pro bono representation for an appeal to the U.S. Court of Appeals for the Federal Circuit, you may visit our website at http://www.mspb.gov/probono for information regarding pro bono representation for Merit Systems Protection Board appellants before the Federal Circuit. The Board neither endorses the services provided by any attorney nor warrants that any attorney will accept representation in a given case. (2) Judicial or EEOC review of cases involving a claim of discrimination . This option applies to you only if you have claimed that you were affected by an action that is appealable to the Board and that such action was based, in whole or in part, on unlawful discrimination. If so, you may obtain judicial review of this decision —including a disposition of your discrimination claims —by filing a civil action with an appropriate U.S. district court ( not the U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems Protection Board , 582 U.S. 420 (2017). If you have a representative in this case, and your representative receives this decision before you do, then you must file with the district court no later than 30 calendar days after your representative receives this decision. If the action involves a claim of discrimination based on race, color, religion, sex, national origin, or a disabling condition, you may be entitled to representation by a court-appointed lawyer and to waiver of any requirement of prepayment of fees, costs, or other security. See 42 U.S.C. § 2000e-5(f) and 29 U.S.C. § 794a. Contact information for U.S. district courts can be found at their respective websites, which can be accessed through the link below: http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx . Alternatively, you may request review by the Equal Employment Opportunity Commission (EEOC) of your discrimination claims only, excluding all other issues . 5 U.S.C. § 7702(b)(1). You must file any such request with the23 EEOC’s Office of Federal Operations within 30 calendar days after you receive this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case, and your representative receives this decision before you do, then you must file with the EEOC no later than 30 calendar days after your representative receives this decision. If you submit a request for review to the EEOC by regular U.S. mail, the address of the EEOC is: Office of Federal Operations Equal Employment Opportunity Commission P.O. Box 77960 Washington, D.C. 20013 If you submit a request for review to the EEOC via commercial delivery or by a method requiring a signature, it must be addressed to: Office of Federal Operations Equal Employment Opportunity Commission 131 M Street, N.E. Suite 5SW12G Washington, D.C. 20507 (3) Judicial review pursuant to the Whistleblower Protection Enhancement Act of 2012 . This option applies to you only if you have raised claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D). If so, and your judicial petition for review “raises no challenge to the Board’s disposition of allegations of a prohibited personnel practice described in section 2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i), (B), (C), or (D),” then you may file a petition for judicial review either with the U.S. Court of Appeals for the Federal Circuit or any court of appeals of competent jurisdiction.16 The court of appeals must receive your petition for 16 The original statutory provision that provided for judicial review of certain whistleblower claims by any court of appeals of competent jurisdiction expired on December 27, 2017. The All Circuit Review Act, signed into law by the President on July 7, 2018, permanently allows appellants to file petitions for judicial review of24 review within 60 days of the date of issuance of this decision. 5 U.S.C. § 7703(b)(1)(B). If you submit a petition for judicial review to the U.S. Court of Appeals for the Federal Circuit, you must submit your petition to the court at the following address: U.S. Court of Appeals for the Federal Circuit 717 Madison Place, N.W. Washington, D.C. 20439 Additional information about the U.S. Court of Appeals for the Federal Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11. If you are interested in securing pro bono representation for an appeal to the U.S. Court of Appeals for the Federal Circuit, you may visit our website at http://www.mspb.gov/probono for information regarding pro bono representation for Merit Systems Protection Board appellants before the 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. 25 Contact information for the courts of appeals can be found at their respective websites, which can be accessed through the link below: http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx . FOR THE BOARD: ______________________________ Gina K. Grippando Clerk of the Board Washington, D.C.26 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).27 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 504-255-4630.28	Hartless_Vickie_L_DC-1221-22-0613-W-1_Final_Order.pdf	2025-02-26	VICKIE L HARTLESS v. DEPARTMENT OF HOMELAND SECURITY, MSPB Docket No. DC-1221-22-0613-W-1, February 26, 2025	DC-1221-22-0613-W-1	NP
95	https://www.mspb.gov/decisions/nonprecedential/Panzardi_AlbertoDE-0752-22-0299-C-1_Final_Order.pdf	UNITED STATES OF AMERICA MERIT SYSTEMS PROTECTION BOARD ALBERTO PANZARDI, Appellant, v. UNITED STATES POSTAL SERVICE, Agency.DOCKET NUMBER DE-0752-22-0299-C-1 DATE: February 26, 2025 THIS FINAL ORDER IS NONPRECEDENTIAL1 James F. Killackey III , Acushnet, Massachusetts, for the appellant. Albert Lum , Brooklyn, New York, for the appellant. Michael Tita , Esquire, St. Louis, Missouri, for the agency. BEFORE Cathy A. Harris, Chairman Henry J. Kerner, Vice Chairman Raymond A. Limon, Member FINAL ORDER The appellant has filed a petition for review of the initial decision, which denied his petition for enforcement of a settlement agreement resolving his 1 A nonprecedential order is one that the Board has determined does not add significantly to the body of MSPB case law. Parties may cite nonprecedential orders, but such orders have no precedential value; the Board and administrative judges are not required to follow or distinguish them in any future decisions. In contrast, a precedential decision issued as an Opinion and Order has been identified by the Board as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c). removal appeal. On petition for review, the appellant reargues that the agency did not fully rescind the removal decision letter, as required by the agreement, and that the administrative judge erred in finding it was undisputed that the letter had been rescinded.2 Generally, we grant petitions such as this one only in the following circumstances: the initial decision contains erroneous findings of material fact; the initial decision is based on an erroneous interpretation of statute or regulation or the erroneous application of the law to the facts of the case; the administrative judge’s rulings during either the course of the appeal or the initial decision were not consistent with required procedures or involved an abuse of discretion, and the resulting error affected the outcome of the case; or new and material evidence or legal argument is available that, despite the petitioner’s due diligence, was not available when the record closed. Title 5 of the Code of Federal Regulations, section 1201.115 (5 C.F.R. § 1201.115). After fully considering the filings in this appeal, we conclude that the petitioner has not established any basis under section 1201.115 for granting the petition for review. Therefore, we DENY the petition for review and AFFIRM the initial decision, which is now the Board’s final decision. 5 C.F.R. § 1201.113(b). 2 The essence of the appellant’s argument that the removal was not rescinded is that, based on the rescission of the removal, he should have been continued in an administrative leave status until the date of the settlement agreement. Petition for Review File, Tab 1 at 5-7; Panzardi v. U.S. Postal Service , MSPB Docket No. DE-0752-22-0299-C-1, Compliance File, Tab 4 at 4-6, Tab 9 at 5-6. However, the Board has held that when, as here, a settlement agreement does not expressly provide that an appellant is to receive pay and benefits effective upon cancellation of a personnel action, the Board will not impose such a term and entitlement to those pay and/or benefits is effectively removed from the jurisdiction of the Board. Kelley v. Department of the Air Force , 50 M.S.P.R. 635, 642-43 (1991); see Wasserman v. U.S. Postal Service, 50 M.S.P.R. 643, 646 (1991).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	Panzardi_AlbertoDE-0752-22-0299-C-1_Final_Order.pdf	2025-02-26	ALBERTO PANZARDI v. UNITED STATES POSTAL SERVICE, MSPB Docket No. DE-0752-22-0299-C-1, February 26, 2025	DE-0752-22-0299-C-1	NP
96	https://www.mspb.gov/decisions/nonprecedential/Alston_Lynette_L_PH-315H-24-0192-I-1_Final_Order.pdf	UNITED STATES OF AMERICA MERIT SYSTEMS PROTECTION BOARD LYNETTE LEYETTE ALSTON, Appellant, v. SOCIAL SECURITY ADMINISTRATION, Agency.DOCKET NUMBER PH-315H-24-0192-I-1 DATE: February 26, 2025 THIS FINAL ORDER IS NONPRECEDENTIAL1 Lynette Leyette Alston , Pikesville, Maryland, pro se. Peter Colonna Romano , Esquire, Philadelphia, Pennsylvania, 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 renews her arguments concerning the merits of 1 A nonprecedential order is one that the Board has determined does not add significantly to the body of MSPB case law. Parties may cite nonprecedential orders, but such orders have no precedential value; the Board and administrative judges are not required to follow or distinguish them in any future decisions. In contrast, a precedential decision issued as an Opinion and Order has been identified by the Board as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c). the probationary termination. Generally, we grant petitions such as this one only in the following circumstances: the initial decision contains erroneous findings of material fact; the initial decision is based on an erroneous interpretation of statute or regulation or the erroneous application of the law to the facts of the case; the administrative judge’s rulings during either the course of the appeal or the initial decision were not consistent with required procedures or involved an abuse of discretion, and the resulting error affected the outcome of the case; or new and material evidence or legal argument is available that, despite the petitioner’s due diligence, was not available when the record closed. Title 5 of the Code of Federal Regulations, section 1201.115 (5 C.F.R. § 1201.115). After fully considering the filings in this appeal, we conclude that the petitioner has not established any basis under section 1201.115 for granting the petition for review. Therefore, we DENY the petition for review and AFFIRM the initial decision, which is now the Board’s final decision. 5 C.F.R. § 1201.113(b). NOTICE OF APPEAL RIGHTS2 You may obtain review of this final decision. 5 U.S.C. § 7703(a)(1). By statute, the nature of your claims determines the time limit for seeking such review and the appropriate forum with which to file. 5 U.S.C. § 7703(b). Although we offer the following summary of available appeal rights, the Merit Systems Protection Board does not provide legal advice on which option is most appropriate for your situation and the rights described below do not represent a statement of how courts will rule regarding which cases fall within their jurisdiction. If you wish to seek review of this final decision, you should immediately review the law applicable to your claims and carefully follow all filing 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	Alston_Lynette_L_PH-315H-24-0192-I-1_Final_Order.pdf	2025-02-26	LYNETTE LEYETTE ALSTON v. SOCIAL SECURITY ADMINISTRATION, MSPB Docket No. PH-315H-24-0192-I-1, February 26, 2025	PH-315H-24-0192-I-1	NP
97	https://www.mspb.gov/decisions/nonprecedential/Owens_Timmie_P_AT-0752-23-0188-I-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-0752-23-0188-I-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 sustained his removal. On petition for review, the appellant disagrees with the administrative judge’s determination that the agency proved two of its charges and argues that the decision is based on bias, prejudice, and hearsay. He reasserts that his removal was in retaliation for his protected whistleblower activity and prior 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). 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 petition for 3 The original statutory provision that provided for judicial review of certain whistleblower claims by any court of appeals of competent jurisdiction expired on December 27, 2017. The All Circuit Review Act, signed into law by the President on July 7, 2018, permanently allows appellants to file petitions for judicial review of MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals for the Federal Circuit or any other circuit court of appeals of competent jurisdiction. The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115-195, 132 Stat. 1510.5 review within 60 days of the date of issuance of this decision. 5 U.S.C. § 7703(b)(1)(B). If you submit a petition for judicial review to the U.S. Court of Appeals for the Federal Circuit, you must submit your petition to the court at the following address: U.S. Court of Appeals for the Federal Circuit 717 Madison Place, N.W. Washington, D.C. 20439 Additional information about the U.S. Court of Appeals for the Federal Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11. If you are interested in securing pro bono representation for an appeal to the U.S. Court of Appeals for the Federal Circuit, you may visit our website at http://www.mspb.gov/probono for information regarding pro bono representation for Merit Systems Protection Board appellants before the Federal Circuit. The Board neither endorses the services provided by any attorney nor warrants that any attorney will accept representation in a given case. Contact information for the courts of appeals can be found at their respective websites, which can be accessed through the link below: http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx . FOR THE BOARD: ______________________________ Gina K. Grippando Clerk of the Board Washington, D.C.6	Owens_Timmie_P_AT-0752-23-0188-I-1_Final_Order.pdf	2025-02-26	TIMMIE PERNELL OWENS v. DEPARTMENT OF THE ARMY, MSPB Docket No. AT-0752-23-0188-I-1, February 26, 2025	AT-0752-23-0188-I-1	NP
98	https://www.mspb.gov/decisions/nonprecedential/Smith_Anthony_Y_PH-3443-24-0163-I-1_Final_Order.pdf	UNITED STATES OF AMERICA MERIT SYSTEMS PROTECTION BOARD ANTHONY YEMOH SMITH, Appellant, v. DEPARTMENT OF THE TREASURY, Agency.DOCKET NUMBER PH-3443-24-0163-I-1 DATE: February 25, 2025 THIS FINAL ORDER IS NONPRECEDENTIAL1 Anthony Yemoh Smith , Dickerson, Maryland, pro se. Byron Smalley , Esquire, and Davina Minnix , Esquire, 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 his negative suitability 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; 1 A nonprecedential order is one that the Board has determined does not add significantly to the body of MSPB case law. Parties may cite nonprecedential orders, but such orders have no precedential value; the Board and administrative judges are not required to follow or distinguish them in any future decisions. In contrast, a precedential decision issued as an Opinion and Order has been identified by the Board as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c). the initial decision is based on an erroneous interpretation of statute or regulation or the erroneous application of the law to the facts of the case; the administrative judge’s rulings during either the course of the appeal or the initial decision were not consistent with required procedures or involved an abuse of discretion, and the resulting error affected the outcome of the case; or new and material evidence or legal argument is available that, despite the petitioner’s due diligence, was not available when the record closed. Title 5 of the Code of Federal Regulations, section 1201.115 (5 C.F.R. § 1201.115). After fully considering the filings in this appeal, we conclude that the petitioner has not established any basis under section 1201.115 for granting the petition for review. Therefore, we DENY the petition for review and AFFIRM the initial decision, which is now the Board’s final decision. 5 C.F.R. § 1201.113(b). Under 5 C.F.R. § 731.501(a), when an agency takes a suitability action against a person, that person may appeal the action to the Board. A suitability action is distinct from a suitability determination, the former constituting a cancellation of eligibility, a removal, a cancellation of reinstatement eligibility, or a debarment, and the latter constituting the underlying decision that a person is suitable or not suitable for employment in a covered position or with a particular agency. 5 C.F.R. §§ 731.101, 731.203(a). A nonselection or cancellation of eligibility for a specific position is not a suitability action, even if it is based on the suitability criteria of 5 C.F.R. § 731.202. 5 C.F.R. § 731.203(b). Only suitability actions are appealable to the Board. Suitability determinations are not. See Kazan v. Department of Justice , 112 M.S.P.R. 390, ¶ 6 (2009); 5 C.F.R. §§ 731.101, 731.203(a)-(b), 731.501(a). In this case, we agree with the administrative judge that the appellant has not made a nonfrivolous allegation that the agency took against him any of the four types of suitability action enumerated in 5 C.F.R. § 731.203(a). Initial Appeal File (IAF), Tab 11, Initial Decision (ID) at 5. Rather, the agency simply declined to select the appellant for the Internal Revenue Agent position2 for which he applied. IAF, Tab 6 at 31-50, 52-54, 56 -57, Tab 7 at 10-16. This nonselection does not constitute a suitability action, even though it was based on suitability criteria and even though the appellant had already received a tentative offer of employment. See 5 C.F.R. § 731.203(b); see also Testart v. Department of the Navy , 42 M.S.P.R. 21, 23 (1989) (finding that the Board lacks jurisdiction over the withdrawal of an offer of appointment prior to entrance on duty). As the administrative judge observed, the record shows that the agency rescinded its offer for the specific position for which the appellant applied because the preemployment check identified issues “that could not be mitigated for this position.” ID at 5; IAF, Tab 7 at 16 (emphasis added). The appellant has not alleged facts that, if proven, could establish that this determination extended to positions other than the instant one. IAF, Tab 6 at 57, Tab 7 at 16; see 5 C.F.R. § 1201.4(s) (defining “nonfrivolous allegation”). Further, as stated by the administrative judge, the appellant has not nonfrivolously alleged that the agency took any broader action regarding his eligibility, such as the cancellation of eligibility, a removal, a cancellation of reinstatement eligibility, or a debarment. ID at 5; see Kazan, 112 M.S.P.R. 390, ¶ 7; 5 C.F.R. § 731.203(a). Therefore, we agree with the administrative judge’s determination that the appellant did not nonfrivolously allege that he was subjected to an appealable suitability action, even though the agency rescinded its tentative job offer after determining the appellant was unsuitable for employment based on the ALERTS screening results. IAF, Tab 6 at 56-57, 66, Tab 7 at 15-16. Moreover, the appellant did not assert the Board has jurisdiction over this appeal under any of the other exceptions noticed to him in the acknowledgment order. IAF, Tab 2 at 4-5. Although the agency tentatively offered the appellant a position, it was dissatisfied with the subsequent results of his preemployment eligibility investigation and exercised its discretion to withdraw the job offer. The appellant’s disagreement with the agency’s decision does not amount to a nonfrivolous allegation of an employment practice. Id. at 2-3. 3 On petition for review, the appellant argues that the personally identifiable information found in the agency’s preemployment ALERTS system constructively debars him from employment with the agency permanently. Petition for Review (PFR) File, Tab 1 at 3-4, Tab 5 at 3-4. However, “constructive” suitability actions are outside the Board’s jurisdiction. Ricci v. Merit Systems Protection Board, 953 F.3d 753, 758-59 (Fed. Cir. 2020). That the appellant’s prior history with the agency may have the effect of precluding him from being hired from other Federal positions within the agency does not establish that it has taken a suitability action against him. See id. at 759. Because we lack jurisdiction in this matter, we cannot reach the appellant’s arguments concerning the procedural aspects and merits of the agency’s suitability determination. See Kazan, 112 M.S.P.R. 390, ¶ 6. The Equal Employment Opportunity Investigative Affidavit the appellant submits for the first time on review is not material to the jurisdictional issue. PFR File, Tab 2 at 4-9; see Russo v. Veterans Administration, 3 M.S.P.R. 345, 349 (1980); 5 C.F.R. § 1201.115(d). Further, the appellant has not addressed why he was unable to submit it before the administrative judge when it predates the close -of-record date. See Avansino v. U.S. Postal Service , 3 M.S.P.R. 211, 214 (1980); 5 C.F.R. § 1201.115(d). On July 8, 2024, the appellant filed a motion for leave to submit an additional pleading concerning evidence of a sworn affidavit from the agency’s selecting officer who rescinded the appellant’s job offer. PFR File, Tab 8. We deny the motion because the appellant has not shown that the additional evidence would be material, i.e., of sufficient weight to warrant a different outcome from that of the initial decision. 5 C.F.R. § 1201.114(a)(5), (k) (2023),2 see Russo, 3 M.S.P.R. at 349. Such evidence goes to the merits of the agency’s suitability determination, which, as we explained, we have no jurisdiction over. Accordingly, we deny the appellant’s motion. 2 The Board amended its regulation, effective October 7, 2024, but there was no change that materially affects the outcome of this appeal.4 NOTICE OF APPEAL RIGHTS3 You may obtain review of this final decision. 5 U.S.C. § 7703(a)(1). By statute, the nature of your claims determines the time limit for seeking such review and the appropriate forum with which to file. 5 U.S.C. § 7703(b). Although we offer the following summary of available appeal rights, the Merit Systems Protection Board does not provide legal advice on which option is most appropriate for your situation and the rights described below do not represent a statement of how courts will rule regarding which cases fall within their jurisdiction. If you wish to seek review of this final decision, you should immediately review the law applicable to your claims and carefully follow all filing time limits and requirements. Failure to file within the applicable time limit may result in the dismissal of your case by your chosen forum. Please read carefully each of the three main possible choices of review below to decide which one applies to your particular case. If you have questions about whether a particular forum is the appropriate one to review your case, you should contact that forum for more information. (1) Judicial review in general . As a general rule, an appellant seeking judicial review of a final Board order must file a petition for review with the U.S. Court of Appeals for the Federal Circuit, which must be received by the court within 60 calendar days of the date of issuance of this decision. 5 U.S.C. § 7703(b)(1)(A). 3 Since the issuance of the initial decision in this matter, the Board may have updated the notice of review rights included in final decisions. As indicated in the notice, the Board cannot advise which option is most appropriate in any matter.5 If you submit a petition for review to the U.S. Court of Appeals for the Federal Circuit, you must submit your petition to the court at the following address: U.S. Court of Appeals for the Federal Circuit 717 Madison Place, N.W. Washington, D.C. 20439 Additional information about the U.S. Court of Appeals for the Federal Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11. If you are interested in securing pro bono representation for an appeal to the U.S. Court of Appeals for the Federal Circuit, you may visit our website at http://www.mspb.gov/probono for information regarding pro bono representation for Merit Systems Protection Board appellants before the Federal Circuit. The Board neither endorses the services provided by any attorney nor warrants that any attorney will accept representation in a given case. (2) Judicial or EEOC review of cases involving a claim of discrimination . This option applies to you only if you have claimed that you were affected by an action that is appealable to the Board and that such action was based, in whole or in part, on unlawful discrimination. If so, you may obtain judicial review of this decision —including a disposition of your discrimination claims —by filing a civil action with an appropriate U.S. district court ( not the U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems Protection Board , 582 U.S. 420 (2017). If you have a representative in this case, and your representative receives this decision before you do, then you must file with the district court no later than 30 calendar days after your representative receives this decision. If the action involves a claim of discrimination based on6 race, color, religion, sex, national origin, or a disabling condition, you may be entitled to representation by a court-appointed lawyer and to waiver of any requirement of prepayment of fees, costs, or other security. See 42 U.S.C. § 2000e-5(f) and 29 U.S.C. § 794a. Contact information for U.S. district courts can be found at their respective websites, which can be accessed through the link below: http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx . Alternatively, you may request review by the Equal Employment Opportunity Commission (EEOC) of your discrimination claims only, excluding all other issues . 5 U.S.C. § 7702(b)(1). You must file any such request with the EEOC’s Office of Federal Operations within 30 calendar days after you receive this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case, and your representative receives this decision before you do, then you must file with the EEOC no later than 30 calendar days after your representative receives this decision. If you submit a request for review to the EEOC by regular U.S. mail, the address of the EEOC is: Office of Federal Operations Equal Employment Opportunity Commission P.O. Box 77960 Washington, D.C. 20013 If you submit a request for review to the EEOC via commercial delivery or by a method requiring a signature, it must be addressed to: Office of Federal Operations Equal Employment Opportunity Commission 131 M Street, N.E. Suite 5SW12G Washington, D.C. 205077 (3) Judicial review pursuant to the Whistleblower Protection Enhancement Act of 2012 . This option applies to you only if you have raised claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D). If so, and your judicial petition for review “raises no challenge to the Board’s disposition of allegations of a prohibited personnel practice described in section 2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i), (B), (C), or (D),” then you may file a petition for judicial review either with the U.S. Court of Appeals for the Federal Circuit or any court of appeals of competent jurisdiction.4 The court of appeals must receive your petition for review within 60 days of the date of issuance of this decision. 5 U.S.C. § 7703(b)(1)(B). If you submit a petition for judicial review to the U.S. Court of Appeals for the Federal Circuit, you must submit your petition to the court at the following address: U.S. Court of Appeals for the Federal Circuit 717 Madison Place, N.W. Washington, D.C. 20439 Additional information about the U.S. Court of Appeals for the Federal Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11. 4 The original statutory provision that provided for judicial review of certain whistleblower claims by any court of appeals of competent jurisdiction expired on December 27, 2017. The All Circuit Review Act, signed into law by the President on July 7, 2018, permanently allows appellants to file petitions for judicial review of MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals for the Federal Circuit or any other circuit court of appeals of competent jurisdiction. The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115-195, 132 Stat. 1510. 8 If you are interested in securing pro bono representation for an appeal to the U.S. Court of Appeals for the Federal Circuit, you may visit our website at http://www.mspb.gov/probono for information regarding pro bono representation for Merit Systems Protection Board appellants before the Federal Circuit. The Board neither endorses the services provided by any attorney nor warrants that any attorney will accept representation in a given case. Contact information for the courts of appeals can be found at their respective websites, which can be accessed through the link below: http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx . FOR THE BOARD: ______________________________ Gina K. Grippando Clerk of the Board Washington, D.C.9	Smith_Anthony_Y_PH-3443-24-0163-I-1_Final_Order.pdf	2025-02-25	ANTHONY YEMOH SMITH v. DEPARTMENT OF THE TREASURY, MSPB Docket No. PH-3443-24-0163-I-1, February 25, 2025	PH-3443-24-0163-I-1	NP
99	https://www.mspb.gov/decisions/nonprecedential/Amesquita_RogelioDA-3443-24-0106-I-1_Final_Order.pdf	UNITED STATES OF AMERICA MERIT SYSTEMS PROTECTION BOARD ROGELIO AMESQUITA, Appellant, v. DEPARTMENT OF VETERANS AFFAIRS, Agency.DOCKET NUMBER DA-3443-24-0106-I-1 DATE: February 25, 2025 THIS FINAL ORDER IS NONPRECEDENTIAL1 Anthony Rogers , Esquire, San Antonio, Texas, for the appellant. Arthur Whitman , Houston, Texas, 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 of an alleged error by the agency in setting his grade and step level for lack of jurisdiction. On petition for review, the appellant reargues 1 A nonprecedential order is one that the Board has determined does not add significantly to the body of MSPB case law. Parties may cite nonprecedential orders, but such orders have no precedential value; the Board and administrative judges are not required to follow or distinguish them in any future decisions. In contrast, a precedential decision issued as an Opinion and 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 under unidentified Office of Personnel Management guidelines he is entitled to adjustment of his current pay to a GS-06, step 5 level , based on a position he held in 2014. Petition for Review (PFR) File, Tab 1 at 4-5. The appellant also argues that the administrative judge failed to consider his claims under the Whistleblower Protection Act. Id. at 5. Generally, we grant petitions such as this one only in the following circumstances: the initial decision contains erroneous findings of material fact; the initial decision is based on an erroneous interpretation of statute or regulation or the erroneous application of the law to the facts of the case; the administrative judge’s rulings during either the course of the appeal or the initial decision were not consistent with required procedures or involved an abuse of discretion, and the resulting error affected the outcome of the case; or new and material evidence or legal argument is available that, despite the petitioner’s due diligence, was not available when the record closed. Title 5 of the Code of Federal Regulations, section 1201.115 (5 C.F.R. § 1201.115). After fully considering the filings in this appeal, we conclude that the petitioner has not established any basis under section 1201.115 for granting the petition for review. Therefore, we DENY the petition for review and AFFIRM the initial decision, which is now the Board’s final decision. 5 C.F.R. § 1201.113(b). On review, the appellant resubmits the Standard Form 50 (SF-50) for his appointment to the Supply Technician position, which is in the record below, as well as an SF-50 reflecting that in June 2014 he received a within-grade step increase to a GS-06, step 5. PFR File, Tab 1 at 8-9; Initial Appeal File (IAF), Tab 6 at 11. We have not considered these documents because the appellant has not shown that they are based on new and material evidence not previously available despite his due diligence. Banks v. Department of the Air Force , 4 M.S.P.R. 268, 271 (1980); see Meier v. Department of the Interior , 3 M.S.P.R. 247, 256 (1980) (stating that evidence submitted on review that was included in the record below and considered by the administrative judge is not new).2 Lastly, the appellant argues that the administrative judge abused his discretion in not allowing him to submit this evidence before issuing the initial decision. PFR File, Tab 1 at 4. We find no merit to this allegation. The record below shows that the administrative judge granted the appellant’s motion to compel the agency to produce his electronic official personnel file (eOPF) containing his SF-50s. IAF, Tab 9. The appellant subsequently filed two motions on the same day, a motion asserting that the agency had not complied with the order compelling production and a motion for sanction, which both contained identical allegations. IAF, Tabs 10, 14. In response, the administrative judge extended the appellant’s deadline to submit his supplemental jurisdictional response and advised the appellant that he could request an additional extension if the agency failed to produce the eOPF before his response deadline. IAF, Tab 13. The appellant did not request another extension or submit his supplemental jurisdictional response. Thus, we find no abuse of discretion on his part. NOTICE OF APPEAL RIGHTS2 You may obtain review of this final decision. 5 U.S.C. § 7703(a)(1). By statute, the nature of your claims determines the time limit for seeking such review and the appropriate forum with which to file. 5 U.S.C. § 7703(b). Although we offer the following summary of available appeal rights, the Merit Systems Protection Board does not provide legal advice on which option is most appropriate for your situation and the rights described below do not represent a statement of how courts will rule regarding which cases fall within their jurisdiction. If you wish to seek review of this final decision, you should immediately review the law applicable to your claims and carefully follow all filing time limits and requirements. Failure to file within the applicable time limit may result in the dismissal of your case by your chosen forum. 2 Since the issuance of the initial decision in this matter, the Board may have updated the notice of review rights included in final decisions. As indicated in the notice, the Board cannot advise which option is most appropriate in any matter.3 Please read carefully each of the three main possible choices of review below to decide which one applies to your particular case. If you have questions about whether a particular forum is the appropriate one to review your case, you should contact that forum for more information. (1) Judicial review in general . As a general rule, an appellant seeking judicial review of a final Board order must file a petition for review with the U.S. Court of Appeals for the Federal Circuit, which must be received by the court within 60 calendar days of the date of issuance of this decision. 5 U.S.C. § 7703(b)(1)(A). If you submit a petition for review to the U.S. Court of Appeals for the Federal Circuit, you must submit your petition to the court at the following address: U.S. Court of Appeals for the Federal Circuit 717 Madison Place, N.W. Washington, D.C. 20439 Additional information about the U.S. Court of Appeals for the Federal Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11. If you are interested in securing pro bono representation for an appeal to the U.S. Court of Appeals for the Federal Circuit, you may visit our website at http://www.mspb.gov/probono for information regarding pro bono representation for Merit Systems Protection Board appellants before the Federal Circuit. The Board neither endorses the services provided by any attorney nor warrants that any attorney will accept representation in a given case. (2) Judicial or EEOC review of cases involving a claim of discrimination . This option applies to you only if you have claimed that you4 were affected by an action that is appealable to the Board and that such action was based, in whole or in part, on unlawful discrimination. If so, you may obtain judicial review of this decision —including a disposition of your discrimination claims —by filing a civil action with an appropriate U.S. district court ( not the U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems Protection Board , 582 U.S. 420 (2017). If you have a representative in this case, and your representative receives this decision before you do, then you must file with the district court no later than 30 calendar days after your representative receives this decision. If the action involves a claim of discrimination based on race, color, religion, sex, national origin, or a disabling condition, you may be entitled to representation by a court-appointed lawyer and to waiver of any requirement of prepayment of fees, costs, or other security. See 42 U.S.C. § 2000e-5(f) and 29 U.S.C. § 794a. Contact information for U.S. district courts can be found at their respective websites, which can be accessed through the link below: http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx . Alternatively, you may request review by the Equal Employment Opportunity Commission (EEOC) of your discrimination claims only, excluding all other issues . 5 U.S.C. § 7702(b)(1). You must file any such request with the EEOC’s Office of Federal Operations within 30 calendar days after you receive this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case, and your representative receives this decision before you do, then you must file with the EEOC no later than 30 calendar days after your representative receives this decision. If you submit a request for review to the EEOC by regular U.S. mail, the address of the EEOC is: 5 Office of Federal Operations Equal Employment Opportunity Commission P.O. Box 77960 Washington, D.C. 20013 If you submit a request for review to the EEOC via commercial delivery or by a method requiring a signature, it must be addressed to: Office of Federal Operations Equal Employment Opportunity Commission 131 M Street, N.E. Suite 5SW12G Washington, D.C. 20507 (3) Judicial review pursuant to the Whistleblower Protection Enhancement Act of 2012 . This option applies to you only if you have raised claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D). If so, and your judicial petition for review “raises no challenge to the Board’s disposition of allegations of a prohibited personnel practice described in section 2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i), (B), (C), or (D),” then you may file a petition for judicial review either with the U.S. Court of Appeals for the Federal Circuit or any court of appeals of competent jurisdiction.3 The court of appeals must receive your petition for review within 60 days of the date of issuance of this decision. 5 U.S.C. § 7703(b)(1)(B). 3 The original statutory provision that provided for judicial review of certain whistleblower claims by any court of appeals of competent jurisdiction expired on December 27, 2017. The All Circuit Review Act, signed into law by the President on July 7, 2018, permanently allows appellants to file petitions for judicial review of MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals for the Federal Circuit or any other circuit court of appeals of competent jurisdiction. The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115-195, 132 Stat. 1510. 6 If you submit a petition for judicial review to the U.S. Court of Appeals for the Federal Circuit, you must submit your petition to the court at the following address: U.S. Court of Appeals for the Federal Circuit 717 Madison Place, N.W. Washington, D.C. 20439 Additional information about the U.S. Court of Appeals for the Federal Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11. If you are interested in securing pro bono representation for an appeal to the U.S. Court of Appeals for the Federal Circuit, you may visit our website at http://www.mspb.gov/probono for information regarding pro bono representation for Merit Systems Protection Board appellants before the Federal Circuit. The Board neither endorses the services provided by any attorney nor warrants that any attorney will accept representation in a given case. Contact information for the courts of appeals can be found at their respective websites, which can be accessed through the link below: http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx . FOR THE BOARD: ______________________________ Gina K. Grippando Clerk of the Board Washington, D.C.7	Amesquita_RogelioDA-3443-24-0106-I-1_Final_Order.pdf	2025-02-25	ROGELIO AMESQUITA v. DEPARTMENT OF VETERANS AFFAIRS, MSPB Docket No. DA-3443-24-0106-I-1, February 25, 2025	DA-3443-24-0106-I-1	NP
100	https://www.mspb.gov/decisions/nonprecedential/Labasz_StephanieDC-315H-24-0324-I-1_Final_Order.pdf	UNITED STATES OF AMERICA MERIT SYSTEMS PROTECTION BOARD STEPHANIE LABASZ, Appellant, v. DEPARTMENT OF HOMELAND SECURITY, Agency.DOCKET NUMBER DC-315H-24-0324-I-1 DATE: February 25, 2025 THIS FINAL ORDER IS NONPRECEDENTIAL1 Stephanie Labasz , Fort Mill, South Carolina, pro se. Kenneth William , Esquire, Atlanta, Georgia, 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 asserts that the agency never made her aware 1 A nonprecedential order is one that the Board has determined does not add significantly to the body of MSPB case law. Parties may cite nonprecedential orders, but such orders have no precedential value; the Board and administrative judges are not required to follow or distinguish them in any future decisions. In contrast, a precedential decision issued as an Opinion and 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 there were performance or conduct issues prior to terminating her employment. Generally, we grant petitions such as this one only in the following circumstances: the initial decision contains erroneous findings of material fact; the initial decision is based on an erroneous interpretation of statute or regulation or the erroneous application of the law to the facts of the case; the administrative judge’s rulings during either the course of the appeal or the initial decision were not consistent with required procedures or involved an abuse of discretion, and the resulting error affected the outcome of the case; or new and material evidence or legal argument is available that, despite the petitioner’s due diligence, was not available when the record closed. Title 5 of the Code of Federal Regulations, section 1201.115 (5 C.F.R. § 1201.115). After fully considering the filings in this appeal, we conclude that 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	Labasz_StephanieDC-315H-24-0324-I-1_Final_Order.pdf	2025-02-25	STEPHANIE LABASZ v. DEPARTMENT OF HOMELAND SECURITY, MSPB Docket No. DC-315H-24-0324-I-1, February 25, 2025	DC-315H-24-0324-I-1	NP
101	https://www.mspb.gov/decisions/nonprecedential/Romero_WilfredoAT-0752-23-0447-I-1_Final_Order.pdf	UNITED STATES OF AMERICA MERIT SYSTEMS PROTECTION BOARD WILFREDO ROMERO, Appellant, v. DEPARTMENT OF VETERANS AFFAIRS, Agency.DOCKET NUMBER AT-0752-23-0447-I-1 DATE: February 25, 2025 THIS FINAL ORDER IS NONPRECEDENTIAL1 Wilfredo Romero , Madisonville, Louisiana, pro se. Yvette Banker , Esquire, and Victoria Eatherton , 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 found that the appellant’s retirement was involuntary and reversed the agency’s action. On petition for review, the agency argues that the Department of Defense (DOD), and not it, is responsible for the error in the appellant’s retirement 1 A nonprecedential order is one that the Board has determined does not add significantly to the body of MSPB case law. Parties may cite nonprecedential orders, but such orders have no precedential value; the Board and administrative judges are not required to follow or distinguish them in any future decisions. In contrast, a precedential decision issued as an Opinion and Order has been identified by the Board as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c). estimate because DOD failed to accurately document the appellant’s service history in his Individual Retirement Record and that the estimate provided to the appellant was accurate at the time it was given.2 Petition for Review (PFR) File, Tab 5 at 9-11. Generally, we grant petitions such as this one only in the following circumstances: the initial decision contains erroneous findings of material fact; the initial decision is based on an erroneous interpretation of statute or regulation or the erroneous application of the law to the facts of the case; the administrative judge’s rulings during either the course of the appeal or the initial decision were not consistent with required procedures or involved an abuse of discretion, and the resulting error affected the outcome of the case; or new and material evidence or legal argument is available that, despite the petitioner’s due diligence, was not available when the record closed. Title 5 of the Code of Federal Regulations, section 1201.115 (5 C.F.R. § 1201.115). After fully considering the filings in this appeal, we conclude that the petitioner has not established any basis under section 1201.115 for granting the petition for review. Therefore, we DENY the petition for review and AFFIRM the initial decision, which is now the Board’s final decision. 5 C.F.R. § 1201.113(b). On review, the agency argues that the full relief ordered by the administrative judge would result in a windfall in the form of years’ worth of backpay and creditable service, when there is no indication that the appellant wished to work during those years. PFR File, Tab 5 at 9. Because the appellant prevailed on the merits, the administrative judge ordered the agency to cancel his removal and retroactively restore him effective the date of the involuntary 2 On review, the agency argues that the administrative judge erred because the Office of Personnel Management (OPM) had not issued a final decision regarding the appellant’s retirement annuity and therefore there was “no conclusive evidence that the Agency’s retirement estimate was inaccurate.” Petition for Review File, Tab 5 at 7-8. OPM issued a final decision on October 15, 2024, finding against the appellant, and an appeal of that decision is pending with a Board administrative judge. Romero v. Office of Personnel Management , MSPB Docket No. AT-0841-25-0129-I-1. Thus, the agency’s argument is misplaced.2 retirement, September 29, 2018. Initial Appeal File, Tab 27, Initial Decision (ID) at 7-8. The administrative judge also ordered interim relief, ID at 8-9, and the agency indicated that it complied with the interim relief order by restoring the appellant as of the date of the initial decision, November 28, 2023. PFR File, Tab 5 at 13-18. Interim relief provisions do not require the agency to grant the appellant back pay or other benefits to make him whole at the interim relief stage of the proceedings. Reid v. Department of the Navy , 118 M.S.P.R. 396, ¶ 6 n.2 (2012). Rather, the agency is only required to give the appellant an interim appointment with pay and benefits effective as of the date of the initial decision. See Dunn v. Department of the Air Force , 96 M.S.P.R. 166, ¶ 8 n.3 (2004), aff’d, 139 F. App’x 280 (Fed. Cir. 2005). However, when the Board finds that an employee has been the victim of an unjustified or unwarranted personnel action, the goal is to return the employee to the status quo ante, i.e., to place him, as nearly as possible, in the circumstances he would have been in had the personnel action never taken place, i.e., status quo ante relief. See Kerr v. National Endowment for the Arts , 726 F.2d 730, 733 (Fed. Cir. 1984); Paula v. Social Security Administration , 119 M.S.P.R. 138, ¶ 18 (2013). Thus, on finding that the appellant’s retirement was involuntary and tantamount to a removal, the administrative judge properly ordered the agency to reinstate him to his former position effective September 29, 2018, and to provide him with the appropriate amount of back pay and benefits. ID at 7-8; see Paula, 119 M.S.P.R. 138, ¶ 18. Upon our issuance of this decision, the initial decision is final, and the agency is responsible for status quo ante relief, dating back to September 29, 2018. See 5 C.F.R. § 1201.113(b). If a dispute arises regarding the agency’s compliance obligations, dating back to September 29, 2018, the appellant may file a petition for enforcement to pursue the matter in a compliance proceeding.3 ORDER We ORDER the agency to cancel the removal and retroactively restore the appellant effective September 29, 2018 . See Kerr, 726 F.2d 730. 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 are attached. The agency is ORDERED to timely provide DFAS or NFC with all4 documentation necessary to process payments and adjustments resulting from the Board’s decision in accordance with the attached lists so that payment can be made within the 60-day period set forth above. NOTICE TO THE APPELLANT REGARDING YOUR RIGHT TO REQUEST ATTORNEY FEES AND COSTS You may be entitled to be paid by the agency for your reasonable attorney fees and costs. To be paid, you must meet the requirements set forth at title 5 of the United States Code (5 U.S.C.), sections 7701(g), 1221(g), or 1214(g). The regulations may be found at 5 C.F.R. §§ 1201.201, 1201.202, and 1201.203. If you believe you meet these requirements, you must file a motion for attorney fees and costs WITHIN 60 CALENDAR DAYS OF THE DATE OF THIS DECISION. You must file your motion for attorney fees and costs with the office that issued the initial decision on your appeal. NOTICE OF APPEAL RIGHTS3 You may obtain review of this final decision. 5 U.S.C. § 7703(a)(1). By statute, the nature of your claims determines the time limit for seeking such review and the appropriate forum with which to file. 5 U.S.C. § 7703(b). Although we offer the following summary of available appeal rights, the Merit Systems Protection Board does not provide legal advice on which option is most appropriate for your situation and the rights described below do not represent a statement of how courts will rule regarding which cases fall within their jurisdiction. If you wish to seek review of this final decision, you should immediately review the law applicable to your claims and carefully follow all filing 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.5 Please read carefully each of the three main possible choices of review below to decide which one applies to your particular case. If you have questions about whether a particular forum is the appropriate one to review your case, you should contact that forum for more information. (1) Judicial review in general . As a general rule, an appellant seeking judicial review of a final Board order must file a petition for review with the U.S. Court of Appeals for the Federal Circuit, which must be received by the court within 60 calendar days of the date of issuance of this decision. 5 U.S.C. § 7703(b)(1)(A). If you submit a petition for review to the U.S. Court of Appeals for the Federal Circuit, you must submit your petition to the court at the following address: U.S. Court of Appeals for the Federal Circuit 717 Madison Place, N.W. Washington, D.C. 20439 Additional information about the U.S. Court of Appeals for the Federal Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11. If you are interested in securing pro bono representation for an appeal to the U.S. Court of Appeals for the Federal Circuit, you may visit our website at http://www.mspb.gov/probono for information regarding pro bono representation for Merit Systems Protection Board appellants before the Federal Circuit. The Board neither endorses the services provided by any attorney nor warrants that any attorney will accept representation in a given case. (2) Judicial or EEOC review of cases involving a claim of discrimination . This option applies to you only if you have claimed that you6 were affected by an action that is appealable to the Board and that such action was based, in whole or in part, on unlawful discrimination. If so, you may obtain judicial review of this decision —including a disposition of your discrimination claims —by filing a civil action with an appropriate U.S. district court ( not the U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems Protection Board , 582 U.S. 420 (2017). If you have a representative in this case, and your representative receives this decision before you do, then you must file with the district court no later than 30 calendar days after your representative receives this decision. If the action involves a claim of discrimination based on race, color, religion, sex, national origin, or a disabling condition, you may be entitled to representation by a court-appointed lawyer and to waiver of any requirement of prepayment of fees, costs, or other security. See 42 U.S.C. § 2000e-5(f) and 29 U.S.C. § 794a. Contact information for U.S. district courts can be found at their respective websites, which can be accessed through the link below: http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx . Alternatively, you may request review by the Equal Employment Opportunity Commission (EEOC) of your discrimination claims only, excluding all other issues . 5 U.S.C. § 7702(b)(1). You must file any such request with the EEOC’s Office of Federal Operations within 30 calendar days after you receive this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case, and your representative receives this decision before you do, then you must file with the EEOC no later than 30 calendar days after your representative receives this decision. 7 If you submit a request for review to the EEOC by regular U.S. mail, the address of the EEOC is: Office of Federal Operations Equal Employment Opportunity Commission P.O. Box 77960 Washington, D.C. 20013 If you submit a request for review to the EEOC via commercial delivery or by a method requiring a signature, it must be addressed to: Office of Federal Operations Equal Employment Opportunity Commission 131 M Street, N.E. Suite 5SW12G Washington, D.C. 20507 (3) Judicial review pursuant to the Whistleblower Protection Enhancement Act of 2012 . This option applies to you only if you have raised claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D). If so, and your judicial petition for review “raises no challenge to the Board’s disposition of allegations of a prohibited personnel practice described in section 2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i), (B), (C), or (D),” then you may file a petition for judicial review either with the U.S. Court of Appeals for the Federal Circuit or any court of appeals of competent jurisdiction.4 The court of appeals must receive your petition for review within 60 days of the date of issuance of this decision. 5 U.S.C. § 7703(b)(1)(B). 4 The original statutory provision that provided for judicial review of certain whistleblower claims by any court of appeals of competent jurisdiction expired on December 27, 2017. The All Circuit Review Act, signed into law by the President on July 7, 2018, permanently allows appellants to file petitions for judicial review of MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals for the Federal Circuit or any other circuit court of appeals of competent jurisdiction. The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115-195, 132 Stat. 1510.8 If you submit a petition for judicial review to the U.S. Court of Appeals for the Federal Circuit, you must submit your petition to the court at the following address: U.S. Court of Appeals for the Federal Circuit 717 Madison Place, N.W. Washington, D.C. 20439 Additional information about the U.S. Court of Appeals for the Federal Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11. If you are interested in securing pro bono representation for an appeal to the U.S. Court of Appeals for the Federal Circuit, you may visit our website at http://www.mspb.gov/probono for information regarding pro bono representation for Merit Systems Protection Board appellants before the Federal Circuit. The Board neither endorses the services provided by any attorney nor warrants that any attorney will accept representation in a given case. Contact information for the courts of appeals can be found at their respective websites, which can be accessed through the link below: http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx . FOR THE BOARD: ______________________________ Gina K. Grippando Clerk of the Board Washington, D.C.9 DEFENSE FINANCE AND ACCOUNTING SERVICE Civilian Pay Operations DFAS BACK PAY CHECKLIST The following documentation is required by DFAS Civilian Pay to compute and pay back pay pursuant to 5 CFR § 550.805. Human resources/local payroll offices should use the following checklist to ensure a request for payment of back pay is complete. Missing documentation may substantially delay the processing of a back pay award. More information may be found at: https://wss.apan.org/public/DFASPayroll/Back%20Pay%20Process/Forms/AllItems.aspx. NOTE: Attorneys’ fees or other non-wage payments (such as damages) are paid by vendor pay, not DFAS Civilian Pay. ☐1) Submit a “SETTLEMENT INQUIRY - Submission” Remedy Ticket. Please identify the specific dates of the back pay period within the ticket comments. Attach the following documentation to the Remedy Ticket, or provide a statement in the ticket comments as to why the documentation is not applicable: ☐2) Settlement agreement, administrative determination, arbitrator award, or order. ☐3) Signed and completed “Employee Statement Relative to Back Pay”. ☐4) All required SF50s (new, corrected, or canceled). *Do not process online SF50s until notified to do so by DFAS Civilian Pay.* ☐5) Certified timecards/corrected timecards. *Do not process online timecards until notified to do so by DFAS Civilian Pay.* ☐6) All relevant benefit election forms (e.g. TSP, FEHB, etc.). ☐7) Outside earnings documentation. Include record of all amounts earned by the employee in a job undertaken during the back pay period to replace federal employment. Documentation includes W-2 or 1099 statements, payroll documents/records, etc. Also, include record of any unemployment earning statements, workers’ compensation, CSRS/FERS retirement annuity payments, refunds of CSRS/FERS employee premiums, or severance pay received by the employee upon separation. Lump Sum Leave Payment Debts: When a separation is later reversed, there is no authority under 5 U.S.C. § 5551 for the reinstated employee to keep the lump sum annual leave payment they may have received. The payroll office must collect the debt from the back pay award. The annual leave will be restored to the employee. Annual leave that exceeds the annual leave ceiling will be restored to a separate leave account pursuant to 5 CFR § 550.805(g).10 NATIONAL FINANCE CENTER CHECKLIST FOR BACK PAY CASES Below is the information/documentation required by National Finance Center to process payments/adjustments agreed on in Back Pay Cases (settlements, restorations) or as ordered by the Merit Systems Protection Board, EEOC, and courts . 1.Initiate and submit AD-343 (Payroll/Action Request) with clear and concise information describing what to do in accordance with decision. 2.The following information must be included on AD-343 for Restoration: a.Employee name and social security number. b.Detailed explanation of request. c.Valid agency accounting. d.Authorized signature (Table 63). e.If interest is to be included. f.Check mailing address. g.Indicate if case is prior to conversion. Computations must be attached. h.Indicate the amount of Severance and Lump Sum Annual Leave Payment to be collected (if applicable). Attachments to AD-343 1.Provide pay entitlement to include Overtime, Night Differential, Shift Premium, Sunday Premium, etc. with number of hours and dates for each entitlement (if applicable). 2.Copies of SF-50s (Personnel Actions) or list of salary adjustments/changes and amounts. 3.Outside earnings documentation statement from agency. 4.If employee received retirement annuity or unemployment, provide amount and address to return monies. 5.Provide forms for FEGLI, FEHBA, or TSP deductions. (if applicable) 6.If employee was unable to work during any or part of the period involved, certification of the type of leave to be charged and number of hours. 7.If employee retires at end of Restoration Period, provide hours of Lump Sum Annual Leave to be paid. NOTE: If prior to conversion, agency must attach Computation Worksheet by Pay Period and required data in 1-7 above. The following information must be included on AD-343 for Settlement Cases: (Lump Sum Payment, Correction to Promotion, Wage Grade Increase, FLSA, etc.) a.Must provide same data as in 2, a-g above. b.Prior to conversion computation must be provided. c.Lump Sum amount of Settlement, and if taxable or non-taxable. If you have any questions or require clarification on the above, please contact NFC’s Payroll/Personnel Operations at 504-255-4630.11	Romero_WilfredoAT-0752-23-0447-I-1_Final_Order.pdf	2025-02-25	WILFREDO ROMERO v. DEPARTMENT OF VETERANS AFFAIRS, MSPB Docket No. AT-0752-23-0447-I-1, February 25, 2025	AT-0752-23-0447-I-1	NP
102	https://www.mspb.gov/decisions/nonprecedential/Trimble_AishaDA-4324-23-0148-I-1_and_ DA-3330-23-0146-I-1_Final_Order.pdf	UNITED STATES OF AMERICA MERIT SYSTEMS PROTECTION BOARD AISHA TRIMBLE, Appellant, v. DEPARTMENT OF THE TREASURY, Agency.DOCKET NUMBERS DA-3330-23-0146-I-1 DA-4324-23-0148-I-1 DATE: February 25, 2025 THIS FINAL ORDER IS NONPRECEDENTIAL1 Aisha Trimble , Dallas, Texas, pro se. Bridgette M. Gibson , Dallas, Texas, for the agency. BEFORE Cathy A. Harris, Chairman Henry J. Kerner, Vice Chairman Raymond A. Limon, Member FINAL ORDER The appellant has filed petitions for review of separate initial decisions that denied her requests for corrective action under the Veterans Employment Opportunities Act of 1998 (VEOA) and the Uniformed Services Employment and Reemployment Rights Act of 1994 (USERRA). For the reasons discussed below, 1 A nonprecedential order is one that the Board has determined does not add significantly to the body of MSPB case law. Parties may cite nonprecedential orders, but such orders have no precedential value; the Board and administrative judges are not required to follow or distinguish them in any future decisions. In contrast, a precedential decision issued as an Opinion and Order has been identified by the Board as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c). we JOIN the appeals, DENY the appellant’s petition for review in the USERRA appeal, and AFFIRM the initial decision finding that the appellant is not entitled to corrective action under that statute. We GRANT the appellant’s petition for review in the VEOA appeal and REVERSE the initial decision denying the appellant’s request for corrective action. The appellant’s request for corrective action under VEOA is GRANTED. BACKGROUND The appellant is an honorably discharged veteran with a service-connected disability who served on active duty in the United States Army from August 1996 through June 2000. Trimble v. Department of the Treasury , MSPB Docket No. DA-3330-23-0146-I-1, Initial Appeal File (0146 IAF), Tab 4 at 7-8, Tab 36 at 8. On June 7, 2022, she applied to job vacancy announcement number 22-11517713L-HCS-0301-12 for a position as a Staff Assistant, GS-0301-12, with the agency’s Internal Revenue Service (IRS) in the Human Capital Data Management and Technology (HCDMT) office in Washington, D.C. 0146 IAF, Tab 35 at 10-19, 36-37. The vacancy was announced under the agency’s merit promotion plan and was open to current Federal competitive service employees and other specified status candidates, including preference eligibles. Id. at 10-11, 15. The appellant’s name, along with 156 other applicants, was referred to the HCDMT Director (the selecting official for the vacancy) on a competitive merit promotion certificate of eligibles. Id. at 20-33. However, on September 21, 2022, the appellant was notified of her nonselection for the position. 0146 IAF, Tab 35 at 34-35. After exhausting her administrative remedies with the Department of Labor, the appellant filed a Board appeal challenging her nonselection. Trimble v. Department of the Treasury , MSPB Docket No. DA-4324-23-0148-I-1 (0148 appeal), Initial Appeal File (0148 IAF), Tab 1; 0146 IAF, Tab 1. The administrative judge docketed the appeal as two separate appeals arising under2 VEOA and USERRA, respectively. 0146 IAF, Tabs 1-2; 0148 IAF, Tabs 1-2. After the appellant withdrew her requests for a hearing, 0148 IAF, Tab 11 at 3; 0146 IAF, Tab 10 at 3, the administrative judge issued initial decisions denying the appellant’s requests for corrective action. 0148 IAF, Tab 45, Initial Decision (0148 ID) at 1, 9; 0146 IAF, Tab 39, Initial Decision (0146 ID) at 1, 11. The appellant filed petitions for review of each initial decision. Trimble v. Department of the Treasury , MSPB Docket No. DA-4324-23-0148-I-1, Petition for Review (0148 PFR) File, Tab 1; Trimble v. Department of the Treasury , MSPB Docket No. DA-3330-23-0146-I-1, Petition for Review (0146 PFR) File, Tab 1. The agency has filed an untimely response in the USERRA appeal and a timely response in the VEOA appeal.2 0148 PFR File, Tabs 4-5; 0146 PFR File, Tab 4. DISCUSSION OF ARGUMENTS ON REVIEW On petition for review in the VEOA appeal, the appellant disputes the administrative judge’s finding that the vacancy announcement was posted under the merit promotion selection process and argues that he erred in denying her 2 The deadline for the agency to file its response to the petition for review in the USERRA appeal was December 28, 2023. 0148 PFR File, Tabs 1-2. On December 30, 2023, the agency requested an extension to file its response, which the Clerk of the Board denied because the deadline to file had already passed. 0148 PFR File, Tabs 3-4. The agency subsequently filed its response on January 2, 2024. 0148 PFR File, Tab 5. The Board will waive the filing deadline for an untimely response to a petition for review only for good cause. Jones v. U.S. Postal Service , 110 M.S.P.R. 674, ¶ 5 n.2 (2009). To establish good cause for an untimely filing, a party must show that she exercised due diligence or ordinary prudence under the particular circumstances of the case. Id. The agency states that its response is untimely because of the attorney’s travel plans from December 14, 2023, through January 3, 2024. 0148 PFR File, Tab 3 at 5-6. She states that, on December 28, 2023, she logged into e-Appeal and learned that the agency’s response was due that same day but that she was unable to submit a timely response because she had plans and then had to rest after a long drive. Id. at 5. We find that the agency has failed to show that it exercised due diligence under the particular circumstances of the case. See Gaff v. Department of Transportation, 45 M.S.P.R. 387, 390 n.2 (1990) (finding that miscalculation of the filing deadline does not constitute good cause). Consequently, we have not considered the agency’s untimely response to the petition for review in the appellant’s USERRA appeal.3 request for corrective action under VEOA. 0146 PFR File, Tab 1 at 6-8, 11. On review in the USERRA appeal, the appellant argues that the administrative judge erred in finding that she failed to prove her USERRA discrimination claim.3 0148 PFR File, Tab 1. The administrative judge properly denied the appellant’s request for corrective action under USERRA in the 0148 appeal. To prevail in her USERRA appeal, the appellant needed to prove by preponderant evidence that her military service was “a substantial or motivating factor” in her nonselection. Sheehan v. Department of the Navy , 240 F.3d 1009, 1013 (Fed. Cir. 2001) ; Burroughs v. Department of the Army , 120 M.S.P.R. 392, ¶¶ 5-6 (2013). An appellant may meet her burden with either direct or circumstantial evidence. Sheehan, 240 F.3d at 1014. Circumstantial evidence is composed of “a variety of factors, including proximity in time between the employee’s military activity and the adverse employment action, inconsistencies between the proffered reason and other actions of the employer, an employer’s expressed hostility towards members protected by the statute together with knowledge of the employee’s military activity, and disparate treatment of certain employees compared to other employees with similar work records or offenses.” Id. If an appellant meets her burden, then the burden shifts to the agency to prove that it would have made the same decision absent the improper motive. Id. An essential element of a discrimination claim is that the contested agency decision was based on an improper motivation. Clavin v. U.S. Postal Service , 99 M.S.P.R. 619, ¶ 6 (2005). The administrative judge concluded that the appellant failed to offer either direct or circumstantial evidence that her military service was a motivating factor in her nonselection. 0148 ID at 8. The appellant reargues on review that the 3 Although adjudicated separately below, we join the two appeals on review because the claims arise from the same nonselection, the underlying facts are the same, and joinder will expediate processing without adversely affecting the interests of the parties. See 5 C.F.R. § 1201.36(b).4 statement on the agency’s merit promotion certificate that the applicants were ranked in a manner that “exclude[d] Veteran Points” demonstrated anti-military animus. 0148 PFR File, Tab 1 at 9; 0148 IAF, Tab 37 at 5-6; 0146 IAF, Tab 35 at 21. “Federal agencies generally use two types of selection to fill vacancies: (1) the open ‘competitive examination’ process and (2) the ‘merit promotion’ process.” Joseph v. Federal Trade Commission , 505 F.3d 1381 (Fed. Cir. 2007). Veterans’ preference candidates who are considered under the merit promotion process are not entitled to have additional points added to their ratings or to be ranked and considered ahead of other candidates. Id. at 1381-82. Here, despite the appellant’s argument otherwise, the agency used the merit promotion selection process. 0146 ID at 10; 0146 IAF, Tab 35 at 6, 9. Because the agency utilized the merit promotion process in filling the vacancy, it was not required to add additional points to the appellant’s rating score, and so the identified statement on the certificate was consistent with the agency’s use of the merit promotion process and was not indicative of anti-military animus. Additionally, although the administrative judge did not specifically reference the proximity in time between the appellant’s military service and her nonselection, we note that the appellant’s miliary service was from 1996 through 2000 and she applied for the position at issue here in June 2022. 0148 IAF, Tab 1 at 5, 10, Tab 38 at 12, 36-37. This 22-year gap does not suggest discriminatory intent. Compare Jones v. Department of Health and Human Services , 718 F. App’x 958, 961 (Fed. Cir. 2017)4 (finding 47 years between an applicant’s military service and his nonselection was too remote to raise an inference of discriminatory motive), with McMillan v. Department of Justice , 812 F.3d 1364, 1373 (Fed. Cir. 2016) (finding that 2 months between military leave and the 4 The Board may rely on unpublished decisions of the U.S. Court of Appeals for the Federal Circuit if it finds the court's reasoning persuasive, as we do here. Special Counsel v. Coffman , 124 M.S.P.R. 130, ¶ 56 n.10 (2017).5 denial of an overseas extension favored a finding of discriminatory motive under the Sheehan framework). As to other evidence, such as any potential inconsistencies between the agency’s proffered reason and its actions, the administrative judge credited the sworn statements of the selecting official and his executive assistant in finding no evidence of an improper motive. 0148 ID at 5-6; see Sheehan, 240 F.3d at 1014. In crediting their statements, the administrative judge considered and applied the relevant factors for assessing the probative weight of hearsay evidence set forth in Borninkhof v. Department of Justice , 5 M.S.P.R. 77, 83-84, 87 (1981), including the consistency of witnesses’ accounts with each other and their own prior statements. 0148 ID at 5-7. In noting the selecting official’s prior military service and preference eligibility, the administrative judge concluded that the provided sworn statements were both credible and consistent with contemporaneous records from the selection process. 0148 ID at 2, 7. He also considered their statements that the candidates’ veterans’ status itself was not considered as either a positive or negative factor during the hiring process. 0148 ID at 5-6; 0148 IAF, Tab 38 at 4-9; 0146 IAF, Tab 35 at 4-9. In contrast, the appellant merely claims on review that the selecting official did not have prior military service. 0148 PFR File, Tab 1 at 9-10. The appellant’s mere disagreement with the administrative judge’s explained findings and credibility determinations provides no basis to disturb the initial decision. See Broughton v. Department of Health and Human Services , 33 M.S.P.R. 357, 359 (1987) (finding no reason to disturb the administrative judge’s findings when she considered the evidence as a whole, drew appropriate inferences, and made reasoned conclusions on issues of credibility). Regarding the last factor, consideration of disparate treatment of certain employees compared to others, the administrative judge found that the appellant “failed to prove the agency treated her more harshly than similarly situated applicants with no prior military service.” 0148 ID at 8; see Sheehan, 240 F.3d6 at 1014. He noted that only 3 out of the 156 applicants who applied for the position received interviews, one of whom was a veteran, and so the vast majority of veterans and non-veterans alike were not interviewed or selected for the position. 0148 ID at 8. We agree and discern no basis to disturb the administrative judge’s findings. Accordingly, the administrative judge properly denied the appellant’s request for corrective action under USERRA, and we affirm the initial decision in the 0148 appeal. The appellant established that she was denied a bona fide opportunity to compete for the vacancy under VEOA in the 0146 appeal and is entitled to corrective action on her claim. The gravamen of the appellant’s argument on review in her VEOA appeal is that the administrative judge erred in his reasoning because she was seeking an initial appointment and that the vacancy was filled by the agency under a merit promotion plan. 0146 PFR File, Tab 1 at 6-8, 11. As relevant here, to prevail on the merits of a VEOA appeal, the appellant must prove by preponderant evidence that the agency denied her the opportunity to compete under merit promotion procedures for a vacant position for which the agency accepted applications from individuals outside its own workforce (i.e., a right-to-compete claim) or that the agency violated her rights under a statute or regulation related to veterans’ preference (i.e., a veterans’ preference claim). Oram v. Department of the Navy , 2022 MSPB 30, ¶ 6 & n.4; Goodin v. Department of the Army , 123 M.S.P.R. 316, ¶ 8 (2016); see Salazar v. Department of Veterans Affairs , 2024 MSPB 11, ¶ 16 (explaining that the Board reviews the merits of a VEOA appeal under a preponderant evidence standard). The administrative judge found that the agency did not violate the appellant’s right to compete because it considered her application under merit promotion procedures. 0146 ID at 6-8. Additionally, because merit promotion procedures do not require that veterans receive certain advantages relating to veterans’ preference, he concluded that the agency did not violate the appellant’s veterans’ preference rights. 0146 ID at 8-10.7 For the reasons that follow, we disagree with the former finding and instead conclude that the appellant established that she was denied a bona fide opportunity to compete for the vacancy at issue in this appeal and she is entitled to corrective action under VEOA based on this claim. Because we conclude that the appellant is entitled to corrective action under VEOA based on her right-to-compete claim, we have not addressed the administrative judge’s findings on the appellant’s veterans’ preference claim. Under 5 U.S.C. §3404(f)(1) and (f)(4), preference-eligible veterans and other identified veterans are guaranteed a “right to apply and an opportunity to compete” for vacancies posted under the merit promotion process that would otherwise only be open to current agency employees. Dean v. Consumer Product Safety Commission , 548 F.3d 1370, 1373 (Fed. Cir. 2008) (quoting Joseph, 505 F.3d at 1383). Additionally, the right to compete under section 3304(f)(1) mandates that covered veterans be allowed to compete on equal footing with other candidates in the merit promotion process. Williams v. Department of Defense , 2022 MSPB 29, ¶ 10; see Miller v. Federal Deposit Insurance Corporation , 818 F.3d 1357, 1360 (Fed. Cir. 2016) (“the opportunity to compete . . . is satisfied by participation in the selection process on the same grounds as other candidates” (citing Joseph, 505 F.3d at 1384)). The Board evaluates such claims by considering whether an appellant was provided with a bona fide opportunity to compete for the vacancy at issue by having her application for the position considered. See Shapley v. Department of Homeland Security, 110 M.S.P.R. 31, ¶ 10 (2008), overruled on other grounds by Oram, 2022 MSPB 30, ¶ 18. However, this right “shall not be construed to confer an entitlement to veterans’ preference that is not otherwise required by law.” 5 U.S.C. § 3304(f)(3); Abell v. Department of the Navy , 92 M.S.P.R. 397, ¶¶ 7-8 (2002) (stating that 5 U.S.C. § 3304(f) permits certain veterans and preference eligibles to apply for competitive service positions, but otherwise they receive no special treatment in the process of filling a position under merit8 promotion procedures), aff’d, 343 F.3d 1378 (Fed. Cir. 2003), and clarified on other grounds by Abrahamsen v. Department of Veterans Affairs , 94 M.S.P.R. 377, ¶¶ 7-8 (2003). As previously noted, it is undisputed that the appellant was eligible to apply to the vacancy announced under the agency’s merit promotion plan based on her status as a preference-eligible veteran with a service-connected disability. 0146 IAF, Tab 35 at 11-12, Tab 36 at 8. After the appellant applied for the vacancy in June 2022, her name was placed on the merit promotion certificate of eligibles list along with 156 other applicants to be referred to the selecting official. IAF, Tab 35 at 20-33. In July 2022, at the request of the HCDMT Director, his Executive Assistant reviewed the certificate and assessed the applications using the limiting criteria of “any applicants in the Washington, DC, Maryland, or Virginia (DMV) area and/or current IRS employees.” Id. at 8, Tab 37 at 7. After the Executive Assistant determined that there were no current IRS employees who lived in the “DMV” area on the list, she provided the Director and Acting Deputy Director with a list narrowed down, as requested, to include “non-IRS employee applicants that lived in the DMV.” 0146 IAF, Tab 35 at 8, Tab 37 at 7. Apparently working from this narrowed list, the Acting Deputy Director recommended that the Director hire a nonpreference-eligible applicant who was currently employed in Washington, D.C., at another Federal agency. 0146 IAF, Tab 35 at 5, 8, Tab 36 at 17-18, 24. Using this same narrowed down list, he also identified four or five alternates, which did not include the appellant. 0146 IAF, Tab 35 at 5, Tab 37 at 9, 13. The agency made a tentative offer to the initial selectee, but she was later precluded from further consideration for the position due to a “documented conduct and/or performance issue.” 0146 IAF, Tab 36 at 15-16, Tab 37 at 15. The selecting official withdrew his selection and continued the selection process using the original Certificate of Eligibles. 0146 IAF, Tab 37 at 12-15. He, his Executive Assistant, and the Acting Deputy Director interviewed three of9 the four alternates previously identified from the narrowed-down list. 0146 IAF, Tab 35 at 5, 8-9. The alternates consisted of two non-veterans and one veteran.5 0146 IAF, Tab 35 at 5, 8-9. The selecting official then selected and filled the position with one of the nonpreference-eligible candidates, who at the time was a GS-12 employee with the Social Security Administration. 0146 IAF, Tab 35 at 5, Tab 37 at 23-26, 46, 52. The appellant was subsequently notified of her nonselection on September 21, 2022. 0146 IAF, Tab 35 at 34-35. In Shapley, as relevant here, the agency issued a vacancy announcement under merit promotion procedures for a Bridge Program Administrator position that was open to status candidates, including VEOA eligibles, and the appellant’s name was placed on the certificate of eligibles for the position. Shapley, 110 M.S.P.R. 31, ¶¶ 8, 10. However, the agency gave priority consideration to two preference-eligible applicants, neither of which was the appellant, and one of the two priority applicants was ultimately selected for the position. Id., ¶ 3. After being notified of his nonselection, the appellant in Shapley filed a Board appeal challenging his nonselection and argued that the agency violated 5 U.S.C. § 3304(f)(1) by filling the position through priority consideration without allowing him the opportunity to compete for the position. Id., ¶ 4. The administrative judge dismissed the appeal for failure to state a claim upon which relief could be granted, but the Board reversed the initial decision finding that the appellant had been denied a bona fide opportunity to compete for the position when the selecting official selected the priority consideration applicant without considering the certificate of eligibles that included the appellant, a VEOA-eligible applicant. Id., ¶¶ 4, 10-12, 17. Because the selecting official had acknowledged that he made his selection of one of the priority consideration candidates without ever receiving or reviewing the appellant’s application packet, the Board concluded that the agency 5 One of the alternates declined an invitation to interview for the position. 0146 IAF, Tab 37 at 67.10 failed to provide the appellant with a bona fide opportunity to compete for the vacancy in violation of 5 U.S.C. § 3304(f)(1) and ordered corrective action. Shapley, 110 M.S.P.R. 31, ¶ 12, 17-21. An analogous set of circumstances have arisen in the instant case. After receiving the certificate of eligibles containing 157 qualified candidates, the selecting official instructed his Executive Assistant to review the certificate and narrow down the list of candidates to “any applicants in the [DMV] area and/or current IRS employees.” 0146 IAF, Tab 35 at 8, Tab 37 at 7. This essentially resulted in the creation of four groups of candidates from the certificate of eligibles: (1) current IRS employees located in the DMV region, (2) current IRS employees, irrespective of location, (3) non-IRS employee applicants located in the DMV region, and (4) all other applicants not located in the DMV area. Group (1) was eliminated immediately when none of the 157 applicants matched the criteria. IAF, Tab 37 at 7. The list of group (2) and group (3) applicants was subsequently forwarded to the selecting official for consideration, but did not include the appellant, an applicant outside the designated geographic area. 0146 IAF, Tab 35 at 38. The selecting official then further narrowed down the list of group (2) and group (3) applicants based on his assessment of their application materials without conducting interviews, resulting in a list comprised of an initial selectee and four or five potential alternates. 0146 IAF, Tab 35 at 5. After the initial selectee was withdrawn from consideration, interviews were conducted with only the remaining alternate candidates drawn from the group (2) and group (3) list, and the selecting official selected one of these alternate candidates based on the interviews and his own selection criteria. Id. However, because none of the candidates in group (4) (which included preference-eligible VEOA applicants, like the appellant, who were outside the DMV) were ever considered for inclusion on the narrowed-down list, like the appellant in Shapley, the preference-eligible applicants in that group were not provided with a bona fide opportunity to compete for the vacancy announcement.11 We acknowledge that, here, the agency submitted a written declaration from the selecting official stating that he received a full certificate of eligibles that listed all qualified candidates as well as a “USAStaffing Systems software link to 157 applications,” whereas in Shapely, the selecting official never received the full certificate of eligibles list based on his selection of a priority candidate. 0146 IAF, Tab 35 at 4-5, 20-23; see Shapley, 110 M.S.P.R. 31, ¶¶ 10-12. We also acknowledge the selecting official’s statement in his declaration that he was “confident that [the appellant’s] application was processed the same as all other candidates, including the selectee.” 0146 IAF, Tab 35 at 4-5. However, neither fact warrants a different result here. Notably absent from the selecting official’s declaration is any assertion that he, himself, actually reviewed the appellant’s application materials. This reading of the statement is bolstered by the declaration from the selecting official’s Executive Assistant confirming that she completed an “independent review” of all 157 applications for the individuals identified on the certificate of eligibles based on the criteria discussed above before forwarding the narrowed-down list to the selecting official for further consideration. Id. at 8. Like all applicants in group (4), because the appellant was not a current IRS employee or applicant located in the DMV region, her application was screened out of consideration before ever reaching the selecting official. Consequently, she was not provided with the opportunity to compete in the merit promotion process “on equal footing with” the subset of group (1), (2), and (3) candidates, as required under 5 U.S.C. § 3304(f)(1). See Williams, 2022 MSPB 29, ¶ 10. As in Shapley, we are mindful of existing Board and U.S. Court of Appeals for the Federal Circuit precedent acknowledging that agencies are granted wide discretion to fill vacancies “by any authorized method” and that preference-eligible applicants are granted only the opportunity to compete for vacancies filled under the merit promotion process and are not entitled to special12 treatment in such a process. See Joseph, 505 F.3d at 1381-82, 1384; Abell, 92 M.S.P.R. 397, ¶¶ 7-8. In doing so, however, agencies must take care to protect the rights afforded preference-eligibles under section 3304(f)(1) by giving bona fide consideration to their applications. See Montgomery v. Department of Health and Human Services , 123 M.S.P.R. 216, ¶ 8 (2016) (noting that an agency’s internal hiring practice may not override the right to compete); Modeste v. Department of Veterans Affairs , 121 M.S.P.R. 254, ¶ 6 (2014) (stating that the agency’s reliance on its master labor agreement as a justification for its actions did not excuse the agency’s violation of the appellant’s right to compete under 5 U.S.C. § 3304(f)(1)); Boctor v. U.S. Postal Service , 110 M.S.P.R. 580, ¶ 9 (2009) (concluding that considering internal agency candidates before external candidates violates an appellant’s right to compete). The agency did not do so here. The manner in which the agency described how it geographically screened applicants, i.e., using the criteria of “any applicants in the [DMV] area and/or current IRS employees,” as well as the acknowledgment by the selecting official’s Executive Assistant that she completed the initial assessment of applications to filter out applicants that were not in the DMV area, coupled with the selecting official’s assertion that he was “confident that [the appellant’s] application was processed the same as all other candidates,” made it difficult to determine whether the agency actually considered the appellant’s application on equal footing with the other applicants in the merit promotion process. 0146 IAF, Tab 35 at 5, 8. However, based on our review of the record, we find that, more likely than not, the agency did not do so. Therefore, the appellant has met her burden of proving that she was not provided with a bona fide opportunity to compete for the vacancy at issue as required, and so she is entitled to corrective action.13 ORDER We ORDER the agency reconstruct the selection process for the Staff Assistant position, giving consideration to the appellant and any other preference eligible or veteran consistent with 5 U.S.C. § 3304(f)(1). 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 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). This is the final decision of the Merit Systems Protection Board in this appeal. Title 5 of the Code of Federal Regulations, section 1201.113(c) (5 C.F.R. § 1201.113(c)). NOTICE 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.), section 3330c(b). The regulations may be found at 5 C.F.R. §§ 1201.202, 1201.203, and 1208.25. 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 file14 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 DAMAGES You may be entitled to be compensated by the agency for any loss of wages or benefits you suffered because of the violation of your veterans’ preference rights. 5 U.S.C. § 3330c(a); 5 C.F.R § 1208.25(a). If you are entitled to such compensation, and the violation is found to be willful, the Board has the authority to order the agency to pay an amount equal to back pay as liquidated damages. 5 U.S.C. § 3330c(a); 5 C.F.R § 1208.25(a). You may file a petition seeking compensation for lost wages and benefits or damages with the office that issued the initial decision on your appeal WITHIN 60 CALENDAR DAYS OF THE DATE OF THIS DECISION. 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.15 Please read carefully each of the three main possible choices of review below to decide which one applies to your particular case. If you have questions about whether a particular forum is the appropriate one to review your case, you should contact that forum for more information. (1) Judicial review in general . As a general rule, an appellant seeking judicial review of a final Board order must file a petition for review with the U.S. Court of Appeals for the Federal Circuit, which must be received by the court within 60 calendar days of the date of issuance of this decision. 5 U.S.C. § 7703(b)(1)(A). If you submit a petition for review to the U.S. Court of Appeals for the Federal Circuit, you must submit your petition to the court at the following address: U.S. Court of Appeals for the Federal Circuit 717 Madison Place, N.W. Washington, D.C. 20439 Additional information about the U.S. Court of Appeals for the Federal Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11. If you are interested in securing pro bono representation for an appeal to the U.S. Court of Appeals for the Federal Circuit, you may visit our website at http://www.mspb.gov/probono for information regarding pro bono representation for Merit Systems Protection Board appellants before the Federal Circuit. The Board neither endorses the services provided by any attorney nor warrants that any attorney will accept representation in a given case. (2) Judicial or EEOC review of cases involving a claim of discrimination . This option applies to you only if you have claimed that you16 were affected by an action that is appealable to the Board and that such action was based, in whole or in part, on unlawful discrimination. If so, you may obtain judicial review of this decision —including a disposition of your discrimination claims —by filing a civil action with an appropriate U.S. district court ( not the U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems Protection Board , 582 U.S. 420 (2017). If you have a representative in this case, and your representative receives this decision before you do, then you must file with the district court no later than 30 calendar days after your representative receives this decision. If the action involves a claim of discrimination based on race, color, religion, sex, national origin, or a disabling condition, you may be entitled to representation by a court-appointed lawyer and to waiver of any requirement of prepayment of fees, costs, or other security. See 42 U.S.C. § 2000e-5(f) and 29 U.S.C. § 794a. Contact information for U.S. district courts can be found at their respective websites, which can be accessed through the link below: http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx . Alternatively, you may request review by the Equal Employment Opportunity Commission (EEOC) of your discrimination claims only, excluding all other issues . 5 U.S.C. § 7702(b)(1). You must file any such request with the EEOC’s Office of Federal Operations within 30 calendar days after you receive this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case, and your representative receives this decision before you do, then you must file with the EEOC no later than 30 calendar days after your representative receives this decision. If you submit a request for review to the EEOC by regular U.S. mail, the address of the EEOC is: 17 Office of Federal Operations Equal Employment Opportunity Commission P.O. Box 77960 Washington, D.C. 20013 If you submit a request for review to the EEOC via commercial delivery or by a method requiring a signature, it must be addressed to: Office of Federal Operations Equal Employment Opportunity Commission 131 M Street, N.E. Suite 5SW12G Washington, D.C. 20507 (3) Judicial review pursuant to the Whistleblower Protection Enhancement Act of 2012 . This option applies to you only if you have raised claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D). If so, and your judicial petition for review “raises no challenge to the Board’s disposition of allegations of a prohibited personnel practice described in section 2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i), (B), (C), or (D),” then you may file a petition for judicial review either with the U.S. Court of Appeals for the Federal Circuit or any court of appeals of competent jurisdiction.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. 18 If you submit a petition for judicial review to the U.S. Court of Appeals for the Federal Circuit, you must submit your petition to the court at the following address: U.S. Court of Appeals for the Federal Circuit 717 Madison Place, N.W. Washington, D.C. 20439 Additional information about the U.S. Court of Appeals for the Federal Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11. If you are interested in securing pro bono representation for an appeal to the U.S. Court of Appeals for the Federal Circuit, you may visit our website at http://www.mspb.gov/probono for information regarding pro bono representation for Merit Systems Protection Board appellants before the Federal Circuit. The Board neither endorses the services provided by any attorney nor warrants that any attorney will accept representation in a given case. Contact information for the courts of appeals can be found at their respective websites, which can be accessed through the link below: http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx . FOR THE BOARD: ______________________________ Gina K. Grippando Clerk of the Board Washington, D.C.19	Trimble_AishaDA-4324-23-0148-I-1_and_ DA-3330-23-0146-I-1_Final_Order.pdf	2025-02-25	AISHA TRIMBLE v. DEPARTMENT OF THE TREASURY, MSPB Docket No. DA-4324-23-0148-I-1, February 25, 2025	DA-3330-23-0146-I-1; DA-4324-23-0148-I-1	NP
103	https://www.mspb.gov/decisions/nonprecedential/McDaniel_Jermaine_J_CB-7121-24-0014-V-1_Final_Order.pdf	UNITED STATES OF AMERICA MERIT SYSTEMS PROTECTION BOARD JERMAINE JIMMIE MCDANIEL, Appellant, v. UNITED STATES POSTAL SERVICE, Agency.DOCKET NUMBER CB-7121-24-0014-V-1 DATE: February 25, 2025 THIS FINAL ORDER IS NONPRECEDENTIAL1 Jermaine Jimmie McDaniel , Detroit, Michigan, pro se. Franklin Ayetin , Esquire, and Roderick Eves , 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. Request for Review (RFR) File, Tab 1 at 2. 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 Mail Processing Clerk with the agency. Id. at 1; RFR File, Tab 19 at 10. On April 5, 2024, an arbitrator issued a decision denying his grievance because the record was void of any written request for a temporary assignment to light duty or other assignment from the appellant during the period in question. RFR File, Tab 10 at 4. On April 20, 2024, the appellant filed a request for review of the arbitrator’s decision.2 RFR File, Tab 1. The agency filed a motion to dismiss the request for lack of jurisdiction. RFR File, Tab 19. ANALYSIS Title 5 U.S.C. § 7121(d) empowers the Board to review arbitration decisions under certain circumstances. Jones v. Department of Energy, 120 M.S.P.R. 480, ¶ 3 (2013), aff’d, 589 F. App’x 972 (Fed. Cir. 2014). The Board has jurisdiction to review an arbitration decision when the subject matter of the grievance is one over which the Board has jurisdiction, the appellant has alleged discrimination under 5 U.S.C. § 2302(b)(1) in connection with the challenged action, and a final decision has been issued. Id.; 5 C.F.R. § 1201.155(a)(1), (c). However, a Postal Service employee, such as the appellant, does not have a right of Board review of an arbitration decision because 5 U.S.C. § 7121 does not apply to the Postal Service. Anderson v. U.S. Postal Service, 109 M.S.P.R. 558, ¶ 4 (2008). The appellant has cited various statutes and regulations but has not pointed to any provision that provides him with the right of Board review of an arbitration decision in this case. Therefore, we dismiss the appellant’s request for review of the arbitration decision for lack of jurisdiction. 2 The Office of the Clerk of the Board contacted the appellant via email to determine whether he intended to file a Board appeal or a request for review of an arbitrator’s decision. RFR File, Tab 2 at n.1. The appellant confirmed via email that he is seeking a review of an arbitration decision. Id. Accordingly, we are adjudicating this matter as such a request.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	McDaniel_Jermaine_J_CB-7121-24-0014-V-1_Final_Order.pdf	2025-02-25	JERMAINE JIMMIE MCDANIEL v. UNITED STATES POSTAL SERVICE, MSPB Docket No. CB-7121-24-0014-V-1, February 25, 2025	CB-7121-24-0014-V-1	NP
104	https://www.mspb.gov/decisions/nonprecedential/Ghent_JeffersonDC-315H-24-0221-I-1_Final_Order.pdf	UNITED STATES OF AMERICA MERIT SYSTEMS PROTECTION BOARD JEFFERSON GHENT, Appellant, v. DEPARTMENT OF THE NAVY, Agency.DOCKET NUMBER DC-315H-24-0221-I-1 DATE: February 25, 2025 THIS FINAL ORDER IS NONPRECEDENTIAL1 Ryan Patrick Aubrey , Esquire, Dallas, Texas, for the appellant. Steven M Myers , Esquire, Washington, D.C., for the agency. Patricia Holt , Esquire, and Sara Rowley , Esquire, Norfolk, 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 his appeal of his probationary termination 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 reiterates his claim that the agency terminated him based on preappointment reasons and indicates that he has new and material evidence.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). For the first time on review, the appellant appears to argue that his previous employment as a contractor, which lasted for more than 2 years, can be tacked onto his Federal civilian service in order to satisfy the 2-year probationary period 2 With his petition for review, the appellant has submitted several documents, including a supplemental declaration under penalty of perjury, SF-50s, his position description, and work emails predating and during his probationary period, which he asserts was not available to him at the time of his initial appeal, as the agency denied him access to its records and his work email. PFR File, Tab 1 at 9, 12-61. The documents do not provide a basis to disturb the initial decision. The SF-50s are in the record below, and, in any event, none of the documents are material to the jurisdictional issue. See 5 C.F.R. § 1201.115(d) (explaining that the Board may grant a petition for review if it contains new and material evidence); see also Meier v. Department of the Interior , 3 M.S.P.R. 247, 256 (1980) (observing that evidence that is already a part of the record is not new). To the extent the appellant is challenging the merits of his termination, any such arguments are also not material to the jurisdictional issue. See LeMaster v. Department of Veterans Affairs , 123 M.S.P.R. 453, ¶ 7 (2016) (stating that, in an appeal of a probationary termination, the merits of the agency’s decision to terminate the probationer are not before the Board).2 or the requirement of 2 years of current continuous service. Petition for Review File, Tab 1 at 8-9, Tab 7 at 6. The Board generally will not consider an argument raised for the first time in a petition for review absent a showing that it is based on new and material evidence not previously available despite the party’s due diligence. Banks v. Department of the Air Force , 4 M.S.P.R. 268, 271 (1980). Nevertheless, we find that this argument does not provide a basis to disturb the initial decision. Employment as a Government contractor is not “Federal civilian service” that is deemed creditable for purposes of establishing jurisdiction. See Johnson v. Merit Systems Protection Board , 495 F. App’x 68, 71 (Fed. Cir. 2012)3 (finding that employment as a contractor cannot be tacked onto Federal service); 5 C.F.R. § 315.802(b) (limiting service that counts toward completing probation to “[p]rior Federal civilian service”); see also Maibaum v. Department of Veterans Affairs , 116 M.S.P.R. 234, ¶ 14 (2011) (explaining that the term “current continuous service” means a period of employment or service, either in the competitive or excepted service, that immediately precedes an adverse action without a break in Federal civilian employment of a workday). There is nothing in the record to indicate that the appellant held a Federal civilian position prior to his most recent appointment. Because the appellant only served approximately 18 months in a Federal civilian position preceding his termination during his probationary period, the administrative judge properly found that the appellant lacks Board appeal rights under chapter 75. Initial Appeal File, Tab 7, Initial Decision at 5. 3 The Board may choose to follow nonprecedential decisions issued by the Federal Circuit which it finds persuasive. Erlendson v. Department of Justice , 121 M.S.P.R. 441, ¶ 6 n.2 (2014).3 NOTICE OF APPEAL RIGHTS4 You may obtain review of this final decision. 5 U.S.C. § 7703(a)(1). By statute, the nature of your claims determines the time limit for seeking such review and the appropriate forum with which to file. 5 U.S.C. § 7703(b). Although we offer the following summary of available appeal rights, the Merit Systems Protection Board does not provide legal advice on which option is most appropriate for your situation and the rights described below do not represent a statement of how courts will rule regarding which cases fall within their jurisdiction. If you wish to seek review of this final decision, you should immediately review the law applicable to your claims and carefully follow all filing time limits and requirements. Failure to file within the applicable time limit may result in the dismissal of your case by your chosen forum. Please read carefully each of the three main possible choices of review below to decide which one applies to your particular case. If you have questions about whether a particular forum is the appropriate one to review your case, you should contact that forum for more information. (1) Judicial review in general . As a general rule, an appellant seeking judicial review of a final Board order must file a petition for review with the U.S. Court of Appeals for the Federal Circuit, which must be received by the court within 60 calendar days of the date of issuance of this decision. 5 U.S.C. § 7703(b)(1)(A). If you submit a petition for review to the U.S. Court of Appeals for the Federal Circuit, you must submit your petition to the court at the following address: 4 Since the issuance of the initial decision in this matter, the Board may have updated the notice of review rights included in final decisions. As indicated in the notice, the Board cannot advise which option is most appropriate in any matter.4 U.S. Court of Appeals for the Federal Circuit 717 Madison Place, N.W. Washington, D.C. 20439 Additional information about the U.S. Court of Appeals for the Federal Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11. If you are interested in securing pro bono representation for an appeal to the U.S. Court of Appeals for the Federal Circuit, you may visit our website at http://www.mspb.gov/probono for information regarding pro bono representation for Merit Systems Protection Board appellants before the Federal Circuit. The Board neither endorses the services provided by any attorney nor warrants that any attorney will accept representation in a given case. (2) Judicial or EEOC review of cases involving a claim of discrimination . This option applies to you only if you have claimed that you were affected by an action that is appealable to the Board and that such action was based, in whole or in part, on unlawful discrimination. If so, you may obtain judicial review of this decision —including a disposition of your discrimination claims —by filing a civil action with an appropriate U.S. district court ( not the U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems Protection Board , 582 U.S. 420 (2017). If you have a representative in this case, and your representative receives this decision before you do, then you must file with the district court no later than 30 calendar days after your representative receives this decision. If the action involves a claim of discrimination based on race, color, religion, sex, national origin, or a disabling condition, you may be entitled to representation by a court-appointed lawyer and to waiver of any5 requirement of prepayment of fees, costs, or other security. See 42 U.S.C. § 2000e-5(f) and 29 U.S.C. § 794a. Contact information for U.S. district courts can be found at their respective websites, which can be accessed through the link below: http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx . Alternatively, you may request review by the Equal Employment Opportunity Commission (EEOC) of your discrimination claims only, excluding all other issues . 5 U.S.C. § 7702(b)(1). You must file any such request with the EEOC’s Office of Federal Operations within 30 calendar days after you receive this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case, and your representative receives this decision before you do, then you must file with the EEOC no later than 30 calendar days after your representative receives this decision. If you submit a request for review to the EEOC by regular U.S. mail, the address of the EEOC is: Office of Federal Operations Equal Employment Opportunity Commission P.O. Box 77960 Washington, D.C. 20013 If you submit a request for review to the EEOC via commercial delivery or by a method requiring a signature, it must be addressed to: Office of Federal Operations Equal Employment Opportunity Commission 131 M Street, N.E. Suite 5SW12G Washington, D.C. 20507 (3) Judicial review pursuant to the Whistleblower Protection Enhancement Act of 2012 . This option applies to you only if you have raised claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D). If so, and your judicial petition for review “raises no challenge to the Board’s6 disposition of allegations of a prohibited personnel practice described in section 2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i), (B), (C), or (D),” then you may file a petition for judicial review either with the U.S. Court of Appeals for the Federal Circuit or any court of appeals of competent jurisdiction.5 The court of appeals must receive your petition for review within 60 days of the date of issuance of this decision. 5 U.S.C. § 7703(b)(1)(B). If you submit a petition for judicial review to the U.S. Court of Appeals for the Federal Circuit, you must submit your petition to the court at the following address: U.S. Court of Appeals for the Federal Circuit 717 Madison Place, N.W. Washington, D.C. 20439 Additional information about the U.S. Court of Appeals for the Federal Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11. If you are interested in securing pro bono representation for an appeal to the U.S. Court of Appeals for the Federal Circuit, you may visit our website at http://www.mspb.gov/probono for information regarding pro bono representation for Merit Systems Protection Board appellants before the Federal Circuit. The Board neither endorses the services provided by any attorney nor warrants that any attorney will accept representation in a given case. 5 The original statutory provision that provided for judicial review of certain whistleblower claims by any court of appeals of competent jurisdiction expired on December 27, 2017. The All Circuit Review Act, signed into law by the President on July 7, 2018, permanently allows appellants to file petitions for judicial review of MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals for the Federal Circuit or any other circuit court of appeals of competent jurisdiction. The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115-195, 132 Stat. 1510. 7 Contact information for the courts of appeals can be found at their respective websites, which can be accessed through the link below: http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx . FOR THE BOARD: ______________________________ Gina K. Grippando Clerk of the Board Washington, D.C.8	Ghent_JeffersonDC-315H-24-0221-I-1_Final_Order.pdf	2025-02-25	JEFFERSON GHENT v. DEPARTMENT OF THE NAVY, MSPB Docket No. DC-315H-24-0221-I-1, February 25, 2025	DC-315H-24-0221-I-1	NP
105	https://www.mspb.gov/decisions/nonprecedential/Alam_sheharyarDC-315H-24-0413-I-1_Final_Order.pdf	UNITED STATES OF AMERICA MERIT SYSTEMS PROTECTION BOARD SHEHARYAR ALAM, Appellant, v. DEPARTMENT OF THE AIR FORCE, Agency.DOCKET NUMBER DC-315H-24-0413-I-1 DATE: February 25, 2025 THIS FINAL ORDER IS NONPRECEDENTIAL1 Sheharyar Alam , Baltimore, Maryland, pro se. Christine Austin , Esquire, Joint Base Andrews, Maryland, 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 probationary termination appeal for lack of jurisdiction. Generally, we grant petitions such as this one only in the following circumstances: the initial decision contains erroneous findings of material fact; the initial decision is 1 A nonprecedential order is one that the Board has determined does not add significantly to the body of MSPB case law. Parties may cite nonprecedential orders, but such orders have no precedential value; the Board and administrative judges are not required to follow or distinguish them in any future decisions. In contrast, a precedential decision issued as an Opinion and Order has been identified by the Board as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c). based on an erroneous interpretation of statute or regulation or the erroneous application of the law to the facts of the case; the administrative judge’s rulings during either the course of the appeal or the initial decision were not consistent with required procedures or involved an abuse of discretion, and the resulting error affected the outcome of the case; or new and material evidence or legal argument is available that, despite the petitioner’s due diligence, was not available when the record closed. Title 5 of the Code of Federal Regulations, section 1201.115 (5 C.F.R. § 1201.115). After fully considering the filings in this appeal, we conclude that the petitioner has not established any basis under section 1201.115 for granting the petition for review. Therefore, we DENY the petition for review. Except as expressly MODIFIED to clarify that the appellant is not an “employee,” as defined under 5 U.S.C. § 7511(a)(1), and thus lacks Board appeal rights under 5 U.S.C. chapter 75, we AFFIRM the initial decision. On petition for review, the appellant does not contest the administrative judge’s determinations that he did not have a statutory right of appeal and did not make a nonfrivolous allegation of jurisdiction over his probationary termination appeal under 5 C.F.R. § 315.806(b). Petition for Review (PFR) File, Tab 1; Initial Appeal File (IAF), Tab 7, Initial Decision at 3. Though we agree with the administrative judge’s latter determination, we find his statement that probationary employees lack a statutory right of Board appeal is imprecise. Id. Therefore, we supplement his analysis herein to clarify this issue. The Board’s jurisdiction is limited to those matters over which it has been given jurisdiction by law, rule, or regulation. Maddox v. Merit Systems Protection Board , 759 F.2d 9, 10 (Fed. Cir. 1985). Under 5 U.S.C. chapter 75, subchapter II, an individual who meets the definition of “employee” at 5 U.S.C. § 7511(a)(1) generally has the right to challenge his removal from Federal service by filing an appeal with the Board. Maibaum v. Department of Veterans Affairs , 116 M.S.P.R. 234, ¶ 9 (2011). To qualify as an “employee,” an individual in a competitive-service position, such as the appellant, must show either that he is2 not serving a probationary period, 5 U.S.C. § 7511(a)(1)(A)(i), or that he has completed 1 year of current, continuous service under an appointment other than a temporary one limited to a year or less, 5 U.S.C. § 7511(a)(1)(A)(ii). An individual may establish that he is a competitive-service “employee” under either of these alternative definitions. See McCormick v. Department of the Air Force , 307 F.3d 1339, 1342-43 (Fed. Cir. 2002). The record shows, and the appellant does not dispute, that, on June 5, 2023, he was appointed to a competitive-service position, subject to a 1-year probationary period, and that the agency terminated him in February 2024. IAF, Tab 1 at 1-2, 6, Tab 5 at 11, 14-17, 31-32, 45-46. He has not alleged any prior Federal civilian service. Thus, the record shows that, at the time of his termination, he had not completed his initial probationary period and had less than 9 months of Federal civilian service. He has not made any allegation to the contrary. Therefore, we find that he does not satisfy either prong of the definition of “employee” set forth in 5 U.S.C. § 7511(a)(1)(A), and we conclude that the Board lacks jurisdiction over this appeal pursuant to 5 U.S.C. chapter 75. See 5 U.S.C. § 7513(d). We modify the initial decision accordingly. The appellant has provided no basis for disturbing the administrative judge’s conclusion that he failed to establish jurisdiction pursuant to 5 C.F.R. § 315.806, and he has not alleged any other basis for Board jurisdiction. PFR File, Tab 1 at 3. Absent jurisdiction, we cannot consider the appellant’s arguments regarding the merits of his termination. 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 2 Since the issuance of the initial decision in this matter, the Board may have updated the notice of review rights included in final decisions. As indicated in the notice, the Board cannot advise which option is most appropriate in any matter.3 your claims determines the time limit for seeking such review and the appropriate forum with which to file. 5 U.S.C. § 7703(b). Although we offer the following summary of available appeal rights, the Merit Systems Protection Board does not provide legal advice on which option is most appropriate for your situation and the rights described below do not represent a statement of how courts will rule regarding which cases fall within their jurisdiction. If you wish to seek review of this final decision, you should immediately review the law applicable to your claims and carefully follow all filing time limits and requirements. Failure to file within the applicable time limit may result in the dismissal of your case by your chosen forum. Please read carefully each of the three main possible choices of review below to decide which one applies to your particular case. If you have questions about whether a particular forum is the appropriate one to review your case, you should contact that forum for more information. (1) Judicial review in general . As a general rule, an appellant seeking judicial review of a final Board order must file a petition for review with the U.S. Court of Appeals for the Federal Circuit, which must be received by the court within 60 calendar days of the date of issuance of this decision. 5 U.S.C. § 7703(b)(1)(A). If you submit a petition for review to the U.S. Court of Appeals for the Federal Circuit, you must submit your petition to the court at the following address: U.S. Court of Appeals for the Federal Circuit 717 Madison Place, N.W. Washington, D.C. 20439 Additional information about the U.S. Court of Appeals for the Federal Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular4 relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11. If you are interested in securing pro bono representation for an appeal to the U.S. Court of Appeals for the Federal Circuit, you may visit our website at http://www.mspb.gov/probono for information regarding pro bono representation for Merit Systems Protection Board appellants before the Federal Circuit. The Board neither endorses the services provided by any attorney nor warrants that any attorney will accept representation in a given case. (2) Judicial or EEOC review of cases involving a claim of discrimination . This option applies to you only if you have claimed that you were affected by an action that is appealable to the Board and that such action was based, in whole or in part, on unlawful discrimination. If so, you may obtain judicial review of this decision —including a disposition of your discrimination claims —by filing a civil action with an appropriate U.S. district court ( not the U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems Protection Board , 582 U.S. 420 (2017). If you have a representative in this case, and your representative receives this decision before you do, then you must file with the district court no later than 30 calendar days after your representative receives this decision. If the action involves a claim of discrimination based on race, color, religion, sex, national origin, or a disabling condition, you may be entitled to representation by a court-appointed lawyer and to waiver of any requirement of prepayment of fees, costs, or other security. See 42 U.S.C. § 2000e-5(f) and 29 U.S.C. § 794a. Contact information for U.S. district courts can be found at their respective websites, which can be accessed through the link below: http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx . 5 Alternatively, you may request review by the Equal Employment Opportunity Commission (EEOC) of your discrimination claims only, excluding all other issues . 5 U.S.C. § 7702(b)(1). You must file any such request with the EEOC’s Office of Federal Operations within 30 calendar days after you receive this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case, and your representative receives this decision before you do, then you must file with the EEOC no later than 30 calendar days after your representative receives this decision. If you submit a request for review to the EEOC by regular U.S. mail, the address of the EEOC is: Office of Federal Operations Equal Employment Opportunity Commission P.O. Box 77960 Washington, D.C. 20013 If you submit a request for review to the EEOC via commercial delivery or by a method requiring a signature, it must be addressed to: Office of Federal Operations Equal Employment Opportunity Commission 131 M Street, N.E. Suite 5SW12G Washington, D.C. 20507 (3) Judicial review pursuant to the Whistleblower Protection Enhancement Act of 2012 . This option applies to you only if you have raised claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D). If so, and your judicial petition for review “raises no challenge to the Board’s disposition of allegations of a prohibited personnel practice described in section 2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i), (B), (C), or (D),” then you may file a petition for judicial review either with the U.S. Court of Appeals for the Federal Circuit or any court6 of appeals of competent jurisdiction.3 The court of appeals must receive your petition for review within 60 days of the date of issuance of this decision. 5 U.S.C. § 7703(b)(1)(B). If you submit a petition for judicial review to the U.S. Court of Appeals for the Federal Circuit, you must submit your petition to the court at the following address: U.S. Court of Appeals for the Federal Circuit 717 Madison Place, N.W. Washington, D.C. 20439 Additional information about the U.S. Court of Appeals for the Federal Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11. If you are interested in securing pro bono representation for an appeal to the U.S. Court of Appeals for the Federal Circuit, you may visit our website at http://www.mspb.gov/probono for information regarding pro bono representation for Merit Systems Protection Board appellants before the Federal Circuit. The Board neither endorses the services provided by any attorney nor warrants that any attorney will accept representation in a given case. 3 The original statutory provision that provided for judicial review of certain whistleblower claims by any court of appeals of competent jurisdiction expired on December 27, 2017. The All Circuit Review Act, signed into law by the President on July 7, 2018, permanently allows appellants to file petitions for judicial review of MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals for the Federal Circuit or any other circuit court of appeals of competent jurisdiction. The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115-195, 132 Stat. 1510. 7 Contact information for the courts of appeals can be found at their respective websites, which can be accessed through the link below: http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx . FOR THE BOARD: ______________________________ Gina K. Grippando Clerk of the Board Washington, D.C.8	Alam_sheharyarDC-315H-24-0413-I-1_Final_Order.pdf	2025-02-25	SHEHARYAR ALAM v. DEPARTMENT OF THE AIR FORCE, MSPB Docket No. DC-315H-24-0413-I-1, February 25, 2025	DC-315H-24-0413-I-1	NP
106	https://www.mspb.gov/decisions/nonprecedential/Scott_SilisaSF-0432-23-0460-I-1_Final_Order.pdf	UNITED STATES OF AMERICA MERIT SYSTEMS PROTECTION BOARD SILISA SCOTT, Appellant, v. DEPARTMENT OF VETERANS AFFAIRS, Agency.DOCKET NUMBER SF-0432-23-0460-I-1 DATE: February 25, 2025 THIS FINAL ORDER IS NONPRECEDENTIAL1 Silisa Scott , Suisun, California, pro se. John Ferriter , Esquire, San Diego, 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 sustained her removal under chapter 43 of title 5 of the U.S. Code for unacceptable performance. On petition for review, the appellant expresses her disagreement with the initial decision regarding productivity results from early 1 A nonprecedential order is one that the Board has determined does not add significantly to the body of MSPB case law. Parties may cite nonprecedential orders, but such orders have no precedential value; the Board and administrative judges are not required to follow or distinguish them in any future decisions. In contrast, a precedential decision issued as an Opinion and Order has been identified by the Board as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c). fiscal year (FY) 2022 and FY 2023, a prior favorable performance rating from a former supervisor as opposed to her current unfavorable testimony, and arguments discussed in a July 28, 2023 letter from the union to the Board. Petition for Review (PFR) File, Tab 7. She also pinpoints certain highlighted sections of an agency handbook to support her claims, including that the agency did not provide her a long enough performance improvement plan, among other things.2 Id. at 12-18. Generally, we grant 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 2 Although the appellant submitted a timely petition for review, she untimely submitted her reply to the agency’s response by 1 day, on June 8, 2024. PFR File, Tabs 2, 5-7. On June 10, 2024, she submitted a timeliness motion explaining that she experienced technical difficulties with e-Appeal while attempting to file the reply on June 7, 2024. PFR File, Tab 8. We find that the appellant has established good cause for her minimal delay, and the agency has not shown prejudice. Thus, we find it is appropriate to consider her reply. PFR File, Tab 7. We have reviewed the documentary evidence that the appellant has provided on review, some of which was included in the record of the initial appeal. PFR File, Tab 7 at 4-10, 11-17; Initial Appeal File, Tab 8 at 27-28, Tab 28 at 139-40, 210, 217-20. The alleged new documentation includes a productivity chart from October through November 2021 and certain entries from the VA Handbook 5013/8. PFR File, Tab 7 at 11-17. These documents predate the close of the record before the administrative judge and do not qualify as new evidence, either because the information contained therein is duplicative of submissions already contained in the record, see Grassell v. Department of Transportation , 40 M.S.P.R. 554, 564 (1989), or because the appellant has not shown that the information was unavailable before the close of the record despite her due diligence, see Avansino v. U.S. Postal Service , 3 M.S.P.R. 211, 214 (1980). We also find that none of the documents are of sufficient weight to warrant an outcome different from that of the initial decision. See Russo v. Veterans Administration , 3 M.S.P.R. 345, 349 (1980).2 considering the filings in this appeal, we conclude that the petitioner has not established any basis under section 1201.115 for granting the petition for review. Therefore, we DENY the petition for review and AFFIRM the initial decision, which is now the Board’s final decision. 5 C.F.R. § 1201.113(b). NOTICE OF APPEAL RIGHTS3 You may obtain review of this final decision. 5 U.S.C. § 7703(a)(1). By statute, the nature of your claims determines the time limit for seeking such review and the appropriate forum with which to file. 5 U.S.C. § 7703(b). Although we offer the following summary of available appeal rights, the Merit Systems Protection Board does not provide legal advice on which option is most appropriate for your situation and the rights described below do not represent a statement of how courts will rule regarding which cases fall within their jurisdiction. If you wish to seek review of this final decision, you should immediately review the law applicable to your claims and carefully follow all filing time limits and requirements. Failure to file within the applicable time limit may result in the dismissal of your case by your chosen forum. Please read carefully each of the three main possible choices of review below to decide which one applies to your particular case. If you have questions about whether a particular forum is the appropriate one to review your case, you should contact that forum for more information. (1) Judicial review in general . As a general rule, an appellant seeking judicial review of a final Board order must file a petition for review with the U.S. Court of Appeals for the Federal Circuit, which must be 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	Scott_SilisaSF-0432-23-0460-I-1_Final_Order.pdf	2025-02-25	SILISA SCOTT v. DEPARTMENT OF VETERANS AFFAIRS, MSPB Docket No. SF-0432-23-0460-I-1, February 25, 2025	SF-0432-23-0460-I-1	NP
107	https://www.mspb.gov/decisions/nonprecedential/Tate_AlonzoAT-0752-22-0518-I-2_Final_Order.pdf	UNITED STATES OF AMERICA MERIT SYSTEMS PROTECTION BOARD ALONZO TATE, Appellant, v. UNITED STATES POSTAL SERVICE, Agency.DOCKET NUMBER AT-0752-22-0518-I-2 DATE: February 25, 2025 THIS FINAL ORDER IS NONPRECEDENTIAL1 Alonzo Tate , Lakeland, Tennessee, pro se. Richard G. Saliba , 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 petition for review of the initial decision, which sustained his removal and denied his affirmative defenses. In his petition for review, the appellant argues, among other things, that the administrative judge improperly relied on a criminal conviction to sustain one of the charges, erred in 1 A nonprecedential order is one that the Board has determined does not add significantly to the body of MSPB case law. Parties may cite nonprecedential orders, but such orders have no precedential value; the Board and administrative judges are not required to follow or distinguish them in any future decisions. In contrast, a precedential decision issued as an Opinion and Order has been identified by the Board as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c). her factual findings and in the application of the factors set forth in Hillen v. Department of the Army , 35 M.S.P.R. 453 (1987), failed to rule on objections and erred in disallowing certain witnesses, and erred in her analysis of his Family and Medical Leave Act claim. Generally, we grant petitions such as this one only in the following circumstances: the initial decision contains erroneous findings of material fact; the initial decision is based on an erroneous interpretation of statute or regulation or the erroneous application of the law to the facts of the case; the administrative judge’s rulings during either the course of the appeal or the initial decision were not consistent with required procedures or involved an abuse of discretion, and the resulting error affected the outcome of the case; or new and material evidence or legal argument is available that, despite the petitioner’s due diligence, was not available when the record closed. Title 5 of the Code of Federal Regulations, section 1201.115 (5 C.F.R. § 1201.115). After fully considering the filings in this appeal, we conclude that the petitioner has not established any basis under section 1201.115 for granting the petition for review. Therefore, we DENY the petition for review and AFFIRM the initial decision, which is now the Board’s final decision. 5 C.F.R. § 1201.113(b). NOTICE OF APPEAL RIGHTS2 You may obtain review of this final decision. 5 U.S.C. § 7703(a)(1). By statute, the nature of your claims determines the time limit for seeking such review and the appropriate forum with which to file. 5 U.S.C. § 7703(b). Although we offer the following summary of available appeal rights, the Merit Systems Protection Board does not provide legal advice on which option is most appropriate for your situation and the rights described below do not represent a statement of how courts will rule regarding which cases fall within their jurisdiction. If you wish to seek review of this final decision, you should 2 Since the issuance of the initial decision in this matter, the Board may have updated the notice of review rights included in final decisions. As indicated in the notice, the Board cannot advise which option is most appropriate in any matter.2 immediately review the law applicable to your claims and carefully follow all filing time limits and requirements. Failure to file within the applicable time limit may result in the dismissal of your case by your chosen forum. Please read carefully each of the three main possible choices of review below to decide which one applies to your particular case. If you have questions about whether a particular forum is the appropriate one to review your case, you should contact that forum for more information. (1) Judicial review in general . As a general rule, an appellant seeking judicial review of a final Board order must file a petition for review with the U.S. Court of Appeals for the Federal Circuit, which must be received by the court within 60 calendar days of the date of issuance of this decision. 5 U.S.C. § 7703(b)(1)(A). If you submit a petition for review to the U.S. Court of Appeals for the Federal Circuit, you must submit your petition to the court at the following address: U.S. Court of Appeals for the Federal Circuit 717 Madison Place, N.W. Washington, D.C. 20439 Additional information about the U.S. Court of Appeals for the Federal Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11. If you are interested in securing pro bono representation for an appeal to the U.S. Court of Appeals for the Federal Circuit, you may visit our website at http://www.mspb.gov/probono for information regarding pro bono representation for Merit Systems Protection Board appellants before the Federal Circuit. The Board neither endorses the services provided by any attorney nor warrants that any attorney will accept representation in a given case. 3 (2) Judicial or EEOC review of cases involving a claim of discrimination . This option applies to you only if you have claimed that you were affected by an action that is appealable to the Board and that such action was based, in whole or in part, on unlawful discrimination. If so, you may obtain judicial review of this decision —including a disposition of your discrimination claims —by filing a civil action with an appropriate U.S. district court ( not the U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems Protection Board , 582 U.S. 420 (2017). If you have a representative in this case, and your representative receives this decision before you do, then you must file with the district court no later than 30 calendar days after your representative receives this decision. If the action involves a claim of discrimination based on race, color, religion, sex, national origin, or a disabling condition, you may be entitled to representation by a court-appointed lawyer and to waiver of any requirement of prepayment of fees, costs, or other security. See 42 U.S.C. § 2000e-5(f) and 29 U.S.C. § 794a. Contact information for U.S. district courts can be found at their respective websites, which can be accessed through the link below: http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx . Alternatively, you may request review by the Equal Employment Opportunity Commission (EEOC) of your discrimination claims only, excluding all other issues . 5 U.S.C. § 7702(b)(1). You must file any such request with the EEOC’s Office of Federal Operations within 30 calendar days after you receive this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case, and your representative receives this decision before you do, then you must file with the EEOC no later than 30 calendar days after your representative receives this decision. 4 If you submit a request for review to the EEOC by regular U.S. mail, the address of the EEOC is: Office of Federal Operations Equal Employment Opportunity Commission P.O. Box 77960 Washington, D.C. 20013 If you submit a request for review to the EEOC via commercial delivery or by a method requiring a signature, it must be addressed to: Office of Federal Operations Equal Employment Opportunity Commission 131 M Street, N.E. Suite 5SW12G Washington, D.C. 20507 (3) Judicial review pursuant to the Whistleblower Protection Enhancement Act of 2012 . This option applies to you only if you have raised claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D). If so, and your judicial petition for review “raises no challenge to the Board’s disposition of allegations of a prohibited personnel practice described in section 2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i), (B), (C), or (D),” then you may file a petition for judicial review either with the U.S. Court of Appeals for the Federal Circuit or any court of appeals of competent jurisdiction.3 The court of appeals must receive your petition for review within 60 days of the date of issuance of this decision. 5 U.S.C. § 7703(b)(1)(B). 3 The original statutory provision that provided for judicial review of certain whistleblower claims by any court of appeals of competent jurisdiction expired on December 27, 2017. The All Circuit Review Act, signed into law by the President on July 7, 2018, permanently allows appellants to file petitions for judicial review of MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals for the Federal Circuit or any other circuit court of appeals of competent jurisdiction. The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115-195, 132 Stat. 1510.5 If you submit a petition for judicial review to the U.S. Court of Appeals for the Federal Circuit, you must submit your petition to the court at the following address: U.S. Court of Appeals for the Federal Circuit 717 Madison Place, N.W. Washington, D.C. 20439 Additional information about the U.S. Court of Appeals for the Federal Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11. If you are interested in securing pro bono representation for an appeal to the U.S. Court of Appeals for the Federal Circuit, you may visit our website at http://www.mspb.gov/probono for information regarding pro bono representation for Merit Systems Protection Board appellants before the Federal Circuit. The Board neither endorses the services provided by any attorney nor warrants that any attorney will accept representation in a given case. Contact information for the courts of appeals can be found at their respective websites, which can be accessed through the link below: http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx . FOR THE BOARD: ______________________________ Gina K. Grippando Clerk of the Board Washington, D.C.6	Tate_AlonzoAT-0752-22-0518-I-2_Final_Order.pdf	2025-02-25	ALONZO TATE v. UNITED STATES POSTAL SERVICE, MSPB Docket No. AT-0752-22-0518-I-2, February 25, 2025	AT-0752-22-0518-I-2	NP
108	https://www.mspb.gov/decisions/nonprecedential/Doe_John_CB-1208-25-0018-U-1_Stay Order.pdf	UNITED STATES OF AMERICA MERIT SYSTEMS PROTECTION BOARD SPECIAL COUNSEL EX REL. JOHN DOE,1 Petitioner, v. DEPARTMENT OF AGRICULTURE, Agency.DOCKET NUMBER CB-1208-25-0018-U-1 DATE: February 25, 2025 THIS STAY ORDER IS NONPRECEDENTIAL2 Hampton Dellinger , Esquire, Washington, D.C., for the petitioner. John Doe , pro se. Beverly Sisk , Washington, D.C., for the agency. BEFORE Raymond A. Limon, 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 the probationary terminations of six former Federal employees (the relators), including the above-captioned former employee/relator, 1 I find it appropriate to grant the relator’s request for anonymity in this matter. Accordingly, the 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). for 45 days while OSC further investigates their complaints.3 For the reasons discussed below, OSC’s request is GRANTED. BACKGROUND On February 21, 2025, OSC filed six stay requests, including the instant request. Special Counsel ex rel. John Doe v. Department of Agriculture , MSPB Docket No. CB-1208-25-0018-U-1, Stay Request File (SRF), Tab 1. In the stay requests, OSC asserts that it has reasonable grounds to believe that the named agencies engaged in prohibited personnel practices under 5 U.S.C. § 2302(b)(12) by terminating the relators in violation of the Federal laws and regulations governing reductions-in-force (RIFs) and probationary terminations. Id. at 5. OSC alleges that, between February 12 and February 14, 2025, the agencies terminated the six relators, all of whom were probationary employees, from Federal service. Id. at 6, 16. OSC asserts that the probationary terminations occurred concurrently with a significant number of other Federal employee terminations. Id. at 6. OSC avers that the language in each of the six termination notices was “quite similar” and did not address any specific issues with the relators’ performance or conduct. Id. In each stay request, OSC summarizes the circumstances surrounding the termination of the six relators. Id. at 7-11. These summaries indicate that none of the six relators had any noted performance deficiencies.4 Id. With its stay request, OSC provides copies of the six termination letters and statements from the relators made under penalty of perjury attesting to the circumstances surrounding each of the terminations. Id. at 26-65. 3 The stay requests pertaining to the five other former employees/relators have been separately docketed. 4 For example, one relator, a 100% disabled veteran, was terminated from his position on the same day that his supervisor had commended him for his “willingness to go above and beyond.” SRF, Tab 1 at 7, 26-29. 2 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. E.g., Special Counsel ex rel. Aran v. Department of Homeland Security , 115 M.S.P.R. 6, ¶ 9 (2010). 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.5 E.g., Special Counsel v. Department of Veterans Affairs, 50 M.S.P.R. 229, 231 (1991). At issue in the instant stay requests 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 5 In contrast, a court issues a temporary restraining order, followed by a preliminary injunction, only in “extraordinary” circumstances and not as a matter of right. See Winter v. Natural Resources Defense Council, Inc. , 555 U.S. 7, 24 (2008) (“A preliminary injunction is an extraordinary remedy never awarded as of right.”); see also Fed. R. Civ. P. 65 (authorizing courts to issue temporary restraining orders and preliminary injunctions). 3 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 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).6 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 12-13. OSC asserts that the identified statute and regulations concern five of the nine merit system principles. Id. at 13 (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, 6 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).4 and employees should be separated who cannot or will not improve their performance to meet required standards. Employees should be— (A) protected against arbitrary action, personal favoritism, or coercion for partisan political purposes. According to OSC, the available evidence indicates that the agencies improperly used the relators’ probationary status to accomplish RIFs without affording them the substantive rights and due process to which they are entitled during the same. SRF, Tab 1 at 13. OSC asserts that official directives, public statements, and the relators’ termination notices signal that the relators were terminated not because they failed to meet expectations during their trial periods, but rather because of a purported lack of work, shortage of funds, and reorganization—reasons that require the use of RIF procedures. Id. at 15-17. Accordingly, OSC avers that there are reasonable grounds to believe that the agencies 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. at 17. Additionally, OSC asserts that two of the relators were in the competitive service; OSC avers that these two relators were therefore entitled to, but did not receive, written notice containing, at a minimum, “the agency’s conclusions as to the inadequacies of [their] performance or conduct.” Id. at 19 (quoting 5 C.F.R. § 315.804(a)). Particularly considering the deference that must be afforded to OSC at this initial stage, see supra p. 3, I find that there are reasonable grounds to believe that each of the six agencies engaged in a prohibited personnel practice under 5 U.S.C. § 2302(b)(12). First, OSC reasonably alleges that each agency took a personnel action under 5 U.S.C. § 2302(a) when it terminated these individuals. SRF, Tab 1 at 4, 12-13; see Cooper v. Department of Veterans Affairs ,5 2023 MSPB 24, ¶ 9 (recognizing that section 2302(a)(2)(A) defines “personnel action” as including, among other things, disciplinary or corrective actions, decisions regarding pay or benefits, and any other significant change in duties, responsibilities, or working conditions); 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). Second, OSC identifies laws and regulations related to RIFs that it believes the agencies violated. SRF, Tab 1 at 12-13. In this regard, OSC asserts that the probationary terminations violated 5 U.S.C. § 3502 and 5 C.F.R. part 351 because the agencies misused the relators’ probationary status to effect de facto RIFs without following the requisite RIF laws and regulations.7 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); see also 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). 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. § 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. SRF, Tab 1 at 13. 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 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).6 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 Feb. 25, 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 Feb. 25, 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). Applying this meaning, and affording OSC the requisite deference at this stage, see supra p. 3, I find it is 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. 8 Because I find that OSC has made a sufficient showing regarding 5 U.S.C. § 2301(b) (6), (8)(A) vis-à-vis 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. 7 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 above-captioned agency terminated the relator during the relator’s probationary period in violation of 5 U.S.C. § 2302(b)(12). ORDER Based on the foregoing, granting OSC’s stay request is appropriate. Accordingly, a 45-day stay of the relator’s probationary termination is GRANTED. The stay shall be in effect from February 25, 2025, through and including April 10, 2025. It is further ORDERED as follows: (1)During the pendency of this stay, the relator shall be placed in the position the relator held prior to the probationary termination; (2)The agency shall not effect any changes in the relator’s duties or responsibilities that are inconsistent with the relator’s salary or grade level, or impose on the relator any requirement which is not required of other employees of comparable position, salary, or grade8 level; (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; (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 March 26, 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 2, 2025. FOR THE BOARD: ______________________________ Gina K. Grippando Clerk of the Board Washington, D.C.9	Doe_John_CB-1208-25-0018-U-1_Stay Order.pdf	2025-02-25	null	CB-1208-25-0018-U-1	NP
109	https://www.mspb.gov/decisions/nonprecedential/Doe_John_CB-1208-25-0019-U-1_Stay Order.pdf	UNITED STATES OF AMERICA MERIT SYSTEMS PROTECTION BOARD SPECIAL COUNSEL EX REL. JOHN DOE,1 Petitioner, v. DEPARTMENT OF VETERANS AFFAIRS, Agency.DOCKET NUMBER CB-1208-25-0019-U-1 DATE: February 25, 2025 THIS STAY ORDER IS NONPRECEDENTIAL2 Hampton Dellinger , Esquire, Washington, D.C., for the petitioner. Daniel Rattray , Esquire, Winston Salem, North Carolina, for the agency. Diane Tardiff , Bedford, Massachusetts, for the agency. John Doe , pro se. BEFORE Raymond A. Limon, Member 1 I find it appropriate to grant the relator’s request for anonymity in this matter. Accordingly, the 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). 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 the probationary terminations of six former Federal employees (the relators), including the above-captioned former employee/relator, for 45 days while OSC further investigates their complaints.3 For the reasons discussed below, OSC’s request is GRANTED. BACKGROUND On February 21, 2025, OSC filed six stay requests, including the instant request. Special Counsel ex rel. John Doe v. Department of Veterans Affairs , MSPB Docket No. CB-1208-25-0019-U-1, Stay Request File (SRF), Tab 1. In the stay requests, OSC asserts that it has reasonable grounds to believe that the named agencies engaged in prohibited personnel practices under 5 U.S.C. § 2302(b)(12) by terminating the relators in violation of the Federal laws and regulations governing reductions-in-force (RIFs) and probationary terminations. Id. at 5. OSC alleges that, between February 12 and February 14, 2025, the agencies terminated the six relators, all of whom were probationary employees, from Federal service. Id. at 6, 16. OSC asserts that the probationary terminations occurred concurrently with a significant number of other Federal employee terminations. Id. at 6. OSC avers that the language in each of the six termination notices was “quite similar” and did not address any specific issues with the relators’ performance or conduct. Id. In each stay request, OSC summarizes the circumstances surrounding the termination of the six relators. Id. at 7-11. These summaries indicate that none of the six relators had any noted performance deficiencies.4 Id. With its stay request, OSC provides copies of the six 3 The stay requests pertaining to the five other former employees/relators have been separately docketed. 4 For example, one relator, a 100% disabled veteran, was terminated from his position on the same day that his supervisor had commended him for his “willingness to go2 termination letters and statements from the relators made under penalty of perjury attesting to the circumstances surrounding each of the terminations. Id. at 26-65. 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. E.g., Special Counsel ex rel. Aran v. Department of Homeland Security , 115 M.S.P.R. 6, ¶ 9 (2010). 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.5 E.g., Special Counsel v. Department of Veterans Affairs, 50 M.S.P.R. 229, 231 (1991). At issue in the instant stay requests 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 above and beyond.” SRF, Tab 1 at 7, 26-29. 5 In contrast, a court issues a temporary restraining order, followed by a preliminary injunction, only in “extraordinary” circumstances and not as a matter of right. See Winter v. Natural Resources Defense Council, Inc. , 555 U.S. 7, 24 (2008) (“A preliminary injunction is an extraordinary remedy never awarded as of right.”); see also Fed. R. Civ. P. 65 (authorizing courts to issue temporary restraining orders and preliminary injunctions). 3 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 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).6 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 12-13. OSC asserts that the identified statute and regulations concern five of the nine merit system principles. Id. at 13 (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. 6 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).4 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— (A) protected against arbitrary action, personal favoritism, or coercion for partisan political purposes. According to OSC, the available evidence indicates that the agencies improperly used the relators’ probationary status to accomplish RIFs without affording them the substantive rights and due process to which they are entitled during the same. SRF, Tab 1 at 13. OSC asserts that official directives, public statements, and the relators’ termination notices signal that the relators were terminated not because they failed to meet expectations during their trial periods, but rather because of a purported lack of work, shortage of funds, and reorganization—reasons that require the use of RIF procedures. Id. at 15-17. Accordingly, OSC avers that there are reasonable grounds to believe that the agencies 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. at 17. Additionally, OSC asserts that two of the relators were in the competitive service; OSC avers that these two relators were therefore entitled to, but did not receive, written notice containing, at a minimum, “the agency’s conclusions as to the inadequacies of [their] performance or conduct.” Id. at 19 (quoting 5 C.F.R. § 315.804(a)). Particularly considering the deference that must be afforded to OSC at this initial stage, see supra p. 3, I find that there are reasonable grounds to believe that each of the six agencies engaged in a prohibited personnel practice under 5 U.S.C. § 2302(b)(12). First, OSC reasonably alleges that each agency took a5 personnel action under 5 U.S.C. § 2302(a) when it terminated these individuals. SRF, Tab 1 at 4, 12-13; see 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, disciplinary or corrective actions, decisions regarding pay or benefits, and any other significant change in duties, responsibilities, or working conditions); 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). Second, OSC identifies laws and regulations related to RIFs that it believes the agencies violated. SRF, Tab 1 at 12-13. In this regard, OSC asserts that the probationary terminations violated 5 U.S.C. § 3502 and 5 C.F.R. part 351 because the agencies misused the relators’ probationary status to effect de facto RIFs without following the requisite RIF laws and regulations.7 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); see also 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). 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. § 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. SRF, Tab 1 at 13. The term “directly concerning” as used in 5 U.S.C. § 2302(b)(12) is undefined by statute or regulation, and the legislative 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).6 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 Feb. 25, 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 Feb. 25, 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). Applying this meaning, and affording OSC the requisite deference at this stage, see supra p. 3, I find it is 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 8 Because I find that OSC has made a sufficient showing regarding 5 U.S.C. § 2301(b) (6), (8)(A) vis-à-vis 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. 7 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 above-captioned agency terminated the relator during the relator’s probationary period in violation of 5 U.S.C. § 2302(b)(12). ORDER Based on the foregoing, granting OSC’s stay request is appropriate. Accordingly, a 45-day stay of the relator’s probationary termination is GRANTED. The stay shall be in effect from February 25, 2025, through and including April 10, 2025. It is further ORDERED as follows: (1)During the pendency of this stay, the relator shall be placed in the position the relator held prior to the probationary termination; (2)The agency shall not effect any changes in the relator’s duties or responsibilities that are inconsistent with the relator’s salary or8 grade level, or impose on the relator any requirement which is not required of other employees of comparable position, salary, or grade level; (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; (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 March 26, 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 2, 2025. FOR THE BOARD: ______________________________ Gina K. Grippando Clerk of the Board Washington, D.C.9	Doe_John_CB-1208-25-0019-U-1_Stay Order.pdf	2025-02-25	null	CB-1208-25-0019-U-1	NP
110	https://www.mspb.gov/decisions/nonprecedential/Doe_John_CB-1208-25-0017-U-1_Stay Order.pdf	UNITED STATES OF AMERICA MERIT SYSTEMS PROTECTION BOARD SPECIAL COUNSEL EX REL. JOHN DOE,1 Petitioner, v. OFFICE OF PERSONNEL MANAGEMENT, Agency.DOCKET NUMBER CB-1208-25-0017-U-1 DATE: February 25, 2025 THIS STAY ORDER IS NONPRECEDENTIAL2 Hampton Dellinger , Esquire, Washington, D.C., for the petitioner. John Doe , pro se. Julie Ferguson Queen , Esquire, and Martin Francis Hockey , Esquire, Washington, D.C., for the agency. BEFORE Raymond A. Limon, Member 1 I find it appropriate to grant the relator’s request for anonymity in this matter. Accordingly, the 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). 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 the probationary terminations of six former Federal employees (the relators), including the above-captioned former employee/relator, for 45 days while OSC further investigates their complaints.3 For the reasons discussed below, OSC’s request is GRANTED. BACKGROUND On February 21, 2025, OSC filed six stay requests, including the instant request. Special Counsel ex rel. John Doe v. Office of Personnel Management , MSPB Docket No. CB-1208-25-0017-U-1, Stay Request File (SRF), Tab 1. In the stay requests, OSC asserts that it has reasonable grounds to believe that the named agencies engaged in prohibited personnel practices under 5 U.S.C. § 2302(b)(12) by terminating the relators in violation of the Federal laws and regulations governing reductions-in-force (RIFs) and probationary terminations. Id. at 5. OSC alleges that, between February 12 and February 14, 2025, the agencies terminated the six relators, all of whom were probationary employees, from Federal service. Id. at 6, 16. OSC asserts that the probationary terminations occurred concurrently with a significant number of other Federal employee terminations. Id. at 6. OSC avers that the language in each of the six termination notices was “quite similar” and did not address any specific issues with the relators’ performance or conduct. Id. In each stay request, OSC summarizes the circumstances surrounding the termination of the six relators. Id. at 7-11. These summaries indicate that none of the six relators had any noted performance deficiencies.4 Id. With its stay request, OSC provides copies of the six 3 The stay requests pertaining to the five other former employees/relators have been separately docketed. 4 For example, one relator, a 100% disabled veteran, was terminated from his position on the same day that his supervisor had commended him for his “willingness to go2 termination letters and statements from the relators made under penalty of perjury attesting to the circumstances surrounding each of the terminations. Id. at 26-65. 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. E.g., Special Counsel ex rel. Aran v. Department of Homeland Security , 115 M.S.P.R. 6, ¶ 9 (2010). 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.5 E.g., Special Counsel v. Department of Veterans Affairs, 50 M.S.P.R. 229, 231 (1991). At issue in the instant stay requests 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 above and beyond.” SRF, Tab 1 at 7, 26-29. 5 In contrast, a court issues a temporary restraining order, followed by a preliminary injunction, only in “extraordinary” circumstances and not as a matter of right. See Winter v. Natural Resources Defense Council, Inc. , 555 U.S. 7, 24 (2008) (“A preliminary injunction is an extraordinary remedy never awarded as of right.”); see also Fed. R. Civ. P. 65 (authorizing courts to issue temporary restraining orders and preliminary injunctions). 3 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 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).6 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 12-13. OSC asserts that the identified statute and regulations concern five of the nine merit system principles. Id. at 13 (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. 6 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).4 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— (A) protected against arbitrary action, personal favoritism, or coercion for partisan political purposes. According to OSC, the available evidence indicates that the agencies improperly used the relators’ probationary status to accomplish RIFs without affording them the substantive rights and due process to which they are entitled during the same. SRF, Tab 1 at 13. OSC asserts that official directives, public statements, and the relators’ termination notices signal that the relators were terminated not because they failed to meet expectations during their trial periods, but rather because of a purported lack of work, shortage of funds, and reorganization—reasons that require the use of RIF procedures. Id. at 15-17. Accordingly, OSC avers that there are reasonable grounds to believe that the agencies 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. at 17. Additionally, OSC asserts that two of the relators were in the competitive service; OSC avers that these two relators were therefore entitled to, but did not receive, written notice containing, at a minimum, “the agency’s conclusions as to the inadequacies of [their] performance or conduct.” Id. at 19 (quoting 5 C.F.R. § 315.804(a)). Particularly considering the deference that must be afforded to OSC at this initial stage, see supra p. 3, I find that there are reasonable grounds to believe that each of the six agencies engaged in a prohibited personnel practice under 5 U.S.C. § 2302(b)(12). First, OSC reasonably alleges that each agency took a5 personnel action under 5 U.S.C. § 2302(a) when it terminated these individuals. SRF, Tab 1 at 4, 12-13; see 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, disciplinary or corrective actions, decisions regarding pay or benefits, and any other significant change in duties, responsibilities, or working conditions); 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). Second, OSC identifies laws and regulations related to RIFs that it believes the agencies violated. SRF, Tab 1 at 12-13. In this regard, OSC asserts that the probationary terminations violated 5 U.S.C. § 3502 and 5 C.F.R. part 351 because the agencies misused the relators’ probationary status to effect de facto RIFs without following the requisite RIF laws and regulations.7 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); see also 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). 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. § 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. SRF, Tab 1 at 13. The term “directly concerning” as used in 5 U.S.C. § 2302(b)(12) is undefined by statute or regulation, and the legislative 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).6 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 Feb. 25, 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 Feb. 25, 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). Applying this meaning, and affording OSC the requisite deference at this stage, see supra p. 3, I find it is 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 8 Because I find that OSC has made a sufficient showing regarding 5 U.S.C. § 2301(b) (6), (8)(A) vis-à-vis 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. 7 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 above-captioned agency terminated the relator during the relator’s probationary period in violation of 5 U.S.C. § 2302(b)(12). ORDER Based on the foregoing, granting OSC’s stay request is appropriate. Accordingly, a 45-day stay of the relator’s probationary termination is GRANTED. The stay shall be in effect from February 25, 2025, through and including April 10, 2025. It is further ORDERED as follows: (1)During the pendency of this stay, the relator shall be placed in the position the relator held prior to the probationary termination; (2)The agency shall not effect any changes in the relator’s duties or responsibilities that are inconsistent with the relator’s salary or8 grade level, or impose on the relator any requirement which is not required of other employees of comparable position, salary, or grade level; (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; (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 March 26, 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 2, 2025. FOR THE BOARD: ______________________________ Gina K. Grippando Clerk of the Board Washington, D.C.9	Doe_John_CB-1208-25-0017-U-1_Stay Order.pdf	2025-02-25	null	CB-1208-25-0017-U-1	NP
111	https://www.mspb.gov/decisions/nonprecedential/Doe_John_CB-1208-25-0016-U-1_Stay Order.pdf	UNITED STATES OF AMERICA MERIT SYSTEMS PROTECTION BOARD SPECIAL COUNSEL EX REL. JOHN DOE,1 Petitioner, v. DEPARTMENT OF HOUSING AND URBAN DEVELOPMENT, Agency.DOCKET NUMBER CB-1208-25-0016-U-1 DATE: February 25, 2025 THIS STAY ORDER IS NONPRECEDENTIAL2 Hampton Dellinger , Esquire, Washington, D.C., for the petitioner. John Doe , pro se. Javes Myung , Esquire, Washington, D.C., for the agency. BEFORE Raymond A. Limon, 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 the probationary terminations of six former Federal 1 I find it appropriate to grant the relator’s request for anonymity in this matter. Accordingly, the 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). employees (the relators), including the above-captioned former employee/relator, for 45 days while OSC further investigates their complaints.3 For the reasons discussed below, OSC’s request is GRANTED. BACKGROUND On February 21, 2025, OSC filed six stay requests, including the instant request. Special Counsel ex rel. John Doe v. Department of Housing and Urban Development, MSPB Docket No. CB-1208-25-0016-U-1, Stay Request File (SRF), Tab 1. In the stay requests, OSC asserts that it has reasonable grounds to believe that the named agencies engaged in prohibited personnel practices under 5 U.S.C. § 2302(b)(12) by terminating the relators in violation of the Federal laws and regulations governing reductions-in-force (RIFs) and probationary terminations. Id. at 5. OSC alleges that, between February 12 and February 14, 2025, the agencies terminated the six relators, all of whom were probationary employees, from Federal service. Id. at 6, 16. OSC asserts that the probationary terminations occurred concurrently with a significant number of other Federal employee terminations. Id. at 6. OSC avers that the language in each of the six termination notices was “quite similar” and did not address any specific issues with the relators’ performance or conduct. Id. In each stay request, OSC summarizes the circumstances surrounding the termination of the six relators. Id. at 7-11. These summaries indicate that none of the six relators had any noted performance deficiencies.4 Id. With its stay request, OSC provides copies of the six termination letters and statements from the relators made under penalty of perjury attesting to the circumstances surrounding each of the terminations. Id. at 26-65. 3 The stay requests pertaining to the five other former employees/relators have been separately docketed. 4 For example, one relator, a 100% disabled veteran, was terminated from his position on the same day that his supervisor had commended him for his “willingness to go above and beyond.” SRF, Tab 1 at 7, 26-29. 2 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. E.g., Special Counsel ex rel. Aran v. Department of Homeland Security , 115 M.S.P.R. 6, ¶ 9 (2010). 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.5 E.g., Special Counsel v. Department of Veterans Affairs, 50 M.S.P.R. 229, 231 (1991). At issue in the instant stay requests 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 5 In contrast, a court issues a temporary restraining order, followed by a preliminary injunction, only in “extraordinary” circumstances and not as a matter of right. See Winter v. Natural Resources Defense Council, Inc. , 555 U.S. 7, 24 (2008) (“A preliminary injunction is an extraordinary remedy never awarded as of right.”); see also Fed. R. Civ. P. 65 (authorizing courts to issue temporary restraining orders and preliminary injunctions). 3 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 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).6 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 12-13. OSC asserts that the identified statute and regulations concern five of the nine merit system principles. Id. at 13 (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, 6 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).4 and employees should be separated who cannot or will not improve their performance to meet required standards. Employees should be— (A) protected against arbitrary action, personal favoritism, or coercion for partisan political purposes. According to OSC, the available evidence indicates that the agencies improperly used the relators’ probationary status to accomplish RIFs without affording them the substantive rights and due process to which they are entitled during the same. SRF, Tab 1 at 13. OSC asserts that official directives, public statements, and the relators’ termination notices signal that the relators were terminated not because they failed to meet expectations during their trial periods, but rather because of a purported lack of work, shortage of funds, and reorganization—reasons that require the use of RIF procedures. Id. at 15-17. Accordingly, OSC avers that there are reasonable grounds to believe that the agencies 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. at 17. Additionally, OSC asserts that two of the relators were in the competitive service; OSC avers that these two relators were therefore entitled to, but did not receive, written notice containing, at a minimum, “the agency’s conclusions as to the inadequacies of [their] performance or conduct.” Id. at 19 (quoting 5 C.F.R. § 315.804(a)). Particularly considering the deference that must be afforded to OSC at this initial stage, see supra p. 3, I find that there are reasonable grounds to believe that each of the six agencies engaged in a prohibited personnel practice under 5 U.S.C. § 2302(b)(12). First, OSC reasonably alleges that each agency took a personnel action under 5 U.S.C. § 2302(a) when it terminated these individuals. SRF, Tab 1 at 4, 12-13; see Cooper v. Department of Veterans Affairs ,5 2023 MSPB 24, ¶ 9 (recognizing that section 2302(a)(2)(A) defines “personnel action” as including, among other things, disciplinary or corrective actions, decisions regarding pay or benefits, and any other significant change in duties, responsibilities, or working conditions); 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). Second, OSC identifies laws and regulations related to RIFs that it believes the agencies violated. SRF, Tab 1 at 12-13. In this regard, OSC asserts that the probationary terminations violated 5 U.S.C. § 3502 and 5 C.F.R. part 351 because the agencies misused the relators’ probationary status to effect de facto RIFs without following the requisite RIF laws and regulations.7 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); see also 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). 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. § 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. SRF, Tab 1 at 13. 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 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).6 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 Feb. 25, 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 Feb. 25, 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). Applying this meaning, and affording OSC the requisite deference at this stage, see supra p. 3, I find it is 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. 8 Because I find that OSC has made a sufficient showing regarding 5 U.S.C. § 2301(b) (6), (8)(A) vis-à-vis 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. 7 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 above-captioned agency terminated the relator during the relator’s probationary period in violation of 5 U.S.C. § 2302(b)(12). ORDER Based on the foregoing, granting OSC’s stay request is appropriate. Accordingly, a 45-day stay of the relator’s probationary termination is GRANTED. The stay shall be in effect from February 25, 2025, through and including April 10, 2025. It is further ORDERED as follows: (1)During the pendency of this stay, the relator shall be placed in the position the relator held prior to the probationary termination; (2)The agency shall not effect any changes in the relator’s duties or responsibilities that are inconsistent with the relator’s salary or grade level, or impose on the relator any requirement which is not required of other employees of comparable position, salary, or grade8 level; (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; (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 March 26, 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 2, 2025. FOR THE BOARD: ______________________________ Gina K. Grippando Clerk of the Board Washington, D.C.9	Doe_John_CB-1208-25-0016-U-1_Stay Order.pdf	2025-02-25	null	CB-1208-25-0016-U-1	NP
112	https://www.mspb.gov/decisions/nonprecedential/Doe_John_CB-1208-25-0014-U-1_Stay Order.pdf	UNITED STATES OF AMERICA MERIT SYSTEMS PROTECTION BOARD SPECIAL COUNSEL EX REL. JOHN DOE,1 Petitioner, v. DEPARTMENT OF ENERGY, Agency.DOCKET NUMBER CB-1208-25-0014-U-1 DATE: February 25, 2025 THIS STAY ORDER IS NONPRECEDENTIAL2 Hampton Dellinger , Esquire, Washington, D.C., for the petitioner. Bruce Fong , Esquire, Oakland, California, for the petitioner. John Doe , pro se. Jenny Knopinski , Esquire, and Jocelyn E. Richards , Esquire, Washington, D.C., for the agency. BEFORE Raymond A. Limon, Member 1 I find it appropriate to grant the relator’s request for anonymity in this matter. Accordingly, the 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). 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 the probationary terminations of six former Federal employees (the relators), including the above-captioned former employee/relator, for 45 days while OSC further investigates their complaints.3 For the reasons discussed below, OSC’s request is GRANTED. BACKGROUND On February 21, 2025, OSC filed six stay requests, including the instant request. Special Counsel ex rel. John Doe v. Department of Energy , MSPB Docket No. CB-1208-25-0014-U-1, Stay Request File (SRF), Tab 1. In the stay requests, OSC asserts that it has reasonable grounds to believe that the named agencies engaged in prohibited personnel practices under 5 U.S.C. § 2302(b)(12) by terminating the relators in violation of the Federal laws and regulations governing reductions-in-force (RIFs) and probationary terminations. Id. at 5. OSC alleges that, between February 12 and February 14, 2025, the agencies terminated the six relators, all of whom were probationary employees, from Federal service. Id. at 6, 16. OSC asserts that the probationary terminations occurred concurrently with a significant number of other Federal employee terminations. Id. at 6. OSC avers that the language in each of the six termination notices was “quite similar” and did not address any specific issues with the relators’ performance or conduct. Id. In each stay request, OSC summarizes the circumstances surrounding the termination of the six relators. Id. at 7-11. These summaries indicate that none of the six relators had any noted performance deficiencies.4 Id. With its stay request, OSC provides copies of the six 3 The stay requests pertaining to the five other former employees/relators have been separately docketed. 4 For example, one relator, a 100% disabled veteran, was terminated from his position on the same day that his supervisor had commended him for his “willingness to go2 termination letters and statements from the relators made under penalty of perjury attesting to the circumstances surrounding each of the terminations. Id. at 26-65. 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. E.g., Special Counsel ex rel. Aran v. Department of Homeland Security , 115 M.S.P.R. 6, ¶ 9 (2010). 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.5 E.g., Special Counsel v. Department of Veterans Affairs, 50 M.S.P.R. 229, 231 (1991). At issue in the instant stay requests 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 above and beyond.” SRF, Tab 1 at 7, 26-29. 5 In contrast, a court issues a temporary restraining order, followed by a preliminary injunction, only in “extraordinary” circumstances and not as a matter of right. See Winter v. Natural Resources Defense Council, Inc. , 555 U.S. 7, 24 (2008) (“A preliminary injunction is an extraordinary remedy never awarded as of right.”); see also Fed. R. Civ. P. 65 (authorizing courts to issue temporary restraining orders and preliminary injunctions). 3 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 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).6 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 12-13. OSC asserts that the identified statute and regulations concern five of the nine merit system principles. Id. at 13 (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. 6 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).4 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— (A) protected against arbitrary action, personal favoritism, or coercion for partisan political purposes. According to OSC, the available evidence indicates that the agencies improperly used the relators’ probationary status to accomplish RIFs without affording them the substantive rights and due process to which they are entitled during the same. SRF, Tab 1 at 13. OSC asserts that official directives, public statements, and the relators’ termination notices signal that the relators were terminated not because they failed to meet expectations during their trial periods, but rather because of a purported lack of work, shortage of funds, and reorganization—reasons that require the use of RIF procedures. Id. at 15-17. Accordingly, OSC avers that there are reasonable grounds to believe that the agencies 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. at 17. Additionally, OSC asserts that two of the relators were in the competitive service; OSC avers that these two relators were therefore entitled to, but did not receive, written notice containing, at a minimum, “the agency’s conclusions as to the inadequacies of [their] performance or conduct.” Id. at 19 (quoting 5 C.F.R. § 315.804(a)). Particularly considering the deference that must be afforded to OSC at this initial stage, see supra p. 3, I find that there are reasonable grounds to believe that each of the six agencies engaged in a prohibited personnel practice under 5 U.S.C. § 2302(b)(12). First, OSC reasonably alleges that each agency took a5 personnel action under 5 U.S.C. § 2302(a) when it terminated these individuals. SRF, Tab 1 at 4, 12-13; see 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, disciplinary or corrective actions, decisions regarding pay or benefits, and any other significant change in duties, responsibilities, or working conditions); 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). Second, OSC identifies laws and regulations related to RIFs that it believes the agencies violated. SRF, Tab 1 at 12-13. In this regard, OSC asserts that the probationary terminations violated 5 U.S.C. § 3502 and 5 C.F.R. part 351 because the agencies misused the relators’ probationary status to effect de facto RIFs without following the requisite RIF laws and regulations.7 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); see also 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). 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. § 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. SRF, Tab 1 at 13. The term “directly concerning” as used in 5 U.S.C. § 2302(b)(12) is undefined by statute or regulation, and the legislative 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).6 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 Feb. 25, 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 Feb. 25, 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). Applying this meaning, and affording OSC the requisite deference at this stage, see supra p. 3, I find it is 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 8 Because I find that OSC has made a sufficient showing regarding 5 U.S.C. § 2301(b) (6), (8)(A) vis-à-vis 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. 7 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 above-captioned agency terminated the relator during the relator’s probationary period in violation of 5 U.S.C. § 2302(b)(12). ORDER Based on the foregoing, granting OSC’s stay request is appropriate. Accordingly, a 45-day stay of the relator’s probationary termination is GRANTED. The stay shall be in effect from February 25, 2025, through and including April 10, 2025. It is further ORDERED as follows: (1)During the pendency of this stay, the relator shall be placed in the position the relator held prior to the probationary termination; (2)The agency shall not effect any changes in the relator’s duties or responsibilities that are inconsistent with the relator’s salary or8 grade level, or impose on the relator any requirement which is not required of other employees of comparable position, salary, or grade level; (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; (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 March 26, 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 2, 2025. FOR THE BOARD: ______________________________ Gina K. Grippando Clerk of the Board Washington, D.C.9	Doe_John_CB-1208-25-0014-U-1_Stay Order.pdf	2025-02-25	null	CB-1208-25-0014-U-1	NP
113	https://www.mspb.gov/decisions/nonprecedential/Doe_John_CB-1208-25-0015-U-1_Stay Order.pdf	UNITED STATES OF AMERICA MERIT SYSTEMS PROTECTION BOARD SPECIAL COUNSEL EX REL. JOHN DOE,1 Petitioner, v. DEPARTMENT OF EDUCATION, Agency.DOCKET NUMBER CB-1208-25-0015-U-1 DATE: February 25, 2025 THIS STAY ORDER IS NONPRECEDENTIAL2 Hampton Dellinger , Esquire, Washington, D.C., for the petitioner. Bruce Fong , Esquire, Oakland, California, for the petitioner. John Doe , pro se. Jill Siegelbaum , Esquire, Washington, D.C., for the agency. BEFORE Raymond A. Limon, Member 1 I find it appropriate to grant the relator’s request for anonymity in this matter. Accordingly, the 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). 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 the probationary terminations of six former Federal employees (the relators), including the above-captioned former employee/relator, for 45 days while OSC further investigates their complaints.3 For the reasons discussed below, OSC’s request is GRANTED. BACKGROUND On February 21, 2025, OSC filed six stay requests, including the instant request. Special Counsel ex rel. John Doe v. Department of Education , MSPB Docket No. CB-1208-25-0015-U-1, Stay Request File (SRF), Tab 1. In the stay requests, OSC asserts that it has reasonable grounds to believe that the named agencies engaged in prohibited personnel practices under 5 U.S.C. § 2302(b)(12) by terminating the relators in violation of the Federal laws and regulations governing reductions-in-force (RIFs) and probationary terminations. Id. at 5. OSC alleges that, between February 12 and February 14, 2025, the agencies terminated the six relators, all of whom were probationary employees, from Federal service. Id. at 6, 16. OSC asserts that the probationary terminations occurred concurrently with a significant number of other Federal employee terminations. Id. at 6. OSC avers that the language in each of the six termination notices was “quite similar” and did not address any specific issues with the relators’ performance or conduct. Id. In each stay request, OSC summarizes the circumstances surrounding the termination of the six relators. Id. at 7-11. These summaries indicate that none of the six relators had any noted performance deficiencies.4 Id. With its stay request, OSC provides copies of the six 3 The stay requests pertaining to the five other former employees/relators have been separately docketed. 4 For example, one relator, a 100% disabled veteran, was terminated from his position on the same day that his supervisor had commended him for his “willingness to go2 termination letters and statements from the relators made under penalty of perjury attesting to the circumstances surrounding each of the terminations. Id. at 26-65. 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. E.g., Special Counsel ex rel. Aran v. Department of Homeland Security , 115 M.S.P.R. 6, ¶ 9 (2010). 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.5 E.g., Special Counsel v. Department of Veterans Affairs, 50 M.S.P.R. 229, 231 (1991). At issue in the instant stay requests 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 above and beyond.” SRF, Tab 1 at 7, 26-29. 5 In contrast, a court issues a temporary restraining order, followed by a preliminary injunction, only in “extraordinary” circumstances and not as a matter of right. See Winter v. Natural Resources Defense Council, Inc. , 555 U.S. 7, 24 (2008) (“A preliminary injunction is an extraordinary remedy never awarded as of right.”); see also Fed. R. Civ. P. 65 (authorizing courts to issue temporary restraining orders and preliminary injunctions). 3 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 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).6 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 12-13. OSC asserts that the identified statute and regulations concern five of the nine merit system principles. Id. at 13 (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. 6 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).4 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— (A) protected against arbitrary action, personal favoritism, or coercion for partisan political purposes. According to OSC, the available evidence indicates that the agencies improperly used the relators’ probationary status to accomplish RIFs without affording them the substantive rights and due process to which they are entitled during the same. SRF, Tab 1 at 13. OSC asserts that official directives, public statements, and the relators’ termination notices signal that the relators were terminated not because they failed to meet expectations during their trial periods, but rather because of a purported lack of work, shortage of funds, and reorganization—reasons that require the use of RIF procedures. Id. at 15-17. Accordingly, OSC avers that there are reasonable grounds to believe that the agencies 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. at 17. Additionally, OSC asserts that two of the relators were in the competitive service; OSC avers that these two relators were therefore entitled to, but did not receive, written notice containing, at a minimum, “the agency’s conclusions as to the inadequacies of [their] performance or conduct.” Id. at 19 (quoting 5 C.F.R. § 315.804(a)). Particularly considering the deference that must be afforded to OSC at this initial stage, see supra p. 3, I find that there are reasonable grounds to believe that each of the six agencies engaged in a prohibited personnel practice under 5 U.S.C. § 2302(b)(12). First, OSC reasonably alleges that each agency took a5 personnel action under 5 U.S.C. § 2302(a) when it terminated these individuals. SRF, Tab 1 at 4, 12-13; see 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, disciplinary or corrective actions, decisions regarding pay or benefits, and any other significant change in duties, responsibilities, or working conditions); 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). Second, OSC identifies laws and regulations related to RIFs that it believes the agencies violated. SRF, Tab 1 at 12-13. In this regard, OSC asserts that the probationary terminations violated 5 U.S.C. § 3502 and 5 C.F.R. part 351 because the agencies misused the relators’ probationary status to effect de facto RIFs without following the requisite RIF laws and regulations.7 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); see also 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). 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. § 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. SRF, Tab 1 at 13. The term “directly concerning” as used in 5 U.S.C. § 2302(b)(12) is undefined by statute or regulation, and the legislative 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).6 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 Feb. 25, 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 Feb. 25, 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). Applying this meaning, and affording OSC the requisite deference at this stage, see supra p. 3, I find it is 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 8 Because I find that OSC has made a sufficient showing regarding 5 U.S.C. § 2301(b) (6), (8)(A) vis-à-vis 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. 7 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 above-captioned agency terminated the relator during the relator’s probationary period in violation of 5 U.S.C. § 2302(b)(12). ORDER Based on the foregoing, granting OSC’s stay request is appropriate. Accordingly, a 45-day stay of the relator’s probationary termination is GRANTED. The stay shall be in effect from February 25, 2025, through and including April 10, 2025. It is further ORDERED as follows: (1)During the pendency of this stay, the relator shall be placed in the position the relator held prior to the probationary termination; (2)The agency shall not effect any changes in the relator’s duties or responsibilities that are inconsistent with the relator’s salary or8 grade level, or impose on the relator any requirement which is not required of other employees of comparable position, salary, or grade level; (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; (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 March 26, 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 2, 2025. FOR THE BOARD: ______________________________ Gina K. Grippando Clerk of the Board Washington, D.C.9	Doe_John_CB-1208-25-0015-U-1_Stay Order.pdf	2025-02-25	null	CB-1208-25-0015-U-1	NP
114	https://www.mspb.gov/decisions/nonprecedential/Tilford_Krystle_M_NY-0752-24-0009-I-1_Final_Order.pdf	UNITED STATES OF AMERICA MERIT SYSTEMS PROTECTION BOARD KRYSTLE M. TILFORD, Appellant, v. UNITED STATES POSTAL SERVICE, Agency.DOCKET NUMBER NY-0752-24-0009-I-1 DATE: February 24, 2025 THIS FINAL ORDER IS NONPRECEDENTIAL1 Krystle M. Tilford , Mount Vernon, New York, pro se. Lori Markle , 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 petition for review of the initial decision, which dismissed her appeal for lack of jurisdiction. On petition for review, she argues that her supervisor ignored her communications regarding personal issues and the 1 A nonprecedential order is one that the Board has determined does not add significantly to the body of MSPB case law. Parties may cite nonprecedential orders, but such orders have no precedential value; the Board and administrative judges are not required to follow or distinguish them in any future decisions. In contrast, a precedential decision issued as an Opinion and Order has been identified by the Board as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c). reasons for her absences. Generally, we grant 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 The appellant submits numerous documents with her petition for review. Petition for Review File, Tab 1. She has not shown that she was unable to submit the evidence prior to the close of the record below, and she has not shown how the documents are relevant to the dispositive jurisdictional issue in this appeal. Accordingly, we have not considered the documents. See Russo v. Veterans Administration, 3 M.S.P.R. 345, 349 (1980) (stating that the Board will not grant a petition for review based on new evidence absent a showing that it is of sufficient weight to warrant an outcome different from that of the initial decision); Avansino v. U.S. Postal Service, 3 M.S.P.R. 211, 213-14 (1980) (stating that the Board generally will not consider evidence submitted for the first time with a petition for review absent a showing that it was unavailable before the record was closed before the administrative judge despite the party’s due diligence). 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 court5 of appeals of competent jurisdiction.4 The court of appeals must receive your petition for review within 60 days of the date of issuance of this decision. 5 U.S.C. § 7703(b)(1)(B). If you submit a petition for judicial review to the U.S. Court of Appeals for the Federal Circuit, you must submit your petition to the court at the following address: U.S. Court of Appeals for the Federal Circuit 717 Madison Place, N.W. Washington, D.C. 20439 Additional information about the U.S. Court of Appeals for the Federal Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11. If you are interested in securing pro bono representation for an appeal to the U.S. Court of Appeals for the Federal Circuit, you may visit our website at http://www.mspb.gov/probono for information regarding pro bono representation for Merit Systems Protection Board appellants before the Federal Circuit. The Board neither endorses the services provided by any attorney nor warrants that any attorney will accept representation in a given case. 4 The original statutory provision that provided for judicial review of certain whistleblower claims by any court of appeals of competent jurisdiction expired on December 27, 2017. The All Circuit Review Act, signed into law by the President on July 7, 2018, permanently allows appellants to file petitions for judicial review of MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals for the Federal Circuit or any other circuit court of appeals of competent jurisdiction. The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115-195, 132 Stat. 1510. 6 Contact information for the courts of appeals can be found at their respective websites, which can be accessed through the link below: http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx . FOR THE BOARD: ______________________________ Gina K. Grippando Clerk of the Board Washington, D.C.7	Tilford_Krystle_M_NY-0752-24-0009-I-1_Final_Order.pdf	2025-02-24	KRYSTLE M. TILFORD v. UNITED STATES POSTAL SERVICE, MSPB Docket No. NY-0752-24-0009-I-1, February 24, 2025	NY-0752-24-0009-I-1	NP
115	https://www.mspb.gov/decisions/nonprecedential/Bennett_AnthonySF-0842-23-0375-I-1_Remand_Order.pdf	UNITED STATES OF AMERICA MERIT SYSTEMS PROTECTION BOARD ANTHONY BENNETT, Appellant, v. OFFICE OF PERSONNEL MANAGEMENT, Agency.DOCKET NUMBER SF-0842-23-0375-I-1 DATE: February 24, 2025 THIS ORDER IS NONPRECEDENTIAL* Anthony Bennett , Marina, California, pro se. Jo Bell and Carla Robinson , Washington, D.C., for the agency. BEFORE Cathy A. Harris, Chairman Henry J. Kerner, Vice Chairman Raymond A. Limon, Member REMAND ORDER The appellant has filed a petition for review of the initial decision, which affirmed a reconsideration decision by the Office of Personnel Management (OPM) denying his application for a deferred annuity under the Federal Employees’ Retirement System (FERS). For the reasons discussed below, we * A nonprecedential order is one that the Board has determined does not add significantly to the body of MSPB case law. Parties may cite nonprecedential orders, but such orders have no precedential value; the Board and administrative judges are not required to follow or distinguish them in any future decisions. In contrast, a precedential decision issued as an Opinion and Order has been identified by the Board as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c). GRANT the appellant’s petition for review, VACATE the initial decision , and REMAND the case to the regional office for further adjudication in accordance with this Remand Order. BACKGROUND The appellant was a Federal civilian employee from August 5, 1985, to January 19, 1996, and again from June 3, 2001, to February 20, 2008. Initial Appeal File (IAF), Tab 7 at 5, 14. He separated from his most recent position with the Department of Veterans Affairs in February 2008. Id. at 14, 32. On September 8, 2022, the appellant submitted an application for a deferred or postponed retirement annuity. Id. at 14-17. He claimed eligibility based on reaching a FERS Minimum Retirement Age with 10 years of creditable service, which OPM terms “MRA+10” eligibility or an “MRA+10” annuity. Id. at 5, 18. OPM issued a reconsideration decision denying the appellant’s application on the basis that he “did not have more than 10 years of creditable civilian service.” Id. at 5. OPM explained that because the appellant took a refund for his first period of civilian service (August 1985 to January 1996) and because he made no FERS deposits for his periods of active military service, his only creditable FERS service was from June 2001 to February 2008, which totaled 6 years, 8 months, and 18 days of creditable service. Id. at 7. OPM stated that, based on this creditable service, he would become eligible for a deferred annuity at 62 years of age. Id. The appellant then filed an appeal with the regional office challenging OPM’s reconsideration decision. IAF, Tab 1. On his appeal form, the appellant maintained that he satisfied the eligibility requirements for an MRA+10 annuity and that his 1996 refund did not forfeit his later annuity eligibility. Id. at 2, 4. During the proceedings below, OPM submitted the appellant’s 1996 FERS Application for Refund of Retirement Deductions, Standard Form 3106 (SF-3106). IAF, Tab 7 at 26. The SF -3106 lists periods of civilian employment1 from August 1985 through January 1996, and contains a certification signed by the appellant stating that he understood that receiving a refund “forfeit[ed] . . . any retirement rights” for the period the refund covered. Id. The administrative judge issued an initial decision, which agreed with OPM’s finding that the “appellant’s aggregate creditable service under FERS[,] totaling approximately six years, eight months, and 18 days, is not sufficient to meet the 10 years of service requirement.” IAF, Tab 11, Initial Decision (ID) 10-11. The administrative judge therefore found that the appellant did not establish that he was entitled to a deferred MRA+10 annuity, and he affirmed OPM’s reconsideration decision. ID at 11. The appellant has filed a timely petition for review. Petition for Review (PFR) File, Tab 1. On review, he realleges that he only received a partial refund of his retirement deductions in 1996. Id. at 4, 6, 8; IAF, Tab 10 at 3. He argues that because he requested the refund at the end of his November 1994 to January 1996 period of civilian employment, the refund covered only that time period. PFR File, Tab 1 at 4, 6, 8. With his petition for review, the appellant provides two Standard Form 50s (SF-50s) that are not in the record below. Id. at 5, 7. The agency has submitted a pro forma response to the petition for review, and the appellant has replied. PFR File, Tabs 5 -6. DISCUSSION OF ARGUMENTS ON REVIEW OPM and the administrative judge correctly determined that the appellant received a refund of his FERS contributions for the period from August 1985 through January 1996. Both OPM’s reconsideration decision and the administrative judge’s initial decision explained that the appellant’s 1996 refund of his FERS contributions from August 5, 1985, through January 19, 1996, rendered that period of service noncreditable toward the MRA+10 annuity benefit. ID at 6 -8; IAF, Tab 7 at 7. On review, the appellant argues that he requested only a partial refund of his2 FERS contributions, covering the period from November 1994 to January 1996. PFR File, Tab 1 at 4, 6, 8. An appellant who files an appeal from an OPM reconsideration decision involving retirement benefits has the burden of proving, by preponderant evidence, that he is entitled to the benefits he seeks. Cheeseman v. Office of Personnel Management , 791 F.2d 138, 140-41 (Fed. Cir. 1986); 5 C.F.R. § 1201.56(b)(2)(ii). Here, the appellant applied for an MRA+10 annuity. IAF, Tab 7 at 18. The minimum retirement age for an individual born during 1964, like the appellant, is 56 years old. Id. at 14; 5 U.S.C. §§ 8412(h)(1)(c), 8413(b) (1). The appellant was 58 years old when he applied for a deferred annuity in 2022. IAF, Tab 7 at 14, 17. Therefore, he met the age requirement for the benefit he sought. However, he also needed 10 years of creditable service. Id. at 5-7; see 5 U.S.C. § 8413(b)(1). The appellant paid FERS contributions while employed from August 1985 to January 1996. IAF, Tab 7 at 39-44. He sought a refund in January 1996, a few days after this service ended. Id. at 26. Assuming he had no breaks in this service, it totaled approximately 10 years and 5 months. Added together with his later service, the appellant exceeded the 10 -year requirement. However, the appellant received a refund of his FERS retirement contributions in 1996. Id. A refund of an employee’s FERS contributions generally voids all annuity rights for the period of service covered by the refund. 5 U.S.C. § 8424(a); Pagum v. Office of Personnel Management , 66 M.S.P.R. 599, 601 (1995). Although the appellant later had a second period of service from June 2001 to February 2008, that service only totaled 6 years, 8 months, and 18 days. IAF, Tab 7 at 7, 15, 32. We find no merit in the appellant’s assertion on review that the 1996 refund covered only the “period of federal service from November 1994 and January 1996,” thereby bringing his total creditable service to 15 years and3 11 months. PFR File, Tab 1 at 4. In support of this claim, the appellant submits two SF-50s for the first time on review. Id. at 5-7. The Board’s regulations provide that it will grant a petition for review when, among other reasons, new and material evidence is available that, despite the appellant’s due diligence, was not available when the record closed. Ellis v. U.S. Postal Service , 121 M.S.P.R. 570, ¶ 6 (2014); 5 C.F.R. § 1201.115(d). Evidence is “new” when the information contained in the documents, not just the documents themselves, were unavailable despite the appellant’s due diligence when the record closed. 5 C.F.R. § 1201.115(d). Evidence is “material” when it is of sufficient weight to warrant an outcome different from that of the initial decision. Ellis, 121 M.S.P.R. 570, ¶ 6; 5 C.F.R. § 1201.115(a)(1). The SF-50s offered by the appellant on review are neither new nor material. The two SF-50s are dated January 1996 and April 1994, respectively, meaning that neither the documents themselves nor the information they contain are novel. PFR File, Tab 1 at 5, 7. The appellant also did not attempt to show due diligence by explaining why the SF-50s could not have been supplied earlier. Even if these SF-50s could be considered new, they are not material. The January 1996 SF-50 states that, at the time of his separation, the appellant “was counseled on entitlement to deferred annuity/refund of retirement deductions.” Id. at 7. However, the appellant does not explain what this counseling contained or its relevance to the refund he received later that year. As to the April 1994 SF-50, the appellant argues that this SF-50 reflects that his employment between August 1985 and November 1994 was in a permanent position, as compared to his later probationary service between November 1994 and January 1996. Id. at 4-6. However, the appellant does not explain why these two periods are legally distinct for purposes of receiving a refund. Neither the FERS statute nor OPM regulations suggest that probationary versus permanent service are distinguishable for purposes of FERS refunds. See 5 U.S.C. § 8424(a); 5 C.F.R.4 § 842.308(b)(2). Accordingly, neither SF-50 can be said to warrant an outcome different from that ordered by the administrative judge. The record evidence suggests that the 1996 refund covered the period from August 1985 to January 1996. OPM submitted a calculation of the appellant’s contributions and interest earned from the period of August 1985 to January 1996, which totaled $2,602.78. IAF, Tab 7 at 28. That calculation matches the payment amount that OPM stated on a March 6, 1996 notice to the appellant advising him of the tax consequences of his refund election. Id. at 30. For the same reason, the appellant’s Individual Retirement Record, which states that, after withholding $180.00 for taxes, the appellant’s refund payment amount would be $2,422.78, also contradicts the appellant’s assertion that he only received a partial refund. Id. at 33. Further, OPM’s policy for many years has been to pay all of an employee’s retirement deductions, plus interest. Conway v. Office of Personnel Management , 59 M.S.P.R. 405, 409-11 (1993). Consistent with that policy, the SF-3106 required the appellant to list all of his Federal Service, and he did so. IAF, Tab 7 at 26; see Conway, 59 M.S.P.R. at 410-11 & n.2 (concluding that an appellant’s belief that he would receive a refund for only the portion of service that he listed on an SF-3106 was not reasonable). Because the appellant did not establish by preponderant evidence that he received only a partial refund of his FERS retirement deductions, we agree with the administrative judge’s determination that the refund covered the period from August 1985 to January 1996. ID at 10-11. The administrative judge observed that the appellant had identified approximately 5 years of military service. ID at 2-3; IAF, Tab 7 at 14. However, as the administrative judge observed, the appellant did not claim he made a FERS deposit for this service. ID at 2; IAF, Tab 7 at 5, 14, 24, 26. The appellant did not argue otherwise below or claim he made a military deposit on review. Therefore, we will not disturb this conclusion. 5 We remand this appeal for further consideration of whether the appellant is entitled to credit for his refunded FERS covered service under 5 U.S.C. § 8424(a). The administrative judge was not persuaded by the appellant’s argument that, despite receiving a refund of his FERS contributions for his service between August 1985 and January 1996, he retained FERS credit for this period for purposes of determining his eligibility for a deferred annuity. IAF, Tab 1 at 4, 13; ID at 8-9. The appellant has not reraised this argument on review. Nonetheless, we revisit this issue because the administrative judge’s finding was central to his determination that the appellant was not eligible for an MRA+10 annuity. On October 28, 2009, President Obama signed into law the National Defense Authorization Act for Fiscal Year 2010, Pub. L. No. 111-84, 123 Stat. 2190 (NDAA). Among other FERS provisions, the NDAA amended 5 U.S.C. §§ 8422 and 8424. Pub. L. No. 111-84, § 1904, 123 Stat. at 2616-17. As the administrative judge observed, the NDAA amended 5 U.S.C. § 8422(i)(1) to permit employees to regain service credit for refunded service by making a deposit equaling the refund received plus interest for purposes of calculating their annuities. Pub. L. No. 111-84, § 1904(a), 123 Stat. at 2616. Further, the NDAA amended 5 U.S.C. § 8424(a) to provide that individuals who previously received a FERS refund and were later reemployed in a position covered by FERS would receive credit for their prior service for purposes of determining their eligibility for an annuity. Pub. L. No. 111-84, § 1904(b)(4), 123 Stat. at 2617. The prior version of § 8424(a) stated that “payment of a lump-sum credit . . . voids all annuity rights . . . based on the service on which the lump-sum credit is based.” 5 U.S.C. § 8424(a) (2009). The current version, as updated by the NDAA, adds that the voiding of annuity rights lasts only “until the employee . . . is reemployed in the service subject to [FERS].” Pub. L. No. 111-84, § 1904(b)(4), 123 Stat. at 2617 (codified at 5 U.S.C. § 8424(a)). 6 To the extent that the administrative judge found that any entitlement that the appellant might have to service credit for periods of refunded service arose under 5 U.S.C. § 8422(i)(1), his reliance on this provision was misplaced. Section 8422(i)(1) concerns the right to make a redeposit, which the appellant has not claimed he attempted to do. Therefore, it is not applicable here. Rather, 5 U.S.C. § 8424(a) contains the relevant statutory language. As detailed above, that provision now provides that certain individuals reemployed under FERS will receive credit for refunded service without making a deposit. The administrative judge found that NDAA § 1904, which enacted both changes discussed above, only applies to individuals employed under FERS on or after October 28, 2009. ID at 9. In reaching this conclusion, he deferred to OPM’s guidance stating that “[t]he provisions of section 1904 of the NDAA only apply to employees covered under FERS on or after October 28, 2009, and only affect annuity benefits based on a separation from FERS coverage on or after October 28, 2009.” OPM, Benefits Administration Letter, No. 11 -103, at 1 (Feb. 25, 2011), https://www.opm.gov/retirement-center/publications-forms/ benefits-administration-letters/2011/11-103.pdf (last visited Feb. 21, 2025); ID at 8-9. The same limitation on service credit for refunded service can be found in OPM’s regulations. 5 C.F.R. § 843.202(b)(1). However, OPM does not explain the basis for limiting the service credit to individuals who were separated from Federal employment on or after October 28, 2009, either in its regulation or in its Benefits Administration Letter. See Phased Retirement, 79 Fed. Reg. 46608-01, 46632 (Aug. 8, 2014) (setting forth the final rule that was codified as 5 C.F.R. § 843.202(b)); Phased Retirement, 78 Fed. Reg. 33912-01, 33919, 33933 (June 5, 2013) (setting forth the proposed rule that was codified as 5 C.F.R. § 843.202(b), and explaining that the revision was made “to reflect the change in law affecting the consequences of employee refunds”). After the administrative judge issued the initial decision, the U.S. Supreme Court issued its opinion in Loper Bright Enterprises v. Raimondo , 603 U.S. 3697 (2024). In Loper Bright, the Supreme Court concluded that courts may not defer to agency rules and regulations interpreting statutes. 603 U.S. at 412-13. Instead, they must exercise “independent judgment.” Id. at 412. An implementing agency’s legal interpretation of a statute concerning an area within the agency’s expertise may be persuasive to a court based on a variety of factors, including if it was issued contemporaneously with the statute and the agency has consistently followed the same interpretation. Id. at 385-88, 394, 402 (citing Skidmore v. Swift & Co. , 323 U.S. 134, 137-40 (1944) (explaining that the weight a court will give the interpretation of an official of the statute he is charged with enforcing “will depend upon the thoroughness evident in its consideration, the validity of its reasoning, its consistency with earlier and later pronouncements, and all those factors which give it power to persuade, if lacking power to control”)). In addition to the question of the weight to give OPM’s temporal limit on the NDAA’s amendment to 5 U.S.C. § 8424(a), statutory principles regarding retroactivity are at play here. See Edwards v. Department of Labor , 2022 MSPB 9, ¶¶ 31-33 (applying the Supreme Court’s decision in Landgraf v. USI Film Products, 511 U.S. 244, 280 (1994), to determine whether to give a statutory amendment retroactive effect), aff’d, No. 22-1967 (Fed. Cir. July 7, 2023). Here, 5 U.S.C. § 8424(a) is silent as to whether it applies to events occurring before its enactment. NDAA § 1904, which enacted the amendment to 5 U.S.C. § 8424(a), is also silent. Section 1904 was one of five provisions in subtitle A of title XIX of the NDAA. Three of those provisions provided that they were effective “on or after the date of enactment” which, as mentioned above, was October 28, 2009. Pub. L. No. 111-84, §§ 1901(c), 1902(b), 1903(b), 123 Stat. at 2615-16. In the remaining provision, Congress specified the dates of qualifying service. Pub. L. No. 111-84, § 1905(b), 123 Stat. at 2617-18. In sum, Congress’s silence as to the scope of its amendment to 5 U.S.C. § 8424(a), its differing treatment of other provisions in title XIX of subtitle A of the NDAA, and the Court’s decision in8 Loper Bright raise concerns regarding the weight the Board should accord to OPM’s determination to exclude the appellant from the benefit of receiving service credit for his refunded FERS service. Because the record is not developed on this issue, we remand the case to the regional office for a determination. On remand, the administrative judge should advise the parties of the standards applicable to this matter under Landgraf and Loper Bright and provide the parties with an opportunity to present relevant evidence and argument. ORDER For the reasons discussed above, we remand this case to the regional office for further adjudication in accordance with this Remand Order. The administrative judge may adopt his prior finding that the appellant received a refund of his FERS contributions for the period from August 1985 to January 1996 in the remand initial decision. FOR THE BOARD: ______________________________ Gina K. Grippando Clerk of the Board Washington, D.C.9	Bennett_AnthonySF-0842-23-0375-I-1_Remand_Order.pdf	2025-02-24	ANTHONY BENNETT v. OFFICE OF PERSONNEL MANAGEMENT, MSPB Docket No. SF-0842-23-0375-I-1, February 24, 2025	SF-0842-23-0375-I-1	NP
116	https://www.mspb.gov/decisions/nonprecedential/Phillips_Michael_J_NY-0843-23-0092-I-1_Final_Order.pdf	UNITED STATES OF AMERICA MERIT SYSTEMS PROTECTION BOARD MICHAEL JAMES PHILLIPS, Appellant, v. OFFICE OF PERSONNEL MANAGEMENT, Agency,DOCKET NUMBER NY-0843-23-0092-I-1 DATE: February 24, 2025 and MICHELLE PHILLIPS, Intervenor. THIS FINAL ORDER IS NONPRECEDENTIAL1 Michael J. Phillips , Astoria, New York, pro se. Kevin D. Alexander Sr. and Michael Shipley , 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 and the agency has filed a cross petition for review of the initial decision, which dismissed as moot 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’s appeal of the Office of Personnel Management (OPM)’s March 13, 2023 decision to include the appellant’s Federal Employees’ Retirement System (FERS) annuity supplement in its computation of the court -ordered division of his FERS annuity. For the reasons discussed below, we GRANT the petition for review and the cross petition for review and REVERSE the initial decision. BACKGROUND The appellant and his former spouse (intervenor) were married on September 29, 1992. Phillips v. Office of Personnel Management, MSPB Docket No. NY-0843-23-0092-I-1, Appeal File (0092 AF), Tab 5 at 81. On or around February 19, 2014, a New York state court entered a decree of dissolution of marriage and a domestic relations court order awarding the appellant’s former spouse a pro rata share of the appellant’s “gross monthly annuity” under FERS. Id. at 81-89. On July 5, 2022, after his retirement, the appellant filed an Amended Court Order Acceptable for Processing with OPM’s Court Ordered Benefits Branch. Id. at 25-29. Pursuant to the Amended Court Order, the appellant’s former spouse was entitled to 50% of the appellant’s gross monthly annuity under FERS; however, she was not entitled to any portion of the FERS annuity supplement. Id. at 28. On November 2, 2022, OPM issued an initial decision stating that it could not honor the Amended Court Order and the appellant’s FERS annuity supplement was “to be treated the same way” as the FERS basic annuity for purposes of calculating the benefit paid to his former spouse; thus, the amount he received under the FERS annuity supplement provisions must be included in the calculation of the benefit paid to his former spouse. 0092 AF, Tab 5 at 51-52. The appellant requested reconsideration of the decision, which OPM affirmed in its March 13, 2023 reconsideration decision. Id. at 10-13. The appellant filed a Board appeal of OPM’s March 13, 2023 reconsideration decision. 0092 AF, Tab 1. After holding the requested hearing,2 the administrative judge issued an initial decision dismissing the appeal as moot, finding that because the appellant had already prevailed before the Board in Phillips v. Office of Personnel Management, MSPB Docket No. MSPB Docket No. NY-0841-23-0080-I-1, which involved a former spouse annuity issue, the appellant had obtained all the relief he could receive before the Board. 0092 AF, Tab 18, Initial Decision (0092 ID) at 2-3. The appellant has filed a petition for review of the initial decision, arguing that he has not obtained all the relief he should have received had he prevailed because his former spouse continues to receive a portion of his FERS annuity supplement, although the Amended Court Order specifically stated that his former spouse was not to receive any portion of the FERS annuity supplement.2 Petition for Review (PFR) File, Tab 1 at 5-6. The agency has filed a cross petition for review, to which the appellant has replied. PFR File, Tabs 4, 6. In its cross petition for review, the agency agrees with the appellant that the administrative judge erred in dismissing the appeal as moot rather than addressing the merits of the matter and requests that the appeal be remanded to the field office for adjudication on the merits. PFR File, Tab 4 at 4. ARGUMENTS ON REVIEW The appeal was improperly dismissed as moot. A case is moot when the issues presented are no longer “live,” or the parties lack a legally cognizable interest in the outcome of the case. Hess v. U.S. 2 With his petition for review, the appellant provides a March 28, 2017 Management Advisory from OPM’s Associate Director and Acting General Counsel regarding “OPM’s Non-Public Decision to Prospectively and Retroactively Re-Apportion Annuity Supplements Notwithstanding Silence of the State Court Orders” and a FEDweek issue brief, dated June 28, 2023, addressing the apportionment of annuity supplements. PFR File, Tab 1 at 9-15. These documents are not new because they are already part of the record below. 0092 AF, Tab 17 at 7-13; see Meier v. Department of the Interior , 3 M.S.P.R. 247, 256 (1980) (determining that evidence that is already a part of the record is not new); 5 C.F.R. § 1201.115(d) (providing that new evidence is evidence that was unavailable despite due diligence when the record closed).3 Postal Service, 124 M.S.P.R. 40, ¶ 8 (2016). For an appeal to be dismissed as moot, an appellant must have received all of the relief that he could have received if the matter had been adjudicated and he had prevailed. Alexis v. Office of Personnel Management , 106 M.S.P.R. 315, ¶ 6 (2007). Here, the administrative judge dismissed the appeal as moot upon determining that no relief would be available to the appellant in the 0092 appeal that had not already been ordered in connection with the 0080 appeal. 0092 ID at 2 n.1 & 3. However, the annuity supplement at issue in this appeal, i.e., the 0092 appeal, is separate from the survivor annuity issue present in the 0080 appeal. Furthermore, the appellant has not received all the relief that he could have received if the matter had been adjudicated and he had prevailed, as his former spouse continues to receive a portion of his annuity supplement in contravention of the Amended Court Order. Thus, we find that this appeal is not moot. OPM improperly included the appellant’s FERS annuity supplement in its computation of the court-ordered division of his FERS annuity. In its March 13, 2023 reconsideration decision, OPM affirmed its decision to include the appellant’s FERS annuity supplement in the computation of his court-ordered apportionment. 0092 AF, Tab 5 at 10. Specifically, OPM explained that, because the April 1, 2014 Domestic Relations Order awarded the appellant’s former spouse a “prorata share” of the appellant’s FERS annuity, OPM was required by 5 U.S.C. § 8421(c) to include his FERS annuity supplement in the computation of the court-ordered division, regardless of the July 5, 2022 Amended Order expressly excluding the appellant’s FERS annuity supplement from such computation.3 Id. at 10-11, 26-27. 3 OPM made a similar argument in Moulton v. Office of Personnel Management , 2023 MSPB 26, ¶¶ 10-22, in which the Board held that the plain language of 5 U.S.C. 8421(c) requires OPM to apportion the appellant’s annuity supplement under 5 U.S.C. § 8467 only when the court order expressly provides for such apportionment. Id., ¶¶ 10-22. OPM has sought review of the Board’s decision in Moulton, and its petition for review is currently pending before the U.S. Court of Appeals for the Federal Circuit. See Office of Personnel Management v. Moulton , Fed. Cir. Docket No. 2024-1774. The4 OPM’s decision is contrary to the plain reading of the statutory text. Under 5 U.S.C. § 8415(a), entitled “Computation of basic annuity,” “the annuity” of an employee retiring under subchapter II of chapter 84, Title V, United States Code, is 1% of that individual’s average pay, multiplied by such individual’s total service. In general, an individual shall, if and while entitled to “an annuity” under 5 U.S.C. § 8412(e), “also be entitled to an annuity supplement under this section.” 5 U.S.C. § 8421(a)(1). The annuity supplement is designed to replicate the Social Security benefit (based on Federal civilian service) available at age 62 for those employees retiring earlier and is subject to the same conditions as payment of the Social Security benefit. Henke v. Office of Personnel Management, 48 M.S.P.R. 222, 227 (1991). When a Federal employee and the employee’s spouse divorce, additional statutes come into play. Per 5 U.S.C. § 8467(a)(1), an appellant’s annuity shall be paid, in whole or in part, to another person only “if and to the extent expressly provided for” in the terms of, among other things, any court decree, court order, or court-approved property settlement agreement. An amount under 5 U.S.C. § 8421, i.e., an annuity supplement, “shall for the purposes of section 8467, be treated in the same way as an amount computed under section 8415.” 5 U.S.C. § 8421(c). That is, an annuity supplement is a payment under chapter 84 that would otherwise be made to an employee pursuant to 5 U.S.C. § 8421(a). Therefore, to be treated the same way when applying section 8467, that payment shall be paid to another person “if and to the extent expressly provided for” in the terms of, among other things, any court decree, court order, or court -approved property settlement agreement. 5 U.S.C. § 8467(a)(1). proper interpretation of 5 U.S.C. 8421(c) is salient in cases such as Moulton where the apportionment of the annuity supplement is not “expressly provided for” in the court order. Here, the Amended Order expressly excludes the appellant’s annuity supplement from the apportionment, and thus, the outcome of Moulton does not impact our analysis of this case. We do not reach the issue of whether OPM is authorized to apportion the annuity supplement in other instances.5 Here, the July 5, 2022 Amended Order expressly states that the appellant’s former spouse “is not entitled to any portion” of the annuity supplement. AF 0092, Tab 5 at 28. Accordingly, we find that sections 8421(c) and 8467 clearly prohibit OPM from apportioning the appellant’s annuity supplement, because such apportionment is expressly excluded in the court order. We therefore find that OPM improperly included the appellant’s FERS annuity supplement in its computation of the court -ordered division of his FERS annuity. OPM’s reconsideration decision is reversed. ORDER We ORDER OPM to rescind its March 13, 2023 reconsideration decision, stop apportioning the annuity supplement, and refund all previously apportioned annuity supplement amounts to the appellant. OPM must complete this action no later than 20 days after the date of this decision. We also ORDER OPM 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. We ORDER the appellant to provide all necessary information OPM requests to help it carry out the Board’s Order. The appellant, if not notified, should ask OPM about its progress. See 5 C.F.R. § 1201.181(b). No later than 30 days after OPM tells the appellant 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 OPM did not fully carry out the Board’s Order. The petition should contain specific reasons why the appellant believes OPM has not fully carried out the Board’s Order and should include the dates and results of any communications with OPM. See 5 C.F.R. § 1201.182(a).6 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 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 filing time limits and requirements. Failure to file within the applicable time limit may result in the dismissal of your case by your chosen forum. 4 Since the issuance of the initial decision in this matter, the Board may have updated the notice of review rights included in final decisions. As indicated in the notice, the Board cannot advise which option is most appropriate in any matter.7 Please read carefully each of the three main possible choices of review below to decide which one applies to your particular case. If you have questions about whether a particular forum is the appropriate one to review your case, you should contact that forum for more information. (1) Judicial review in general . As a general rule, an appellant seeking judicial review of a final Board order must file a petition for review with the U.S. Court of Appeals for the Federal Circuit, which must be received by the court within 60 calendar days of the date of issuance of this decision. 5 U.S.C. § 7703(b)(1)(A). If you submit a petition for review to the U.S. Court of Appeals for the Federal Circuit, you must submit your petition to the court at the following address: U.S. Court of Appeals for the Federal Circuit 717 Madison Place, N.W. Washington, D.C. 20439 Additional information about the U.S. Court of Appeals for the Federal Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11. If you are interested in securing pro bono representation for an appeal to the U.S. Court of Appeals for the Federal Circuit, you may visit our website at http://www.mspb.gov/probono for information regarding pro bono representation for Merit Systems Protection Board appellants before the Federal Circuit. The Board neither endorses the services provided by any attorney nor warrants that any attorney will accept representation in a given case. (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. 9 If you submit a request for review to the EEOC by regular U.S. mail, the address of the EEOC is: Office of Federal Operations Equal Employment Opportunity Commission P.O. Box 77960 Washington, D.C. 20013 If you submit a request for review to the EEOC via commercial delivery or by a method requiring a signature, it must be addressed to: Office of Federal Operations Equal Employment Opportunity Commission 131 M Street, N.E. Suite 5SW12G Washington, D.C. 20507 (3) Judicial review pursuant to the Whistleblower Protection Enhancement Act of 2012 . This option applies to you only if you have raised claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D). If so, and your judicial petition for review “raises no challenge to the Board’s disposition of allegations of a prohibited personnel practice described in section 2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i), (B), (C), or (D),” then you may file a petition for judicial review either with the U.S. Court of Appeals for the Federal Circuit or any court of appeals of competent jurisdiction.5 The court of appeals must receive your petition for review within 60 days of the date of issuance of this decision. 5 U.S.C. § 7703(b)(1)(B). 5 The original statutory provision that provided for judicial review of certain whistleblower claims by any court of appeals of competent jurisdiction expired on December 27, 2017. The All Circuit Review Act, signed into law by the President on July 7, 2018, permanently allows appellants to file petitions for judicial review of MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals for the Federal Circuit or any other circuit court of appeals of competent jurisdiction. The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115-195, 132 Stat. 1510.10 If you submit a petition for judicial review to the U.S. Court of Appeals for the Federal Circuit, you must submit your petition to the court at the following address: U.S. Court of Appeals for the Federal Circuit 717 Madison Place, N.W. Washington, D.C. 20439 Additional information about the U.S. Court of Appeals for the Federal Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11. If you are interested in securing pro bono representation for an appeal to the U.S. Court of Appeals for the Federal Circuit, you may visit our website at http://www.mspb.gov/probono for information regarding pro bono representation for Merit Systems Protection Board appellants before the Federal Circuit. The Board neither endorses the services provided by any attorney nor warrants that any attorney will accept representation in a given case. Contact information for the courts of appeals can be found at their respective websites, which can be accessed through the link below: http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx . FOR THE BOARD: ______________________________ Gina K. Grippando Clerk of the Board Washington, D.C.11	Phillips_Michael_J_NY-0843-23-0092-I-1_Final_Order.pdf	2025-02-24	MICHAEL JAMES PHILLIPS v. OFFICE OF PERSONNEL MANAGEMENT, MSPB Docket No. NY-0843-23-0092-I-1, February 24, 2025	NY-0843-23-0092-I-1	NP
117	https://www.mspb.gov/decisions/nonprecedential/Moulton_Ronald_L_DE-0841-18-0053-N-1_Stay_Order.pdf	UNITED STATES OF AMERICA MERIT SYSTEMS PROTECTION BOARD RONALD L. MOULTON, Appellant, v. OFFICE OF PERSONNEL MANAGEMENT, Agency, and DIRECTOR OF THE OFFICE OF PERSONNEL MANAGEMENT, Intervenor.1DOCKET NUMBER DE-0841-18-0053-N-1 DATE: February 24, 2025 THIS STAY ORDER IS NONPRECEDENTIAL2 Ronald Lance Moulton , Longmont, Colorado, pro se. 1 The appellant’s former spouse, Jill Moulton, intervened during the proceedings in the underlying appeal. Moulton v. Office of Personnel Management , MSPB Docket No. DE-0841-18-0053-I-1, Initial Appeal File, Tab 24. Both in his response to this stay request and in his response to the petition to the U.S. Court of Appeals for the Federal Circuit (Federal Circuit) to review the Board’s Opinion and Order in the underlying appeal, Moulton v. Office of Personnel Management , 2023 MSPB 26, the appellant represented that Ms. Moulton had passed away. Stay File (SF), Tab 3 at 3; Director of the Office of Personnel Management v. Moulton, No. 2024-109, 2024 WL 1953955 (Fed. Cir. May 3, 2024). Based on this representation, the Federal Circuit removed Ms. Moulton from the caption. Director of the Office of Personnel Management v. Moulton, No. 2024-1774, Notice of Revised Caption (Fed. Cir. June 4, 2024). We have done the same here. Nonetheless, we have served a copy of this Stay Order on the intervenor at her address of record. 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). Allison Kidd-Miller , Esquire, Julie Ferguson Queen , Esquire, Nicole M. Lohr , Esquire, and Roxann S. Johnson, Washington, D.C., for the agency. BEFORE Cathy A. Harris, Chairman Henry J. Kerner, Vice Chairman Raymond A. Limon, Member ORDER DENYING REQUEST FOR A STAY The Director of the Office of Personnel Management (OPM)3 has filed a request for a stay of the Board’s Opinion and Order in Moulton v. Office of Personnel Management , 2023 MSPB 26, pending its appeal of that decision to the U.S. Court of Appeals for the Federal Circuit (Federal Circuit). See Moulton v. Office of Personnel Management , MSPB Docket No. DE-0841-18-0053-N-1, Stay File (SF), Tab 1 at 5-12. The appellant has opposed OPM’s request. SF, Tab 3. For the reasons set forth below, OPM’s request for a stay is denied. BACKGROUND The Board found in Moulton, 2023 MSPB 26, ¶¶ 1, 10-22, that OPM improperly recalculated the apportionment of the appellant’s Federal Employees’ Retirement System (FERS) annuity supplement to his former spouse. In particular, the Board disagreed with OPM’s 2016 reinterpretation of 3 Only the Director of OPM has the authority to request a stay. See 5 U.S.C. § 7703(d) (1) (authorizing the Director of OPM to seek Federal Circuit review of final Board orders under certain circumstances); Schuck v. U.S. Postal Service , 31 M.S.P.R. 52 (1985) (denying OPM’s request for a stay because only the Director of OPM can request a stay when filing a petition for reconsideration with the Board); see 5 C.F.R. § 1201.119(a), (d) (reflecting that the Director of OPM can request that the Board stay a final decision while the Director’s petition for reconsideration to the Board is pending). We need not distinguish here between OPM and the Director of OPM because the Director has filed this stay request. SF, Tab 1 at 5. Further, the Director of OPM and OPM are represented by the same attorneys. Id. at 2.2 5 U.S.C. § 8421(c). Id. According to OPM, this provision required it to retroactively and prospectively reduce the appellant’s annuity supplement according to his and his former spouse’s domestic relations court order, i.e., their divorce order, to pay his former spouse a portion of the FERS supplement regardless of the absence of an express provision requiring such an allocation. Id., ¶¶ 2-3, 6. OPM suspended collection of the resulting alleged overpayment to the appellant of $24,535.30 during the proceedings before the Board. Id., ¶ 3; Initial Appeal File (IAF), Tab 13 at 12. The Board’s decision in Moulton, 2023 MSPB 26, ¶ 23, required OPM to, among other actions, “rescind its December 12, 2017 final decision, stop apportioning the annuity supplement, and refund all previously apportioned annuity supplement amounts to the appellant” by December 18, 2023. On that date, OPM filed the instant stay request. SF, Tab 1. It indicated that it was considering whether to appeal the Board’s decision to the Federal Circuit). Id. at 7. It has since done so, and its Federal Circuit appeal is currently pending. Director of the Office of Personnel Management v. Moulton, No. 2024-109, 2024 WL 1953955 (Fed. Cir. May 3, 2024). ANALYSIS The Board has the authority to enforce its orders and decisions. 5 U.S.C. § 1204(a)(2). The Board may exercise its discretion to stay the enforcement of a final decision pending judicial review. Special Counsel v. Lee , 114 M.S.P.R. 393, ¶ 2 (2010). In determining whether to grant a stay, the Board evaluates four criteria: (1) whether the stay applicant has made a strong showing that he or she is likely to prevail on the merits; (2) whether the applicant will be irreparably harmed absent a stay; (3) whether the issuance of the stay will substantially harm the other parties interested in the proceeding; and (4) where the public interest lies. Id. The Board balances the likelihood of success on appeal with the last three criteria. Id. If the stay applicant convincingly argues3 that the last three criteria are met, we will grant a stay if a serious legal question exists on the merits. If support for a stay on the basis of the last three criteria is slight, we will issue a stay if there is a strong possibility of success on appeal. Id. However, the Board will not address the first criterion if the applicant fails to demonstrate any support for a stay based on the last three criteria . Id. We find that OPM has not supported its contentions regarding the last three criteria, and therefore we deny its stay request. As to the second factor, whether OPM will be irreparably harmed absent a stay, OPM argues that complying with the Board’s order will render its appeal to the Federal Circuit moot. SF, Tab 1 at 9-10. A party claiming harm to itself or others must show that the harm is substantial and certain and must offer proof that the harm will occur. Rogers v. Office of Personnel Management , 67 M.S.P.R. 698, 700 (Fed. Cir. 1995). OPM has not provided any evidence supporting its claim of possible mootness, and its argument does not address the specific facts of this case. “A case becomes moot—and therefore no longer a ‘Case’ or ‘Controversy’ for purposes of [an] Article III [court, like the Federal Circuit]—when the issues presented are no longer ‘live’ or the parties lack a legally cognizable interest in the outcome.” Acceleration Bay LLC v. 2K Sports, Inc., 15 F.4th 1069, 1075-76 (Fed. Cir. 2021) (quoting Already, LLC v. Nike, Inc. , 568 U.S. 85, 91 (2013) (citation omitted)). The party asserting mootness bears the burden of proving that the case or controversy is no longer “live.” Mitchco International, Inc. v. United States , 26 F.4th 1373, 1378 (Fed. Cir. 2022). The Opinion and Order directed OPM to cease apportioning the annuity supplement and refund its underpayment to the appellant. Moulton, 2023 MSPB 26, ¶ 23. Doing so may cause Mr. Moulton, as a respondent in the litigation, to lose his legally cognizable interest in the case.4 See Acceleration Bay LLC , 15 F.4th 4 In the pending litigation before the Federal Circuit, OPM agreed that there is a live case or controversy “based on at least Mr. Moulton’s cognizable interest in a refund of his previously apportioned supplement payments.” Moulton, 2024 WL 1953955, at *1 n.2. 4 1069, 1075-76; Alexis v. Office of Personnel Management , 106 M.S.P.R. 315, ¶ 7 (2007) (determining that an appeal was moot when OPM completely rescinded its overpayment decision and refunded to the appellant the money it withheld from his retirement annuity). However, it would appear to increase rather than decrease the Government’s interest in the outcome of the litigation, as the payment would presumably come out of the Civil Service Retirement and Disability Fund. See 5 U.S.C. §§ 8401(6) (defining the “Fund” for purpose of FERS as the Civil Service Retirement and Disability Fund), 8461(a) (requiring OPM to pay FERS annuity benefits from the Civil Service Retirement and Disability Fund); see also 5 U.S.C. § 8348(a)(1) (providing that the Fund “is appropriated for the payment of” Federal employment annuity benefits and OPM’s “administrative expenses”). OPM does not address this apparent gap in its argument. Further, OPM does not address another possible reason that providing relief to the appellant might not render the appeal moot. “[T]here is an exception to the mootness doctrine for cases capable of repetition but evading review.” NIKA Technologies, Inc. v. United States , 987 F.3d 1025, 1027 (Fed. Cir. 2021). The exception is applicable when the litigation is likely to become moot before it concludes and the same party can reasonably expect the same issue to arise. Id. at 1027-28. Here, there is no immediate threat of mootness because OPM has not indicated that it intends to comply with the Board’s Opinion and Order and the appellant has not filed a petition for enforcement before the Board. In any event, as noted above, it appears that OPM will continue to retain an interest in its Federal Circuit appeal because the appellant would be paid out of the Civil Service Retirement and Disability Fund. Further, we cannot assume at this time that the Federal Circuit would find the appeal moot despite the likely repetition of the payment issue as other annuitants seek to challenge the impact of OPM’s 2016 policy change on their FERS annuity supplements. OPM represents that5 there are “71 other cases at the Board” involving the issue in the instant appeal, but it has not stated its intent to rescind its final decisions in those appeals or refund any withheld amounts to the appellants. SF, Tab 1 at 10. Thus, we find that OPM has not met its burden of proving that the case or controversy is no longer “live” in this matter. The third stay factor is whether a stay will substantially harm the other parties interested in the proceeding. Blaha Office of Personnel Management , 106 M.S.P.R. 494, ¶ 4 (2007). OPM reasons that, if the Board were to grant the stay request, the appellant would be “in the same position he is in today,” and if he is the prevailing party in OPM’s appeal to the Federal Circuit, “he will receive complete relief” at that time. SF, Tab 1 at 11. In contrast, the appellant argues that, due to OPM’s delays, he has been waiting to be “made whole” for 7 years and requests that the stay be denied. SF, Tab 3 at 3. In Rogers, the Board denied a stay where the only claim advanced as to the third criterion was that the appellant would not be harmed by any temporary deprivation of an enhanced annuity awarded to him in an earlier decision. Rogers v. Office of Personnel Management, 77 M.S.P.R. 626, 628 (1998), reversed in part on other grounds, Rogers v. Office of Personnel Management , 83 M.S.P.R. 154 (1999). In the instant case, absent the enforcement of the Board’s order, the appellant will not receive the refund of $24,535.30, representing the previously apportioned annuity supplement amounts. Moulton, 2023 MSPB 26, ¶¶ 3, 23; IAF, Tab 13 at 12. The Board has also previously rejected as speculative the argument that compliance with an order could create an overpayment to an appellant, with the necessity for administrative or judicial proceedings to recover it. See Sangenito v. Office of Personnel Management , 85 M.S.P.R. 211, ¶ 6 (2000). Furthermore, the Board has consistently held that the possibility that OPM may be unable to recoup monies paid from the Fund does not support the granting of a stay. See Rose v. Office of Personnel Management , 85 M.S.P.R. 490, ¶ 3 (2000); Rogers, 77 M.S.P.R. 626, 628-700. 6 Finally, as to the fourth factor relating to the public interest, OPM argues that 71 unidentified cases “will be determined, at least in part, by the resolution of this case.” SF, Tab 1 at 11. The existence of other claims that will require payments from the public fisc implicates the public interest. Donati v. Office of Personnel Management , 104 M.S.P.R. 658, ¶ 8 (2007). However, statements of a party’s representative in a pleading do not constitute evidence, and OPM has neglected to produce any support for its attorneys’ assertion as to the number of cases that may be impacted. Hendricks v. Department of the Navy , 69 M.S.P.R. 163, 168 (1995). Nor has it provided the dollar amounts at issue. OPM’s arguments are thus speculative and fail to meet the requirement that a party claiming harm show that the harm is substantial and certain and offer proof that the harm will occur. See Rogers, 67 M.S.P.R. 698, 700. ORDER OPM’s request for a stay is denied. FOR THE BOARD: ______________________________ Gina K. Grippando Clerk of the Board Washington, D.C.7	Moulton_Ronald_L_DE-0841-18-0053-N-1_Stay_Order.pdf	2025-02-24	RONALD L. MOULTON v. OFFICE OF PERSONNEL MANAGEMENT, MSPB Docket No. DE-0841-18-0053-N-1, February 24, 2025	DE-0841-18-0053-N-1	NP
118	https://www.mspb.gov/decisions/nonprecedential/Propes_JadaDA-3443-24-0121-I-1_Final_Order.pdf	UNITED STATES OF AMERICA MERIT SYSTEMS PROTECTION BOARD JADA PROPES, Appellant, v. FEDERAL DEPOSIT INSURANCE CORPORATION, Agency.DOCKET NUMBER DA-3443-24-0121-I-1 DATE: February 24, 2025 THIS FINAL ORDER IS NONPRECEDENTIAL1 Jada Propes , Houston, Texas, pro se. Eric S. Gold , Esquire, Arlington, Virginia, for the agency. Marcus Patton , Esquire, Dallas, Texas, 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 for lack of jurisdiction. On petition for review, she 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 denial of her career ladder promotion falls within the jurisdiction of the Board because the denial was due to discrimination and retaliation for equal employment opportunity activity.2 Generally, we grant petitions such as this one only in the following circumstances: the initial decision contains erroneous findings of material fact; the initial decision is based on an erroneous interpretation of statute or regulation or the erroneous application of the law to the facts of the case; the administrative judge’s rulings during either the course of the appeal or the initial decision were not consistent with required procedures or involved an abuse of discretion, and the resulting error affected the outcome of the case; or new and material evidence or legal argument is available that, despite the petitioner’s due diligence, was not available when the record closed. Title 5 of the Code of Federal Regulations, section 1201.115 (5 C.F.R. § 1201.115). After fully considering the filings in this appeal, we conclude that the petitioner has not established any basis under section 1201.115 for granting the petition for review. Therefore, we DENY the petition for review and AFFIRM the initial decision, which is now the Board’s final decision.3 5 C.F.R. § 1201.113(b). 2 The appellant has also filed an appeal of her removal with the Board’s Dallas Regional Office. See Propes v. Federal Deposit Insurance Corporation , MSPB Docket No. DA-0752-24-0467-I-1. That matter has no relation to this appeal. 3 In her reply to the agency’s response to her petition for review, the appellant cites various statutory provisions regarding whistleblower reprisal. Petition for Review (PFR) File, Tab 5. To the extent that the appellant wishes to allege reprisal for protected disclosures or activity under the whistleblower protection statutes, she may file an individual right of action appeal consistent with law and regulation. The appellant also submits numerous documents with her reply to the response to the petition for review. PFR File, Tab 5 at 12-479. She has not shown that she was unable to submit the evidence prior to the close of the record below, and she has not shown how the documents are relevant to the dispositive jurisdictional issue in this appeal. Accordingly, we have not considered the documents. See Russo v. Veterans Administration, 3 M.S.P.R. 345, 349 (1980) (stating that the Board will not grant a petition for review based on new evidence absent a showing that it is of sufficient weight to warrant an outcome different from that of the initial decision); Avansino v. U.S. Postal Service , 3 M.S.P.R. 211, 213-14 (1980) (stating that the Board generally will not consider evidence submitted for the first time with a petition for review absent a showing that it was unavailable before the record was closed before the administrative2 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). judge despite the party’s due diligence). 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 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.5 The court of appeals must receive your petition for review within 60 days of the date of issuance of this decision. 5 U.S.C. § 7703(b)(1)(B). If you submit a petition for judicial review to the U.S. Court of Appeals for the Federal Circuit, you must submit your petition to the court at the following address: U.S. Court of Appeals for the Federal Circuit 717 Madison Place, N.W. Washington, D.C. 20439 Additional information about the U.S. Court of Appeals for the Federal Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11. If you are interested in securing pro bono representation for an appeal to the U.S. Court of Appeals for the Federal Circuit, you may visit our website at http://www.mspb.gov/probono for information regarding pro bono representation for Merit Systems Protection Board appellants before the Federal Circuit. The 5 The original statutory provision that provided for judicial review of certain whistleblower claims by any court of appeals of competent jurisdiction expired on December 27, 2017. The All Circuit Review Act, signed into law by the President on July 7, 2018, permanently allows appellants to file petitions for judicial review of MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals for the Federal Circuit or any other circuit court of appeals of competent jurisdiction. The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115-195, 132 Stat. 1510. 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	Propes_JadaDA-3443-24-0121-I-1_Final_Order.pdf	2025-02-24	JADA PROPES v. FEDERAL DEPOSIT INSURANCE CORPORATION, MSPB Docket No. DA-3443-24-0121-I-1, February 24, 2025	DA-3443-24-0121-I-1	NP
119	https://www.mspb.gov/decisions/nonprecedential/Moodie_Towne_Consolidation_PH-0714-21-0100-I-1_and PH-0714-21-0045-I-1_and_PH-0714-21-0046-I-1_Final_Order.pdf	UNITED STATES OF AMERICA MERIT SYSTEMS PROTECTION BOARD MOODIE TOWNE CONSOLIDATION, Appellant, v. DEPARTMENT OF VETERANS AFFAIRS, Agency.DOCKET NUMBER PH-0714-21-0100-I-1 DATE: February 24, 2025 THIS ORDER IS NONPRECEDENTIAL1 Brent Abare , Groton, Vermont, for the appellants. Joshua Carver , Augusta, Maine, for the agency. BEFORE Cathy A. Harris, Chairman Henry J. Kerner, Vice Chairman Raymond A. Limon, Member REMAND ORDER The appellants have filed a petition for review of the initial decision, which affirmed their removals for misconduct under 38 U.S.C. § 714. For the reasons discussed below, we GRANT the appellants’ petition for review, VACATE the 1 A nonprecedential order is one that the Board has determined does not add significantly to the body of MSPB case law. Parties may cite nonprecedential orders, but such orders have no precedential value; the Board and administrative judges are not required to follow or distinguish them in any future decisions. In contrast, a precedential decision issued as an Opinion and Order has been identified by the Board as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c). initial decision, and REMAND the case to the Northeastern Regional Office for further adjudication in accordance with this Remand Order. BACKGROUND The appellants were WG-10 Pipefitters for the agency’s Facilities Management Service (FMS), stationed at the VA Medical Center in White River Junction, Vermont. Moodie v. Department of Veterans Affairs , MSPB Docket No. PH-0714-21-0045-I-1, Initial Appeal File (0045 IAF), Tab 1 at 1, Tab 7 at 11; Towne v. Department of Veterans Affairs , MSPB Docket No. PH-0714-21-0046- I-1, Initial Appeal File (0046 IAF), Tab 6 at 10. In late January 2020, the Medical Center’s Chief of Police alerted management to allegations that FMS employees had been claiming more overtime than they had actually worked. 0045 IAF, Tab 8 at 7; Hearing Recording (HR), Track 1 at 2:55 (testimony of the proposing official). Over the next several months, the agency continued to monitor the situation, reviewing surveillance recordings and comparing them with overtime requests. 0045 IAF, Tab 8 at 7 ; HR, Track 1 at 7:40 (testimony of the proposing official). At the close of the investigation, the agency identified 15 FMS employees as having improperly claimed various amounts of overtime, and it proposed administrative actions against each of them, ranging from reprimand to removal. HR, Track 4 at 1:55 (testimony of the deciding official). The two appellants in this appeal were among those whose removals were proposed under 38 U.S.C. § 714. Appellant Towne was charged with improperly claiming overtime on 27 separate occasions, for a total of 52 hours between December 2019 and June 2020. 0046 IAF, Tab 6 at 23-28, Tab 7 at 38. Appellant Moody was charged with improperly claiming overtime on 29 separate occasions, for a total of 54.75 hours between December 2019 and June 2020. 0045 IAF, Tab 7 at 28-33, Tab 8 at 51. Appellant Moodie also faced a second charge of removal of Government property for removing a chair from Medical Center premises on March 27, 2020. 0045 IAF, Tab 7 at 31. After the appellants2 responded, on November 9, 2020, the deciding official issued decisions to remove them, effective the same day. 0045 IAF, Tab 7 at 11-15; 0046 IAF, Tab 6 at 10-14. The appellants each filed Board appeals contesting their removals. 0045 IAF, Tab 1; 0046 IAF, Tab 1. The administrative judge consolidated the appeals under 5 C.F.R. § 1201.36(a)(1), without objection from any party. Moodie Towne Consolidation v. Department of Veterans Affairs , MSPB Docket No. PH-0714-21-0100-I-1, Consolidation Appeal File (CAF), Tab 2. After a hearing, the administrative judge issued an initial decision affirming the appellants’ removals. CAF, Tab 18, Initial Decision (ID). She found that the agency proved all specifications of misuse of overtime, as well as the removal of Government property charge, by substantial evidence. ID at 4-23. She also considered the appellants’ claim of retaliation for union activity, but she found no genuine nexus between the appellants’ union activity and their removals. ID at 23. The administrative judge further found that the removal penalty was supported by substantial evidence. ID at 25. She considered the appellants’ allegations regarding the consistency of the penalty but found that they failed to prove this “general defense.” ID at 24-25. The appellants have filed a petition for review disputing the administrative judge’s findings on the charges and the penalty and arguing that the agency’s decision was the product of retaliation for union activity and harmful procedural error. Moodie v. Department of Veterans Affairs , MSPB Docket No. PH-0714-21- 0045-I-1, Petition for Review File (0045 PFR File), Tab 1. The agency has filed a response. Moodie Towne Consolidation v. Department of Veterans Affairs , MSPB Docket No. PH-0714-21-0100-I -1, Petition for Review File, Tab 1.2 2 The appellants filed identical petitions for review under both of their names in each of their individual cases. 0045 PFR File, Tab 1; Towne v. Department of Veterans Affairs , MSPB Docket No. PH-0714-21-0046-I-1, Petition for Review File, Tab 1. For ease of reference, we cite to the petition for review in Moodie v. Department of Veterans Affairs , MSPB Docket No. PH-0714-21-0045-I-1. The agency filed its response to the petition for review in the consolidated case file.3 ANALYSIS In an appeal of an adverse action taken under 38 U.S.C. § 714(a), the agency bears the burden of proving its charges by substantial evidence. 38 U.S.C. § 714(d) (2)(a). If the agency meets this burden, the Board may not mitigate the agency’s chosen penalty, but it is nevertheless required to review the penalty as part of the agency’s overall decision. 38 U.S.C. § 714(d)(2)(B), (3)(C); Sayers v. Department of Veterans Affairs , 954 F.3d 1370, 1375-79 (Fed. Cir. 2020). Further, the agency’s decision may not be sustained if the appellant shows that the decision was based on a prohibited personnel practice described in 5 U.S.C. § 2302(b) or was the product of harmful procedural error. 5 U.S.C. § 7701(c)(2)(A)-(B); Semenov v. Department of Veterans Affairs , 2023 MSPB 16, ¶ 23; 5 C.F.R. § 1201.56(b)(2)(i) (C). Although the appellants have raised several specific exceptions to the administrative judge’s findings in this appeal, we find that it would be premature to reach these issues in light of subsequent developments in the case law. Specifically, after the initial decision was issued, the United States Court of Appeals for the Federal Circuit clarified that, under 38 U.S.C. § 714, the deciding official must apply the preponderant evidence standard in determining whether the employee committed the charged misconduct. Substantial evidence is merely the standard by which the Board reviews the agency’s decision. Rodriguez v. Department of Veterans Affairs , 8 F.4th 1290, 1298-1301 (Fed. Cir. 2021). The removal decisions in this case reflect that the deciding official applied the substantial evidence standard. 0045 IAF, Tab 7 at 12; 0046 IAF, Tab 6 at 11. The deciding official’s testimony is consistent with this conclusion because he stated that he determined that the charges against appellant Moodie “were substantiated” and he “found support” for the charges against appellant Towne. HR, Track 4 at 11:15, 19:30 (testimony of the deciding official). Under the circumstances of this case, we find it appropriate to remand this appeal for the administrative judge to afford the parties an opportunity to address the issue of4 whether the agency’s use of the substantial evidence standard in the removal decision constituted harmful procedural error under 5 U.S.C. § 7701(c)(2)(A). See Rodriguez, 8 F.4th at 1301; Semenov, 2023MSPB 16, ¶¶ 21-25. In addition, the appellants argued below that the agency’s surveillance practices violated the applicable collective bargaining agreement (CBA), but the administrative judge did not address this argument in her initial decision. CAF, Tab 4 at 7, 9. This is an affirmative defense of harmful procedural error. See LeBlanc v. Department of Transportation , 60 M.S.P.R. 405, 417 (1994), aff’d, 53 F.2d 346 (Fed. Cir. 1995) (Table). These pro se appellants did not raise the issue artfully, and they did not object when the administrative judge did not include it in her prehearing conference summary among the issues to be decided.3 Nevertheless, they have raised the issue on petition for review, and considering the totality of the circumstances, we find that it would be inappropriate to consider the claim to be waived or abandoned at this juncture. 0045 PFR, Tab 1 at 4-5, 7; see Thurman v. U.S. Postal Service , 2022 MSPB 21, ¶¶ 17-18. Therefore, the administrative judge should address this affirmative defense on remand.4 Also after the initial decision was issued, the Federal Circuit issued Connor v. Department of Veterans Affairs , 8 F.4th 1319, 1326 (Fed. Cir. 2021), clarifying that the agency and the Board must apply the factors set forth in Douglas v. Veterans Administration , 5 M.S.P.R. 280, 305-06 (1981), to the selection and review of penalties in disciplinary actions taken under 38 U.S.C. § 714. Without explicitly invoking Douglas, both the deciding official and the 3 Shortly before the hearing, the appellants designated a non-attorney union official to be their representative. CAF, Tab 14. This individual provided the appellants some limited assistance during the hearing itself, but it does not appear that he has otherwise been involved in these proceedings. 4 The appellants have not submitted a copy of the CBA for the record. On remand, they will be afforded an opportunity to supplement the record with a copy of the CBA or the relevant provisions thereof. Although the CBA appears to be publicly available on the internet, the administrative judge is not required to undertake such research in order to develop the record on the appellants’ behalf.5 administrative judge discussed several of these factors in connection with the penalty selection. ID at 25; 0045 IAF, Tab 7 at 12; 0046 IAF, Tab 6 at 11. Therefore, both the removal decisions and the administrative judge’s initial decision are consistent with the requirements set out in Connor. Nevertheless, we find that the administrative judge’s analysis of the consistency of the penalty Douglas factor is not entirely clear. Specifically, she considered it as an affirmative defense rather than as part of her penalty analysis. ID at 24-25. The consistency of the penalty with those imposed upon other employees for the same or similar offenses is one of a nonexhaustive list of 12 factors that are relevant for consideration in determining the appropriateness of a penalty. Singh v. U.S. Postal Service , 2022 MSPB 15, ¶ 18. On remand, the administrative judge should clarify her consistency of the penalty analysis both in light of this longstanding precedent and in light of more recent developments in the case law after the initial decision was issued. On remand, the administrative judge should provide the parties with an opportunity to present evidence and argument, including a supplemental hearing if appropriate, addressing the agency’s use of the substantial evidence standard in its removal decisions. The administrative judge should also consider the appellants’ argument that the agency committed harmful procedural error by surveilling them in violation of the CBA. The administrative judge shall then issue a new initial decision addressing these issues in accordance with this Remand Order. If the administrative judge finds that the agency committed harmful error in violating the CBA or in applying the wrong evidentiary standard in its decisions, she shall reverse the appellants’ removals. See Campbell v. U.S. Postal Service , 95 M.S.P.R. 185, ¶ 12 (2003). To the extent that the agency’s penalty selection remains an issue, the administrative judge should also clarify her analysis of the consistency of the penalty factor. If she deems it appropriate, the administrative judge may adopt the findings from the vacated initial decision on the issues of whether the agency6 proved its charges before the Board by substantial evidence and whether the appellants proved their affirmative defense of retaliation for union activity. ORDER For the reasons discussed above, we remand this case to the regional office for further adjudication in accordance with this Remand Order. FOR THE BOARD: ______________________________ Gina K. Grippando Clerk of the Board Washington, D.C.7	Moodie_Towne_Consolidation_PH-0714-21-0100-I-1_and PH-0714-21-0045-I-1_and_PH-0714-21-0046-I-1_Final_Order.pdf	2025-02-24	MOODIE TOWNE CONSOLIDATION v. DEPARTMENT OF VETERANS AFFAIRS, MSPB Docket No. PH-0714-21-0100-I-1, February 24, 2025	PH-0714-21-0045-I-1; PH-0714-21-0046-I-1; PH-0714-21-0100-I-1	NP
120	https://www.mspb.gov/decisions/nonprecedential/Mostafaie_GinaDC-0432-19-0480-I-1_Remand_Order.pdf	UNITED STATES OF AMERICA MERIT SYSTEMS PROTECTION BOARD GINA MOSTAFAIE, Appellant, v. DEPARTMENT OF THE TREASURY, Agency.DOCKET NUMBER DC-0432-19-0480-I-1 DATE: February 24, 2025 THIS ORDER IS NONPRECEDENTIAL1 Gina Mostafaie , Vienna, Virginia, pro se. Gregg Avitabile , Esquire, Washington, D.C., for the agency. BEFORE Cathy A. Harris, Chairman Henry J. Kerner, Vice Chairman Raymond A. Limon, Member REMAND ORDER The appellant has filed a petition for review of the initial decision, which sustained the agency’s chapter 43 performance-based removal action. For the reasons discussed below, we GRANT the appellant’s petition for review. We MODIFY the initial decision to clarify the legal standard applicable to the 1 A nonprecedential order is one that the Board has determined does not add significantly to the body of MSPB case law. Parties may cite nonprecedential orders, but such orders have no precedential value; the Board and administrative judges are not required to follow or distinguish them in any future decisions. In contrast, a precedential decision issued as an Opinion and Order has been identified by the Board as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c). appellant’s claim of sex discrimination and retaliation for prior protected equal employment opportunity (EEO) activity and REMAND the matter to the Washington Regional Office for further adjudication consistent with the U.S. Court of Appeals for the Federal Circuit’s decision in Santos v. National Aeronautics and Space Administration , 990 F.3d 1355 (Fed. Cir. 2021). BACKGROUND Effective August 10, 2018, the agency removed the appellant from her position as a GS-12 Government Information Specialist under 5 U.S.C. chapter 43 for unacceptable performance. Initial Appeal File (IAF), Tab 4 at 101, Tab 13 at 4-11. Specifically, the agency charged that the appellant had failed to achieve minimally acceptable performance in two critical elements of her position and that she had failed to improve during a 90-day performance improvement plan (PIP). IAF, Tab 5 at 4-10, Tab 7 at 4-10, Tab 13 at 4-11. Following the issuance of the agency’s decision to remove her, IAF, Tab 13 at 4, the appellant filed a formal EEO complaint alleging that her removal was based on (1) discrimination (age, sex, and national origin); and (2) reprisal for prior protected EEO activity, IAF, Tab 1 at 11. The agency issued a final agency decision on April 2, 2019 finding no discrimination. Id. at 11-18. The appellant filed an appeal of the agency’s removal action to the Board and requested a hearing on the matter.2 Id. at 1. She raised the affirmative defenses of sex-based discrimination and reprisal for protected EEO activity. IAF, Tab 1 at 2, 4, Tab 63 at 2. Following a hearing on the matter, the administrative judge issued an initial decision finding that the agency proved the merits of its performance-based removal action by substantial evidence and sustaining the appellant’s removal. IAF, Tab 66, Initial Decision (ID) at 27, 35. In so doing, the administrative judge explained that the appellant had not disputed that the agency’s 2 With her initial appeal form, the appellant provided an undated and unsigned “CONFIDENTIAL SETTLEMENT AGREEMENT,” the relevance of which was unclear. IAF, Tab 1 at 7-10.2 performance appraisal system had been approved by the Office of Personnel Management (OPM). ID at 3 n.4, 4. He also concluded that the agency’s performance standards were valid, ID at 4-9, that the agency had communicated the performance standards to the appellant, ID at 10-16, that the appellant was given a reasonable opportunity to demonstrate acceptable performance, ID at 16-25, and that the appellant had failed to demonstrate acceptable performance, ID at 26-27. He also found that the appellant did not prove her affirmative defenses of sex discrimination and retaliation for protected EEO activity by preponderant evidence.3 ID at 27-34. The appellant has filed a petition for review. Petition for Review (PFR) File, Tab 1. She alleges that: (1) the agency failed to provide her with adequate formal performance reviews; (2) the agency’s performance standards were invalid; and (3) the agency failed to show that her performance was unacceptable in at least one critical element. PFR File, Tab 1 at 5. She also provides additional documents. Id. at 8-59. The agency filed a reply. PFR File, Tab 3. DISCUSSION OF ARGUMENTS ON REVIEW The agency proved that the appellant’s performance was unacceptable under the legal standard for chapter 43 actions at the time the initial decision was issued. At the time the initial decision was issued, to prevail in an appeal of a performance-based removal under chapter 43, the agency was required to prove by substantial evidence4 that: (1) OPM approved its performance appraisal system and any significant changes thereto; (2) the agency communicated to the appellant the performance standards and critical elements of her position; (3) the appellant’s 3 As noted below, the administrative judge also ostensibly considered whether the agency’s action was based on age discrimination, which was not at issue in the appellant’s Board appeal. IAF, Tab 63 at 2; ID at 27, 32. 4 Substantial evidence is the degree of relevant evidence that a reasonable person, considering the record as a whole, might accept as adequate to support a conclusion, even though other reasonable persons might disagree. 5 C.F.R. § 1201.4(p). This is a lower standard of proof than preponderance of the evidence. Id.3 performance standards are valid under 5 U.S.C. § 4302(b)(1); (4) the agency warned the appellant of the inadequacies of her performance during the appraisal period and gave her a reasonable opportunity to demonstrate acceptable performance; and (5) the appellant’s performance remained unacceptable in at least one critical element. Lee v. Environmental Protection Agency , 115 M.S.P.R. 533, ¶ 5 (2010). On review, the appellant does not challenge the administrative judge’s findings that the agency met its burden of proving elements one, two, and four, and we find no reason to disturb these findings. See PFR File, Tab 1. However, the appellant disputes the administrative judge’s findings pertaining to element three, alleging that the agency’s performance standards were flawed and that neither of the critical elements at issue, i.e., critical elements 1 and 6, contained clear standards or measurable goals as required. PFR File, Tab 1 at 5. Section 4302(b)(1) requires that performance standards, to the maximum extent feasible, permit the accurate evaluation of job performance on the basis of objective criteria related to the job in question. Lee, 115 M.S.P.R. 533, ¶ 29. Standards must be reasonable, realistic, attainable, and clearly stated in writing. Id. Provided these requirements are met, however, the Board will defer to managerial discretion in determining what agency employees must do to perform acceptably in their positions. Id. Here, we agree with the administrative judge that the agency’s performance standards were clearly stated, objective, and valid. IAF, Tab 4 at 102-13; ID at 4-9; see Lee, 115 M.S.P.R. 533, ¶ 29. The appellant’s assertions amount to mere disagreement with the administrative judge’s factual findings and legal conclusions therefrom and do not warrant a different outcome. See Riggsbee v. Office of Personnel Management , 111 M.S.P.R. 129, ¶ 11 (2009) (explaining that an appellant’s mere disagreement with the administrative judge’s explained factual findings and legal conclusions therefrom does not provide a basis to disturb the initial decision).4 The appellant also raises element five in her petition for review and asserts that the agency failed to prove that her performance was unacceptable in at least one critical element. PFR File, Tab 1 at 5. To this end, she states that the administrative judge “misinterpreted the Performance and Results Act of 1993 (GPRA).” Id. However, we see no reason to disturb the administrative judge’s conclusion that the agency proved by substantial evidence that the appellant did not demonstrate acceptable performance in two critical elements of her position. ID at 26-27. The administrative judge considered the relevant documentary and testimonial evidence, including the agency’s detailed notice of proposed removal. IAF, Tab 7 at 4-10; ID at 26-27; see Towne v. Department of the Air Force , 120 M.S.P.R. 239, ¶ 24 (2013) (explaining that a proposal notice can constitute valid proof of the agency’s charges when the notice sets forth in detail an employee’s errors and the deficiencies are corroborated by other evidence). Furthermore, the Government Performance and Results Act of 1993, Pub. L. 103-62, 107 Stat. 285 (codified in sections of Titles 5, 31, and 39 of the U.S. Code) relates to broad performance goals for the Federal government and Federal agencies rather than individual Federal employees, and thus the appellant’s reliance on the same is unavailing. PFR File, Tab 1 at 5; see, e.g., 31 U.S.C. § 1115.5 5 With her petition for review, the appellant submits a copy of the agency’s decision letter and the administrative judge’s initial decision; however, these documents were part of the record before the administrative judge and do not constitute new evidence. PFR File, Tab 1 at 9-59; Meier v. Department of the Interior , 3 M.S.P.R. 247, 256 (1980) (explaining that evidence that is already a part of the record is not new). The appellant also provides for the first time a copy of a Standard Form 50 (SF-50) dated March 4, 2018, which reflects her receipt of a within-grade increase (WIGI), and indicates that she was performing at an acceptable level of competence. PFR File, Tab 1 at 8. However, the appellant does not explain why she was unable to provide this document that predates the initial decision to the administrative judge, and we find that the document does not warrant a different outcome. Avansino v. U.S. Postal Service , 3 M.S.P.R. 211, 214 (1980) (finding that the Board generally will not consider evidence submitted for the first time with the petition for review absent a showing that it was unavailable before the record was closed despite the party’s due diligence); Russo v. Veterans Administration , 3 M.S.P.R. 345, 349 (1980) (observing that the Board generally will not grant a petition for review5 The appellant did not prove harmful procedural error. On review, the appellant also reasserts that the agency failed to provide her with a formal mid-year review and that it improperly placed her on a PIP “without any rating of record.” PFR File, Tab 1 at 5. She contends that these alleged failures amounted to harmful procedural errors insofar as the agency violated its own policies and failed “to follow OPM’s . . . procedures.”6 Id. Pursuant to 5 U.S.C. § 7701(c)(2)(A), the Board will not sustain an agency’s decision if the appellant “shows harmful error in the application of the agency’s procedures in arriving at such decision.” A procedural error is harmful where the record shows that an error by the agency was likely to have caused the agency to reach a conclusion different from the one it would have reached in the absence or cure of the error. Pumphrey v. Department of Defense , 122 M.S.P.R. 186, ¶ 10 (2015); 5 C.F.R. § 1201.4(r). An appellant bears the burden of proving, by preponderant evidence, that the agency committed harmful error in reaching its decision. Pumphrey, 122 M.S.P.R. 186, ¶ 10. Here, we are not persuaded by the appellant’s claim of harmful procedural error. Although the appellant made allegations before the administrative judge regarding the agency’s purported failures to review her performance,7 she did not specifically raise a claim of harmful procedural error. IAF, Tab 63 at 2; see Banks based on new evidence absent a showing that it is of sufficient weight to warrant an outcome different from that of the initial decision). To the extent that the appellant provides this document to suggest that the agency failed to show that her performance was unacceptable in at least one critical element, her contention is unavailing insofar as the SF-50 was issued prior to the completion of her 90-day performance improvement plan. PFR File, Tab 1 at 5; IAF, Tab 5 at 4-10; see 5 C.F.R. § 531.404(a) (setting forth the circumstances under which employees receive WIGIs). 6 To the extent that the appellant is alleging that OPM did not approve the agency’s performance appraisal system, PFR File, Tab 1 at 5, we find that the agency provided an October 6, 2015 letter indicating that OPM had approved its performance appraisal plan, IAF, Tab 4 at 119.7 As set forth in the initial decision, the appellant argued that the agency’s alleged failure to conduct reviews evinced that the agency had failed to notify her that her performance was unacceptable. ID at 13-14. She also contended that this purported failure prevented her from being able to file a grievance. ID at 14.6 v. Department of the Air Force , 4 M.S.P.R. 268, 271 (1980) (explaining that the Board generally will not consider an argument raised for the first time in a petition for review absent a showing that it is based on new and material evidence not previously available despite the party’s due diligence). Furthermore, we agree with the administrative judge that the appellant received a sufficient mid-year review. ID at 10. The record reflects that the appellant transferred to the agency from another Federal position effective October 2, 2016, IAF, Tab 4 at 24, and that she received a copy of her performance standards on February 17, 2017, id. at 102. The administrative judge implicitly credited the testimony of the appellant’s supervisor, who explained that he “conducted a mid-year performance review with the appellant during an in-person discussion” on June 21, 2017. ID at 10; see Diggs v. Department of Housing and Urban Development , 114 M.S.P.R. 464, ¶ 8 (2010) (finding that the Board must give deference to an administrative judge’s credibility determinations when they are based, explicitly or implicitly, on the observation of the demeanor of witnesses testifying at a hearing).8 This finding is substantiated by the written record. IAF, Tab 4 at 102. The appellant does not identify, and we are unable to locate, any agency or OPM policy mandating a higher degree of formality for a mid-year review. Therefore, the appellant has not identified any procedural error regarding her mid-year review, much less any error that would likely have caused the agency to reach a different conclusion. See Pumphrey, 122 M.S.P.R. 186, ¶ 10. We also find no error in the agency placing the appellant on a PIP in lieu of formally reviewing her performance. In the initial decision, the administrative 8 Although the administrative judge did not make any explicit demeanor-based credibility determinations in his initial decision, he heard live testimony, and his credibility determinations must be deemed to be at least implicitly based upon witness demeanor. See Purifoy v. Department of Veterans Affairs , 838 F.3d 1367, 1373 (Fed. Cir. 2016) (stating that, even if demeanor is not explicitly discussed by an administrative judge, assessing a witness’s credibility involves consideration of various factors, including demeanor); see also Little v. Department of Transportation , 112 M.S.P.R. 224, ¶ 4 (2009).7 judge similarly implicitly credited the testimony of the agency’s Director of Human Resources who explained that, if an employee was found to be performing unacceptably at the end of a rating year, then the employee’s supervisor was instructed to place the employee on a PIP in lieu of providing a formal rating. ID at 15. Here, the record shows that the appellant’s supervisor placed her on a PIP following the conclusion of fiscal year 2017, i.e., the rating year. IAF, Tab 5 at 4-10. The appellant does not adduce, and we are unable to locate, any authority that mandates a formal, written performance appraisal under these circumstances. Thus, she again does not identify any procedural error on the agency’s part. See Pumphrey, 122 M.S.P.R. 186, ¶ 10. We modify the initial decision to supplement the administrative judge’s analysis finding that the appellant did not prove her claims of sex discrimination and retaliation for protected EEO activity. In her petition for review, the appellant does not challenge the administrative judge’s determination that she did not prove her affirmative defenses of sex discrimination and retaliation for protected EEO activity by preponderant evidence; however, we modify the initial decision to clarify the applicable legal standard.9 In analyzing the appellant’s claim of sex-based discrimination, the administrative judge referenced the analytical framework set forth in Savage v. Department of the Army , 122 M.S.P.R. 612 (2015), overruled in part by Pridgen v. Office of Management and Budget , 2022 MSPB 31, ¶¶ 23-25, which inquires whether the appellant has shown by preponderant evidence that the prohibited consideration was a motivating factor in the contested personnel action. Savage, 122 M.S.P.R. 612, ¶ 51. Despite correctly citing Savage, the administrative 9 Although not raised by either party, the initial decision twice referenced age discrimination, which was not at issue in the appellant’s Board appeal. IAF, Tab 63 at 2; ID at 27, 32. These typographical errors did not prejudice the appellant’s substantive rights and therefore provide no basis for reversal of the initial decision. See Roesel v. Peace Corps, 111 M.S.P.R. 366, ¶ 12 n.1 (2009).8 judge’s findings did not specifically track that analytical framework, and he instead concluded, after summarizing relevant documentary and testimonial evidence, that the appellant had not presented preponderant evidence that the agency’s action was based on her sex and that “the appellant failed to present evidence to show that the agency’s action was false or a subterfuge designed to hide some improper motive.” ID at 29-32. Nevertheless, we find that the administrative judge’s conclusion is akin to finding that the appellant’s sex was not a motivating factor in the agency’s action. See Savage, 122 M.S.P.R. 612, ¶ 51. Similarly, although the administrative judge informed the appellant of the correct burden of proof with respect to her affirmative defense of reprisal for protected EEO activity, i.e., filing a complaint alleging discrimination on the basis of age, sex, and national origin, IAF, Tab 63 at 3-4 (citing Savage, 122 M.S.P.R. 612, ¶ 51), he set forth an imprecise analytical framework for this claim. ID at 33 (citing Rockwell v. Department of Commerce , 39 M.S.P.R. 217, 222 (1988)). However, insofar as the administrative judge concluded, based on credibility determinations, that neither the proposing official nor the deciding official considered the appellant’s EEO activity, we find that he implicitly found that the appellant’s EEO activity was not a motivating factor in the agency’s decision to remove her. See Haebe v. Department of Justice , 288 F.3d 1288, 1301 (Fed. Cir. 2002) (stating that the Board must give deference to an administrative judge’s credibility determinations when they are based, explicitly or implicitly, on the observation of the demeanor of witnesses testifying at a hearing and may overturn such determinations only when it has “sufficiently sound” reasons for doing so); see also Savage , 122 M.S.P.R. 612, ¶ 51. Because we agree with the conclusion that the appellant did not show that any prohibited consideration was a motivating factor in the agency’s action, we need not resolve the issue of whether the appellant proved that discrimination or retaliation was a “but-for” cause of the agency’s decision. See Pridgen, ¶ 22.9 Remand under Santos is required. As discussed above, in affirming the agency’s performance-based removal action, the administrative judge correctly applied the Board’s precedent setting forth the relevant legal standard for actions under chapter 43 at the time he issued his initial decision. ID at 2-27. Subsequent to the initial decision, however, the Federal Circuit held for the first time that, to support an adverse action under chapter 43, an agency “must justify institution of a PIP” by showing that the employee’s performance was unacceptable before the PIP. Santos, 990 F.3d at 1360-61. Therefore, to defend an action under chapter 43, an agency must now also prove by substantial evidence that the appellant’s performance during the appraisal period prior to the PIP was unacceptable in one or more critical elements. See Lee v. Department of Veterans Affairs , 2022 MSPB 11, ¶ 15. The Federal Circuit’s decision in Santos applies to all pending cases, including this one, regardless of when the events took place. Id., ¶ 16. The parties here did not have an opportunity before the administrative judge to address the modified legal standard in light of Santos. We therefore remand this case for further adjudication of the appellant’s removal under the standard set forth in Santos. See Santos, 990 F.3d at 1363-64 (remanding the appeal for further proceedings under the modified legal standard); see also Lee, 2022 MSPB 11, ¶ 16 (remanding the appellant’s chapter 43 appeal because the parties were not informed of the modified standard set forth in Santos). On remand, the administrative judge shall accept evidence and argument on whether the agency proved by substantial evidence that the appellant’s pre-PIP performance was unacceptable. The administrative judge shall hold a supplemental hearing if appropriate. The administrative judge shall then issue a new initial decision consistent with Santos. If the agency makes the additional showing required under Santos on remand, the administrative judge may incorporate in the remand initial decision his prior findings on the other elements of the agency’s case and the appellant’s affirmative defenses, consistent with this Remand Order.10 However, regardless of whether the agency meets its burden, if the argument or evidence on remand regarding the appellant’s pre-PIP performance affects the administrative judge’s analysis of the appellant’s affirmative defenses, he should address such argument or evidence in the remand initial decision. See Spithaler v. Office of Personnel Management , 1 M.S.P.R. 587, 589 (1980) (explaining that an initial decision must identify all material issues of fact and law, summarize the evidence, resolve issues of credibility, and include the administrative judge’s conclusions of law and his legal reasoning, as well as the authorities on which that reasoning rests). ORDER For the reasons discussed above, we remand this case to the Washington Regional Office for further adjudication in accordance with this Remand Order. FOR THE BOARD: ______________________________ Gina K. Grippando Clerk of the Board Washington, D.C.11	Mostafaie_GinaDC-0432-19-0480-I-1_Remand_Order.pdf	2025-02-24	GINA MOSTAFAIE v. DEPARTMENT OF THE TREASURY, MSPB Docket No. DC-0432-19-0480-I-1, February 24, 2025	DC-0432-19-0480-I-1	NP
121	https://www.mspb.gov/decisions/nonprecedential/Willingham_Nathaniel_J_SF-0752-23-0404-I-1_Final_Order.pdf	UNITED STATES OF AMERICA MERIT SYSTEMS PROTECTION BOARD NATHANIEL J. WILLINGHAM, Appellant, v. DEPARTMENT OF THE NAVY, Agency.DOCKET NUMBER SF-0752-23-0404-I-1 DATE: February 24, 2025 THIS FINAL ORDER IS NONPRECEDENTIAL1 Nathaniel J. Willingham , Virginia Beach, Virginia, pro se. James Yu , Esquire, and Stephanie Rogers , Esquire, Norco, 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 affirmed his indefinite suspension based on the suspension of his access to classified information. On petition for review, the appellant asserts that the 1 A nonprecedential order is one that the Board has determined does not add significantly to the body of MSPB case law. Parties may cite nonprecedential orders, but such orders have no precedential value; the Board and administrative judges are not required to follow or distinguish them in any future decisions. In contrast, a precedential decision issued as an Opinion and Order has been identified by the Board as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c). administrative judge incorrectly concluded that the record did not support his claim that he obtained a Top Secret clearance for a prior position, and he reiterates his argument that the review of his access to classified information was initiated in reprisal for whistleblowing and other protected activity. 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 not2 established any basis under section 1201.115 for granting the petition for review.2 Therefore, we DENY the petition for review. Except as expressly MODIFIED to SUPPLEMENT the initial decision to find that the indefinite suspension promotes the efficiency of the service and is reasonable, we AFFIRM the initial decision. In affirming the appellant’s indefinite suspension based on the charge of suspension of access to classified information and assignment to sensitive position, the administrative judge correctly found, based largely on the parties’ stipulations, that the appellant’s position is classified as non-critical sensitive and requires the appellant to maintain clearance eligibility of at least Secret and that, as a condition of employment, he must maintain eligibility for access to classified information and be able to occupy assignment in a sensitive position. Initial Appeal File (IAF), Tab 18, Initial Decision (ID) at 15-17, Tab 12 at 13. He also correctly found that the appellant’s eligibility for clearance or assignment to a sensitive position was suspended. ID at 18; IAF, Tab 5 at 43, Tab 12 at 13. Such 2 The appellant’s reiteration of his claims of reprisal in his petition for review do not provide a basis to disturb the administrative judge’s conclusion that that the Board is without authority to consider those claims. Initial Appeal File, Tab 18, Initial Decision at 6. Although we acknowledge that the appellant is not asking the Board to determine whether the subsequent derogatory information uncovered by the Defense Counterintelligence and Security Agency Consolidated Adjudication Services (DCAS CAS) was sufficient to warrant the suspension of his clearance or access to classified information, his assertion that DCAS CAS’s review of his access to classified information was the result of reprisal does ultimately go to the merits of a decision to suspend his access because it requires a determination of whether the proffered reason for the suspension was legitimate. The Board is explicitly prohibited from making such a determination. See Department of the Navy v. Egan , 484 U.S. 518, 530 (1988). When a claim requires the Board to consider whether the reasons for the suspension of the clearance or access to classified information are legitimate, such as a claim of discrimination or, as is the case here, reprisal, the Board is without authority to review those claims. See Putnam v. Department of Homeland Security , 121 M.S.P.R. 532, ¶¶ 18-19 (2014) (concluding that the Board is not permitted to review allegations of prohibited discrimination or reprisal relating to an adverse action premised on the suspension or revocation of a security clearance where doing so would involve a prohibited inquiry into the validity of the security clearance determination). As such, the administrative judge properly declined to consider the appellant’s reprisal claims.3 findings are sufficient to sustain the charge here.3 See Buelna v. Department of Homeland Security , 121 M.S.P.R. 262, ¶ 11 (2014) (sustaining a charge of suspension of a Top Secret security clearance based on the parties’ stipulations that the appellant’s position required a security clearance and that he “lost” the security clearance); 5 C.F.R. § 1201.63 (explaining that a stipulation will satisfy a party’s burden of proving the fact alleged). To sustain an indefinite suspension under chapter 75, the agency must also show that there is a nexus between the suspension of the appellant’s access to classified information and the efficiency of the service and that the penalty was reasonable. Hall v. Department of Defense , 117 M.S.P.R. 687, ¶¶ 6, 10 (2012). The administrative judge did not address these issues in the initial decision. The Board has consistently held that a nexus exists between an indefinite suspension based on the suspension or revocation of a security clearance or access to classified information and the efficiency of the service. See Munoz v. Department of Homeland Security , 121 M.S.P.R. 483, ¶ 13 (2014) (explaining when an adverse action is based on the failure to maintain a security clearance required by the job description, the action promotes the efficiency of the service because “the absence of a properly authorized security clearance is fatal to the job entitlement”) (internal citations omitted); Buelna, 121 M.S.P.R. 262, ¶ 11 (agreeing with the administrative judge that an indefinite suspension based on the suspension of a required security clearance promotes the efficiency of the service). It has also consistently upheld the penalty of an indefinite suspension 3 The administrative judge also correctly found that the indefinite suspension action appropriately included a condition subsequent that would terminate the suspension and that the agency did not have a formal policy entitling the appellant to reassignment in lieu of an indefinite suspension. ID at 21-22; IAF, Tab 12 at 14; see Munoz v. Department of Homeland Security , 121 M.S.P.R. 483, ¶ 15 (2014); Hernandez v. Department of the Navy , 120 M.S.P.R. 14, ¶ 6 (2013). We also agree with his conclusion that the agency complied with all necessary procedural protections and afforded the appellant due process. ID at 19-21; IAF, Tab 12 at 13-14; see 5 U.S.C. § 7513(b); Palafox v. Department of the Navy , 124 M.S.P.R. 54, ¶ 8 (2016). 4 when an employee’s clearance or access to classified information is suspended or revoked. See Palafox v. Department of the Navy , 124 M.S.P.R. 54 (2016) (upholding an indefinite suspension for failure to meet a condition of employment based on the suspension of access to classified information); Rogers v. Department of Defense , 122 M.S.P.R. 671, ¶ 5 (2015) (stating that an agency may indefinitely suspend an employee when his access to classified information has been suspended and he needs such access to perform his job). Accordingly, we supplement the initial decision to find that the appellant’s indefinite suspension promotes the efficiency of the service and is a reasonable penalty. NOTICE OF APPEAL RIGHTS4 The initial decision, as supplemented by this Final Order, constitutes the Board’s final decision in this matter. 5 C.F.R. § 1201.113. You may obtain review of this final decision. 5 U.S.C. § 7703(a)(1). By statute, the nature of your claims determines the time limit for seeking such review and the appropriate forum with which to file. 5 U.S.C. § 7703(b). Although we offer the following summary of available appeal rights, the Merit Systems Protection Board does not provide legal advice on which option is most appropriate for your situation and the rights described below do not represent a statement of how courts will rule regarding which cases fall within their jurisdiction. If you wish to seek review of this final decision, you should immediately review the law applicable to your claims and carefully follow all filing time limits and requirements. Failure to file within the applicable time limit may result in the dismissal of your case by your chosen forum. Please read carefully each of the three main possible choices of review below to decide which one applies to your particular case. If you have questions 4 Since the issuance of the initial decision in this matter, the Board may have updated the notice of review rights included in final decisions. As indicated in the notice, the Board cannot advise which option is most appropriate in any matter.5 about whether a particular forum is the appropriate one to review your case, you should contact that forum for more information. (1) Judicial review in general . As a general rule, an appellant seeking judicial review of a final Board order must file a petition for review with the U.S. Court of Appeals for the Federal Circuit, which must be received by the court within 60 calendar days of the date of issuance of this decision. 5 U.S.C. § 7703(b)(1)(A). If you submit a petition for review to the U.S. Court of Appeals for the Federal Circuit, you must submit your petition to the court at the following address: U.S. Court of Appeals for the Federal Circuit 717 Madison Place, N.W. Washington, D.C. 20439 Additional information about the U.S. Court of Appeals for the Federal Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11. If you are interested in securing pro bono representation for an appeal to the U.S. Court of Appeals for the Federal Circuit, you may visit our website at http://www.mspb.gov/probono for information regarding pro bono representation for Merit Systems Protection Board appellants before the Federal Circuit. The Board neither endorses the services provided by any attorney nor warrants that any attorney will accept representation in a given case. (2) Judicial or EEOC review of cases involving a claim of discrimination . This option applies to you only if you have claimed that you were affected by an action that is appealable to the Board and that such action was based, in whole or in part, on unlawful discrimination. If so, you may obtain6 judicial review of this decision —including a disposition of your discrimination claims —by filing a civil action with an appropriate U.S. district court ( not the U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems Protection Board , 582 U.S. 420 (2017). If you have a representative in this case, and your representative receives this decision before you do, then you must file with the district court no later than 30 calendar days after your representative receives this decision. If the action involves a claim of discrimination based on race, color, religion, sex, national origin, or a disabling condition, you may be entitled to representation by a court-appointed lawyer and to waiver of any requirement of prepayment of fees, costs, or other security. See 42 U.S.C. § 2000e-5(f) and 29 U.S.C. § 794a. Contact information for U.S. district courts can be found at their respective websites, which can be accessed through the link below: http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx . Alternatively, you may request review by the Equal Employment Opportunity Commission (EEOC) of your discrimination claims only, excluding all other issues . 5 U.S.C. § 7702(b)(1). You must file any such request with the EEOC’s Office of Federal Operations within 30 calendar days after you receive this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case, and your representative receives this decision before you do, then you must file with the EEOC no later than 30 calendar days after your representative receives this decision. If you submit a request for review to the EEOC by regular U.S. mail, the address of the EEOC is: Office of Federal Operations Equal Employment Opportunity Commission P.O. Box 77960 Washington, D.C. 200137 If you submit a request for review to the EEOC via commercial delivery or by a method requiring a signature, it must be addressed to: Office of Federal Operations Equal Employment Opportunity Commission 131 M Street, N.E. Suite 5SW12G Washington, D.C. 20507 (3) Judicial review pursuant to the Whistleblower Protection Enhancement Act of 2012 . This option applies to you only if you have raised claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D). If so, and your judicial petition for review “raises no challenge to the Board’s disposition of allegations of a prohibited personnel practice described in section 2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i), (B), (C), or (D),” then you may file a 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: 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 U.S. Court of Appeals for the Federal Circuit 717 Madison Place, N.W. Washington, D.C. 20439 Additional information about the U.S. Court of Appeals for the Federal Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11. If you are interested in securing pro bono representation for an appeal to the U.S. Court of Appeals for the Federal Circuit, you may visit our website at http://www.mspb.gov/probono for information regarding pro bono representation for Merit Systems Protection Board appellants before the 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	Willingham_Nathaniel_J_SF-0752-23-0404-I-1_Final_Order.pdf	2025-02-24	NATHANIEL J. WILLINGHAM v. DEPARTMENT OF THE NAVY, MSPB Docket No. SF-0752-23-0404-I-1, February 24, 2025	SF-0752-23-0404-I-1	NP
122	https://www.mspb.gov/decisions/nonprecedential/Heard_Romanuel_A_AT-0752-24-0147-I-1_Final_Order.pdf	UNITED STATES OF AMERICA MERIT SYSTEMS PROTECTION BOARD ROMANUEL A. HEARD, Appellant, v. DEPARTMENT OF THE ARMY, Agency.DOCKET NUMBER AT-0752-24-0147-I-1 DATE: February 24, 2025 THIS FINAL ORDER IS NONPRECEDENTIAL1 Romanuel A. Heard , Columbus, Georgia, pro se. Nic Roberts , Esquire, Fort Benning, Georgia, 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 of a proposed removal for lack of jurisdiction. Generally, we grant petitions such as this one only in the following circumstances: the 1 A nonprecedential order is one that the Board has determined does not add significantly to the body of MSPB case law. Parties may cite nonprecedential orders, but such orders have no precedential value; the Board and administrative judges are not required to follow or distinguish them in any future decisions. In contrast, a precedential decision issued as an Opinion and Order has been identified by the Board as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c). initial decision contains erroneous findings of material fact; the initial decision is based on an erroneous interpretation of statute or regulation or the erroneous application of the law to the facts of the case; the administrative judge’s rulings during either the course of the appeal or the initial decision were not consistent with required procedures or involved an abuse of discretion, and the resulting error affected the outcome of the case; or new and material evidence or legal argument is available that, despite the petitioner’s due diligence, was not available when the record closed. Title 5 of the Code of Federal Regulations, section 1201.115 (5 C.F.R. § 1201.115). After fully considering the filings in this appeal, we conclude that the petitioner has not established any basis under section 1201.115 for granting the petition for review. Therefore, we DENY the petition for review2 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 2 On petition for review, the appellant does not dispute the administrative judge’s jurisdictional findings, but he argues that he was prevented from meeting the Board’s filing deadlines at various stages of the proceedings in this matter. Petition for Review File, Tab 3 at 1, Tab 5 at 3. Because we are affirming the administrative judge’s decision dismissing the appeal for lack of jurisdiction, we do not address the timeliness of the appellant’s petition for review or other filings. See Metzenbaum v. General Services Administration , 96 M.S.P.R. 104, ¶ 1 n.1 (2004) (declining to address the timeliness of the appellant’s petition for review and appeal where the Board dismissed the appeal for lack of jurisdiction). 3 As noted by the administrative judge, if the agency issues a decision effectuating the proposed removal, the appellant may file a new appeal consistent with the Board’s regulations. 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 Systems Protection Board does not provide legal advice on which option is most appropriate for your situation and the rights described below do not represent a statement of how courts will rule regarding which cases fall within their jurisdiction. If you wish to seek review of this final decision, you should immediately review the law applicable to your claims and carefully follow all filing time limits and requirements. Failure to file within the applicable time limit may result in the dismissal of your case by your chosen forum. Please read carefully each of the three main possible choices of review below to decide which one applies to your particular case. If you have questions about whether a particular forum is the appropriate one to review your case, you should contact that forum for more information. (1) Judicial review in general . As a general rule, an appellant seeking judicial review of a final Board order must file a petition for review with the U.S. Court of Appeals for the Federal Circuit, which must be received by the court within 60 calendar days of the date of issuance of this decision. 5 U.S.C. § 7703(b)(1)(A). If you submit a petition for review to the U.S. Court of Appeals for the Federal Circuit, you must submit your petition to the court at the following address: U.S. Court of Appeals for the Federal Circuit 717 Madison Place, N.W. Washington, D.C. 20439 Additional information about the U.S. Court of Appeals for the Federal Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11. If you are interested 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 court5 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	Heard_Romanuel_A_AT-0752-24-0147-I-1_Final_Order.pdf	2025-02-24	ROMANUEL A. HEARD v. DEPARTMENT OF THE ARMY, MSPB Docket No. AT-0752-24-0147-I-1, February 24, 2025	AT-0752-24-0147-I-1	NP
123	https://www.mspb.gov/decisions/nonprecedential/Johnson_Steven_P_AT-0432-23-0290-X-1_Final_Order.pdf	UNITED STATES OF AMERICA MERIT SYSTEMS PROTECTION BOARD STEVEN PATRICK JOHNSON, Appellant, v. DEPARTMENT OF THE AIR FORCE, Agency.DOCKET NUMBER AT-0432-23-0290-X-1 DATE: February 24, 2025 THIS FINAL ORDER IS NONPRECEDENTIAL1 Steven Johnson , Centerville, Georgia, pro se. Kristi M.W. Minor , Esquire, Warner Robins, Georgia, for the agency. BEFORE Cathy A. Harris, Chairman Henry J. Kerner, Vice Chairman Raymond A. Limon, Member FINAL ORDER The administrative judge issued a compliance initial decision finding the agency in noncompliance with the decision in the underlying appeal and granting the appellant’s petition for enforcement. Johnson v. Department of the Air Force , MSPB Docket No. AT-0752-23-0290-C-1, Compliance File (CF), Tab 5, Compliance Initial Decision (CID); Johnson v. Department of the Air Force , MSPB 1 A nonprecedential order is one that the Board has determined does not add significantly to the body of MSPB case law. Parties may cite nonprecedential orders, but such orders have no precedential value; the Board and administrative judges are not required to follow or distinguish them in any future decisions. In contrast, a precedential decision issued as an Opinion and Order has been identified by the Board as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c). Docket No. AT-0752-23-0290-I-1, Tab 22, Initial Appeal File, Initial Decision (ID). For the reasons discussed below, we now find the agency in compliance and DISMISS the appellant’s petition for enforcement. DISCUSSION OF ARGUMENTS AND EVIDENCE OF COMPLIANCE On July 7, 2023, the administrative judge issued an initial decision reversing the appellant’s removal and ordered appropriate relief. ID at 1, 9. Neither party petitioned for review, and the initial decision became the final decision of the Board. See 5 C.F.R. § 1201.113. The appellant subsequently filed a petition for enforcement of the initial decision and of relief granted in his separate attorney fee petition, Johnson v. Department of the Air Force , MSPB Docket No. AT-0752-23- 0290-A-1, Tab 1. The administrative judge granted the petition for enforcement in a compliance initial decision dated August 5, 2024. CID at 1-3. In pertinent part, the administrative judge ordered the agency to pay the appellant appropriate back pay, with interest, and benefits; and to pay him the correct amount of attorney fees. CID at 5. As neither party filed any submission with the Clerk of the Board within the time limit set forth in 5 C.F.R. § 1201.114, the administrative judge’s findings of noncompliance have become final, and the appellant’s petition for enforcement has been referred to the Board for a final decision on compliance pursuant to 5 C.F.R. § 1201.183(c).2 See 5 C.F.R. § 1201.183(b). On September 12, 2024, the Clerk of the Board issued an Acknowledgement Order informing the parties of the continued processing of this matter and setting 2 As noted in the compliance initial decision, the Board’s regulations provide that, on a finding of noncompliance, the party found to be in noncompliance must do the following: (i) to the extent that the party decides to take the actions required by the initial decision, the party must submit to the Clerk of the Board, within the time limit for filing a petition for review under 5 C.F.R. § 1201.114(e), a statement that the party has taken the actions identified in the initial decision, along with evidence establishing that the party has taken those actions; and/or (ii) to the extent that the party decides not to take all of the actions required by the initial decision, the party must file a petition for review under the provisions of 5 C.F.R. §§ 1201.114-.115. 5 C.F.R. § 1201.183(a)(6). 2 forth deadlines for additional compliance submissions. Johnson v. Department of the Air Force, MSPB Docket No. AT-0752-23-0290-X-1, Compliance Referral File (CRF), Tab 1. The Acknowledgement Order warned the appellant that if he did not respond to submissions by the agency, the Board might assume he was satisfied and dismiss his petition for enforcement. Id., Tab 2 at 3. The agency filed a substantive response on September 27, 2024, asserting that it had fully complied with the CID by paying appropriate back pay, with interest, and benefits, as well as attorney fees. CRF, Tab 3. The appellant has not responded to the agency’s submission. 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. We find that the agency has submitted evidence of compliance that appears to satisfy its obligations as set forth in the CID. CRF, Tab 3. The appellant has not responded to the agency’s submission, despite the warning in the 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).3 Acknowledgement Order that failure to respond might cause the Board to assume he was satisfied and dismiss his petition for enforcement. 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 in this compliance proceeding. Title 5 of the Code of Federal Regulations, section 1201.183(c)(1) (5 C.F.R. § 1201.183(c)(1)). NOTICE OF APPEAL RIGHTS4 You may obtain review of this final decision. 5 U.S.C. § 7703(a)(1). By statute, the nature of your claims determines the time limit for seeking such review and the appropriate forum with which to file. 5 U.S.C. § 7703(b). Although we offer the following summary of available appeal rights, the Merit Systems Protection Board does not provide legal advice on which option is most appropriate for your situation and the rights described below do not represent a statement of how courts will rule regarding which cases fall within their jurisdiction. If you wish to seek review of this final decision, you should immediately review the law applicable to your claims and carefully follow all filing time limits and requirements. Failure to file within the applicable time limit may result in the dismissal of your case by your chosen forum. Please read carefully each of the three main possible choices of review below to decide which one applies to your particular case. If you have questions about whether a particular forum is the appropriate one to review your case, you should contact that forum for more information. (1) Judicial review in general . As a general rule, an appellant seeking judicial review of a final Board order must file a petition for review with the U.S. Court of Appeals for the Federal Circuit, which must be received by the court 4 Since the issuance of the initial decision in this matter, the Board may have updated the notice of review rights included in final decisions. As indicated in the notice, the Board cannot advise which option is most appropriate in any matter.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 file with the district court no later than 30 calendar days after your representative receives this decision. If the action involves a claim of discrimination based on race, color, religion, sex, national5 origin, or a disabling condition, you may be entitled to representation by a court- appointed lawyer and to waiver of any requirement of prepayment of fees, costs, or other security. See 42 U.S.C. § 2000e-5(f) and 29 U.S.C. § 794a. Contact information for U.S. district courts can be found at their respective websites, which can be accessed through the link below: http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx . Alternatively, you may request review by the Equal Employment Opportunity Commission (EEOC) of your discrimination claims only, excluding all other issues . 5 U.S.C. § 7702(b)(1). You must file any such request with the EEOC’s Office of Federal Operations within 30 calendar days after you receive this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case, and your representative receives this decision before you do, then you must file with the EEOC no later than 30 calendar days after your representative receives this decision. If you submit a request for review to the EEOC by regular U.S. mail, the address of the EEOC is: Office of Federal Operations Equal Employment Opportunity Commission P.O. Box 77960 Washington, D.C. 20013 If you submit a request for review to the EEOC via commercial delivery or by a method requiring a signature, it must be addressed to: Office of Federal Operations Equal Employment Opportunity Commission 131 M Street, N.E. Suite 5SW12G Washington, D.C. 20507 (3) Judicial review pursuant to the Whistleblower Protection Enhancement Act of 2012 . This option applies to you only if you have raised claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D). If6 so, and your judicial petition for review “raises no challenge to the Board’s disposition of allegations of a prohibited personnel practice described in section 2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i), (B), (C), or (D),” then you may file a petition for judicial review either with the U.S. Court of Appeals for the Federal Circuit or any court of appeals of competent jurisdiction.5 The court of appeals must receive your petition for review within 60 days of the date of issuance of this decision. 5 U.S.C. § 7703(b)(1)(B). If you submit a petition for judicial review to the U.S. Court of Appeals for the Federal Circuit, you must submit your petition to the court at the following address: U.S. Court of Appeals for the Federal Circuit 717 Madison Place, N.W. Washington, D.C. 20439 Additional information about the U.S. Court of Appeals for the Federal Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11. If you are interested in securing pro bono representation for an appeal to the U.S. Court of Appeals for the Federal Circuit, you may visit our website at http://www.mspb.gov/probono for information regarding pro bono representation for Merit Systems Protection Board appellants before the Federal Circuit. The Board neither endorses the services provided by any attorney nor warrants that any attorney will accept representation in a given case. 5 The original statutory provision that provided for judicial review of certain whistleblower claims by any court of appeals of competent jurisdiction expired on December 27, 2017. The All Circuit Review Act, signed into law by the President on July 7, 2018, permanently allows appellants to file petitions for judicial review of MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals for the Federal Circuit or any other circuit court of appeals of competent jurisdiction. The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115-195, 132 Stat. 1510.7 Contact information for the courts of appeals can be found at their respective websites, which can be accessed through the link below: http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx . FOR THE BOARD: ______________________________ Gina K. Grippando Clerk of the Board Washington, D.C.8	Johnson_Steven_P_AT-0432-23-0290-X-1_Final_Order.pdf	2025-02-24	STEVEN PATRICK JOHNSON v. DEPARTMENT OF THE AIR FORCE, MSPB Docket No. AT-0432-23-0290-X-1, February 24, 2025	AT-0752-23-0290-I-1; AT-0432-23-0290-X-1	NP
124	https://www.mspb.gov/decisions/nonprecedential/Auld_Benjamin_R_CH-0752-20-0140-X-1_Final_Order.pdf	UNITED STATES OF AMERICA MERIT SYSTEMS PROTECTION BOARD BENJAMIN RICHARD AULD, Appellant, v. DEPARTMENT OF HOMELAND SECURITY, Agency.DOCKET NUMBER CH-0752-20-0140-X-1 DATE: February 24, 2025 THIS FINAL ORDER IS NONPRECEDENTIAL1 Darrin W. Gibbons , Esquire, Richmond, Virginia, for the appellant. Stanislaus Andrew Gonsalves , Esquire, Oak Brook Terrace, Illinois, for the agency. BEFORE Cathy A. Harris, Chairman Henry J. Kerner, Vice Chairman Raymond A. Limon, Member FINAL ORDER On August 19, 2024, the administrative judge issued a compliance initial decision, finding the agency in noncompliance with 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 in the underlying appeal and granting the appellant’s petition for enforcement. Auld v. Department of Homeland Security , MSPB Docket No. CH-0752-20-0140-C-1, Compliance File (CF), Tab 18, Compliance Initial Decision (CID); Auld v. Department of Homeland Security , MSPB Docket No. CH-0752-20-0140-I-2, Refiled Appeal File, Tab 23, Initial Decision (ID). For the reasons discussed below, we now find the agency in compliance and DISMISS the appellant’s petition for enforcement. DISCUSSION OF ARGUMENTS AND EVIDENCE OF COMPLIANCE On October 25, 2021, the administrative judge issued an initial decision in the underlying appeal, dismissing the appeal pursuant to a settlement agreement. ID at 2-3. Because neither party filed a petition for review, the initial decision became the final decision of the Board. 5 C.F.R. § 1201.113. On May 1, 2024, the appellant filed a petition for enforcement, alleging breach of the parties’ settlement agreement. CF, Tab 1. On June 14, 2024, the appellant filed an amended petition for enforcement, alleging that the agency breached the settlement agreement by (1) referencing the settlement in the remarks section of the Standard Form 50 (SF-50) lowering the appellant’s grade; and (2) disclosing the appellant’s removal (which had been rescinded by the settlement agreement) to the National Law Enforcement Accountability Database (NLEAD). CF, Tab 9 at 4-6. The parties engaged in discovery, and a hearing was held on August 6, 2024. During the hearing, the appellant elected to enforce the settlement agreement if a breach was found. CID at 2. The administrative judge issued a compliance initial decision on August 19, 2024, finding that the agency breached the settlement agreement when it disclosed the agreement’s existence on the appellant’s SF-50 and when it2 reported the “appellant’s removal in the NLEAD.”2 Id. at 11, 14-15. As the agency had already cured its breach concerning the NLEAD disclosure, the administrative judge ordered the agency to remove the SF-50 referencing the settlement agreement from the appellant’s official personnel file and replace it with an SF-50 containing no such remarks. Id. at 16. On September 17, 2024, the agency informed the Board that it had taken the actions identified in the compliance initial decision. Auld v. Department of Homeland Security , MSPB Docket No. CH-0752-20-0140-X-1, Compliance Referral File (CRF) , Tab 1. As the agency has submitted evidence of compliance and neither party filed an administrative petition for review, the appellant’s petition for enforcement has been referred to the Board for a final decision on issues of compliance pursuant to 5 C.F.R. § 1201.183(c).3 The Clerk of the Board issued an acknowledgement order in the instant referred compliance matter on October 25, 2024. CRF, Tab 2. The order noted the agency’s response and informed the appellant that any response to the agency’s statement was due within 20 days. Id. at 1-2. The appellant has not responded to the agency’s compliance statement. He has, however, filed a motion for attorney fees that was separately docketed and will be separately addressed by the administrative judge. Auld v. Department of Homeland Security , MSPB Docket No. CH-0752-20-0140-A-1, Tabs 1, 3, 5. 2 The administrative judge found no breach concerning the agency’s suitability assessment. CF, Tab 18 at 16. 3 As noted in the compliance initial decision, the Board’s regulations provide that, on 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. §§ 1201.114-1201.115. 5 C.F.R. § 1201.183(a)(6) (2024). 3 ANALYSIS A settlement agreement is a contract and, as such, will be enforced in accordance with contract law. Burke v. Department of Veterans Affairs , 121 M.S.P.R. 299, ¶ 8 (2014). The Board will enforce a settlement agreement that has been entered into the record in the same manner as a final Board decision or order. Id. When the appellant alleges noncompliance with a settlement agreement, the agency must produce relevant material evidence of its compliance with the agreement or show that there was good cause for noncompliance. Id. The ultimate burden, however, remains with the appellant to prove breach by a preponderance of the evidence.4 Id. The compliance initial decision ordered the agency to correct its breach concerning the appellant’s SF-50 referencing his settlement agreement. CID at 16. On September 17, 2024, the agency submitted evidence that it complied, having replaced the appellant’s SF-50 with one that made no reference to the settlement agreement. CRF, Tab 1 at 1. The agency attached the new SF-50 with its compliance report. Id. at 7. We find that the agency’s report and supporting documentation meets its burden to show that it complied with the compliance initial decision. Additionally, the appellant did not respond to the agency’s compliance statement within 20 days of the acknowledgement order, despite instructions giving him the opportunity to do so. 5 C.F.R. § 1201.183(b)(1)(i). Therefore, we find that the appellant is either “satisfied or concedes that the agency has complied,” and dismissal is warranted. See CRF, Tab 2 at 2. 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 in 4 A preponderance of the evidence is the degree of relevant evidence that a reasonable person, considering the record as a whole, would accept as sufficient to find that a contested fact is more likely to be true than untrue. 5 C.F.R. § 1201.4(q).4 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 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. 5 Since the issuance of the initial decision in this matter, the Board may have updated the notice of review rights included in final decisions. As indicated in the notice, the Board cannot advise which option is most appropriate in any matter.5 Please read carefully each of the three main possible choices of review below to decide which one applies to your particular case. If you have questions about whether a particular forum is the appropriate one to review your case, you should contact that forum for more information. (1) Judicial review in general . As a general rule, an appellant seeking judicial review of a final Board order must file a petition for review with the U.S. Court of Appeals for the Federal Circuit, which must be received by the court within 60 calendar days of the date of issuance of this decision. 5 U.S.C. § 7703(b)(1)(A). If you submit a petition for review to the U.S. Court of Appeals for the Federal Circuit, you must submit your petition to the court at the following address: U.S. Court of Appeals for the Federal Circuit 717 Madison Place, N.W. Washington, D.C. 20439 Additional information about the U.S. Court of Appeals for the Federal Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11. If you are interested in securing pro bono representation for an appeal to the U.S. Court of Appeals for the Federal Circuit, you may visit our website at http://www.mspb.gov/probono for information regarding pro bono representation for Merit Systems Protection Board appellants before the Federal Circuit. The Board neither endorses the services provided by any attorney nor warrants that any attorney will accept representation in a given case. (2) Judicial or EEOC review of cases involving a claim of discrimination . This option applies to you only if you have claimed that you were affected by an action that is appealable to the Board and that such action was based, in whole or in part, on unlawful discrimination. If so, you may obtain judicial review of this decision—including a disposition of your discrimination claims —by filing a civil6 action with an appropriate U.S. district court ( not the U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems Protection Board , 582 U.S. 420 (2017). If you have a representative in this case, and your representative receives this decision before you do, then you must file with the district court no later than 30 calendar days after your representative receives this decision. If the action involves a claim of discrimination based on race, color, religion, sex, national origin, or a disabling condition, you may be entitled to representation by a court appointed lawyer and to waiver of any requirement of prepayment of fees, costs, or other security. See 42 U.S.C. § 2000e-5(f) and 29 U.S.C. § 794a. Contact information for U.S. district courts can be found at their respective websites, which can be accessed through the link below: http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx . Alternatively, you may request review by the Equal Employment Opportunity Commission (EEOC) of your discrimination claims only, excluding all other issues . 5 U.S.C. § 7702(b)(1). You must file any such request with the EEOC’s Office of Federal Operations within 30 calendar days after you receive this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case, and your representative receives this decision before you do, then you must file with the EEOC no later than 30 calendar days after your representative receives this decision. If you submit a request for review to the EEOC by regular U.S. mail, the address of the EEOC is: Office of Federal Operations Equal Employment Opportunity Commission P.O. Box 77960 Washington, D.C. 200137 If you submit a request for review to the EEOC via commercial delivery or by a method requiring a signature, it must be addressed to: Office of Federal Operations Equal Employment Opportunity Commission 131 M Street, N.E. Suite 5SW12G Washington, D.C. 20507 (3) Judicial review pursuant to the Whistleblower Protection Enhancement Act of 2012 . This option applies to you only if you have raised claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D). If so, and your judicial petition for review “raises no challenge to the Board’s disposition of allegations of a prohibited personnel practice described in section 2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i), (B), (C), or (D),” then you may file a 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. 1510.8 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	Auld_Benjamin_R_CH-0752-20-0140-X-1_Final_Order.pdf	2025-02-24	BENJAMIN RICHARD AULD v. DEPARTMENT OF HOMELAND SECURITY, MSPB Docket No. CH-0752-20-0140-X-1, February 24, 2025	CH-0752-20-0140-I-2; CH-0752-20-0140-X-1	NP
125	https://www.mspb.gov/decisions/nonprecedential/Rosa_WilliamDC-315H-24-0057-I-1_Remand_Order.pdf	UNITED STATES OF AMERICA MERIT SYSTEMS PROTECTION BOARD WILLIAM ROSA JR., Appellant, v. DEPARTMENT OF DEFENSE, Agency.`DOCKET NUMBER DC-315H-24-0057-I-1 DATE: February 24, 2025 THIS ORDER IS NONPRECEDENTIAL1 William Rosa Jr. , Fayetteville, North Carolina, pro se. Bryant A. Boohar , Fort Liberty, North Carolina, for the agency. BEFORE Cathy A. Harris, Chairman Henry J. Kerner, Vice Chairman Raymond A. Limon, Member REMAND ORDER The appellant has filed a petition for review of the initial decision, which dismissed his appeal for lack of jurisdiction. For the reasons discussed below, we GRANT the appellant’s petition for review. We AFFIRM the initial decision as to the claims regarding discrimination based on partisan political reasons, the unconstitutionality of the Board’s regulations, and preappointment conditions. 1 A nonprecedential order is one that the Board has determined does not add significantly to the body of MSPB case law. Parties may cite nonprecedential orders, but such orders have no precedential value; the Board and administrative judges are not required to follow or distinguish them in any future decisions. In contrast, a precedential decision issued as an Opinion and 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 FIND that the appellant is not an employee with adverse action rights under 5 U.S.C. chapter 75. We VACATE the initial decision as to the suitability action claim, and we REMAND the appeal to the regional office for further adjudication consistent with this Remand Order. DISCUSSION OF ARGUMENTS ON REVIEW On petition for review, the appellant argues that his termination was effected as a suitability action2 and that the agency did not follow the proper procedures for taking such an action under 5 C.F.R. part 731. Petition for Review (PFR) File, Tab 1 at 4-5. Specifically, the appellant asserts that he is entitled to an explanation of the reasons why he was deemed unsuitable. Id. The record presents conflicting information on the legal basis for the appellant’s termination. On one hand, the termination Standard Form 50 (SF-50) stated that the legal authority for the termination was “Reg 731.201,” which is a reference to the suitability action regulations in 5 C.F.R. part 731, and the termination memorandum explicitly used the term “suitability” in listing the reason for the appellant’s termination. Initial Appeal File (IAF), Tab 2 at 4 (informing the appellant that “[his] suitability check for Tier 1 Security Clearance was unfavorable”) (emphasis in original), Tab 7 at 18. Likewise, a September 19, 2023 “Background Investigation/Suitability” memorandum stated that the appellant “has received an unfavorable suitability adjudication via [Department of Defense Consolidated Adjudication Services] with a 2 At the time of his termination, the appellant was in a probationary period and had only completed approximately 2 months of service in his position. IAF, Tab 1 at 6-7, Tab 2 at 4, 8. His most recent previous Federal employment had concluded several years earlier. IAF, Tab 7 at 21. Employees who have either completed a probationary or trial period or have completed 1 year of current continuous service are entitled to certain procedural rights, including at least 30 days’ written notice and a reasonable time to respond in writing, as to significant personnel actions like removals. 5 U.S.C. §§ 7511-7513. The appellant did not meet the definition of “employee” under 5 U.S.C. § 7511. Therefore, he was not entitled to these procedural rights, and he lacks adverse action appeal rights under 5 U.S.C. chapter 75.2 determination of Denied – 05 – Not Appointed Based on Suitability/Determination on 8/11/2023.” IAF, Tab 2 at 7. On the other hand, the termination memorandum indicated that “[t]his position requires Tier 1 Security Clearance as a Condition of Employment. As you are unable to obtain/maintain this requirement, you are being separated from the position and Federal Employment.” Id. at 4. The termination SF -50 also listed “[t]ermination during probationary period” as the reason for the personnel action. IAF, Tab 7 at 18. The administrative judge concluded that the appellant did not nonfrivolously allege he was subjected to a suitability action under 5 C.F.R. § 731.203(a). IAF, Tab 14, Initial Decision (ID) at 4 -5. He credited the termination memorandum’s title “Termination During Probationary Period,” its statement that the action was taken because of the appellant’s failure to meet the conditions of his employment, and the termination SF -50’s stated reason for the action. Id. The administrative judge acknowledged that the legal basis listed on the termination SF -50 was a regulation governing suitability actions but dismissed it as “not a legally operative document controlling on its face an employee’s status and rights.” ID at 4 (citing Scott v. Department of the Air Force, 113 M.S.P.R. 434, ¶ 8 (2010)). However, it was error to weigh the evidence at the jurisdictional stage. See Dumas v. Merit Systems Protection Board , 789 F.2d 892, 893-94 (Fed. Cir. 1986) (“[A]ll that [is] required at th[e] threshold stage [is] that a non-frivolous allegation be made.”). The administrative judge cited 5 C.F.R. § 731.203(f) and Alvarez v. Department of the Treasury , 298 F. App’x 965, 969 (Fed. Cir. 2008), for the proposition that “a termination during a probationary period is not generally a suitability action, even if it is based on the criteria for making suitability determinations set forth in 5 C.F.R. § 731.202.” ID at 4. While this claim may generally be true, it is not sufficient to be dispositive of the issue in this case. Section 731.203(f) states that, if both the suitability action regulations3 and 5 C.F.R. parts 315, 359, or 752 could be proper bases for a termination action, the agency may choose which basis to use. Even though the agency had the option of taking the termination action under part 315 in this case, the conflicting information in the record does not make clear under which basis the agency took this action. Furthermore, the U.S. Court of Appeals for the Federal Circuit upheld the Board’s finding that the Board lacked jurisdiction to review the agency’s decision as a suitability action only after the administrative judge had conducted a hearing. 298 F. App’x at 966, 968-69. As such, we find that before deciding the issue, the administrative judge should have provided the appellant with the opportunity to have a jurisdictional hearing. On remand, the administrative judge shall afford the appellant a jurisdictional hearing regarding whether the termination action was a suitability action or if it was taken on another basis. Next, the appellant argues that his termination was the result of discrimination based on partisan political reasons. PFR File, Tab 1 at 3-4. The administrative judge concluded that the appellant did not make a nonfrivolous claim regarding discrimination based on partisan political reasons and found no jurisdiction on this basis. ID at 5. The appellant claims that the administrative judge “misread or misinterpreted [his] argument” in this claim. PFR File, Tab 1 at 3-4. The appellant clarifies that he is alleging that the Merit Systems Protection Board, the Office of Personnel Management, the Defense Counterintelligence and Security Agency, and Womack Army Medical Center acted as “oppressive political partisan organization[s].” PFR File, Tab 5 at 3. He states that “these organizations have internal political affiliations that are shielded while probing into others.” Id. The Board has held that discrimination based on partisan political reasons refers to “discrimination based on affiliation with any political party or candidate.” Harris v. Department of Justice , 25 M.S.P.R. 577, 579 (1985) (quoting Sweeting v. Department of Justice ,4 6 M.S.P.R. 715, 719 (1981)). The appellant’s claims do not constitute a nonfrivolous allegation of such discrimination based on partisan political reasons. The appellant also challenges the constitutionality of his lack of appeal rights like those given to 5 U.S.C. § 7511 employees in adverse actions and claims the lack of rights violates the “constitution, [B]ill of [R]ights, and other promoted EEO and EO laws.” PFR File, Tab 1 at 4. None of these claims are an independent basis of jurisdiction. Finally, the appellant’s initial appeal claimed that he was entitled to procedures for being terminated related to preemployment conditions. IAF, Tab 1 at 7. The appellant has not challenged the administrative judge’s finding on this issue, and we see no reason to disturb it. ID at 5; PFR File, Tab 1 at 3-5. ORDER For the reasons discussed above, we remand this case to the regional office for further adjudication in accordance with this Remand Order. FOR THE BOARD: ______________________________ Gina K. Grippando Clerk of the Board Washington, D.C.5	Rosa_WilliamDC-315H-24-0057-I-1_Remand_Order.pdf	2025-02-24	WILLIAM ROSA JR. v. DEPARTMENT OF DEFENSE, MSPB Docket No. DC-315H-24-0057-I-1, February 24, 2025	DC-315H-24-0057-I-1	NP
126	https://www.mspb.gov/decisions/nonprecedential/Ragel_HannahPH-315H-22-0085-I-1_Remand_Order.pdf	UNITED STATES OF AMERICA MERIT SYSTEMS PROTECTION BOARD HANNAH RAGEL, Appellant, v. DEPARTMENT OF DEFENSE, Agency.DOCKET NUMBER PH-315H-22-0085-I-1 DATE: February 24, 2025 THIS ORDER IS NONPRECEDENTIAL1 Dennis L. Friedman , Esquire, Philadelphia, Pennsylvania, for the appellant. Joseph Guerra , Esquire, and Walter Ryan Schuster , Esquire, Philadelphia, Pennsylvania, for the agency. BEFORE Cathy A. Harris, Chairman Henry J. Kerner, Vice Chairman Raymond A. Limon, Member REMAND ORDER The appellant has filed a petition for review of the initial decision, which dismissed her probationary termination 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 Board’s Northeastern Regional Office for further adjudication in accordance with this Remand Order. BACKGROUND The appellant was appointed to an excepted-service position as a GS-03, Student Trainee (Contracting) effective July 9, 2018. Initial Appeal File (IAF), Tab 7 at 26. The Standard Form 50 (SF-50) documenting her appointment pursuant to 5 C.F.R. § 213.3402(a) states that “[t]he duration of a pathways appointment . . . is a trial period.” Id. at 28. The SF-50 also states that the appellant was a nonpreference eligible and not entitled to any credit for prior service. Id. The agency terminated her appointment, effective May 20, 2021, citing performance and attendance concerns. Id. at 21-23. The appellant filed a Board appeal challenging her probationary termination and requested a hearing. IAF, Tab 1. The agency filed a motion to dismiss the appeal for lack of jurisdiction. IAF, Tab 11. The administrative judge issued an order to show cause on the issue of jurisdiction. IAF, Tab 2. In response, the appellant argued that “at the time of her termination, [she] was an employee in the excepted service who ha[d] completed two years of current continuous service in the same position and who had not been appointed to a time-limited position.” IAF, Tab 6 at 6. Without holding the appellant’s requested hearing, the administrative judge issued an initial decision dismissing the appeal for lack of jurisdiction. IAF, Tab 16, Initial Decision (ID) at 1, 11. He reasoned that the appellant failed to nonfrivolously allege she met the definition of an employee with chapter 75 appeal rights. ID at 10-11. He further found that because the Board lacks jurisdiction over the appellant’s termination, he could not consider her claims of discrimination. ID at 10.2 The appellant has filed a petition for review of the initial decision. Petition for Review (PFR) File, Tabs 1-2. The agency has responded in opposition. PFR File, Tab 4. DISCUSSION OF ARGUMENTS ON REVIEW The Board’s jurisdiction is limited to those matters over which it has been given jurisdiction by law, rule, or regulation. Maddox v. Merit Systems Protection Board , 759 F.2d 9, 10 (Fed. Cir. 1985). An appellant bears the burden of proving by preponderant evidence that her appeal is within the Board’s jurisdiction. 5 C.F.R. § 1201.56(b)(2)(i). An appellant is entitled to a jurisdictional hearing if she presents nonfrivolous allegations of Board jurisdiction. Ferdon v. U.S. Postal Service , 60 M.S.P.R. 325, 329 (1994). In determining whether the appellant has made a nonfrivolous allegation of jurisdiction entitling her to a hearing, the administrative judge may consider the agency’s documentary submissions; however, to the extent that the agency’s evidence constitutes mere factual contradiction of the appellant’s otherwise adequate prima facie showing of jurisdiction, the administrative judge may not weigh evidence and resolve conflicting assertions of the parties, and the agency’s evidence may not be dispositive. Id. A nonpreference eligible in the excepted service has a statutory right to appeal a termination if she qualifies as an “employee” within the meaning of 5 U.S.C. § 7511(a)(1)(C). Martinez v. Department of Homeland Security , 118 M.S.P.R. 154, ¶ 5 (2012). An “employee” under 5 U.S.C. § 7511(a)(1)(C) is defined as a nonpreference eligible individual in the excepted service (i) who is not serving a probationary or trial period under an initial appointment pending conversion to the competitive service or (ii) who has completed 2 years of current continuous service in the same or similar positions in an Executive agency under other than a temporary appointment limited to 2 years or less. Martinez,3 118 M.S.P.R. 154, ¶ 5. The Board has jurisdiction if either section 7511(a)(1)(C) (i) or (ii) is satisfied. Id. The appellant did not make a nonfrivolous allegation that she is an “employee” within the meaning of 5 U.S.C. § 7511(a)(1)(C)(i). On review, the appellant argues that she met the definition of an employee under 5 U.S.C. § 7511(a)(1)(C)(i) because she successfully completed the requirements under the agency’s internship program and was no longer in a trial period. PFR File, Tab 1 at 9-10. In support of her argument, the appellant relies on an email from an agency Career Program Administrator that stated that she completed all the requirements to be converted into the Pathways to Career Excellence (PaCER) Program. IAF, Tab 15 at 24-25. The administrative judge considered this evidence but found that the appellant did not make a nonfrivolous allegation that she had completed her initial trial period. ID at 5-7. We agree. The SF-50 documenting the appellant’s appointment to the Student Trainee (Contracting) position specifies that the duration of her appointment is a trial period. IAF, Tab 7 at 28. The appellant appears to argue on review that under Nelson v. Department of Health and Human Services , 119 M.S.P.R. 276 (2013) the duration of her appointment could not be construed as a trial period. PFR File, Tab 1 at 9. We disagree. As the administrative judge correctly explained, the Board’s holding in Nelson provides that the entirety of an initial appointment under a special appointment authority cannot, by default, be construed as a trial period, however, it does not preclude an agency from affirmatively electing to make such an initial appointment period a trial period, and the evidence here reflects the agency made such a choice. ID at 6; see Nelson, 119 M.S.P.R. 276, ¶ 12. The record is also devoid of evidence that the agency converted the appellant to a competitive service position in the PaCER program. Further, the appellant admitted that at the time of her termination she still held the Student Trainee (Contracting) position and did not meet the definition of an “employee”4 under 5 U.S.C. § 7511(a)(1)(C)(i) in response to the agency’s request for admissions. IAF, Tab 15 at 18, 22.2 Therefore, we agree with the administrative judge that the appellant did not raise a nonfrivolous allegation that she is an “employee” under 5 U.S.C. § 7511(a)(1)(C)(i). Thus, whether the appellant was an “employee” with Board appeal rights turns on whether she completed 2 years of current continuous service in the same or similar position in an Executive agency under other than a temporary appointment limited to 2 years or less. See 5 U.S.C. § 7511(a)(1)(C)(ii). The appellant has made a nonfrivolous allegation that she is an “employee” within the meaning of 5 U.S.C. § 7511(a)(1)(C)(ii). Below, the appellant alleged that she was a chapter 75 “employee” because “at the time of her termination, [she] was an employee in the excepted service who ha[d] completed two years of current continuous service in the same position and who had not been appointed to a time limited position.” IAF, Tab 6 at 6. The administrative judge found that, although the appellant’s position title remained the same during her tenure, she held three different positions that were not the “same or similar” and therefore could not be combined to provide her 2 years of current continuous service . ID at 7-10; IAF, Tab 7 at 81-82, 88-103, 105-16. We find, however, that this portion of the administrative judge’s analysis is based on a weighing of the agency’s documentary evidence against the appellant’s otherwise adequate prima facie showing of jurisdiction. ID at 7-10; IAF, Tab 12 at 7-8; see Ferdon, 60 M.S.P.R. at 329. Because the appellant has made a nonfrivolous allegation of jurisdiction notwithstanding the agency’s documentary evidence to the contrary, she is entitled to a jurisdictional hearing. See Coradeschi v. Department of Homeland Security , 439 F.3d 1329, 1332 (Fed. Cir. 2006); Martinez v. Department of Homeland Security , 118 M.S.P.R. 154, ¶ 13 (2012). 2 The appellant also acknowledged on her initial appeal form that her termination occurred during her probationary or initial service period. IAF, Tab 1 at 4.5 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.6	Ragel_HannahPH-315H-22-0085-I-1_Remand_Order.pdf	2025-02-24	HANNAH RAGEL v. DEPARTMENT OF DEFENSE, MSPB Docket No. PH-315H-22-0085-I-1, February 24, 2025	PH-315H-22-0085-I-1	NP
127	https://www.mspb.gov/decisions/nonprecedential/LeQuieu_Marc_A_SF-0752-24-0207-I-1_Final_Order.pdf	UNITED STATES OF AMERICA MERIT SYSTEMS PROTECTION BOARD MARC ANDRE LEQUIEU, Appellant, v. DEPARTMENT OF AGRICULTURE, Agency.DOCKET NUMBER SF-0752-24-0207-I-1 DATE: February 21, 2025 THIS FINAL ORDER IS NONPRECEDENTIAL1 Marc Andre LeQuieu , Mount Vernon, Oregon, pro se. Marcus Mitchell , Albuquerque, New Mexico, for the agency. Julie Nelson , Brighton, Colorado, 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 as untimely filed without good cause shown. On petition for review, the appellant, among other things, repeats his argument that connectivity 1 A nonprecedential order is one that the Board has determined does not add significantly to the body of MSPB case law. Parties may cite nonprecedential orders, but such orders have no precedential value; the Board and administrative judges are not required to follow or distinguish them in any future decisions. In contrast, a precedential decision issued as an Opinion and Order has been identified by the Board as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c). issues in his rural community led to his filing delay. He also repeats his claim that he reasonably believed that the 30-day appeal period started upon his confirmation of receipt of the final agency 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.2 5 C.F.R. § 1201.113(b). 2 In his reply to the agency’s response to his petition for review, the appellant argues that the Board should apply the doctrine of equitable tolling to excuse his delay in filing his Board appeal. Petition for Review File, Tab 4 at 4. Because this argument invokes a new legal theory not raised in his petition for review or responsive to the agency’s response, we need not consider it. See Lin v. Department of the Air Force , 2023 MSPB 2, ¶ 8 n.4 (stating that, because a reply is limited to the issues raised by another party in the response to the petition for review and may not raise new allegations of error, the Board would not consider arguments first raised in a reply); 5 C.F.R. § 1201.114(a)(3). In any event, even if the deadline at issue could be equitably tolled, nothing indicates that this case presents the sort of unusual circumstance—namely a showing that the appellant has been pursuing his rights diligently and some extraordinary circumstances stood in his way—that would justify application of that rare remedy. See Heimberger v. Department of Commerce , 121 M.S.P.R. 10, ¶ 10 (2014); see also Irwin v. Department of Veterans Affairs , 498 U.S. 89, 96 (1990) (explaining that Federal courts have applied equitable tolling sparingly, such as when the claimant has actively pursued judicial remedies by filing a defective pleading during the statutory period, or when the complainant has been induced or tricked by his adversary’s misconduct into allowing the filing deadline to pass).2 NOTICE OF APPEAL RIGHTS3 You may obtain review of this final decision. 5 U.S.C. § 7703(a)(1). By statute, the nature of your claims determines the time limit for seeking such review and the appropriate forum with which to file. 5 U.S.C. § 7703(b). Although we offer the following summary of available appeal rights, the Merit Systems Protection Board does not provide legal advice on which option is most appropriate for your situation and the rights described below do not represent a statement of how courts will rule regarding which cases fall within their jurisdiction. If you wish to seek review of this final decision, you should immediately review the law applicable to your claims and carefully follow all filing time limits and requirements. Failure to file within the applicable time limit may result in the dismissal of your case by your chosen forum. Please read carefully each of the three main possible choices of review below to decide which one applies to your particular case. If you have questions about whether a particular forum is the appropriate one to review your case, you should contact that forum for more information. (1) Judicial review in general . As a general rule, an appellant seeking judicial review of a final Board order must file a petition for review with the U.S. Court of Appeals for the Federal Circuit, which must be received by the court within 60 calendar days of the date of issuance of this decision. 5 U.S.C. § 7703(b)(1)(A). If you submit a petition for review to the U.S. Court of Appeals for the Federal Circuit, you must submit your petition to the court at the following address: 3 Since the issuance of the initial decision in this matter, the Board may have updated the notice of review rights included in final decisions. As indicated in the notice, the Board cannot advise which option is most appropriate in any matter.3 U.S. Court of Appeals for the Federal Circuit 717 Madison Place, N.W. Washington, D.C. 20439 Additional information about the U.S. Court of Appeals for the Federal Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11. If you are interested in securing pro bono representation for an appeal to the U.S. Court of Appeals for the Federal Circuit, you may visit our website at http://www.mspb.gov/probono for information regarding pro bono representation for Merit Systems Protection Board appellants before the Federal Circuit. The Board neither endorses the services provided by any attorney nor warrants that any attorney will accept representation in a given case. (2) Judicial or EEOC review of cases involving a claim of discrimination . This option applies to you only if you have claimed that you were affected by an action that is appealable to the Board and that such action was based, in whole or in part, on unlawful discrimination. If so, you may obtain judicial review of this decision —including a disposition of your discrimination claims —by filing a civil action with an appropriate U.S. district court ( not the U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems Protection Board , 582 U.S. 420 (2017). If you have a representative in this case, and your representative receives this decision before you do, then you must file with the district court no later than 30 calendar days after your representative receives this decision. If the action involves a claim of discrimination based on race, color, religion, sex, national origin, or a disabling condition, you may be entitled to representation by a court-appointed lawyer and to waiver of any4 requirement of prepayment of fees, costs, or other security. See 42 U.S.C. § 2000e-5(f) and 29 U.S.C. § 794a. Contact information for U.S. district courts can be found at their respective websites, which can be accessed through the link below: http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx . Alternatively, you may request review by the Equal Employment Opportunity Commission (EEOC) of your discrimination claims only, excluding all other issues . 5 U.S.C. § 7702(b)(1). You must file any such request with the EEOC’s Office of Federal Operations within 30 calendar days after you receive this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case, and your representative receives this decision before you do, then you must file with the EEOC no later than 30 calendar days after your representative receives this decision. If you submit a request for review to the EEOC by regular U.S. mail, the address of the EEOC is: Office of Federal Operations Equal Employment Opportunity Commission P.O. Box 77960 Washington, D.C. 20013 If you submit a request for review to the EEOC via commercial delivery or by a method requiring a signature, it must be addressed to: Office of Federal Operations Equal Employment Opportunity Commission 131 M Street, N.E. Suite 5SW12G Washington, D.C. 20507 (3) Judicial review pursuant to the Whistleblower Protection Enhancement Act of 2012 . This option applies to you only if you have raised claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D). If so, and your judicial petition for review “raises no challenge to the Board’s5 disposition of allegations of a prohibited personnel practice described in section 2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i), (B), (C), or (D),” then you may file a petition for judicial review either with the U.S. Court of Appeals for the Federal Circuit or any court of appeals of competent jurisdiction.4 The court of appeals must receive your petition for review within 60 days of the date of issuance of this decision. 5 U.S.C. § 7703(b)(1)(B). If you submit a petition for judicial review to the U.S. Court of Appeals for the Federal Circuit, you must submit your petition to the court at the following address: U.S. Court of Appeals for the Federal Circuit 717 Madison Place, N.W. Washington, D.C. 20439 Additional information about the U.S. Court of Appeals for the Federal Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11. If you are interested in securing pro bono representation for an appeal to the U.S. Court of Appeals for the Federal Circuit, you may visit our website at http://www.mspb.gov/probono for information regarding pro bono representation for Merit Systems Protection Board appellants before the Federal Circuit. The Board neither endorses the services provided by any attorney nor warrants that any attorney will accept representation in a given case. 4 The original statutory provision that provided for judicial review of certain whistleblower claims by any court of appeals of competent jurisdiction expired on December 27, 2017. The All Circuit Review Act, signed into law by the President on July 7, 2018, permanently allows appellants to file petitions for judicial review of MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals for the Federal Circuit or any other circuit court of appeals of competent jurisdiction. The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115-195, 132 Stat. 1510. 6 Contact information for the courts of appeals can be found at their respective websites, which can be accessed through the link below: http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx . FOR THE BOARD: ______________________________ Gina K. Grippando Clerk of the Board Washington, D.C.7	LeQuieu_Marc_A_SF-0752-24-0207-I-1_Final_Order.pdf	2025-02-21	MARC ANDRE LEQUIEU v. DEPARTMENT OF AGRICULTURE, MSPB Docket No. SF-0752-24-0207-I-1, February 21, 2025	SF-0752-24-0207-I-1	NP
128	https://www.mspb.gov/decisions/nonprecedential/Patel_Janakkumar_T_DC-0432-17-0032-B-1_Final_Order.pdf	UNITED STATES OF AMERICA MERIT SYSTEMS PROTECTION BOARD JANAKKUMAR T. PATEL, Appellant, v. DEPARTMENT OF COMMERCE, Agency.DOCKET NUMBER DC-0432-17-0032-B-1 DATE: February 21, 2025 THIS FINAL ORDER IS NONPRECEDENTIAL1 Janakkumar T. Patel , Cary, North Carolina, pro se. Taron Murakami and William Horrigan , 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 remand initial decision, which affirmed his performance-based removal. On petition for review, the appellant argues that the administrative judge (1) failed to consider his documentary submission; (2) should have considered his performance throughout 1 A nonprecedential order is one that the Board has determined does not add significantly to the body of MSPB case law. Parties may cite nonprecedential orders, but such orders have no precedential value; the Board and administrative judges are not required to follow or distinguish them in any future decisions. In contrast, a precedential decision issued as an Opinion and 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 entire tenure at the agency; and (3) “used the same arguments” as the agency to justify his removal. Remand Petition for Review File, Tab 1 at 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 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	Patel_Janakkumar_T_DC-0432-17-0032-B-1_Final_Order.pdf	2025-02-21	JANAKKUMAR T. PATEL v. DEPARTMENT OF COMMERCE, MSPB Docket No. DC-0432-17-0032-B-1, February 21, 2025	DC-0432-17-0032-B-1	NP
129	https://www.mspb.gov/decisions/nonprecedential/Bare_Laney_J_CH-0752-18-0275-I-1_Final_Order.pdf	UNITED STATES OF AMERICA MERIT SYSTEMS PROTECTION BOARD LANEY J. BARE, Appellant, v. DEPARTMENT OF DEFENSE, Agency.DOCKET NUMBER CH-0752-18-0275-I-1 DATE: February 21, 2025 THIS FINAL ORDER IS NONPRECEDENTIAL1 Steve Newman , Esquire, New York, New York, for the appellant. Brian R. Hurey , Esquire, Indianapolis, Indiana, 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 his removal. For the reasons discussed below, we GRANT the appellant’s petition for review and REVERSE the initial decision. The appellant’s removal is NOT SUSTAINED. 1 A nonprecedential order is one that the Board has determined does not add significantly to the body of MSPB case law. Parties may cite nonprecedential orders, but such orders have no precedential value; the Board and administrative judges are not required to follow or distinguish them in any future decisions. In contrast, a precedential decision issued as an Opinion and 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 agency removed the appellant from his GS-12 Financial Management Analyst position with the agency’s Defense Finance and Accounting Service (DFAS) based on a charge of absence without leave (AWOL). Initial Appeal File (IAF), Tab 11 at 4, 19-25. The agency alleged that the appellant was AWOL for 532 hours from September 26, 2017, through January 5, 2018, which amounted to 66.5 workdays or 13.3 workweeks. Id. at 42. It asserted that, during that time period, the appellant reported for duty on only 3 days. Id. It further claimed that the appellant had exhausted all available leave balances, including leave under the Family and Medical Leave Act (FMLA). Id. The agency noted that, although the appellant had requested the accommodation of working from home due to his multiple sclerosis, IAF, Tab 12 at 37, this accommodation “would be ineffective because [he] had failed to meet [his] performance standards while previously working from home and had been placed on a PIP [performance improvement plan] on April 28, 2017,” IAF, Tab 11 at 43. It indicated that, because of the appellant’s poor performance, he required close supervision and retraining that could not be accomplished remotely. Id. The agency stated that, although it was willing to consider other arrangements, the appellant was not willing to consider any accommodation other than the flexibility to telework at his discretion. Id.at 22, 43; IAF, Tab 12 at 61. Until early 2017, the appellant teleworked 2 to 3 days per week under the agency’s nonaccommodation DFAS Telework Program. IAF, Tab 11 at 5, Tab 12 at 73, 95-96, Tab 18 at 27. On January 6, 2017, his supervisor limited his telework to 1 day per week because he had been missing deadlines and failing to submit work products timely or “at all.” IAF, Tab 12 at 73, Tab 18 at 28, Tab 25 at 4. A few weeks later, his supervisor observed that he “failed to deliver work products in a timely manner, teleworked without approval, and was [AWOL].” IAF, Tab 12 at 73. In late January 2017, she issued him a Letter of Warning and revoked approval for regular telework days. Id. at 48-50, 73-74, Tab 18 at 28.2 On March 21, 2017, the agency issued him a letter of reprimand based on a charge of Failure to Perform Assigned Duties within Required Time Frames, supported by eight specifications. IAF, Tab 12 at 7-8. The agency notified the appellant that, because of the letter of reprimand, he was now ineligible to participate in the agency’s telework program for 12 months unless he was approved for medical telework as a reasonable accommodation. Id. at 9. This action was consistent with the agency’s standard policy “to remove someone from telework once they have been issued disciplinary or performance paperwork.” IAF, Tab 18 at 28. On March 31, 2017, the appellant requested medical telework as a reasonable accommodation based on his multiple sclerosis. IAF, Tab 12 at 11, Tab 25 at 5. He referenced a Form WH-380-E, Certification of Health Care Provider for Employee’s Serious Health Condition (Family and Medical Leave Act), and noted that he was “requesting flexibility of telework schedule” and stated that he required “flexibility to telework upon [his] discretion.” IAF, Tab 12 at 30, 61. The record includes a February 6, 2017 Form WH-380-E from the appellant’s doctor indicating that the appellant had multiple sclerosis, including fatigue, bowel issues, a weak immune system, headaches, and double vision. Id. at 26-27, 29-31, 33. The document indicated that the appellant was not unable to perform any of his job functions due to the condition, though it was medically necessary for him to be absent from work during flare-ups, he could work from home during such flare-ups, and he should have the flexibility to telework when necessary. Id. at 27-28, 31-32. By memorandum dated April 5, 2017, the agency requested a medical report from the appellant’s health care provider supporting his reasonable accommodation request. Id. at 11. An April 17, 2017 doctor’s note indicated that fatigue was the appellant’s most disabling symptom and that, “[i]f he can perform some of his duties from home, this would help him in dealing with his current symptoms.” Id. at 37. On April 28, 2017, the agency informed the appellant that his performance was3 unacceptable and placed him on a PIP. Id. at 13-15. On May 10, 2017, the appellant met with his supervisor and the agency’s reasonable accommodation program manager to discuss his reasonable accommodation request. IAF, Tab 18 at 19-23. On May 17, 2017, the agency approved the appellant’s request for FMLA leave.2 IAF, Tab 12 at 17. On May 18, 2017, however, the agency denied his request for the reasonable accommodation of medical telework based on a determination that the accommodation would be ineffective. Id. at 35. The agency explained that the appellant failed to meet his performance standards while previously working from home and that he was unwilling to consider other accommodation options, such as changes to his on-site work environment. Id. The agency then issued an August 25, 2017 Letter of Concern informing the appellant that the agency was unable to support his continued absences for medical reasons outside his control, he had exhausted his leave under the FMLA on August 9, 2017, he was being carried in an AWOL status, he needed to return to duty, and continuing to grant him leave without pay was not in the best interest of the Federal Government. Id. at 18. The agency notified him that, alternatively, he could request a reasonable accommodation, apply for donated leave, or apply for disability retirement. Id. at 18-19. In a September 7, 2017 memorandum, the agency again noted the appellant’s request for medical telework as a reasonable accommodation and requested a medical report from his health care provider. Id. at 22-23. The appellant thereafter did not return to work except for the 3 days mentioned above. Id. at 41-43, 99-108; IAF, Tab 11 at 60-69. The agency proposed the appellant’s removal on January 16, 2018, and effected his removal on February 16, 2018. IAF, Tab 11 at 19-25, 42-44. On appeal to the Board, the appellant disputed the agency’s charge and alleged that the action was based on disability discrimination, namely, the agency’s failure to accommodate him. IAF, Tabs 1, 15-16, 27. After a hearing, 2 The approval appeared to be retroactive to April 5, 2017. IAF, Tab 12 at 17.4 the administrative judge affirmed the removal action. IAF, Tab 33, Initial Decision (ID) at 1, 14. The administrative judge found that the agency proved its charge by preponderant evidence and proved a nexus between the charge and the efficiency of the service. ID at 4-7. She found that the appellant did not prove disability discrimination based on a failure to reasonably accommodate him.3 ID at 7-10. The administrative judge found that, although the appellant was an individual with a disability, he did not show that he was a qualified individual with a disability who, with or without reasonable accommodation, could perform the essential functions of his position. ID at 8-10. In this regard, the administrative judge noted that, although medical evidence from the appellant’s physicians indicated that he was able to work, he failed to come to work and his work performance was deficient. ID at 8-9. The administrative judge also held that the agency engaged in the interactive reasonable accommodation process but the appellant rejected reasonable accommodation options offered by the agency that were “not his selected reasonable accommodation where the appellant could telework each week as many days each week that he determined was appropriate.” ID at 9. The administrative judge noted that the appellant was not guaranteed the reasonable accommodation of his choice and that teleworking was a problem because he was not performing his work in a timely manner and some projects were not completed at all. ID at 10. Finally, the administrative judge found that the penalty of removal was reasonable. ID at 11-13. 3 The administrative judge cited to Southerland v. Department of Defense , 119 M.S.P.R. 566, ¶ 23 (2013), for the principle that, under a mixed-motive analysis, an appellant’s remedy is limited if the agency shows by clear and convincing evidence that it would have taken the same action absent the discriminatory motive. ID at 8. The allegations in Southerland did not, however, involve a claim of failure to accommodate. Southerland, 119 M.S.P.R. 566, ¶¶ 11, 16-17. Moreover, the appellant has not alleged reprisal for requesting an accommodation. Cf. id., ¶¶ 19, 21. In any event, the Board has overruled the finding in Southerland that an agency can avoid liability by proving by clear and convincing evidence that it would have taken the same action absent an improper motive. Pridgen v. Office of Management and Budget , 2022 MSPB 31, ¶ 47. Thus, there is no basis to rely on Southerland in this case.5 The appellant asserts on review that his request to telework at his discretion was reasonable. Petition for Review (PFR) File, Tab 1 at 4. He contends that the fact that he functioned as a Financial Management Specialist from 2007 until the agency declared him AWOL on September 26, 2017, established by preponderant evidence that he was a qualified individual with a disability who could perform the essential functions of his position with or without a reasonable accommodation. Id. at 5. The appellant also asserts that the agency bore the burden of proving, but failed to prove, that granting his reasonable accommodation request would impose an undue hardship on its operations. Id. at 5-7. The agency opposes the petition for review. PFR File, Tab 3. ANALYSIS To establish disability discrimination based on a failure to accommodate claim, an employee must show that: (1) he is an individual with a disability, as defined by 29 C.F.R. § 1630.2(g); (2) he is a qualified individual with a disability, as defined by 29 C.F.R. § 1630.2(m); and (3) the agency failed to provide a reasonable accommodation. Miller v. Department of the Army , 121 M.S.P.R. 189, ¶ 13 (2014). An agency is required to make reasonable accommodation to the known physical and mental limitations of an otherwise qualified individual with a disability unless the agency can show that accommodation would cause an undue hardship on its business operations. Id.; 29 C.F.R. § 1630.9(a). Reasonable accommodation includes modifications to the manner in which a position is customarily performed in order to enable a qualified individual with a disability to perform the essential job functions. Miller, 121 M.S.P.R. 189, ¶ 13; Equal Employment Opportunity Commission (EEOC) Enforcement Notice No. 915.002, Guidance on Reasonable Accommodation and Undue Hardship under the Americans with Disabilities Act (Oct 17, 2002).6 The appellant showed that he is an individual with a disability, as defined by 29 C.F.R. § 1630.2(g). An appellant may prove that he has a disability by showing that he: (1) has a physical or mental impairment that substantially limits one or more major life activities; (2) has a record of such impairment; or (3) is regarded as having such an impairment. 42 U.S.C. § 12102(1); 29 C.F.R. § 1630.2(g)(1). Here, the administrative judge found that the appellant is an individual with a disability based on his diagnosed multiple sclerosis. ID at 2, 8; IAF, Tab 12 at 31, 37. The agency has not challenged this finding, and we find no basis to disturb it. Cf. Equal Employment Opportunity Commission v. Chevron Phillips Chemical Company, 570 F.3d 606, 618 (5th Cir. 2009) (recognizing that relapsing-remitting conditions like multiple sclerosis can constitute a disability); Feldman v. Law Enforcement Associates Corporation , 779 F. Supp. 2d 472, 483 -84 (E.D.N.C. 2011) (holding that episodic multiple sclerosis flare-ups can be a disability). The appellant showed that he is a qualified individual with a disability, as defined by 29 C.F.R. § 1630.2(m). A qualified individual with a disability is a person who, with or without reasonable accommodation, can perform the essential functions of a position. 42 U.S.C. § 12111(8); Haas v. Department of Homeland Security , 2022 MSPB 36, ¶ 28; 29 C.F.R. § 1630.2(m). Here, we find that the appellant showed that he is a qualified individual with a disability. The appellant provided medical documentation indicating that his medical condition did not render him unable to perform any of his job functions, though it was medically necessary for him to be absent from work during flare-ups, he could work from home during such flare-ups, and that he should have the flexibility to telework when necessary. IAF, Tab 12 at 27-28, 31-32. Although the agency determined that the appellant’s request for an accommodation of working from home would be ineffective because the appellant “had failed to meet [his] performance standards while previously working from home,” IAF, Tab 11 at 43, the appellant had7 previously only been approved to telework 2 to 3 days per week as part of a standard, nonaccommodation telework agreement, e.g., IAF, Tab 18 at 27. The appellant’s failure to perform acceptably under this prior agreement does not demonstrate that flexible telework as needed for flare-ups, potentially of up to 5 days per week depending on medical need, would have been ineffective; indeed, the medical documentation in the record reflects that the appellant could perform his duties with this increased flexibility. E.g., IAF, Tab 12 at 28, 37. Thus, we find that the appellant showed that he is a qualified individual with a disability as defined by 29 C.F.R. § 1630.2(m). We find that the agency failed to provide the appellant with reasonable accommodation. Once an appellant has requested accommodation, the employer must engage in an interactive process to determine an appropriate accommodation. Sanchez v. Department of Energy , 117 M.S.P.R. 155, ¶ 17 (2011). “The appropriate reasonable accommodation is best determined through a flexible, interactive process that involves both the employer and the individual with a disability.” 29 C.F.R. part 1630, App., § 1630.9. However, a failure to engage in the interactive process alone does not violate the Rehabilitation Act; rather, the appellant must show that this omission resulted in a failure to provide reasonable accommodation. Sanchez, 117 M.S.P.R. 155, ¶ 18. In other words, the appellant must establish that reasonable accommodation existed. See Paris v. Department of the Treasury, 104 M.S.P.R. 331, ¶ 24 (2006). Here, the appellant requested flexible telework based on medical need on March 31, 2017. IAF, Tab 12 at 11, Tab 25 at 5. It is well-established that a request for telecommuting because of a disability triggers an agency’s responsibility under the Rehabilitation Act. See, e.g., Barney G. v. Social Security Administration , EEOC Appeal No. 2021000802, 2022 WL 4546523, at 8 n.6 (Sept. 12, 2022). Although agency officials met with the appellant to discuss his request, they denied the same on May 18, 2017, based on a8 determination that the accommodation would be ineffective because he had previously failed to meet performance standards while teleworking.4 IAF, Tab 11 at 43, Tab 12 at 35. However, as indicated, the appellant’s work deficiencies occurred during a prior, nonaccommodation telework arrangement. The agency had significantly decreased his telework days by the time he was issued a letter of reprimand, placed on a PIP, and ultimately removed from his position. See Nicki D. v. Equal Employment Opportunity Commission , EEOC Appeal No. 0720180023, 2021 WL 4477010, at 9-10 (Sept. 18, 2021) (finding that the appellant was not being adequately accommodated at the time her performance deficiencies manifested). Here, the appellant repeatedly identified what he believed to be an effective accommodation and supported his request with ample medical documentation. Although the agency granted the appellant’s request for FMLA leave, in the absence of undue hardship, “an agency should provide reasonable accommodations that permit an employee to keep working rather than choosing to put the employee on leave.” Denese G. v. Department of the Treasury, EEOC Appeal No. 0120141118, 2016 WL 7742966, at 16 (Dec. 29, 2016). Thus, we find that the agency failed to properly engage in the interactive process.5 4 However, as discussed above, the agency’s March 21, 2017 letter of reprimand, which addressed performance deficiencies, had informed the appellant that he was ineligible to telework “unless you have been approved for medical telework as a reasonable accommodation.” IAF, Tab 12 at 9. 5 To the extent that the agency argues that the appellant’s flexible telework would have imposed an undue hardship on the agency’s business operations, we find that the record does not support such a position. See 29 C.F.R. § 1630.2(p)(1) (stating that, in general, an undue hardship exists when provision of the requested accommodation would cause the employing agency significant difficulty or expense). To this end, although the notice of proposed removal indicated that the appellant required close supervision and retraining that could not be accomplished remotely, IAF, Tab 11 at 43, the appellant’s supervisor testified that there was no difference regarding the supervision of the appellant when he was teleworking versus when he was in the office, IAF, Tab 32-2 (testimony of the appellant’s first-line supervisor). Moreover, the agency already had an established telework program. E.g., IAF, Tab 18 at 27; see Elsa S. v. National Aeronautics and Space Administration , EEOC Appeal No. 0720180021, 2020 WL9 Accordingly, the appellant proved his claim of disability discrimination on the basis of a failure to reasonably accommodate. Because the appellant met his burden of proving the agency engaged in a prohibited personnel practice that led to his removal, i.e., violating the Rehabilitation Act by failing to grant him reasonable accommodation, the agency’s action must be reversed. See 5 U.S.C.§ 7701(c)(2)(B); 5 U.S.C. § 2302(b)(1); 5 C.F.R. § 1201.56(c)(2). ORDER We ORDER the agency to cancel its removal action and restore the appellant to duty effective February 16, 2018. 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 949689 at 9 (Feb. 14, 2020) (finding no undue hardship when the complainant’s requested accommodations were in place within the agency, available to employees, and allowed her to perform the essential functions of her position).10 with the office that issued the initial decision on this appeal if the appellant believes that the agency did not fully carry out the Board’s Order. The petition should contain specific reasons why the appellant believes that the agency has not fully carried out the Board’s Order, and should include the dates and results of any communications with the agency. 5 C.F.R. § 1201.182(a). For agencies whose payroll is administered by either the National Finance Center of the Department of Agriculture (NFC) or the Defense Finance and Accounting Service (DFAS), two lists of the information and documentation necessary to process payments and adjustments resulting from a Board decision are attached. The agency is ORDERED to timely provide DFAS or NFC with all documentation necessary to process payments and adjustments resulting from the Board’s decision in accordance with the attached lists so that payment can be made within the 60-day period set forth above. NOTICE TO THE APPELLANT REGARDING YOUR RIGHT TO REQUEST ATTORNEY FEES AND COSTS You may be entitled to be paid by the agency for your reasonable attorney fees and costs. To be paid, you must meet the requirements set forth at title 5 of the United States Code (5 U.S.C.), sections 7701(g), 1221(g), or 1214(g). The regulations may be found at 5 C.F.R. §§ 1201.201, 1201.202, and 1201.203. If you believe you meet these requirements, you must file a motion for attorney fees and costs WITHIN 60 CALENDAR DAYS OF THE DATE OF THIS DECISION. You must file your motion for attorney fees and costs with the office that issued the initial decision on your appeal. NOTICE TO THE APPELLANT REGARDING YOUR RIGHT TO REQUEST COMPENSATORY DAMAGES You may be entitled to be paid by the agency for your compensatory damages, including pecuniary losses, future pecuniary losses, and nonpecuniary11 losses, such as emotional pain, suffering, inconvenience, mental anguish, and loss of enjoyment of life. To be paid, you must meet the requirements set out at 42 U.S.C. § 1981a. The regulations may be found at 5 C.F.R. §§ 1201.201, 1201.202, and 1201.204. If you believe you meet these requirements, you must file a motion for 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 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. 6 Since the issuance of the initial decision in this matter, the Board may have updated the notice of review rights included in final decisions. As indicated in the notice, the Board cannot advise which option is most appropriate in any matter.12 Court of Appeals for the Federal Circuit, which must be received by the court within 60 calendar days of the date of issuance of this decision. 5 U.S.C. § 7703(b)(1)(A). If you submit a petition for review to the U.S. Court of Appeals for the Federal Circuit, you must submit your petition to the court at the following address: U.S. Court of Appeals for the Federal Circuit 717 Madison Place, N.W. Washington, D.C. 20439 Additional information about the U.S. Court of Appeals for the Federal Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11. If you are interested in securing pro bono representation for an appeal to the U.S. Court of Appeals for the Federal Circuit, you may visit our website at http://www.mspb.gov/probono for information regarding pro bono representation for Merit Systems Protection Board appellants before the Federal Circuit. The Board neither endorses the services provided by any attorney nor warrants that any attorney will accept representation in a given case. (2) Judicial or EEOC review of cases involving a claim of discrimination . This option applies to you only if you have claimed that you were affected by an action that is appealable to the Board and that such action was based, in whole or in part, on unlawful discrimination. If so, you may obtain judicial review of this decision —including a disposition of your discrimination claims —by filing a civil action with an appropriate U.S. district court ( not the U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems Protection Board , 582 U.S. 420 (2017). If you have a representative in this case,13 and your representative receives this decision before you do, then you must file with the district court no later than 30 calendar days after your representative receives this decision. If the action involves a claim of discrimination based on race, color, religion, sex, national origin, or a disabling condition, you may be entitled to representation by a court-appointed lawyer and to waiver of any requirement of prepayment of fees, costs, or other security. See 42 U.S.C. § 2000e-5(f) and 29 U.S.C. § 794a. Contact information for U.S. district courts can be found at their respective websites, which can be accessed through the link below: http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx . Alternatively, you may request review by the Equal Employment Opportunity Commission (EEOC) of your discrimination claims only, excluding all other issues . 5 U.S.C. § 7702(b)(1). You must file any such request with the EEOC’s Office of Federal Operations within 30 calendar days after you receive this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case, and your representative receives this decision before you do, then you must file with the EEOC no later than 30 calendar days after your representative receives this decision. If you submit a request for review to the EEOC by regular U.S. mail, the address of the EEOC is: Office of Federal Operations Equal Employment Opportunity Commission P.O. Box 77960 Washington, D.C. 20013 If you submit a request for review to the EEOC via commercial delivery or by a method requiring a signature, it must be addressed to: Office of Federal Operations Equal Employment Opportunity Commission 131 M Street, N.E. Suite 5SW12G Washington, D.C. 2050714 (3) Judicial review pursuant to the Whistleblower Protection Enhancement Act of 2012 . This option applies to you only if you have raised claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D). If so, and your judicial petition for review “raises no challenge to the Board’s disposition of allegations of a prohibited personnel practice described in section 2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i), (B), (C), or (D),” then you may file a petition for judicial review either with the U.S. Court of Appeals for the Federal Circuit or any court of appeals of competent jurisdiction.7 The court of appeals must receive your petition for review within 60 days of the date of issuance of this decision. 5 U.S.C. § 7703(b)(1)(B). If you submit a petition for judicial review to the U.S. Court of Appeals for the Federal Circuit, you must submit your petition to the court at the following address: U.S. Court of Appeals for the Federal Circuit 717 Madison Place, N.W. Washington, D.C. 20439 Additional information about the U.S. Court of Appeals for the Federal Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11. 7 The original statutory provision that provided for judicial review of certain whistleblower claims by any court of appeals of competent jurisdiction expired on December 27, 2017. The All Circuit Review Act, signed into law by the President on July 7, 2018, permanently allows appellants to file petitions for judicial review of MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals for the Federal Circuit or any other circuit court of appeals of competent jurisdiction. The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115-195, 132 Stat. 1510. 15 If you are interested in securing pro bono representation for an appeal to the U.S. Court of Appeals for the Federal Circuit, you may visit our website at http://www.mspb.gov/probono for information regarding pro bono representation for Merit Systems Protection Board appellants before the Federal Circuit. The Board neither endorses the services provided by any attorney nor warrants that any attorney will accept representation in a given case. Contact information for the courts of appeals can be found at their respective websites, which can be accessed through the link below: http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx . FOR THE BOARD: ______________________________ Gina K. Grippando Clerk of the Board Washington, D.C.16 DEFENSE FINANCE AND ACCOUNTING SERVICE Civilian Pay Operations DFAS BACK PAY CHECKLIST The following documentation is required by DFAS Civilian Pay to compute and pay back pay pursuant to 5 CFR § 550.805. Human resources/local payroll offices should use the following checklist to ensure a request for payment of back pay is complete. Missing documentation may substantially delay the processing of a back pay award. More information may be found at: https://wss.apan.org/public/DFASPayroll/Back%20Pay%20Process/Forms/AllItems.aspx. NOTE: Attorneys’ fees or other non-wage payments (such as damages) are paid by vendor pay, not DFAS Civilian Pay. ☐1) Submit a “SETTLEMENT INQUIRY - Submission” Remedy Ticket. Please identify the specific dates of the back pay period within the ticket comments. Attach the following documentation to the Remedy Ticket, or provide a statement in the ticket comments as to why the documentation is not applicable: ☐2) Settlement agreement, administrative determination, arbitrator award, or order. ☐3) Signed and completed “Employee Statement Relative to Back Pay”. ☐4) All required SF50s (new, corrected, or canceled). *Do not process online SF50s until notified to do so by DFAS Civilian Pay.* ☐5) Certified timecards/corrected timecards. *Do not process online timecards until notified to do so by DFAS Civilian Pay.* ☐6) All relevant benefit election forms (e.g., TSP, FEHB, etc.). ☐7) Outside earnings documentation. Include record of all amounts earned by the employee in a job undertaken during the back pay period to replace federal employment. Documentation includes W-2 or 1099 statements, payroll documents/records, etc. Also, include record of any unemployment earning statements, workers’ compensation, CSRS/FERS retirement annuity payments, refunds of CSRS/FERS employee premiums, or severance pay received by the employee upon separation. Lump Sum Leave Payment Debts: When a separation is later reversed, there is no authority under 5 U.S.C. § 5551 for the reinstated employee to keep the lump sum annual leave payment they may have received. The payroll office must collect the debt from the back pay award. The annual leave will be restored to the employee. Annual leave that exceeds the annual leave ceiling will be restored to a separate leave account pursuant to 5 CFR § 550.805(g).17 NATIONAL FINANCE CENTER CHECKLIST FOR BACK PAY CASES Below is the information/documentation required by National Finance Center to process payments/adjustments agreed on in Back Pay Cases (settlements, restorations) or as ordered by the Merit Systems Protection Board, EEOC, and courts . 1.Initiate and submit AD-343 (Payroll/Action Request) with clear and concise information describing what to do in accordance with decision. 2.The following information must be included on AD-343 for Restoration: a.Employee name and social security number. b.Detailed explanation of request. c.Valid agency accounting. d.Authorized signature (Table 63). e.If interest is to be included. f.Check mailing address. g.Indicate if case is prior to conversion. Computations must be attached. h.Indicate the amount of Severance and Lump Sum Annual Leave Payment to be collected (if applicable). Attachments to AD-343 1.Provide pay entitlement to include Overtime, Night Differential, Shift Premium, Sunday Premium, etc. with number of hours and dates for each entitlement (if applicable). 2.Copies of SF-50s (Personnel Actions) or list of salary adjustments/changes and amounts. 3.Outside earnings documentation statement from agency. 4.If employee received retirement annuity or unemployment, provide amount and address to return monies. 5.Provide forms for FEGLI, FEHBA, or TSP deductions (if applicable). 6.If employee was unable to work during any or part of the period involved, certification of the type of leave to be charged and number of hours. 7.If employee retires at end of Restoration Period, provide hours of Lump Sum Annual Leave to be paid. NOTE: If prior to conversion, agency must attach Computation Worksheet by Pay Period and required data in 1-7 above. The following information must be included on AD-343 for Settlement Cases: (Lump Sum Payment, Correction to Promotion, Wage Grade Increase, FLSA, etc.) a.Must provide same data as in 2, a-g above. b.Prior to conversion computation must be provided. c.Lump Sum amount of Settlement, and if taxable or non-taxable. If you have any questions or require clarification on the above, please contact NFC’s Payroll/Personnel Operations at 504-255-4630.18	Bare_Laney_J_CH-0752-18-0275-I-1_Final_Order.pdf	2025-02-21	LANEY J. BARE v. DEPARTMENT OF DEFENSE, MSPB Docket No. CH-0752-18-0275-I-1, February 21, 2025	CH-0752-18-0275-I-1	NP
130	https://www.mspb.gov/decisions/nonprecedential/Young_Teresa_M_DC-1221-21-0296-W-4_Final_Order.pdf	UNITED STATES OF AMERICA MERIT SYSTEMS PROTECTION BOARD TERESA M. YOUNG, Appellant, v. DEPARTMENT OF DEFENSE, Agency.DOCKET NUMBER DC-1221-21-0296-W-4 DATE: February 21, 2025 THIS FINAL ORDER IS NONPRECEDENTIAL1 Teresa M. Young , Frederick, Maryland, pro se. Steven Weiss , Bethesda, 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. On petition for review, the appellant, among other things, asserts that her 1 A nonprecedential order is one that the Board has determined does not add significantly to the body of MSPB case law. Parties may cite nonprecedential orders, but such orders have no precedential value; the Board and administrative judges are not required to follow or distinguish them in any future decisions. In contrast, a precedential decision issued as an Opinion and Order has been identified by the Board as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c). supervisor improperly influenced the deciding official, the agency banned her from the premises following her termination in retaliation for her whistleblowing disclosures, and it discriminated against her and committed harmful procedural error. Generally, we grant petitions such as this one only in the following circumstances: the initial decision contains erroneous findings of material fact; the initial decision is based on an erroneous interpretation of statute or regulation or the erroneous application of the law to the facts of the case; the administrative judge’s rulings during either the course of the appeal or the initial decision were not consistent with required procedures or involved an abuse of discretion, and the resulting error affected the outcome of the case; or new and material evidence or legal argument is available that, despite the petitioner’s due diligence, was not available when the record closed. Title 5 of the Code of Federal Regulations, section 1201.115 (5 C.F.R. § 1201.115). After fully considering the filings in this appeal, we conclude that the petitioner has not established any basis under section 1201.115 for granting the petition for review. Therefore, we DENY the petition for review and AFFIRM the initial decision, which is now the Board’s final decision. 5 C.F.R. § 1201.113(b). DISCUSSION OF ARGUMENTS ON REVIEW The appellant does not challenge the administrative judge’s finding that she did not prove that she had a reasonable belief that she made disclosures protected by 5 U.S.C. § 2302(b)(8) or his conclusion that she did not prove that the deciding official had actual knowledge of the disclosures. Young v. Department of Defense, MSPB Docket No. DC-1221-21-0296-W-4, Appeal File (W-4 AF), Tab 15, Initial Decision (ID) at 6-10. We affirm the initial decision in this regard. In her petition for review, the appellant states that her supervisor’s “personality overpowered” the deciding official. Petition for Review (PFR) File, Tab 2 at 7. To the extent the appellant is arguing that her supervisor improperly2 influenced the deciding official to terminate her during her probationary period, a different outcome is not warranted. See Karnes v. Department of Justice , 2023 MSPB 12, ¶ 19 (explaining that the U.S. Supreme Court has adopted the term “cat’s paw” to describe a case in which a particular management official, acting because of an improper animus, influences another agency official who is unaware of the improper animus when implementing a personnel action). We agree with the administrative judge that the appellant did not prove by preponderant evidence2 that her supervisor had any knowledge of the emails that formed the bases of disclosures (1) and (2). ID at 10. Therefore, we cannot impute any such knowledge to the deciding official. We also agree with the administrative judge that the appellant did not prove that the deciding official had constructive knowledge of the disclosures. Moreover, the record reflects that the agency initiated procedures to terminate the appellant 1 month prior to the events described in disclosure (3); thus, disclosure (3) could not have been a contributing factor in the agency’s termination decision.3 ID at 12 n.13; see Orr v. Department of the Treasury , 83 M.S.P.R. 117, ¶ 15 (1999), aff’d, 232 F.3d 912 (Fed. Cir. 2000). Accordingly, we affirm the administrative judge’s decision to deny corrective action. We have considered the appellant’s assertion that the agency’s decision to prohibit her from its facilities in October 2020, after she was terminated, was taken in retaliation for her whistleblowing disclosures. PFR File, Tab 2 at 9-10. This argument does not warrant a different outcome. The right to file an IRA appeal derives from 5 U.S.C. § 1221(a), which provides a right to seek corrective action before the Board to “an employee, former employee, or applicant for 2 Preponderant evidence is the “degree of relevant evidence that a reasonable person, considering the record as a whole, would accept as sufficient to find that a contested fact is more likely to be true than untrue.” 5 C.F.R. § 1201.4(q). 3 Likewise, we are not persuaded by the appellant’s assertion that she proved contributing factor because she was terminated within 24 hours of the events described in disclosure (3). PFR File, Tab 2 at 9. 3 employment.” Maloney v. Executive Office of the President, Office of Administration, 2022 MSPB 26, ¶ 33. Although former employees are included among those who can seek corrective action from the Board, they cannot do so for matters occurring after their employment. See Guzman v. Office of Personnel Management, 53 F. App’x 927, 929-30 (Fed. Cir. 2002) (holding that a former employee may not seek corrective action for alleged disclosures made or retaliatory acts taken after his employment ended);4 Weed v. Social Security Administration, 113 M.S.P.R. 221, ¶ 11 (2010) (citing this principle from Guzman with approval). The statute at 5 U.S.C. § 2302(b)(8) prohibits any employee in a position of authority from taking, failing to take, or threatening to take “a personnel action with respect to any employee or applicant.” 5 U.S.C. § 2302(b) (8) (emphasis added). Therefore, the appellant cannot seek corrective action for an alleged personnel action that occurred after she was no longer a Federal employee. The appellant states that she was not rude and/or unprofessional to any staff “because she never met any,” her supervisor created a hostile work environment, and she did not receive clarification of her job duties. PFR File, Tab 2 at 5-6. She also states that the agency failed to substantiate the allegations in the Letter of Counseling and/or the termination letter. Id. at 10-11. These arguments do not persuade us that the administrative judge erred in his analysis of this IRA appeal or in his decision to deny corrective action. Throughout her petition for review, the appellant asserts that the agency discriminated against her due to her disability and marital status, committed harmful procedural error, and violated her rights based on her status as a disabled veteran. PFR File, Tab 2. However, the Board does not have jurisdiction over such claims in an IRA appeal. E.g., Benton-Flores v. Department of Defense , 4 The Board may choose to follow nonprecedential decisions issued by the U.S. Court of Appeals for the Federal Circuit if, as here, it finds the reasoning persuasive. See, e.g., Erlendson v. Department of Justice , 121 M.S.P.R. 441, ¶ 6 n.2 (2014).4 121 M.S.P.R. 428, ¶ 6 n.1 (2014); Smets v. Department of the Navy , 117 M.S.P.R. 164, ¶ 14 (2011), aff’d, 498 F. App’x 1 (Fed. Cir. 2012); Geyer v. Department of Justice, 70 M.S.P.R. 682, 687 (1996), aff’d, 116 F.3d 1497 (Fed. Cir. 1997) (Table). Finally, the appellant accuses the administrative judge of bias. PFR File, Tab 2 at 4, 8. In making a claim of bias or prejudice against an administrative judge, a party must overcome the presumption of honesty and integrity that accompanies administrative adjudicators . Oliver v. Department of Transportation, 1 M.S.P.R. 382, 386 (1980). 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 reviewed the record, and we have found no evidence of any such favoritism or antagonism. We have considered the appellant’s remaining arguments, but none warrants a different outcome.5 NOTICE OF APPEAL RIGHTS6 You may obtain review of this final decision. 5 U.S.C. § 7703(a)(1). By statute, the nature of your claims determines the time limit for seeking such 5 The appellant includes with her petition for review several emails from the 2020-2021 timeframe. PFR File, Tab 2 at 23-31. Many of these emails were included in the record below and are not new evidence. Meier v. Department of the Interior , 3 M.S.P.R. 247, 256 (1980). To the extent that some of the emails were not in the record before the administrative judge, the Board generally will not consider evidence submitted for the first time with a petition for review absent a showing that it was unavailable before the record was closed before the administrative judge despite the party’s due diligence. Avansino v. U.S. Postal Service , 3 M.S.P.R. 211, 213-14 (1980). 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 review and the appropriate forum with which to file. 5 U.S.C. § 7703(b). Although we offer the following summary of available appeal rights, the Merit Systems Protection Board does not provide legal advice on which option is most appropriate for your situation and the rights described below do not represent a statement of how courts will rule regarding which cases fall within their jurisdiction. If you wish to seek review of this final decision, you should immediately review the law applicable to your claims and carefully follow all filing time limits and requirements. Failure to file within the applicable time limit may result in the dismissal of your case by your chosen forum. Please read carefully each of the three main possible choices of review below to decide which one applies to your particular case. If you have questions about whether a particular forum is the appropriate one to review your case, you should contact that forum for more information. (1) Judicial review in general . As a general rule, an appellant seeking judicial review of a final Board order must file a petition for review with the U.S. Court of Appeals for the Federal Circuit, which must be received by the court within 60 calendar days of the date of issuance of this decision. 5 U.S.C. § 7703(b)(1)(A). If you submit a petition for review to the U.S. Court of Appeals for the Federal Circuit, you must submit your petition to the court at the following address: U.S. Court of Appeals for the Federal Circuit 717 Madison Place, N.W. Washington, D.C. 20439 Additional information about the U.S. Court of Appeals for the Federal Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.6 If you are interested in securing pro bono representation for an appeal to the U.S. Court of Appeals for the Federal Circuit, you may visit our website at http://www.mspb.gov/probono for information regarding pro bono representation for Merit Systems Protection Board appellants before the Federal Circuit. The Board neither endorses the services provided by any attorney nor warrants that any attorney will accept representation in a given case. (2) Judicial or EEOC review of cases involving a claim of discrimination . This option applies to you only if you have claimed that you were affected by an action that is appealable to the Board and that such action was based, in whole or in part, on unlawful discrimination. If so, you may obtain judicial review of this decision —including a disposition of your discrimination claims —by filing a civil action with an appropriate U.S. district court ( not the U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems Protection Board , 582 U.S. 420 (2017). If you have a representative in this case, and your representative receives this decision before you do, then you must file with the district court no later than 30 calendar days after your representative receives this decision. If the action involves a claim of discrimination based on race, color, religion, sex, national origin, or a disabling condition, you may be entitled to representation by a court-appointed lawyer and to waiver of any requirement of prepayment of fees, costs, or other security. See 42 U.S.C. § 2000e-5(f) and 29 U.S.C. § 794a. Contact information for U.S. district courts can be found at their respective websites, which can be accessed through the link below: http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx . Alternatively, you may request review by the Equal Employment Opportunity Commission (EEOC) of your discrimination claims only, excluding all other issues . 5 U.S.C. § 7702(b)(1). You must file any such request with the7 EEOC’s Office of Federal Operations within 30 calendar days after you receive this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case, and your representative receives this decision before you do, then you must file with the EEOC no later than 30 calendar days after your representative receives this decision. If you submit a request for review to the EEOC by regular U.S. mail, the address of the EEOC is: Office of Federal Operations Equal Employment Opportunity Commission P.O. Box 77960 Washington, D.C. 20013 If you submit a request for review to the EEOC via commercial delivery or by a method requiring a signature, it must be addressed to: Office of Federal Operations Equal Employment Opportunity Commission 131 M Street, N.E. Suite 5SW12G Washington, D.C. 20507 (3) Judicial review pursuant to the Whistleblower Protection Enhancement Act of 2012 . This option applies to you only if you have raised claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D). If so, and your judicial petition for review “raises no challenge to the Board’s disposition of allegations of a prohibited personnel practice described in section 2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i), (B), (C), or (D),” then you may file a petition for judicial review either with the U.S. Court of Appeals for the Federal Circuit or any court of appeals of competent jurisdiction.7 The court of appeals must receive your 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 of8 petition for review within 60 days of the date of issuance of this decision. 5 U.S.C. § 7703(b)(1)(B). If you submit a petition for judicial review to the U.S. Court of Appeals for the Federal Circuit, you must submit your petition to the court at the following address: U.S. Court of Appeals for the Federal Circuit 717 Madison Place, N.W. Washington, D.C. 20439 Additional information about the U.S. Court of Appeals for the Federal Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11. If you are interested in securing pro bono representation for an appeal to the U.S. Court of Appeals for the Federal Circuit, you may visit our website at http://www.mspb.gov/probono for information regarding pro bono representation for Merit Systems Protection Board appellants before the Federal Circuit. The Board neither endorses the services provided by any attorney nor warrants that any attorney will accept representation in a given case. MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals for the Federal Circuit or any other circuit court of appeals of competent jurisdiction. The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115-195, 132 Stat. 1510. 9 Contact information for the courts of appeals can be found at their respective websites, which can be accessed through the link below: http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx . FOR THE BOARD: ______________________________ Gina K. Grippando Clerk of the Board Washington, D.C.10	Young_Teresa_M_DC-1221-21-0296-W-4_Final_Order.pdf	2025-02-21	TERESA M. YOUNG v. DEPARTMENT OF DEFENSE, MSPB Docket No. DC-1221-21-0296-W-4, February 21, 2025	DC-1221-21-0296-W-4	NP
131	https://www.mspb.gov/decisions/nonprecedential/Alabre_Damas_J_AT-0752-22-0176-B-1_Final_Order.pdf	UNITED STATES OF AMERICA MERIT SYSTEMS PROTECTION BOARD DAMAS J. ALABRE, Appellant, v. DEPARTMENT OF HOMELAND SECURITY, Agency.DOCKET NUMBER AT-0752-22-0176-B-1 DATE: February 21, 2025 THIS FINAL ORDER IS NONPRECEDENTIAL1 Damas J. Alabre , Saint Augustine, Florida, pro se. Lisa Zito and Brian Redar , Miami, 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. On petition for review, the appellant argues, among other things, that the agency “falsified” his employment record 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). documenting his final position as being “a mere GS[-]7 Customs Aide.” Generally, we grant 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 Though the administrative judge did not address the appellant’s restoration claim, because the appellant did not nonfrivolously allege that his resignation was involuntary, he was not an employee for purposes of restoration and had no right of appeal to the Board. See Claxton v. Department of Justice , 6 M.S.P.R. 47, 48 (1981). Any omission in the administrative judge’s jurisdictional notice regarding the appellant’s involuntary demotion and restoration claims does not warrant disturbing the initial decision because the appellant’s own admissions and undisputed evidence show that those claims are plainly outside the Board’s jurisdiction. See Mitchell v. Department of Defense , 46 M.S.P.R. 154, 159-60 (1990). 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	Alabre_Damas_J_AT-0752-22-0176-B-1_Final_Order.pdf	2025-02-21	DAMAS J. ALABRE v. DEPARTMENT OF HOMELAND SECURITY, MSPB Docket No. AT-0752-22-0176-B-1, February 21, 2025	AT-0752-22-0176-B-1	NP
132	https://www.mspb.gov/decisions/nonprecedential/Rui_NinghuiSF-0752-23-0419-I-1_Final_Order.pdf	UNITED STATES OF AMERICA MERIT SYSTEMS PROTECTION BOARD NINGHUI RUI, Appellant, v. DEPARTMENT OF THE ARMY, Agency.DOCKET NUMBER SF-0752-23-0419-I-1 DATE: February 21, 2025 THIS FINAL ORDER IS NONPRECEDENTIAL1 Dennis P. Hickman , Monterey, California, for the appellant. James Dal Bon , Esquire, San Jose, California, for the appellant. Laura H. Heller , Esquire, Monterey, California, for the agency. Randy Hsieh , Esquire, Mountain View, California, for the agency. BEFORE Cathy A. Harris, Chairman Henry J. Kerner, Vice Chairman Raymond A. Limon, 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 petitioned for review of the initial decision in this appeal. For the reasons set forth below, we DISMISS the petition for review as settled. After the filing of the petition for review, the parties submitted a document entitled “NEGOTIATED SETTLEMENT AGREEMENT” apparently signed by the appellant and the parties’ representatives on January 15 and 16, 2025.2 Petition for Review (PFR) File, Tab 4. The document provides, among other things, for the withdrawal of the petition for review. Id. at 5. 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 settlement agreement, understand its terms, and intend for the agreement to be entered into the record for enforcement by the Board. PFR File, Tab 4 at 6. Accordingly, we find that dismissing the petition for review with prejudice to refiling (i.e., the parties normally may not refile this appeal) is appropriate under these circumstances. 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. 2 The appellant dated his signature on the settlement agreement January 15, 2025. Petition for Review File, Tab 4 at 6. His representative did not date his signature. Id. The Deputy Chief of Staff of the agency facility at which the appellant was employed dated his signature January 16, 2025. Id. The agency representative dated her signature January 16, 2024. Id. As the agreement was submitted to the Board on January 16, 2025, it appears that the agreement was signed by the appellant and the parties’ representatives on January 15 and 16, 2025.2 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 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 RIGHTS3 You may obtain review of this final decision. 5 U.S.C. § 7703(a)(1). By statute, the nature of your claims determines the time limit for seeking such review and the appropriate forum with which to file. 5 U.S.C. § 7703(b). Although we offer the following summary of available appeal rights, the Merit Systems Protection Board does not provide legal advice on which option is most appropriate for your situation and the rights described below do not represent a statement of how courts will rule regarding which cases fall within their jurisdiction. If you wish to seek review of this final decision, you should immediately review the law applicable to your claims and carefully follow all filing time limits and requirements. Failure to file within the applicable time limit may result in the dismissal of your case by your chosen forum. Please read carefully each of the three main possible choices of review below to decide which one applies to your particular case. If you have questions 3 Since the issuance of the initial decision in this matter, the Board may have updated the notice of review rights included in final decisions. As indicated in the notice, the Board cannot advise which option is most appropriate in any matter.3 about whether a particular forum is the appropriate one to review your case, you should contact that forum for more information. (1) Judicial review in general . As a general rule, an appellant seeking judicial review of a final Board order must file a petition for review with the U.S. Court of Appeals for the Federal Circuit, which must be received by the court within 60 calendar days of the date of issuance of this decision. 5 U.S.C. § 7703(b)(1)(A). If you submit a petition for review to the U.S. Court of Appeals for the Federal Circuit, you must submit your petition to the court at the following address: U.S. Court of Appeals for the Federal Circuit 717 Madison Place, N.W. Washington, D.C. 20439 Additional information about the U.S. Court of Appeals for the Federal Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11. If you are interested in securing pro bono representation for an appeal to the U.S. Court of Appeals for the Federal Circuit, you may visit our website at http://www.mspb.gov/probono for information regarding pro bono representation for Merit Systems Protection Board appellants before the Federal Circuit. The Board neither endorses the services provided by any attorney nor warrants that any attorney will accept representation in a given case. (2) Judicial or EEOC review of cases involving a claim of discrimination . This option applies to you only if you have claimed that you were affected by an action that is appealable to the Board and that such action was based, in whole or in part, on unlawful discrimination. If so, you may obtain4 judicial review of this decision —including a disposition of your discrimination claims —by filing a civil action with an appropriate U.S. district court ( not the U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems Protection Board , 582 U.S. 420 (2017). If you have a representative in this case, and your representative receives this decision before you do, then you must file with the district court no later than 30 calendar days after your representative receives this decision. If the action involves a claim of discrimination based on race, color, religion, sex, national origin, or a disabling condition, you may be entitled to representation by a court-appointed lawyer and to waiver of any requirement of prepayment of fees, costs, or other security. See 42 U.S.C. § 2000e-5(f) and 29 U.S.C. § 794a. Contact information for U.S. district courts can be found at their respective websites, which can be accessed through the link below: http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx . Alternatively, you may request review by the Equal Employment Opportunity Commission (EEOC) of your discrimination claims only, excluding all other issues . 5 U.S.C. § 7702(b)(1). You must file any such request with the EEOC’s Office of Federal Operations within 30 calendar days after you receive this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case, and your representative receives this decision before you do, then you must file with the EEOC no later than 30 calendar days after your representative receives this decision. 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.4 The court of appeals must receive your petition for review within 60 days of the date of issuance of this decision. 5 U.S.C. § 7703(b)(1)(B). 4 The original statutory provision that provided for judicial review of certain whistleblower claims by any court of appeals of competent jurisdiction expired on December 27, 2017. The All Circuit Review Act, signed into law by the President on July 7, 2018, permanently allows appellants to file petitions for judicial review of MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals for the Federal Circuit or any other circuit court of appeals of competent jurisdiction. The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115-195, 132 Stat. 1510.6 If you submit a petition for judicial review to the U.S. Court of Appeals for the Federal Circuit, you must submit your petition to the court at the following address: U.S. Court of Appeals for the Federal Circuit 717 Madison Place, N.W. Washington, D.C. 20439 Additional information about the U.S. Court of Appeals for the Federal Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11. If you are interested in securing pro bono representation for an appeal to the U.S. Court of Appeals for the Federal Circuit, you may visit our website at http://www.mspb.gov/probono for information regarding pro bono representation for Merit Systems Protection Board appellants before the Federal Circuit. The Board neither endorses the services provided by any attorney nor warrants that any attorney will accept representation in a given case. Contact information for the courts of appeals can be found at their respective websites, which can be accessed through the link below: http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx . FOR THE BOARD: ______________________________ Gina K. Grippando Clerk of the Board Washington, D.C.7	Rui_NinghuiSF-0752-23-0419-I-1_Final_Order.pdf	2025-02-21	NINGHUI RUI v. DEPARTMENT OF THE ARMY, MSPB Docket No. SF-0752-23-0419-I-1, February 21, 2025	SF-0752-23-0419-I-1	NP
133	https://www.mspb.gov/decisions/nonprecedential/Anderson_LorenzoAT-0752-21-0159-X-1_Final_Order.pdf	UNITED STATES OF AMERICA MERIT SYSTEMS PROTECTION BOARD LORENZO ANDERSON, Appellant, v. DEPARTMENT OF THE ARMY, Agency.DOCKET NUMBER AT-0752-21-0159-X-1 DATE: February 21, 2025 THIS FINAL ORDER IS NONPRECEDENTIAL1 Christopher Hugh Bonk , Esquire, Silver Spring, Maryland, for the appellant. Steven J. Phillips and Jerrod Fussnecker , Esquire, Fort Jackson, South Carolina, for the agency. BEFORE Cathy A. Harris, Chairman Henry J. Kerner, Vice Chairman Raymond A. Limon, Member FINAL ORDER The administrative judge issued a compliance initial decision finding the agency in noncompliance with the decision in the underlying appeal and granting the appellant’s petition for enforcement. Anderson v. Department of the Army , 1 A nonprecedential order is one that the Board has determined does not add significantly to the body of MSPB case law. Parties may cite nonprecedential orders, but such orders have no precedential value; the Board and administrative judges are not required to follow or distinguish them in any future decisions. In contrast, a precedential decision issued as an Opinion and 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. AT-0752-21-0159-C-1, Compliance File, Tab 27, Compliance Initial Decision (CID). For the reasons discussed below, we now find the agency in compliance and DISMISS the appellant’s petition for enforcement. DISCUSSION OF ARGUMENTS AND EVIDENCE OF COMPLIANCE On April 18, 2024, the administrative judge issued a compliance initial decision finding the agency noncompliant with the Board’s final order in the underlying matter, which had reversed the appellant’s removal. CID at 1; see Anderson v. Department of the Army , MSPB Docket No. AT-0752-21-0159-I-2, Appeal File, Tab 23, Initial Decision. Specifically, the administrative judge found the agency noncompliant with its obligations to take the following actions: “(1) restore the appellant to his previous position of Supervisory Human Resources Specialist (Military), GS-0201-11 (PD# DU210310); (2) expunge all references to the canceled removal from the appellant’s personnel records; (3) correct and/or issue appropriate performance ratings for [Fiscal Year (FY)] 2020 through FY 2023; and (4) pay the appropriate performance awards based on those ratings.” CID at 9. As neither party filed any submission with the Clerk of the Board within the time limit set forth in 5 C.F.R. § 1201.114, the administrative judge’s findings of noncompliance have become final, and the appellant’s petition for enforcement has been referred to the Board for a final decision on compliance pursuant to 5 C.F.R. § 1201.183(c).2 See 5 C.F.R. § 1201.183(b). 2 As noted in the compliance initial decision, the Board’s regulations provide that, on a finding of noncompliance, the party found to be in noncompliance must do the following: (i) to the extent that the party decides to take the actions required by the initial decision, the party must submit to the Clerk of the Board, within the time limit for filing a petition for review under 5 C.F.R. § 1201.114(e), a statement that the party has taken the actions identified in the initial decision, along with evidence establishing that the party has taken those actions; and/or (ii) to the extent that the party decides not to take all of the actions required by the initial decision, the party must file a petition for review under the provisions of 5 C.F.R. §§ 1201.114-1201.115. 5 C.F.R. § 1201.183(a)(6). 2 On May 29, 2024, the Clerk of the Board issued an Acknowledgement Order informing the parties of the continued processing of this matter and setting forth deadlines for additional compliance submissions. Anderson v. Department of the Army, MSPB Docket No. AT-0752-21-0159-X-1, Compliance Referral File (CRF), Tab 1. Thereafter, the parties filed numerous substantive submissions addressing the compliance issues identified by the administrative judge. CRF, Tabs 2-5, 8, 10-11, 14. As explained below, we find that the agency has satisfied its burden to demonstrate that it has fulfilled its compliance obligations. 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. Restoration to Position of Supervisory Human Resources Specialist (Military) The administrative judge found that the agency had failed to properly restore the appellant to his position because it had placed him in a new, nonsupervisory position with different duties from those he held in the supervisory position from which he was removed. CID at 3-4. The administrative judge held that the agency 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).3 had failed to demonstrate that it had a “strong, overriding or compelling reason” for this reassignment, CID at 4, and ordered the agency to restore him to the specific position he formerly occupied, CID at 9. In his pleadings before the full Board, the appellant acknowledged that the agency has now returned him to his former position of record, CRF, Tab 3 at 4, but asserted that the agency has failed to provide him required training on various Human Resources (HR) and other systems; that his supervisor, Lieutenant Colonel (LTC) Hultgren, performs his “core duties,” including training other individuals on the HR and other systems in lieu of the appellant performing such training; and that other individuals attend HR meetings that he should attend as a supervisory HR specialist. Id. at 4-6. In response, the agency submitted affidavits from LTC Hultgren attesting that the appellant has access to the required trainings but has failed to do them despite multiple reminders; that she properly attends certain meetings as the appellant’s supervisor and attends other meetings if they are of interest or utility to her; and that the appellant has been added to the required meetings and distribution lists. LTC Hultgren also denied that she has assigned the appellant’s duties to any other individual and explained that the appellant has a subordinate who assists him with his work, as well as a second subordinate who performs various other duties. CRF, Tab 4 at 9-12. She further explained that several of the duties the appellant insists were removed from his purview were, in fact, removed from his position’s area of responsibility due to a realignment of agency processes prior to his restoration. LTC Hultgren asserted that the appellant’s belief that his duties were removed stems from his continued misunderstanding of the current functions and duties of his position, and his failure to carry out her repeated instructions regarding his current functions and duties. CRF, Tab 14 at 12-17. In subsequent pleadings, the appellant complained that he lacked time to complete the trainings and that he requires additional training. CRF, Tab 5 at 7-8; CRF, Tab 10 at 6. He did not rebut LTC Hultgren’s affidavit regarding the4 evolution of the duties and functions of his position or her expectations of how he performs his duties. Having evaluated these pleadings, we conclude that the agency has demonstrated by preponderant evidence that it has restored the appellant to the correct position. Vaughan, 116 M.S.P.R. 319, ¶ 5; 5 C.F.R. § 1201.183(d). The agency’s thorough rebuttal of the training and duties issues raised by the appellant is persuasive. To the extent friction remains between the appellant and the agency regarding how he performs his duties or satisfies his training responsibilities, these do not preclude finding compliance regarding his restoration. The Board’s role in an enforcement proceeding such as this does not involve supervising the minutiae of personnel oversight or mediating performance disputes. Expungement of Removal References from Personnel Records The agency asserted, without contradiction, that it has now expunged from its personnel records all references to the appellant’s removal and post-restoration directed reassignment to a non-supervisory position (which, as the compliance initial decision explained, improperly occurred in lieu of restoration to the appellant’s pre-removal position of record). CRF, Tab 2 at 5, 9. Accordingly, we find the agency compliant on this issue. The parties contest whether the appellant remains barred from the Fort Jackson base and whether the base security or other records contain references to the current or former bar or to threats allegedly made by the appellant. E.g., CRF, Tab 3 at 6-7. These issues were not addressed by the compliance initial decision, which provided four specific areas of relief without mentioning the alleged bar dispute. The appellant did not file a petition for review of the compliance initial decision, and he thus is bound, for purposes of the instant compliance referral proceeding, by the findings therein. See 5 C.F.R. § 1201.183(b)(2). As relevant here, the compliance initial decision findings related to noncompliance only for the four specific issues identified by the administrative judge. If the bar or other compliance issues remain ongoing, the appellant may file a new petition for5 enforcement with the appropriate regional office, pursuant to 5 C.F.R. § 1201.182. We make no findings at this juncture regarding whether such filing would be timely. Correction of Performance Appraisals for FYs 2020 through 2023 The agency submitted evidence that it issued the appellant appropriate performance appraisals for FYs 2020 through 2023. CRF, Tab 4 at 7, 17-18. The appellant did not contest that new or corrected performance appraisals were issued but asserted that the personnel system contained incomplete or inaccurate appraisals for FYs 2019, 2020, and 2021. He also complained that performance appraisals from years prior to FY 2019 were incomplete or missing. CRF, Tab 5 at 6. The compliance initial decision addressed only performance appraisals for FYs 2020 through 2023. Accordingly, the appellant’s objections to performance appraisals for FY 2019 and prior are outside the scope of this enforcement proceeding and do not preclude a finding of compliance. Regarding the appraisals for FYs 2020 and 2021, the agency asserted in subsequent pleadings that it had expunged them. CRF, Tab 8 at 6, Tab 14 at 4. The appellant did not submit a rebuttal. Accordingly, we find the agency compliant on this issue. Payment of Appropriate Performance Awards for FYs 2020 through 2023 Finally, the agency submitted evidence that it calculated and paid the appellant performance awards for FYs 2020 and 2023. CRF, Tab 4 at 7, 17-18. The appellant has not disputed this contention. Accordingly, we find the agency compliant on this issue. 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 in this compliance proceeding. Title 5 of the Code of Federal Regulations, section 1201.183(c)(1) (5 C.F.R. § 1201.183(c)(1)).6 NOTICE TO THE APPELLANT REGARDING YOUR RIGHT TO REQUEST ATTORNEY FEES AND COSTS You may be entitled to be paid by the agency for your reasonable attorney fees and costs. To be paid, you must meet the requirements set 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 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 4 Since the issuance of the initial decision in this matter, the Board may have updated the notice of review rights included in final decisions. As indicated in the notice, the Board cannot advise which option is most appropriate in any matter.7 whether a particular forum is the appropriate one to review your case, you should contact that forum for more information. (1) Judicial review in general . As a general rule, an appellant seeking judicial review of a final Board order must file a petition for review with the U.S. Court of Appeals for the Federal Circuit, which must be received by the court within 60 calendar days of the date of issuance of this decision. 5 U.S.C. § 7703(b)(1)(A). If you submit a petition for review to the U.S. Court of Appeals for the Federal Circuit, you must submit your petition to the court at the following address: U.S. Court of Appeals for the Federal Circuit 717 Madison Place, N.W. Washington, D.C. 20439 Additional information about the U.S. Court of Appeals for the Federal Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11. If you are interested in securing pro bono representation for an appeal to the U.S. Court of Appeals for the Federal Circuit, you may visit our website at http://www.mspb.gov/probono for information regarding pro bono representation for Merit Systems Protection Board appellants before the Federal Circuit. The Board neither endorses the services provided by any attorney nor warrants that any attorney will accept representation in a given case. (2) Judicial or EEOC review of cases involving a claim of discrimination . This option applies to you only if you have claimed that you were affected by an action that is appealable to the Board and that such action was based, in whole or in part, on unlawful discrimination. If so, you may obtain judicial review of this decision—including a disposition of your discrimination claims —by filing a civil action with an appropriate U.S. district court ( not the U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you receive this decision. 5 U.S.C.8 § 7703(b)(2); see Perry v. Merit Systems Protection Board , 582 U.S. 420 (2017). If you have a representative in this case, and your representative receives this decision before you do, then you must file with the district court no later than 30 calendar days after your representative receives this decision. If the action involves a claim of discrimination based on race, color, religion, sex, national origin, or a disabling condition, you may be entitled to representation by a court-appointed lawyer and to waiver of any requirement of prepayment of fees, costs, or other security. See 42 U.S.C. § 2000e-5(f) and 29 U.S.C. § 794a. Contact information for U.S. district courts can be found at their respective websites, which can be accessed through the link below: http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx . Alternatively, you may request review by the Equal Employment Opportunity Commission (EEOC) of your discrimination claims only, excluding all other issues . 5 U.S.C. § 7702(b)(1). You must file any such request with the EEOC’s Office of Federal Operations within 30 calendar days after you receive this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case, and your representative receives this decision before you do, then you must file with the EEOC no later than 30 calendar days after your representative receives this decision. If you submit a request for review to the EEOC by regular U.S. mail, the address of the EEOC is: Office of Federal Operations Equal Employment Opportunity Commission P.O. Box 77960 Washington, D.C. 20013 If you submit a request for review to the EEOC via commercial delivery or by a method requiring a signature, it must be addressed to: 9 Office of Federal Operations Equal Employment Opportunity Commission 131 M Street, N.E. Suite 5SW12G Washington, D.C. 20507 (3) Judicial review pursuant to the Whistleblower Protection Enhancement Act of 2012 . This option applies to you only if you have raised claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D). If so, and your judicial petition for review “raises no challenge to the Board’s disposition of allegations of a prohibited personnel practice described in section 2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i), (B), (C), or (D),” then you may file a petition for judicial review either with the U.S. Court of Appeals for the Federal Circuit or any court of appeals of competent jurisdiction.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 5 The original statutory provision that provided for judicial review of certain whistleblower claims by any court of appeals of competent jurisdiction expired on December 27, 2017. The All Circuit Review Act, signed into law by the President on July 7, 2018, permanently allows appellants to file petitions for judicial review of MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals for the Federal Circuit or any other circuit court of appeals of competent jurisdiction. The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115-195, 132 Stat. 1510.10 relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11. If you are interested in securing pro bono representation for an appeal to the U.S. Court of Appeals for the Federal Circuit, you may visit our website at http://www.mspb.gov/probono for information regarding pro bono representation for Merit Systems Protection Board appellants before the 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	Anderson_LorenzoAT-0752-21-0159-X-1_Final_Order.pdf	2025-02-21	LORENZO ANDERSON v. DEPARTMENT OF THE ARMY, MSPB Docket No. AT-0752-21-0159-X-1, February 21, 2025	AT-0752-21-0159-C-1; AT-0752-21-0159-I-2; AT-0752-21-0159-X-1	NP
134	https://www.mspb.gov/decisions/nonprecedential/Rovnan_Matthew_J_PH-0752-23-0126-X-1_Final_Order.pdf	UNITED STATES OF AMERICA MERIT SYSTEMS PROTECTION BOARD MATTHEW J. ROVNAN, Appellant, v. DEPARTMENT OF THE INTERIOR, Agency.DOCKET NUMBER PH-0752-23-0126-X-1 DATE: February 21, 2025 THIS FINAL ORDER IS NONPRECEDENTIAL1 Matthew J. Rovnan , Bristol Township, Pennsylvania, pro se. Pernell Telfort , Esquire, Washington, D.C., for the agency. BEFORE Cathy A. Harris, Chairman Henry J. Kerner, Vice Chairman Raymond A. Limon, Member FINAL ORDER The administrative judge issued a compliance initial decision finding the agency noncompliant with Board’s Final Order in the underlying appeal. Rovnan v. Department of the Interior, MSPB Docket No. PH-0752-23-0126-C-1, Compliance File, Tab 6, Compliance Initial Decision (CID); see Rovnan v. 1 A nonprecedential order is one that the Board has determined does not add significantly to the body of MSPB case law. Parties may cite nonprecedential orders, but such orders have no precedential value; the Board and administrative judges are not required to follow or distinguish them in any future decisions. In contrast, a precedential decision issued as an Opinion and Order has been identified by the Board as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c). Department of the Interior, MSPB Docket No. PH-0752-23-0126-I-1, Initial Appeal File, Tab 8, Initial Decision (ID). For the reasons discussed below, we now find the agency in compliance and DISMISS the petition for enforcement. DISCUSSION OF ARGUMENTS AND EVIDENCE ON COMPLIANCE On June 9, 2023, the administrative judge issued a compliance initial decision finding the agency noncompliant with Board’s Final Order in the underlying appeal, which reversed the appellant’s termination and required the agency to reinstate him with back pay and appropriate benefits.2 See ID at 8. The administrative judge granted the appellant’s petition for enforcement and ordered the agency to take certain actions to comply with the Final Order in the underlying appeal. CID at 3. In the compliance initial decision, the administrative judge informed the agency that, if it decided to take the compliance actions required by the decision, it must submit to the Office of the Clerk of the Board, within the time limit for filing a petition for review under 5 C.F.R. § 1201.114(e), a statement that it had taken the actions identified in the compliance initial decision, along with evidence establishing that it had taken those actions. CID at 4; see 5 C.F.R. § 1201.183(a)(6) (i) (2023). He also informed the parties of their option to request Board review of the compliance initial decision by filing a petition for review by July 14, 2023, the date on which the findings of noncompliance would become final unless a petition for review was filed. CID at 5; see 5 C.F.R. §§ 1201.114(e), 1201.183(a)(6)(ii), (b) (2023). Neither party petitioned for review. Accordingly, pursuant to 5 C.F.R. § 1201.183(b)-(c), the administrative judge’s findings of noncompliance became final, and the appellant’s petition for enforcement was referred to the Board for a final decision on the issues of compliance. Rovnan v. Department of the Interior, MSPB Docket No. PH-0752-23-0126-X-1, Compliance Referral File (CRF), Tab 1. 2 The initial decision became the Board’s final decision upon the expiration of the petition for review deadline. 5 C.F.R. § 1201.113.2 The Clerk of the Board issued an acknowledgement order instructing the agency to file evidence of compliance within 15 calendar days and advising the appellant that he should respond within 20 days of the date of the agency’s submission. The order noted that, if he did not do so, the Board may assume he was satisfied and dismiss the petition for enforcement. CRF, Tab 1 at 3. Subsequently, the parties filed various pleadings disputing whether the agency had achieved compliance. CRF, Tabs 2-5. In its final submission, the agency informed the Board for the first time that the parties had entered into a settlement agreement in June 2023—apparently within days of the issuance of the compliance initial decision—that resolved the remaining disputed issues.3 CRF, Tab 5 at 4. The agency asserted that the appellant’s claims that the agency had failed to comply with its obligations under the Board’s Final Order were, in reality, claims of alleged failure to comply with the agency’s obligations under the settlement agreement. Id. The agency asserted that it had complied with its obligations and, to the extent the appellant identified additional deficiencies, that it had complied as best it could, given the appellant’s change of employers. Id. at 6. The agency argued that it had therefore achieved full compliance with the Board’s Final Order. On August 6, 2024, the Board ordered the appellant to respond to the agency’s submission within 20 days. The Board warned the appellant that, if he failed to respond, the Board may assume he was satisfied and dismiss his petition for enforcement. CRF, Tab 6 at 2. The appellant did not file a response. 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 3 Earlier submissions by the appellant vaguely referenced an unspecified settlement agreement without explaining that the agreement concerned this petition for enforcement. CRF, Tab 2 at 3; CRF, Tab 4 at 3. 3 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 has asserted compliance with its obligations stemming from the Board’s Final Order, as well as with a settlement agreement entered into by the parties that addressed, among other things, the relief ordered by the Board. CRF, Tab 5. The appellant did not respond to the agency’s submission, despite being ordered to do so and being warned that failure to respond may cause the Board to assume he was satisfied and dismiss his petition for enforcement. Because the appellant has not challenged the agency’s assertions regarding its compliance with the Final Order, we find the agency in compliance with that order and the compliance initial decision. We note that the settlement agreement provided by the agency does not specifically provide for enforcement before the Board. See CRF, Tab 5 at 16. Nor did the parties attempt to enter it into the record for enforcement before the administrative judge or in the current proceeding, or explain how, if at all, the settlement agreement might affect the findings in the compliance initial decision. Accordingly, in finding the agency compliant with the Board’s Final Order, we rely solely on the appellant’s failure to rebut the agency’s assertions of compliance with the Board’s Final Order and do not evaluate the agency’s obligations under or compliance with the settlement agreement. See Delorme v. Department of the Interior, 124 M.S.P.R. 123, ¶¶ 16, 21 (2017) (stating that the Board enforces only settlement agreements that “have been entered into the record for that purpose”); see also Special Counsel v. Cowan, 2022 MSPB 2, ¶ 10 (noting that, to be accepted4 for enforcement, the Board must find the settlement agreement “freely entered and lawful on its face”). Having found the agency in compliance with the Final Order, we dismiss the petition for enforcement. This is the final decision of the Merit Systems Protection Board in this compliance proceeding. Title 5 of the Code of Federal Regulations, section 1201.183(c)(1) (5 C.F.R. § 1201.183(c)(1)). NOTICE OF APPEAL RIGHTS4 You may obtain review of this final decision. 5 U.S.C. § 7703(a)(1). By statute, the nature of your claims determines the time limit for seeking such review and the appropriate forum with which to file. 5 U.S.C. § 7703(b). Although we offer the following summary of available appeal rights, the Merit Systems Protection Board does not provide legal advice on which option is most appropriate for your situation and the rights described below do not represent a statement of how courts will rule regarding which cases fall within their jurisdiction. If you wish to seek review of this final decision, you should immediately review the law applicable to your claims and carefully follow all filing time limits and requirements. Failure to file within the applicable time limit may result in the dismissal of your case by your chosen forum. Please read carefully each of the three main possible choices of review below to decide which one applies to your particular case. If you have questions about whether a particular forum is the appropriate one to review your case, you should contact that forum for more information. (1) Judicial review in general . As a general rule, an appellant seeking judicial review of a final Board order must file a petition for review with the U.S. Court of Appeals for the Federal Circuit, which must be received by the court 4 Since the issuance of the initial decision in this matter, the Board may have updated the notice of review rights included in final decisions. As indicated in the notice, the Board cannot advise which option is most appropriate in any matter.5 within 60 calendar days of the date of issuance of this decision. 5 U.S.C. § 7703(b)(1)(A). If you submit a petition for review to the U.S. Court of Appeals for the Federal Circuit, you must submit your petition to the court at the following address: U.S. Court of Appeals for the Federal Circuit 717 Madison Place, N.W. Washington, D.C. 20439 Additional information about the U.S. Court of Appeals for the Federal Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11. If you are interested in securing pro bono representation for an appeal to the U.S. Court of Appeals for the Federal Circuit, you may visit our website at http://www.mspb.gov/probono for information regarding pro bono representation for Merit Systems Protection Board appellants before the Federal Circuit. The Board neither endorses the services provided by any attorney nor warrants that any attorney will accept representation in a given case. (2) Judicial or EEOC review of cases involving a claim of discrimination . This option applies to you only if you have claimed that you were affected by an action that is appealable to the Board and that such action was based, in whole or in part, on unlawful discrimination. If so, you may obtain judicial review of this decision—including a disposition of your discrimination claims —by filing a civil action with an appropriate U.S. district court ( not the U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems Protection Board, 582 U.S. 420 (2017). If you have a representative in this case, and your representative receives this decision before you do, then you must file with the district court no later than 30 calendar days after your representative receives this decision. If the action6 involves a claim of discrimination based on race, color, religion, sex, national origin, or a disabling condition, you may be entitled to representation by a court- appointed lawyer and to waiver of any requirement of prepayment of fees, costs, or other security. See 42 U.S.C. § 2000e-5(f) and 29 U.S.C. § 794a. Contact information for U.S. district courts can be found at their respective websites, which can be accessed through the link below: http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx . Alternatively, you may request review by the Equal Employment Opportunity Commission (EEOC) of your discrimination claims only, excluding all other issues . 5 U.S.C. § 7702(b)(1). You must file any such request with the EEOC’s Office of Federal Operations within 30 calendar days after you receive this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case, and your representative receives this decision before you do, then you must file with the EEOC no later than 30 calendar days after your representative receives this decision. If you submit a request for review to the EEOC by regular U.S. mail, the address of the EEOC is: Office of Federal Operations Equal Employment Opportunity Commission P.O. Box 77960 Washington, D.C. 20013 If you submit a request for review to the EEOC via commercial delivery or by a method requiring a signature, it must be addressed to: Office of Federal Operations Equal Employment Opportunity Commission 131 M Street, N.E. Suite 5SW12G Washington, D.C. 20507 (3) Judicial review pursuant to the Whistleblower Protection Enhancement Act of 2012 . This option applies to you only if you have raised claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or7 other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D). If so, and your judicial petition for review “raises no challenge to the Board’s disposition of allegations of a prohibited personnel practice described in section 2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i), (B), (C), or (D),” then you may file a petition for judicial review either with the U.S. Court of Appeals for the Federal Circuit or any court of appeals of competent jurisdiction.5 The court of appeals must receive your petition for review within 60 days of the date of issuance of this decision. 5 U.S.C. § 7703(b) (1)(B). If you submit a petition for judicial review to the U.S. Court of Appeals for the Federal Circuit, you must submit your petition to the court at the following address: U.S. Court of Appeals for the Federal Circuit 717 Madison Place, N.W. Washington, D.C. 20439 Additional information about the U.S. Court of Appeals for the Federal Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11. If you are interested in securing pro bono representation for an appeal to the U.S. Court of Appeals for the Federal Circuit, you may visit our website at http://www.mspb.gov/probono for information regarding pro bono representation for Merit Systems Protection Board appellants before the Federal Circuit. The 5 The original statutory provision that provided for judicial review of certain whistleblower claims by any court of appeals of competent jurisdiction expired on December 27, 2017. The All Circuit Review Act, signed into law by the President on July 7, 2018, permanently allows appellants to file petitions for judicial review of MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals for the Federal Circuit or any other circuit court of appeals of competent jurisdiction. The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115-195, 132 Stat. 1510. 8 Board neither endorses the services provided by any attorney nor warrants that any attorney will accept representation in a given case. Contact information for the courts of appeals can be found at their respective websites, which can be accessed through the link below: http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx . FOR THE BOARD: ______________________________ Gina K. Grippando Clerk of the Board Washington, D.C.9	Rovnan_Matthew_J_PH-0752-23-0126-X-1_Final_Order.pdf	2025-02-21	MATTHEW J. ROVNAN v. DEPARTMENT OF THE INTERIOR, MSPB Docket No. PH-0752-23-0126-X-1, February 21, 2025	PH-0752-23-0126-C-1; PH-0752-23-0126-X-1	NP
135	https://www.mspb.gov/decisions/nonprecedential/Jones_Prentice_D_AT-0752-23-0072-X-1_Final_Order.pdf	UNITED STATES OF AMERICA MERIT SYSTEMS PROTECTION BOARD PRENTICE D. JONES, Appellant, v. DEPARTMENT OF VETERANS AFFAIRS, Agency.DOCKET NUMBER AT-0752-23-0072-X-1 DATE: February 21, 2025 THIS FINAL ORDER IS NONPRECEDENTIAL1 Ibidun Roberts , Esquire, Columbia, Maryland, for the appellant. Caroline E. Johnson , Esquire, and Dana Heck , Esquire, St. Petersburg, Florida, for the agency. BEFORE Cathy A. Harris, Chairman Henry J. Kerner, Vice Chairman Raymond A. Limon, Member FINAL ORDER The administrative judge issued a compliance initial decision finding the agency in noncompliance with the decision in the underlying appeal and granting the appellant’s petition for enforcement. Jones v. Department of Veterans Affairs , 1 A nonprecedential order is one that the Board has determined does not add significantly to the body of MSPB case law. Parties may cite nonprecedential orders, but such orders have no precedential value; the Board and administrative judges are not required to follow or distinguish them in any future decisions. In contrast, a precedential decision issued as an Opinion and 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. AT-0752-23-0072-C-1, Compliance File (CF), Compliance Initial Decision (CID), Tab 15; Jones v. Department of Veterans Affairs , MSPB Docket No. AT-0752-23-0072-I-1, Initial Appeal File, Initial Decision (ID), Tab 22. For the reasons discussed below, we now find the agency in compliance and DISMISS the appellant’s petition for enforcement. DISCUSSION OF ARGUMENTS AND EVIDENCE OF COMPLIANCE On July 7, 2023, the administrative judge issued an initial decision mitigating the appellant’s removal to a 30-day suspension and ordered appropriate relief. ID at 17. The appellant subsequently filed a petition for enforcement, which the administrative judge granted in part and denied in part, in a compliance initial decision dated July 15, 2024. CID at 1. In pertinent part, the administrative judge ordered the agency to prepare and issue the appellant an annual performance appraisal for fiscal year 2022 and remit to him any appropriate performance award. CID at 5. As neither party filed any submission with the Clerk of the Board within the time limit set forth in 5 C.F.R. § 1201.114, the administrative judge’s findings of noncompliance have become final, and the appellant’s petition for enforcement has been referred to the Board for a final decision on compliance pursuant to 5 C.F.R. § 1201.183(c).2 See 5 C.F.R. § 1201.183(b)-(c). On September 10, 2024, the Clerk of the Board issued an acknowledgement order informing the parties of the continued processing of this matter and setting forth deadlines for additional compliance submissions. Jones v. Department of 2 As noted in the compliance initial decision, the Board’s regulations provide that, upon a finding of noncompliance, the party found to be in noncompliance must do the following: (i) To the extent that the party decides to take the actions required by the initial decision, the party must submit to the Clerk of the Board, within the time limit for filing a petition for review under 5 C.F.R. § 1201.114(e), a statement that the party has taken the actions identified in the initial decision, along with evidence establishing that the party has taken those actions; and/or (ii) To the extent that the party decides not to take some or all of the actions required by the initial decision, the party must file a petition for review under the provisions of 5 C.F.R. §§ 1201.114-1201.115. 5 C.F.R. § 1201.183(a)(6) (2024). 2 Veterans Affairs , MSPB Docket No. AT-0752-23-0072-X-1, Compliance Referral File (CRF), Tab 1. The acknowledgement order warned the appellant that, if he did not respond to submissions by the agency, the Board may assume he was satisfied and dismiss his petition for enforcement. Id. at 3. The agency filed substantive responses on September 12 and 17, 2024, asserting that it had fully complied with the compliance initial decision. CRF, Tabs 2-3. The appellant has not responded to either submission.3 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. We find that the agency has submitted evidence of compliance that appears to satisfy its obligations as set forth in the compliance initial decision. CRF, Tabs 2-3. The appellant has not responded to the agency’s submissions, despite the 3 The appellant filed a settlement agreement in the underlying compliance case. CF, Tab 17. Because the settlement agreement pertains entirely to the appellant’s separate motion for attorney fees related to his compliance case, docketed as Jones v. Department of Veterans Affairs , MSPB Docket No. AT-0752-23-0072-A-2, we do not consider it here. 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).3 warning in the acknowledgement order that failure to respond may cause the Board to assume he was satisfied and dismiss his petition for enforcement. 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 in this compliance proceeding. Title 5 of the Code of Federal Regulations, section 1201.183(c)(1) (5 C.F.R. § 1201.183(c)(1)). NOTICE TO THE APPELLANT REGARDING YOUR RIGHT TO REQUEST ATTORNEY FEES AND COSTS You may be entitled to be paid by the agency for your reasonable attorney fees and costs. To be paid, you must meet the requirements set out at Title 5 of the United States Code (5 U.S.C.), sections 7701(g), 1221(g), or 1214(g). The regulations may be found at 5 C.F.R. §§ 1201.201, 1201.202, and 1201.203. If you believe you meet these requirements, you must file a motion for attorney fees WITHIN 60 CALENDAR DAYS OF THE DATE OF THIS DECISION. You must file your attorney fees motion with the office that issued the initial decision on your appeal. NOTICE OF APPEAL 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 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 wish to seek review of this final decision, you should immediately review the law applicable to your claims and carefully follow all filing time limits and requirements. Failure to file within the applicable time limit may result in the dismissal of your case by your chosen forum. Please read carefully each of the three main possible choices of review below to decide which one applies to your particular case. If you have questions about whether a particular forum is the appropriate one to review your case, you should contact that forum for more information. (1) Judicial review in general . As a general rule, an appellant seeking judicial review of a final Board order must file a petition for review with the U.S. Court of Appeals for the Federal Circuit, which must be received by the court within 60 calendar days of the date of issuance of this decision. 5 U.S.C. § 7703(b)(1)(A). If you submit a petition for review to the U.S. Court of Appeals for the Federal Circuit, you must submit your petition to the court at the following address: U.S. Court of Appeals for the Federal Circuit 717 Madison Place, N.W. Washington, D.C. 20439 Additional information about the U.S. Court of Appeals for the Federal Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11. If you are interested in securing pro bono representation for an appeal to the U.S. Court of Appeals for the Federal Circuit, you may visit our website at http://www.mspb.gov/probono for information regarding pro bono representation for Merit Systems Protection Board appellants before the 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.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	Jones_Prentice_D_AT-0752-23-0072-X-1_Final_Order.pdf	2025-02-21	PRENTICE D. JONES v. DEPARTMENT OF VETERANS AFFAIRS, MSPB Docket No. AT-0752-23-0072-X-1, February 21, 2025	AT-0752-23-0072-X-1	NP
136	https://www.mspb.gov/decisions/nonprecedential/McCardle_TrevorSF-0752-15-0230-A-1_Final_Order.pdf	UNITED STATES OF AMERICA MERIT SYSTEMS PROTECTION BOARD TREVOR MCCARDLE, Appellant, v. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION, Agency.DOCKET NUMBER SF-0752-15-0230-A-1 DATE: February 21, 2025 THIS FINAL ORDER IS NONPRECEDENTIAL1 Yolanda Acuna , South Gate, California, for the appellant. Cori M. Cohen , Esquire, and Stephanie M. Herrera , Esquire, Silver Spring, Maryland, for the appellant. Holly Victoria Franson , Esquire, Denver, Colorado, for the appellant. Neil Curtis Bonney , Esquire, Virginia Beach, Virginia, for the appellant. Anabia Hasan , Esquire, Natasja D H Handy , Esquire, Lindsay Sfekas , Esquire, and Alexandra Schwartzman , Esquire, Washington, D.C., for the agency. BEFORE Cathy A. Harris, Chairman Henry J. Kerner, Vice Chairman Raymond A. Limon, 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 and the agency has filed a cross petition for review of the addendum initial decision (AID), which granted in part the motion for attorney fees and awarded $61,995.60 in fees and expenses. For the reasons discussed below, we GRANT the petition for review and DENY the cross petition for review. We AFFIRM the administrative judge’s finding that the appellant is entitled to fees generally and the hourly rates that he awarded. We VACATE the administrative judge’s analysis of the reasonableness of the hours worked on the underlying matter. For the reasons described herein, we AWARD the appellant $87,595.00 in attorney fees. Regarding expenses, we AFFIRM the administrative judge’s finding that the appellant was entitled to reimbursement of expenses for long-distance telephone and facsimile ($50.00), mileage and parking for a March 27, 2015 deposition ($229.74), mileage and parking for an August 17, 2015 deposition ($229.74), mileage reimbursement for May 12-14, 2015 ($41.05), and postage ($47.57). We ALSO AFFIRM the administrative judge’s conclusion that the appellant was not entitled to reimbursement of expert witness fees and deposition costs. We VACATE the administrative judge’s determination that the appellant is not entitled to reimbursement for long-distance travel to Los Angeles, California, for depositions. Instead, we AWARD him $1,430.27 for such travel expenses. We FIND that the appellant is entitled to $89,663.37 in total fees and expenses. EXCEPT as expressly modified by this Final Order, we affirm the AID. DISCUSSION OF ARGUMENTS ON REVIEW To establish entitlement to an award of attorney fees under 5 U.S.C. § 7701(g)(1), the appellant must show that (1) he was the prevailing party, (2) he incurred attorney fees pursuant to an existing attorney-client relationship, (3) an award of attorney fees is warranted in the interest of justice, and (4) the amount2 of fees claimed must be reasonable. Driscoll v. U.S. Postal Service , 116 M.S.P.R. 662, ¶ 7 (2011); Allen v. U.S. Postal Service , 2 M.S.P.R. 420, 426-27 (1980). The parties do not challenge the following findings of the administrative judge: (1) the appellant had an attorney-client relationship with Bonney, Allenberg, O’Reilly, and Eddy, P.C. (BAOE), and Gilbert Employment Law, P.C. (GEL); (2) he incurred fees; (3) he was a prevailing party; (4) GEL’s fee petition was untimely; (5) Mr. Bonney was entitled to a $400 hourly rate and Ms. O’Reilly was entitled to a $350 hourly rate for services rendered prior to 2017; (6) Mr. Bonney was entitled to a $450 hourly rate and Ms. O’Reilly was entitled to a $400 hourly rate for services rendered from 2017 to 2023; and (7) the lodestar amount should not be reduced because the appellant obtained significant relief in the underlying appeal. McCardle v. Equal Employment Opportunity Commission, MSPB Docket No. SF-0752-15-0230-A-1, Attorney Fee File (AFF), Tab 21, AID. We affirm the AID in this regard. In its cross petition, the agency challenges the administrative judge’s finding that an award of fees is warranted in the interest of justice because the agency removed the appellant based on the same grounds that precipitated the indefinite suspension and the Board upheld the removal. AID at 7-8; Petition for Review (PFR) File, Tab 3 at 10-11. This argument is not persuasive. An attorney fee award by the Board may be warranted in the interest of justice under the following circumstances: (1) the agency engaged in a prohibited personnel practice; (2) the agency action was clearly without merit or wholly unfounded, or the employee was substantially innocent of the charges; (3) the agency initiated the action in bad faith; (4) the agency committed a gross procedural error; or (5) the agency knew or should have known that it would not prevail on the merits. Allen, 2 M.S.P.R. at 434-35. We agree with the administrative judge that fees are warranted in the interest of justice under the “clearly without merit or wholly unfounded” basis. AID at 8. As the administrative judge succinctly stated, he reversed the action indefinitely3 suspending the appellant because the agency did not have an adequate basis for sustaining it. Id. The Board upheld the administrative judge’s decision to reverse the indefinite suspension. McCardle v. Equal Employment Opportunity Commission, MSPB Docket No. SF-0752-15-0230-I-1, Final Order (Jan. 6, 2023). That the agency may have subsequently removed the appellant for some of the same reasons as the indefinite suspension, plus additional reasons, does not negate the appellant’s entitlement to attorney fees based on the agency’s flawed decision to indefinitely suspend him.2 Accordingly, we deny the agency’s cross petition for review. We award $87,635.00 in attorney fees. The Board assesses the reasonableness of an attorney fees request by using two objective variables: the customary billing rate and the number of hours reasonably devoted to the case. Kelly v. Tennessee Valley Authority , 2024 MSPB 1, ¶ 11. The burden of establishing the reasonableness of the hours claimed in an attorney fee request is on the party moving for an attorney fees award. Id. In the AID, the administrative judge stated that he found “numerous instances of duplication, padding, and/or frivolous claims, as well as claims for purely administrative or clerical work and work that is excessive, redundant, or otherwise unnecessary,” and “several instances of billing entries that are too vague to determine whether the hours claimed are necessary or related to the underlying . . . appeal.” AID at 13. The administrative judge provided a few examples of billing entries relating to Mr. Bonney’s and Ms. O’Reilly’s work, disallowed those claimed hours, and then disallowed other claimed hours without any additional discussion or explanation. AID at 13-14. 2 Because we agree with the administrative judge that fees were warranted in the interest of justice on the “clearly without merit or wholly unfounded” basis, we need not address the agency’s arguments regarding the “substantially innocent” or “knew or should have known” bases. PFR File, Tab 3 at 10-12.4 In the petition for review filed by BOAE, the appellant asserts that, for the most part, he “has no knowledge as to the dates or basis for any other time entries that the [administrative judge] objected [to]” because he “randomly cut[] various hours without specifying what time entries were cut or why they were cut.”3 PFR File, Tab 1 at 9. He also challenges the administrative judge’s ruling on the few specific instances in which he disallowed hours as unreasonable. Id. at 8-11. To address the administrative judge’s concern that he did not provide specific emails in his billing statement, the appellant provides “all or almost all, of the emails billed.”4 Id. at 10, 51-275. The Board has held that, if an administrative judge decides not to award fees for hours of attorney service that are adequately documented, he must identify those hours and give a clear, nonconclusory explanation for their elimination. Wightman v. Department of Veterans Affairs, 111 M.S.P.R. 109, ¶ 11 (2009). We agree with the appellant that the AID largely does not comport with this precedent, and we vacate the administrative judge’s assessment of the reasonableness of the claimed hours. We need not remand this appeal because the record is fully developed, and the parties have had ample opportunity to challenge and defend the claimed hours. We have therefore conducted a thorough analysis of claimed hours and the 3 The appellant also asserts that the administrative judge reduced hours without giving him an opportunity to provide an explanation. PFR File, Tab 1 at 6-7; see Driscoll, 116 M.S.P.R. 662, ¶ 12 (holding that, if an administrative judge has concerns about deficiencies in a motion for attorney fees, he should afford the employee an opportunity to address the matters before rejecting the claim). Except for entry 6, which the agency did not object to, we find that the administrative judge gave the appellant general notice of his concerns and an opportunity to address those concerns. AFF, Tab 14. Regarding entry 6, we award the appellant the full 0.2 hours claimed. 4 Under 5 C.F.R. § 1201.115, the Board generally will not consider evidence submitted for the first time with a petition for review absent a showing that it was unavailable before the record was closed before the administrative judge despite the party’s due diligence. Avansino v. U.S. Postal Service , 3 M.S.P.R. 211, 213-14 (1980). Because of the complicated nature of this case, we have considered the appellant’s documentation on review. 5 agency’s objections thereto.5 With some exceptions, noted below,6 we find that the appellant provided sufficient additional contextual information—including contemporaneous records, emails, references to pleadings in the underlying 0230 appeal, and other documentary evidence—to support most of the challenged billing entries. See Heath v. Department of Transportation , 66 M.S.P.R. 101, 106-07 (1995) (stating that the documentation of time spent on the appeal was adequate because it identified the client, the attorney performing the task, the nature of the work performed, and the amount of time expended). We briefly discuss the challenged billing entries in which we have reduced or entirely disallowed the claimed hours. In entry 83, the appellant claimed 0.2 hours for “receipt of deposition expense and forward to agency; email on deposition bill; print article on direct threat.” AFF, Tab 1 at 30. The agency objected to this entry as clerical/administrative duties. AFF, Tab 8 at 33. The appellant stated that 5 For example, we agree with the appellant that “discussing traveling to [Los Angeles] and location” for 0.1 hours, as described in entry 59, was reasonable and appropriate. AFF, Tab 1 at 28; PFR File, Tab 1 at 9. We also find that the appellant provided sufficient contextual information to support his claimed hours for his travel to Los Angeles, California, to participate in depositions and other case-related work, as described in entries 69-73. AFF, Tab 1 at 29, Tab 12 at 177. We award the claimed hours for these entries in full. 6 There were numerous discrepancies in the appellant’s pleadings. For example, in his Summary of Fees and Expenses attached to his petition for review, the appellant includes entries for 0.3 hours on October 19, 2015, 0.1 hours on March 31, 2017, 0.4 hours on April 4, 2017, and 0.1 hours on March 24, 2022. PFR File, Tab 1 at 41-43. However, he withdrew these entries before the administrative judge. AFF, Tab 17 at 19-20. Therefore, we have not considered these entries in our calculations. Additionally, the appellant originally claimed 12 hours in entry 70 and 16 hours in entry 73, but he later clarified that entry 70 should have been listed as 11.4 hours, and entry 73 should have been listed as 15.7 hours. AFF, Tab 1 at 19, Tab 12 at 177. Our calculations rely on the appellant’s updated information. Additionally, in his petition for review, the appellant states that he “zeroed-out” all of Ms. McCune’s and Mr. Barger’s time in his revised billing statement, which he appended to his petition. PFR File, Tab 1 at 11. We understand the appellant to mean that he is no longer claiming any hours for work performed by Ms. McCune and/or Mr. Barger. Therefore, we do not award any fees for Ms. McCune and/or Mr. Barger.6 counsel researched the direct threat issue first before he printed out the case. AFF, Tab 17 at 12. The Board has held that clerical work normally is not to be compensated at legal rates. Thomas v. U.S. Postal Service , 86 M.S.P.R. 635, ¶ 21, modified on recons. , 87 M.S.P.R. 331 (2000), overruled on other grounds by Shelton v. Environmental Protection Agency , 115 M.S.P.R. 177 (2010) . We find that this entry largely constitutes administrative tasks, and we reduce the award to 0.1 hours. The agency objected to several entries because they were related to the appellant’s equal employment opportunity (EEO) matter or other Board appeals. AFF, Tab 8; see, e.g., McCardle v. Equal Employment Opportunity Commission , MSPB Docket Nos. SF-0752-15-0496-I-1, SF-1221-17-0270-W-1, SF-0752-16- 0689-I-1. In response, the appellant stated, among other things, that the filing of the 0496 appeal, which challenged the continuation of the indefinite suspension, “fully supported the 0230 [initial] decision” and “proved the agency’s action was and continued to be unlawful.” AFF, Tab 17 at 4. The Board has held that fees may be awarded for time spent on a separate and optional, but factually related, proceeding if, among other things, the work performed contributes to the success of a Board proceeding. Bonggat v. Department of the Navy , 59 M.S.P.R. 175, 178 (1993). We find that counsel’s efforts in the 0496 appeal, any other subsequent appeal, and the EEO matter did not contribute to the success of the 0230 appeal.7 Accordingly, we do not award fees for attorney work that purely occurred in any other matter. We have carefully reviewed the fee petition and the record in the various Board appeals to ensure that fees are only awarded for counsel’s work in the underlying 0230 appeal. 7 Additionally, the appellant filed a fee petition relating to the underlying 0496 appeal, the administrative judge denied the fee petition because he was not a prevailing party, and the appellant did not file a petition for review of that decision. McCardle v. Equal Employment Opportunity Commission , MSPB Docket No. SF-0752-15-0496-A-1, Initial Decision at 2-5 (Sep. 6, 2023).7 For example, in entry 33, the appellant claimed 2.3 hours for “review file; call [name redacted]; work on brief; research indefinite suspension; review email on reply brief; review agency response.” AFF, Tab 1 at 26. The agency challenged the entry as vague. AFF, Tab 8 at 30. The appellant responded that he reviewed the appellant’s brief in his EEO matter so that he would be familiar with what was occurring in that matter and he could ensure that there were no conflicts or problems. AFF, Tab 17 at 9. We agree with the agency that most of the descriptions in the entry are vague, and it is not clear that counsel’s review of the EEO brief led to the success of the 0230 appeal. Based on our review of the 0230 appeal file, we award 0.3 hours for such work. In entry 92, the appellant claimed 5.4 hours on April 16, 2015, for Mr. Bonney to, among other things, “email [the agency attorney] on answer from [GR],” “discuss with [Ms. O’Reilly] filing new case,” “call with client on witnesses,” and “discuss appeal with ABE.”8 AFF, Tab 1 at 32. In entry 93, the appellant claimed 0.2 hours on this same date for Ms. O’Reilly to “discuss filing new case” with Mr. Bonney. Id. In the AID, the administrative judge disallowed the 0.2 hours because, “[a]side from the duplicate billing,” it was not clear whether the “new case” was related to the underlying appeal. AID at 14. On petition for review, for the first time, the appellant explains that the discussion was “over a very technical issue raised by the [a]gency attempting to dismiss the Board case based on a filing made by the [a]ppellant in Federal Court,” and based on the significance to the case, Mr. Bonney discussed the implications with Ms. O’Reilly and another attorney. PFR File, Tab 1 at 10. The appellant asserts that it was prudent for the two attorneys to discuss given the “huge impact the argument could make on the case.” Id. at 11. However, such a conversation is not reflected in either billing entry. Instead, the description shows that Mr. Bonney and Ms. O’Reilly discussed filing a new case on this date, and the 8 We believe that “ABE” is attorney Barger.8 record in the 0496 matter reflects that that appeal was only filed a few days later. We disallow the 0.2 claimed hours for Ms. O’Reilly. We also deduct the same amount (0.2 hours) from Mr. Bonney’s claimed hours on that date. The remainder of the work is related to the 0230 appeal and reasonable. In entry 97, the appellant claimed 1.3 hours on April 20, 2015, to, among other things, “email on new dates and note on appeal,” email the appellant, “motion to continue,” “motion to consolidate[],” “review email on changing dates,” “call on schedule conflict,” and “discuss second appeal” with a colleague. AFF, Tab 1 at 32. The agency objected because, among other things, the second appeal was redundant, the motion to consolidate was extraneous, and internal discussions were double-billed. AFF, Tab 8 at 34. The record reflects that the appellant filed the 0496 appeal on this date, and as noted above, we do not award fees for filing the 0496 appeal. However, most of the claimed work appears to have occurred in the 0230 appeal, including the scheduling issues. Therefore, we reduce the award from 1.3 hours to 1.1 hours. In entry 98, the appellant claimed 0.4 hours on April 21, 2015, to “review notice from Judge; send sample questions; review new Ack Order, file consolidation with both; email to [client] to check MSPB repository.” AFF, Tab 1 at 32. The appellant filed the motion to consolidate in the 0230 matter; the remaining tasks appear to be related to the 0496 matter. Accordingly, we reduce the award to 0.1 hours. Regarding entry 107, the appellant claimed 1 hour for the following work on April 30, 2015: “call Dr. [W.]; question of filing motion in limine to limit witnesses; review prehearing; notice to respond, investigation; review file and memo to file.” AFF, Tab 1 at 34. The agency objected to this entry as vague, and it was not clear that this work was related to this matter. AFF, Tab 8 at 35. In his responses, the appellant stated that Dr. W. was an expert witness who was deposed by the agency, and he included his handwritten billing entries from that date. AFF, Tab 12 at 56, Tab 17 at 13. We cannot discern whether “notice to9 respond, investigation” and “review file and memo to file” related to the 0230 matter or the other matters. Because the burden is on the appellant to show that the claimed hours were reasonable and related to the underlying 0230 matter, we only award 0.5 hours for this work. In entry 115, the appellant claimed 1.1 hours to, among other things, review “PFA 2” and “agency file,” work on supplemental discovery, and two emails to Dr. W. AFF, Tab 1 at 36. The agency objected that this work was excessive because it was “all on the duplicate appeal,” the emails to Dr. W. were vague, and there was a duplicate email to Dr. W. AFF, Tab 8 at 36. The appellant asserted that the work was necessary for both cases, and he had to supplement his discovery to identify Dr. W. AFF, Tab 17 at 14. We find that most of the work occurred in the 0230 matter. We disallow claimed hours for reviewing the second appeal and agency file, which appear to relate solely to the 0496 matter, and we reduce the award to 0.8 hours. In entry 122, the appellant claimed 0.4 hours to “finish discovery questions and send on second case.” AFF, Tab 1 at 37. The agency objected because it involved a “[r]edundant case.” AFF, Tab 8 at 37. We agree with the agency, and we do not grant the claimed hours because they involved work only in the 0496 appeal. In entry 140, the agency claimed 0.4 hours for, among other things, “mediation information,” email on “new designation of rep [sic] and [GR] decision,” review email from the appellant “on prehearing,” and “discus[s] with PM filing EEO #3.” AFF, Tab 1 at 38. The agency asserted that the description was vague, confusing, hard to follow, and involved an “irrelevant” third EEO matter. AFF, Tab 8 at 38. In its response, the appellant asserted that filing an additional case could affect the current case and must be evaluated. AFF, Tab 12 at 24. The designation of representation and the decision appear to involve the continuation of the indefinite suspension at issue in the 0496 matter. Coupled with the reference to the EEO matter, we reduce the claimed hours to 0.2 hours to10 cover information about mediation and emailing the appellant about the prehearing submission. In entry 161, the appellant claimed 0.5 hours on August 4, 2015, for “receipt and review of discovery and letter on proposed removal; call with client; consolidate 3rd enforced leave case; call on [name redacted] depo.” AFF, Tab 1 at 41. The agency objected to this entry as relating to an extraneous or duplicative appeal. AFF, Tab 8 at 41. The appellant acknowledged that he responded to the proposed removal and wanted to consolidate a third appeal involving the indefinite suspension. AFF, Tab 17 at 17. The record reflects that the appellant filed a motion to consolidate a third indefinite suspension appeal with the 0230 and 0496 appeals, the third indefinite suspension appeal submission was incorporated into the record as a supplemental submission in the 0496 matter, the motion to consolidate was denied as moot, and discovery was ongoing in the 0230 matter. McCardle v. Equal Employment Opportunity Commission , MSPB Docket No. SF-0752-15-0230-I-1, Initial Appeal File (0230 IAF), Tabs 34, 36. Because we do not award fees for counsel’s work relating to the proposed removal, we reduce the award to 0.3 hours. Likewise, in entry 163, the appellant claimed 1.4 hours for a variety of tasks, including reviewing the motion to consolidate, calling the agency and the appellant about settlement, and “review[ing] email on client’s book and explanation.” AFF, Tab 1 at 42. The last task relates to the proposed removal, and we only award 1.2 hours for this entry. In entry 165, the appellant claimed 0.9 hours for reviewing various documents largely relating to the removal as well as settlement discussions with agency counsel and reviewing the agency’s motion to continue. AFF, Tab 1 at 42. Because most of this entry appears to relate to the removal, we award only 0.2 hours for the time engaged in settlement discussions and reviewing the motion to continue, which was filed in the 0230 appeal. 11 In entry 167, the appellant claimed 1.3 hours for various work on the prehearing submission, a call with agency counsel, review of the administrative judge’s order, communications with the appellant, a letter “to client on more time and to [GR] on removal,” and “follow up on criminal law concept from [the appellant].” AFF, Tab 1 at 42. The agency stated that the entry was vague, confusing as to what motion was being reviewed and what information was sent to client, and the criminal law concept appeared unrelated to this case. AFF, Tab 8 at 42. The appellant noted that the motion was found in the record at 0230 IAF, Tab 41. AFF, Tab 12 at 25. Moreover, the appellant raised a Fourth Amendment claim in the underlying appeal. However, we do not award fees for work performed in connection with the removal, such as the letter to client for more time and “to GR on removal.” See PFR File, Tab 1 at 242-45. Therefore, we reduce the award to 1.1 hours. In entry 181, the appellant claimed 0.4 hours to “review [his] response to proposed removal to understand agency’s position; review file and documents.” AFF, Tab 1 at 44. The agency asserted that the entry was vague and confusing. AFF, Tab 8 at 43-44. We agree. Additionally, because the entry appears to entirely relate to the proposed removal, we disallow all claimed hours in this entry. In entry 174, the appellant claimed 0.4 hours for “letter sent on removal; call with Dr. [W.] on depo.” AFF, Tab 1 at 44. The agency objected because it was vague as to who received the letter. AFF, Tab 12 at 43. For the reasons stated above, we do not award fees for work relating to the removal. However, counsel’s contemporaneous notes appear to show that he spent 13 minutes, from 2:07 to 2:20, on the phone with Dr. W. Id. at 84. Therefore, we award 0.3 hours for the work described in this entry.12 We have considered the agency’s other objections to the appellant’s billing entries.9 Based on our careful review of the claimed hours, we conclude that the appellant is entitled to an award of fees as follows: For their pre-2017 work on the 0230 appeal, Mr. Bonney is entitled to reimbursement for 207.1 hours, and Ms. O’Reilly is entitled to reimbursement for 7.4 hours.10 Starting in 2017, Mr. Bonney is entitled to reimbursement for 4.9 hours. At the hourly rates discussed above, we award the appellant $87,635.00 in total fees.11 We award the appellant $2,028.37 in expenses. We now turn to the appellant’s requests for expenses, including for travel, deposition costs, and witness fees. In the AID, the administrative judge awarded $598.10 in expenses as follows: $50.00 for long-distance telephone and facsimile; $229.74 for mileage and parking for counsel to travel to Washington, D.C., on March 27, 2015; $229.74 for mileage and parking for counsel to travel to 9 For example, in entry 215, the appellant claimed 0.7 hours for the following work by Mr. Bonney on December 10, 2015: “question on disability with Attorney O’Reilly; work on damages; call with Gilbert on filing; work on fees.” AFF, Tab 1 at 47. In entry 216, the appellant claimed 0.8 hours for the following work by Ms. O’Reilly on this same date: “review Initial Decision; conference with NCB.” Id. The agency objected because the claimed hours were duplicative with GEL, and they involved internal legal team consultations and internal firm discussions. AFF, Tab 8 at 47. The administrative judge did not award fees to GEL, and neither party challenges this finding on review. Additionally, we discern no error with Mr. Bonney and Ms. O’Reilly discussing the initial decision and next steps. Therefore, we award 0.7 and 0.8 hours, respectively, in these entries. 10 In calculating fees for Ms. O’Reilly’s work, the administrative judge used the incorrect hourly rate and number of hours. AID at 15. Because we vacate the administrative judge’s analysis of the reasonableness of hours, we need not discuss these calculations further. 11 We provide the following explanation of our calculations: 207.1 hours * $400/hour (Mr. Bonney’s pre-2017 rate) = $82,840.00 7.4 hours * $350/hour (Ms. O’Reilly’s pre-2017 rate) = $2,590.00 4.9 hours * $450/hour (Mr. Bonney’s 2017 rate) = $2,205.00 $82,840.00 + 2,590.00 + 2,205.00 = $87,635.00 in total fees13 Washington, D.C., on August 17, 2015; $41.05 for mileage reimbursement for May 2015; and $47.57 for postage. AID at 18. Neither party challenges the administrative judge’s findings in this regard, and we affirm the administrative judge’s decision to award these expenses.12 On review, the appellant challenges the administrative judge’s decision to disallow travel expenses to Los Angeles, California. AID at 17-18; PFR File, Tab 1 at 12. In pertinent part, the appellant notes that the administrative judge approved claims for local travel to Washington, D.C., for depositions, but not for travel to California. PFR File, Tab 1 at 12. The administrative judge, in evaluating expenses, acknowledged that the U.S. Court of Appeals for the Federal Circuit upheld a Board decision, which found that a fee award can include the attorney’s hourly rate plus out-of-pocket expenses for, among other things, long-distance telephone charges and local transportation, but not deposition costs and witness fees. AID at 18-19 (citing Bennett v. Department of the Navy , 699 F.2d 1140, 1144-45 (Fed. Cir. 1983)). Although Bennett discussed local transportation, subsequent Board decisions have stated that an attorney’s reasonable travel expenses—local or otherwise—should be reimbursed. Garstkiewicz v. U.S. Postal Service , 50 M.S.P.R. 476, 478-79 (1991); see Garcia v. U.S. Postal Service , 75 M.S.P.R. 198, 202 (1997) (awarding $396.42 in compensable costs for counsel’s hotel lodging for three nights). We find that counsel’s travel to California for depositions was reasonable. We vacate the AID in this regard and award him reimbursement of his travel expenses in the amount of $1,430.27. The appellant also contends that the administrative judge erred when he disallowed expert witness fees for Dr. W. AID at 18; PFR File, Tab 1 at 12-13. In pertinent part, the appellant cites to “5 U.S.C. § 1221(9)(1)(A).” PFR File, 12 Although the appellant does not explicitly include the $41.05 expense in his Summary of Fees and Expenses on petition for review, we assume that it was an inadvertent oversight because he does not raise an error in the administrative judge’s evaluation of this award.14 Tab 1 at 13. We believe that the appellant means 5 U.S.C. § 1221(g)(1)(A)(ii), which states that, if the Board orders corrective action under this section, such corrective action may include “compensatory damages (including interest, reasonable expert witness fees, and costs).” However, subsection 1221(g)(1)(A) (ii) is not applicable because the Board did not order corrective action under 5 U.S.C. § 1221. Rather, the Board affirmed the administrative judge’s decision to reverse the indefinite suspension, but it found that the appellant did not prove his whistleblower reprisal claim. Moreover, the Board has held that it lacks the authority to award fees for work performed by experts in either a testimonial or a nontestimonial capacity. Fishback v. U.S. Postal Service , 54 M.S.P.R. 257, 260 (1992). Accordingly, the appellant is not entitled to recover Dr. W.’s expert witness fees. See 5 C.F.R. § 1201.37(c) (“The party requesting the presence of a witness must pay that witness’ fees.”). We affirm the AID in this regard. Finally, the appellant contends that the administrative judge erred in disallowing deposition costs. AID at 18; PFR File, Tab 1 at 13. The appellant acknowledges that deposition costs were not historically recoverable expenses; however, he asserts the deposition expenses should be reimbursable in this case because the depositions were used as a substitute for hearing testimony and the depositions “became the actual testimony used as exhibits in this case.” PFR File, Tab 1 at 13. In its response, the agency highlights that the appellant waived his right to a hearing and contends that it should not be penalized for his change in legal strategy. PFR File, Tab 3 at 8-9. Ultimately, the appellant cites no persuasive legal authority for his contention that depositions costs under these circumstances are recoverable, and we are aware of none. See Bennett, 699 F.2d at 1145 (holding that “stenographic fees for depositions” are not recoverable); Smith v. Department of the Navy , 113 M.S.P.R. 430, ¶ 7 (2010) (noting that the Board is not authorized to award depositions costs to a prevailing party under 5 U.S.C. § 7701(g)(1)). We affirm the AID in this regard.15 ORDER We ORDER the agency to pay $89,643.37 in fees and expenses to the law firm of Bonney, Allenberg, O’Reilly, and Eddy, P.C., as set forth herein. The agency must complete this action no later than 20 days after the date of this decision. Title 5 of the United States Code, section 1204(a)(2) (5 U.S.C. § 1204(a)(2)). We also ORDER the agency to tell the appellant and the attorney promptly in writing when it believes it has fully carried out the Board’s Order and of the actions it has taken to carry out the Board’s Order. We ORDER the appellant and the attorney to provide all necessary information that the agency requests to help it carry out the Board’s Order. The appellant and the attorney, 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 or the attorney that it has fully carried out the Board’s Order, the appellant or the attorney may file a petition for enforcement with the office that issued the initial decision on this appeal, if the appellant or the attorney believes that the agency did not fully carry out the Board’s Order. The petition should contain specific reasons why the appellant or the attorney believes the agency has not fully carried out the Board’s Order, and should include the dates and results of any communications with the agency. See 5 C.F.R. § 1201.182(a). NOTICE OF APPEAL RIGHTS13 The AID, 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 13 Since the issuance of the initial decision in this matter, the Board may have updated the notice of review rights included in final decisions. As indicated in the notice, the Board cannot advise which option is most appropriate in any matter.16 appeal rights, the Merit Systems Protection Board does not provide legal advice on which option is most appropriate for your situation and the rights described below do not represent a statement of how courts will rule regarding which cases fall within their jurisdiction. If you wish to seek review of this final decision, you should immediately review the law applicable to your claims and carefully follow all filing time limits and requirements. Failure to file within the applicable time limit may result in the dismissal of your case by your chosen forum. Please read carefully each of the three main possible choices of review below to decide which one applies to your particular case. If you have questions about whether a particular forum is the appropriate one to review your case, you should contact that forum for more information. (1) Judicial review in general . As a general rule, an appellant seeking judicial review of a final Board order must file a petition for review with the U.S. Court of Appeals for the Federal Circuit, which must be received by the court within 60 calendar days of the date of issuance of this decision. 5 U.S.C. § 7703(b)(1)(A). If you submit a petition for review to the U.S. Court of Appeals for the Federal Circuit, you must submit your petition to the court at the following address: U.S. Court of Appeals for the Federal Circuit 717 Madison Place, N.W. Washington, D.C. 20439 Additional information about the U.S. Court of Appeals for the Federal Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.17 If you are interested in securing pro bono representation for an appeal to the U.S. Court of Appeals for the Federal Circuit, you may visit our website at http://www.mspb.gov/probono for information regarding pro bono representation for Merit Systems Protection Board appellants before the Federal Circuit. The Board neither endorses the services provided by any attorney nor warrants that any attorney will accept representation in a given case. (2) Judicial or EEOC review of cases involving a claim of discrimination . This option applies to you only if you have claimed that you were affected by an action that is appealable to the Board and that such action was based, in whole or in part, on unlawful discrimination. If so, you may obtain judicial review of this decision —including a disposition of your discrimination claims —by filing a civil action with an appropriate U.S. district court ( not the U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems Protection Board , 582 U.S. 420 (2017). If you have a representative in this case, and your representative receives this decision before you do, then you must file with the district court no later than 30 calendar days after your representative receives this decision. If the action involves a claim of discrimination based on race, color, religion, sex, national origin, or a disabling condition, you may be entitled to representation by a court-appointed lawyer and to waiver of any requirement of prepayment of fees, costs, or other security. See 42 U.S.C. § 2000e-5(f) and 29 U.S.C. § 794a. Contact information for U.S. district courts can be found at their respective websites, which can be accessed through the link below: http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx . Alternatively, you may request review by the Equal Employment Opportunity Commission (EEOC) of your discrimination claims only, excluding all other issues . 5 U.S.C. § 7702(b)(1). You must file any such request with the18 EEOC’s Office of Federal Operations within 30 calendar days after you receive this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case, and your representative receives this decision before you do, then you must file with the EEOC no later than 30 calendar days after your representative receives this decision. If you submit a request for review to the EEOC by regular U.S. mail, the address of the EEOC is: Office of Federal Operations Equal Employment Opportunity Commission P.O. Box 77960 Washington, D.C. 20013 If you submit a request for review to the EEOC via commercial delivery or by a method requiring a signature, it must be addressed to: Office of Federal Operations Equal Employment Opportunity Commission 131 M Street, N.E. Suite 5SW12G Washington, D.C. 20507 (3) Judicial review pursuant to the Whistleblower Protection Enhancement Act of 2012 . This option applies to you only if you have raised claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D). If so, and your judicial petition for review “raises no challenge to the Board’s disposition of allegations of a prohibited personnel practice described in section 2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i), (B), (C), or (D),” then you may file a petition for judicial review either with the U.S. Court of Appeals for the Federal Circuit or any court of appeals of competent jurisdiction.14 The court of appeals must receive your petition for 14 The original statutory provision that provided for judicial review of certain whistleblower claims by any court of appeals of competent jurisdiction expired on December 27, 2017. The All Circuit Review Act, signed into law by the President on July 7, 2018, permanently allows appellants to file petitions for judicial review of19 review within 60 days of the date of issuance of this decision. 5 U.S.C. § 7703(b)(1)(B). If you submit a petition for judicial review to the U.S. Court of Appeals for the Federal Circuit, you must submit your petition to the court at the following address: U.S. Court of Appeals for the Federal Circuit 717 Madison Place, N.W. Washington, D.C. 20439 Additional information about the U.S. Court of Appeals for the Federal Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11. If you are interested in securing pro bono representation for an appeal to the U.S. Court of Appeals for the Federal Circuit, you may visit our website at http://www.mspb.gov/probono for information regarding pro bono representation for Merit Systems Protection Board appellants before the 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. 20 Contact information for the courts of appeals can be found at their respective websites, which can be accessed through the link below: http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx . FOR THE BOARD: ______________________________ Gina K. Grippando Clerk of the Board Washington, D.C.21	McCardle_TrevorSF-0752-15-0230-A-1_Final_Order.pdf	2025-02-21	TREVOR MCCARDLE v. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION, MSPB Docket No. SF-0752-15-0230-A-1, February 21, 2025	SF-0752-15-0230-A-1	NP
137	https://www.mspb.gov/decisions/nonprecedential/Britt_II_James_E_AT-0752-23-0148-I-1_Final_Order.pdf	UNITED STATES OF AMERICA MERIT SYSTEMS PROTECTION BOARD JAMES EDWARD BRITT II, Appellant, v. FEDERAL DEPOSIT INSURANCE CORPORATION, Agency.DOCKET NUMBER AT-0752-23-0148-I-1 DATE: February 21, 2025 THIS FINAL ORDER IS NONPRECEDENTIAL1 James Edward Britt II , Knoxville, Tennessee, pro se. Jill A. Weissman , Esquire, New York, New York, for the agency. Johnathan P. Lloyd , Esquire, Dallas, Texas, 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 sustained his removal from his position as a CG-12 Risk Examiner. On petition for review, the appellant argues that the agency’s removal action based 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). charges of absence without leave (AWOL) and failure to follow instructions was unjust because his return to work was conditional upon a medical clearance. He argues that the appropriate penalty was an indefinite suspension based on the agency’s table of penalties. He also argues that he proved his affirmative defenses of due process violations or harmful procedural error, disability discrimination, and retaliation for filing various claims and disclosing prohibited personnel practices. Generally, we grant 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 separately sustain the AWOL and failure to follow instructions charges, clarify the analysis of the appellant’s retaliation claims, and address the appellant’s disability discrimination claim , we AFFIRM the initial decision. We separately sustain the AWOL and failure to follow instructions charges. The Board will “merge” charges if they are based on the same conduct and proof of one charge automatically constitutes proof of the other charge. Powell v. U.S. Postal Service , 122 M.S.P.R. 60, ¶ 10 (2014). The agency charged the appellant with AWOL and failure to follow instructions. Initial Appeal File (IAF), Tab 4 at 4-9. To prove an AWOL charge, an agency must demonstrate that the employee was absent without authorization and, if the employee requested2 leave, that the request was properly denied. Savage v. Department of the Army , 122 M.S.P.R. 612, ¶ 28 n.5 (2015), overruled in part by Pridgen v. Office of Management and Budget , 2022 MSPB 31, ¶¶ 23-25; see also Wilson v. Small Business Administration , 2024 MSPB 3, ¶ 7. Here, because the appellant requested leave without pay (LWOP), the agency was required to prove that its denial of that request was proper. IAF, Tab 11 at 278. Generally, in cases where an employee is incapacitated for duty and has exhausted all his leave,2 an agency can do so by showing that there was no foreseeable end to the employee’s absences and the employee’s absence was a burden to the agency. See Sambrano v. Department of Defense , 116 M.S.P.R. 449, ¶¶ 4-5 (2011); Bologna v. Department of Defense , 73 M.S.P.R. 110, 114-16, aff’d, 135 F.3d 774 (Fed. Cir. 1997) (Table). By contrast, to prove failure to follow instructions, an agency is required only to prove that: (1) proper instructions were given to an employee; and (2) the employee failed to follow them, without regard to whether the failure was intentional or unintentional. Hamilton v. U.S. Postal Service , 71 M.S.P.R. 547, 556 (1996). Here, we find that the agency’s failure to follow instructions charge was based on the appellant’s failure to provide medical documentation requested by the agency. IAF, Tab 4 at 9, Tab 11 at 269. Although the appellant’s failure to provide the requested documentation, which included an expected return-to-work date, supports the agency’s denial of LWOP, proof of the failure to follow instructions charge does not automatically constitute proof of the AWOL charge under the circumstances of this case. Thus, merger of the AWOL and failure to follow instructions charges was not appropriate. Nevertheless, because the agency proved both charges, any error by the administrative judge in merging these charges provides no basis for reversal of the initial decision . Panter v. Department of the Air Force , 22 M.S.P.R. 281, 282 (1984) (holding that an adjudicatory error that is not prejudicial to a party’s 2 This includes unpaid leave to which an employee is entitled under the Family and Medical Leave Act.3 substantive rights provides no basis for reversal of an initial decision). We affirm the administrative judge’s findings sustaining the AWOL charge, and we modify the initial decision to separately sustain the failure to follow instructions charge. IAF, Tab 46, Initial Decision (ID) at 4-7. The agency’s failure to follow instructions charge, which included four specifications, was based on the appellant’s failure to follow its April 27, 2022 memorandum. IAF, Tab 4 at 9. That memorandum instructed the appellant to provide monthly medical documentation that included the following: (1) an updated prognosis; (2) an estimate of the expected date of full or partial recovery and the date he could be expected to return to work on a regular basis; and (3) if he was able to return to work, the expectation for his anticipated work schedule upon his return to work. IAF, Tab 11 at 269. It is undisputed that the appellant failed to provide this monthly documentation as set forth in all four specifications. However, the appellant appears to challenge the propriety of the agency’s instructions by arguing that they were overly burdensome, and he suggests that the agency rescinded its instructions in subsequent communications. IAF, Tab 1 at 11, Tab 11 at 279, Tab 28 at 18-19. First, we find that the agency’s instructions were proper because the medical documentation requested was reasonably necessary to make an informed management decision about whether to grant LWOP. See generally 5 C.F.R. § 1630.14(c) (generally, a disability-related inquiry or medical examination must be “job-related and consistent with business necessity,” and an employer “may make inquiries into the ability of an employee to perform job-related functions”); cf. Archerda v. Department of Defense , 121 M.S.P.R. 314, ¶ 21 (2014) (examining whether the agency’s requests for medical documentation were proper under the circumstances of the case). Therefore, we find that the appellant was required to comply with these instructions by ensuring that his medical provider supplied the requested information. See Jones v. Department of Justice , 98 M.S.P.R. 86, ¶¶ 13-15 (2004). We are also unpersuaded that the agency4 rescinded its instructions—either expressly or implicitly—in subsequent communications. Rather, we find that the agency communicated to the appellant that the medical information would influence its decision about whether to grant LWOP or, alternatively, to pursue disciplinary action, and that he should provide the requested information. See IAF, Tab 11 at 119-20, 278. Accordingly, we find that the agency proved its charge of failure to follow instructions. We modify the administrative judge’s analysis of the appellant’s retaliation claims. Below and on review, the appellant alleged that the agency removed him in retaliation for filing an Office of Workers’ Compensation Programs (OWCP)/Federal Employees’ Compensation Act (FECA) claim, Federal Tort Claims Act (FTCA) claim, and agency grievance, and for his disclosures of prohibited personnel practices therein. IAF, Tab 42; Petition for Review (PFR) File, Tab 1 at 12-15. Concerning his alleged disclosures of prohibited personnel practices, the administrative judge found that the appellant failed to specify what his disclosures of prohibited personnel practices were and, thus, did not establish that he made protected whistleblowing disclosures. ID at 18-19. However, the record contains documentary evidence of the appellant’s disclosures, which contain specific allegations that the agency engaged in a prohibited personnel practice under 5 U.S.C. § 2302(b)(10). See, e.g., IAF, Tab 11 at 238-44, Tab 28 at 33-43, Tab 42 at 11-27. Nevertheless, we find that the appellant has not met his burden to show that he disclosed information that he reasonably believed evidenced a violation of any law, rule, or regulation, gross mismanagement, a gross waste of funds, an abuse of authority, or a substantial and specific danger to public health or safety. See 5 U.S.C. § 2302(b)(8)(A); Shannon v. Department of Veterans Affairs , 121 M.S.P.R. 221, ¶¶ 21-22 (2014). The proper test for assessing whether a protected disclosure occurred is an objective one: could a disinterested observer with knowledge of the essential facts known to and readily ascertainable by the5 employee reasonably conclude that the actions of the government evidenced one of the categories of wrongdoing identified in 5 U.S.C. § 2302(b)(8)(A). See Shannon, 121 M.S.P.R. 221, ¶ 22. Here, the appellant disclosed an alleged violation of 5 U.S.C. § 2302(b)(10), which prohibits discrimination on the basis of conduct unrelated to job performance. IAF, Tab 11 at 240-41, Tab 42 at 13-15. Specifically, the appellant disclosed that an agency policy unfairly discriminated against employees based on their prior employment with the agency at a given grade by considering it in determining how to adjust their pay following a re- promotion, and that the agency applied this unlawful policy in determining his pay following a promotion that he received in 2021. IAF, Tab 11 at 238-41, Tab 42 at 13-15. Assuming arguendo that the appellant held a reasonable belief that an individual’s prior employment at a given grade is “conduct” within the meaning of section 2302(b)(10), we note that agencies routinely consider such factors in their decisions concerning hiring and pay for legitimate reasons. Furthermore, in this case, the re-promotion policy applied by the agency was agreed upon by the agency and the appellant’s union, which further discounts the reasonableness of his position. IAF, Tab 11 at 20, 141-43. Considering all the appellant’s arguments, we find that he did not hold a reasonable belief that the agency’s application of its policy violated section 2302(b)(10). Therefore, he did not prove that he made a protected whistleblower disclosure. However, the administrative judge found that the appellant engaged in activity protected under 5 U.S.C. § 2302(b)(9)(A)(ii) by filing OWCP/FECA and FTCA claims. ID at 18-19. The administrative judge analyzed the appellant’s claims of retaliation pursuant to Warren v. Department of the Army , 804 F.2d 654, 656 (Fed. Cir. 1986), and concluded that the appellant did not prove a genuine nexus between either his FECA or his FTCA claims and his removal. ID at 18-19. We affirm these findings except as modified to find that the appellant’s OWCP/FECA claim does not constitute activity falling within the protection of section 2302(b)(9). See Marcell v. Department of Veterans Affairs , 2022 MSPB6 33, ¶¶ 7-8. Nevertheless, to the extent that the appellant’s arguments concerning his OWCP/FECA claim could form the basis of another affirmative defense, such as a violation of 5 U.S.C. § 2302(b)(10), we agree with the administrative judge that the agency did not remove the appellant because he filed an OWCP/FECA claim. ID at 18-19. Furthermore, to the extent that the administrative judge did not expressly address the appellant’s claim of retaliation for filing an agency grievance, we note that grievance activity is protected under section 2302(b)(9) (A)(ii), adopt the administrative judge’s reasoning concerning the agency’s legitimate motives for its removal action, and conclude that the appellant did not prove a genuine nexus between his grievance activity and his removal.3 ID at 19; see Warren, 804 F.2d at 656. We find that the appellant did not prove disability discrimination. The appellant argues that the administrative judge erred in excluding an affirmative defense of disability discrimination and declining to address it in the initial decision. PFR File, Tab 1 at 12; see IAF, Tabs 31, 33-37; ID at 12-13. We find that any error did not prejudice the appellant’s substantive rights and thus is not a basis for reversal of the initial decision. Panter, 22 M.S.P.R. at 282. The appellant has argued disability discrimination under three theories: failure to accommodate, based on the agency’s decision to deny his LWOP request; disparate treatment; and disparate impact. IAF, Tab 35 at 5-7, Tab 38 at 6-8. However, to prevail on a claim of disability discrimination, an appellant must prove that he was a “qualified individual” with a disability. Haas v. Department of Homeland Security , 2022 MSPB 36, ¶ 28. 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. Id.; 3 We need not address the agency’s argument that the prohibited personnel practice at section 2302(b)(9)(A)(ii) does not apply to the Federal Deposit Insurance Corporation (FDIC), which is not an “agency” as defined under section 2302(a)(2)(C)(i). IAF, Tab 41.7 42 U.S.C. § 12111(8). Leave may be a form of reasonable accommodation in appropriate circumstances. Equal Employment Opportunity Commission (EEOC) Enforcement Guidance on Reasonable Accommodation and Undue Hardship under the Americans with Disabilities Act, Types of Reasonable Accommodations Related to Job Performance , Notice No. 915.002, 2002 WL 31994335 at *13 (Oct. 17, 2002). Here, it is undisputed that the appellant did not have an expected return to work date due to his medical condition at the time of the removal decision. IAF, Tab 11 at 70, Tab 28 at 15-16; see Bologna, 73 M.S.P.R. at 114 (explaining that an agency may properly deny an employee’s LWOP request when there is no foreseeable end in sight to his absences and those absences are a burden on the agency). Thus, he has not shown that he was a “qualified individual” with a disability, and he has not proven his claim of disability discrimination under any theory.4 See Haas, 2022 MSPB 36, ¶ 28. 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 4 There is no indication that any error by the administrative judge harmed the appellant’s presentation of this dispositive issue. The appellant received notice that he was required to prove that he was a “qualified individual” for purposes of a failure to accommodate claim, IAF, Tab 31 at 6, and he fully argued this claim in his brief, IAF, Tab 38 at 5-7. As he withdrew his request for hearing, IAF, Tab 31 at 1, the record is fully developed on this issue. 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 regarding which cases fall within their jurisdiction. If you wish to seek review of this final decision, you should immediately review the law applicable to your claims and carefully follow all filing time limits and requirements. Failure to file within the applicable time limit may result in the dismissal of your case by your chosen forum. Please read carefully each of the three main possible choices of review below to decide which one applies to your particular case. If you have questions about whether a particular forum is the appropriate one to review your case, you should contact that forum for more information. (1) Judicial review in general . As a general rule, an appellant seeking judicial review of a final Board order must file a petition for review with the U.S. Court of Appeals for the Federal Circuit, which must be received by the court within 60 calendar days of the date of issuance of this decision. 5 U.S.C. § 7703(b)(1)(A). If you submit a petition for review to the U.S. Court of Appeals for the Federal Circuit, you must submit your petition to the court at the following address: U.S. Court of Appeals for the Federal Circuit 717 Madison Place, N.W. Washington, D.C. 20439 Additional information about the U.S. Court of Appeals for the Federal Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11. If you are interested in securing pro bono representation for an appeal to the U.S. Court of Appeals for the Federal Circuit, you may visit our website at http://www.mspb.gov/probono for information regarding pro bono representation for Merit Systems Protection Board appellants before the Federal Circuit. The9 Board neither endorses the services provided by any attorney nor warrants that any attorney will accept representation in a given case. (2) Judicial or EEOC review of cases involving a claim of discrimination . This option applies to you only if you have claimed that you were affected by an action that is appealable to the Board and that such action was based, in whole or in part, on unlawful discrimination. If so, you may obtain judicial review of this decision —including a disposition of your discrimination claims —by filing a civil action with an appropriate U.S. district court ( not the U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems Protection Board , 582 U.S. 420 (2017). If you have a representative in this case, and your representative receives this decision before you do, then you must file with the district court no later than 30 calendar days after your representative receives this decision. If the action involves a claim of discrimination based on race, color, religion, sex, national origin, or a disabling condition, you may be entitled to representation by a court-appointed lawyer and to waiver of any requirement of prepayment of fees, costs, or other security. See 42 U.S.C. § 2000e-5(f) and 29 U.S.C. § 794a. Contact information for U.S. district courts can be found at their respective websites, which can be accessed through the link below: http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx . Alternatively, you may request review by the Equal Employment Opportunity Commission (EEOC) of your discrimination claims only, excluding all other issues . 5 U.S.C. § 7702(b)(1). You must file any such request with the EEOC’s Office of Federal Operations within 30 calendar days after you receive this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case, and your representative receives this decision before you do, then you must file10 with the EEOC no later than 30 calendar days after your representative receives this decision. If you submit a request for review to the EEOC by regular U.S. mail, the address of the EEOC is: Office of Federal Operations Equal Employment Opportunity Commission P.O. Box 77960 Washington, D.C. 20013 If you submit a request for review to the EEOC via commercial delivery or by a method requiring a signature, it must be addressed to: Office of Federal Operations Equal Employment Opportunity Commission 131 M Street, N.E. Suite 5SW12G Washington, D.C. 20507 (3) Judicial review pursuant to the Whistleblower Protection Enhancement Act of 2012 . This option applies to you only if you have raised claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D). If so, and your judicial petition for review “raises no challenge to the Board’s disposition of allegations of a prohibited personnel practice described in section 2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i), (B), (C), or (D),” then you may file a petition for judicial review either with the U.S. Court of Appeals for the Federal Circuit or any court of appeals of competent jurisdiction.6 The court of appeals must receive your petition for 6 The original statutory provision that provided for judicial review of certain whistleblower claims by any court of appeals of competent jurisdiction expired on December 27, 2017. The All Circuit Review Act, signed into law by the President on July 7, 2018, permanently allows appellants to file petitions for judicial review of MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals for the Federal Circuit or any other circuit court of appeals of competent jurisdiction. The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115-195, 132 Stat. 1510.11 review within 60 days of the date of issuance of this decision. 5 U.S.C. § 7703(b)(1)(B). If you submit a petition for judicial review to the U.S. Court of Appeals for the Federal Circuit, you must submit your petition to the court at the following address: U.S. Court of Appeals for the Federal Circuit 717 Madison Place, N.W. Washington, D.C. 20439 Additional information about the U.S. Court of Appeals for the Federal Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11. If you are interested in securing pro bono representation for an appeal to the U.S. Court of Appeals for the Federal Circuit, you may visit our website at http://www.mspb.gov/probono for information regarding pro bono representation for Merit Systems Protection Board appellants before the Federal Circuit. The Board neither endorses the services provided by any attorney nor warrants that any attorney will accept representation in a given case. 12 Contact information for the courts of appeals can be found at their respective websites, which can be accessed through 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	Britt_II_James_E_AT-0752-23-0148-I-1_Final_Order.pdf	2025-02-21	JAMES EDWARD BRITT II v. FEDERAL DEPOSIT INSURANCE CORPORATION, MSPB Docket No. AT-0752-23-0148-I-1, February 21, 2025	AT-0752-23-0148-I-1	NP
138	https://www.mspb.gov/decisions/nonprecedential/Meraz_Joe_T_DE-0841-24-0046-I-1_Final_Order.pdf	UNITED STATES OF AMERICA MERIT SYSTEMS PROTECTION BOARD JOE T. MERAZ, Appellant, v. OFFICE OF PERSONNEL MANAGEMENT, Agency.DOCKET NUMBER DE-0841-24-0046-I-1 DATE: February 21, 2025 THIS FINAL ORDER IS NONPRECEDENTIAL1 Joe T. Meraz , Tularosa, New Mexico, pro se. Eva Ukkola and Alison Pastor , 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 affirmed the final decision of the Office of Personnel Management (OPM) dismissing his reconsideration request as untimely filed. On petition for review, the appellant reargues the merits of OPM’s decision regarding the proper 1 A nonprecedential order is one that the Board has determined does not add significantly to the body of MSPB case law. Parties may cite nonprecedential orders, but such orders have no precedential value; the Board and administrative judges are not required to follow or distinguish them in any future decisions. In contrast, a precedential decision issued as an Opinion and Order has been identified by the Board as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c). computation of his annuity payment and reiterates his request for a hearing on his 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. Upon consideration of the appellant’s arguments and review of the record evidence, we conclude that the appellant’s arguments do not show error in the administrative judge’s findings that the appellant’s request for reconsideration was untimely filed by over 8 months and that the appellant did not show that he was not notified of the time limit to file a request for reconsideration, and was not otherwise aware of it, or that he was prevented by circumstances beyond his control from making the request within the time limit. Initial Appeal File (IAF), Tab 6, Initial Decision (ID) at 1-5; see Cerezo v. Office of Personnel Management, 94 M.S.P.R. 81, ¶ 7 (2003) (providing that OPM has discretion to extend the time limit for filing a request for reconsideration but only when the individual shows that he was not notified of the time limit and was not otherwise aware of it or that he was prevented by circumstances beyond his control from making the request within the time limit); 5 C.F.R. § 831.109(e)(2). Because the administrative judge correctly concluded that the appellant failed to meet his initial burden under 5 C.F.R. § 831.109(e)(2), he did not need to address whether OPM’s actions were unreasonable or an abuse of discretion. See Azarkhish v.2 Office of Personnel Management , 915 F.2d 675, 678 (Fed. Cir. 1990) (declining to reach the issue of whether OPM abused its discretion where the appellant did not show that she was prevented from timely filing her request for reconsideration and it was undisputed that she was aware of the time limit); Davis v. Office of Personnel Management , 104 M.S.P.R. 70, ¶ 7 (2006) (noting that the Board will not reach the issue of whether OPM was unreasonable or abused its discretion in denying an applicant’s untimely reconsideration request if he does not make his initial showing under 5 C.F.R. § 831.109(e)(2)) . Accordingly, we vacate the administrative judge’s alternative finding to this effect. Therefore, we DENY the petition for review. Except as expressly MODIFIED to VACATE the administrative judge’s finding that the appellant failed to prove that OPM abused its discretion or acted unreasonably, we AFFIRM the initial decision.2 NOTICE OF APPEAL RIGHTS3 The initial decision, as supplemented by this Final Order, constitutes the Board’s final decision in this matter. 5 C.F.R. § 1201.113. You may obtain 2 The appellant argues on review that his response to the administrative judge’s close of record order should have been deemed timely received based on the fact that it was postmarked prior to the record on timeliness closing and that the administrative judge erred by failing to consider the response before issuing the initial decision. Petition for Review File, Tab 1 at 1. Even if we were to consider the pleading, it would not warrant reaching a different result. The additional argument and evidence the appellant provided in his close of record response concerned the merits of OPM’s determination in its initial decision and did not address the issue of the timeliness of the appellant’s reconsideration request. IAF, Tab 7 at 1-2. Additionally, all of the evidence the appellant provided with this response was already included in the record and was considered by the administrative judge and therefore is not new. ID at 3-4; compare IAF, Tab 1 at 9-49, with Tab 7 at 3-37; see Meier v. Department of the Interior , 3 M.S.P.R. 247, 256 (1980) (explaining that evidence submitted to, and considered by, an administrative judge does not meet the criteria of “new” evidence warranting review). Accordingly, the appellant’s substantive rights have not been prejudiced by any error by the administrative judge in this regard. See Panter v. Department of the Air Force, 22 M.S.P.R. 281, 282 (1984). 3 Since the issuance of the initial decision in this matter, the Board may have updated the notice of review rights included in final decisions. As indicated in the notice, the Board cannot advise which option is most appropriate in any matter.3 review of this final decision. 5 U.S.C. § 7703(a)(1). By statute, the nature of your claims determines the time limit for seeking such review and the appropriate forum with which to file. 5 U.S.C. § 7703(b). Although we offer the following summary of available appeal rights, the Merit Systems Protection Board does not provide legal advice on which option is most appropriate for your situation and the rights described below do not represent a statement of how courts will rule regarding which cases fall within their jurisdiction. If you wish to seek review of this final decision, you should immediately review the law applicable to your claims and carefully follow all filing time limits and requirements. Failure to file within the applicable time limit may result in the dismissal of your case by your chosen forum. Please read carefully each of the three main possible choices of review below to decide which one applies to your particular case. If you have questions about whether a particular forum is the appropriate one to review your case, you should contact that forum for more information. (1) Judicial review in general . As a general rule, an appellant seeking judicial review of a final Board order must file a petition for review with the U.S. Court of Appeals for the Federal Circuit, which must be received by the court within 60 calendar days of the date of issuance of this decision. 5 U.S.C. § 7703(b)(1)(A). If you submit a petition for review to the U.S. Court of Appeals for the Federal Circuit, you must submit your petition to the court at the following address: U.S. Court of Appeals for the Federal Circuit 717 Madison Place, N.W. Washington, D.C. 20439 Additional information about the U.S. Court of Appeals for the Federal Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular4 relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11. If you are interested in securing pro bono representation for an appeal to the U.S. Court of Appeals for the Federal Circuit, you may visit our website at http://www.mspb.gov/probono for information regarding pro bono representation for Merit Systems Protection Board appellants before the Federal Circuit. The Board neither endorses the services provided by any attorney nor warrants that any attorney will accept representation in a given case. (2) Judicial or EEOC review of cases involving a claim of discrimination . This option applies to you only if you have claimed that you were affected by an action that is appealable to the Board and that such action was based, in whole or in part, on unlawful discrimination. If so, you may obtain judicial review of this decision —including a disposition of your discrimination claims —by filing a civil action with an appropriate U.S. district court ( not the U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems Protection Board , 582 U.S. 420 (2017). If you have a representative in this case, and your representative receives this decision before you do, then you must file with the district court no later than 30 calendar days after your representative receives this decision. If the action involves a claim of discrimination based on race, color, religion, sex, national origin, or a disabling condition, you may be entitled to representation by a court-appointed lawyer and to waiver of any requirement of prepayment of fees, costs, or other security. See 42 U.S.C. § 2000e-5(f) and 29 U.S.C. § 794a. Contact information for U.S. district courts can be found at their respective websites, which can be accessed through the link below: http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx . 5 Alternatively, you may request review by the Equal Employment Opportunity Commission (EEOC) of your discrimination claims only, excluding all other issues . 5 U.S.C. § 7702(b)(1). You must file any such request with the EEOC’s Office of Federal Operations within 30 calendar days after you receive this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case, and your representative receives this decision before you do, then you must file with the EEOC no later than 30 calendar days after your representative receives this decision. If you submit a request for review to the EEOC by regular U.S. mail, the address of the EEOC is: Office of Federal Operations Equal Employment Opportunity Commission P.O. Box 77960 Washington, D.C. 20013 If you submit a request for review to the EEOC via commercial delivery or by a method requiring a signature, it must be addressed to: Office of Federal Operations Equal Employment Opportunity Commission 131 M Street, N.E. Suite 5SW12G Washington, D.C. 20507 (3) Judicial review pursuant to the Whistleblower Protection Enhancement Act of 2012 . This option applies to you only if you have raised claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D). If so, and your judicial petition for review “raises no challenge to the Board’s disposition of allegations of a prohibited personnel practice described in section 2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i), (B), (C), or (D),” then you may file a petition for judicial review either with the U.S. Court of Appeals for the Federal Circuit or any court of appeals of6 competent jurisdiction.4 The court of appeals must receive your petition for review within 60 days of the date of issuance of this decision. 5 U.S.C. § 7703(b)(1)(B). If you submit a petition for judicial review to the U.S. Court of Appeals for the Federal Circuit, you must submit your petition to the court at the following address: U.S. Court of Appeals for the Federal Circuit 717 Madison Place, N.W. Washington, D.C. 20439 Additional information about the U.S. Court of Appeals for the Federal Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11. If you are interested in securing pro bono representation for an appeal to the U.S. Court of Appeals for the Federal Circuit, you may visit our website at http://www.mspb.gov/probono for information regarding pro bono representation for Merit Systems Protection Board appellants before the Federal Circuit. The Board neither endorses the services provided by any attorney nor warrants that any attorney will accept representation in a given case. 4 The original statutory provision that provided for judicial review of certain whistleblower claims by any court of appeals of competent jurisdiction expired on December 27, 2017. The All Circuit Review Act, signed into law by the President on July 7, 2018, permanently allows appellants to file petitions for judicial review of MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals for the Federal Circuit or any other circuit court of appeals of competent jurisdiction. The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115-195, 132 Stat. 1510. 7 Contact information for the courts of appeals can be found at their respective websites, which can be accessed through the link below: http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx . FOR THE BOARD: ______________________________ Gina K. Grippando Clerk of the Board Washington, D.C.8	Meraz_Joe_T_DE-0841-24-0046-I-1_Final_Order.pdf	2025-02-21	JOE T. MERAZ v. OFFICE OF PERSONNEL MANAGEMENT, MSPB Docket No. DE-0841-24-0046-I-1, February 21, 2025	DE-0841-24-0046-I-1	NP
139	https://www.mspb.gov/decisions/nonprecedential/Johnson_NormanNY-831M-21-0122-C-1_Final_Order.pdf	UNITED STATES OF AMERICA MERIT SYSTEMS PROTECTION BOARD NORMAN JOHNSON, Appellant, v. OFFICE OF PERSONNEL MANAGEMENT, Agency.DOCKET NUMBER NY-831M-21-0122-C-1 DATE: February 21, 2025 THIS FINAL ORDER IS NONPRECEDENTIAL1 Norman Johnson , Brooklyn, New York, pro se. Angerlia D. Johnson and Eva Ukkola , 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 compliance initial decision, which denied his petition for enforcement. Generally, we grant petitions such as this one only in the following circumstances: the initial decision 1 A nonprecedential order is one that the Board has determined does not add significantly to the body of MSPB case law. Parties may cite nonprecedential orders, but such orders have no precedential value; the Board and administrative judges are not required to follow or distinguish them in any future decisions. In contrast, a precedential decision issued as an Opinion and Order has been identified by the Board as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c). contains erroneous findings of material fact; the initial decision is based on an erroneous interpretation of statute or regulation or the erroneous application of the law to the facts of the case; the administrative judge’s rulings during either the course of the appeal or the initial decision were not consistent with required procedures or involved an abuse of discretion, and the resulting error affected the outcome of the case; or new and material evidence or legal argument is available that, despite the petitioner’s due diligence, was not available when the record closed. Title 5 of the Code of Federal Regulations, section 1201.115 (5 C.F.R. § 1201.115). After fully considering the filings in this appeal, we conclude that the petitioner has not established any basis under section 1201.115 for granting the petition for review. Therefore, we DENY the petition for review and AFFIRM the compliance initial decision, which is now the Board’s final decision. 5 C.F.R. § 1201.113(b). However, we FORWARD the appellant’s claim regarding the calculation of his Civil Service Retirement System (CSRS) deferred annuity benefits to the Northeastern Regional Office for docketing as a new appeal. BACKGROUND On July 2, 2021, the appellant filed an appeal with the Board indicating that he was challenging a June 21, 2021 determination by the Office of Personnel Management (OPM) that he had been overpaid $7,088.50 in CSRS annuity benefits. Johnson v. Office of Personnel Management , MSPB Docket No. NY-831M-21-0122-I-1, Initial Appeal File (IAF), Tab 1 at 3, 12-14. In his filings, the appellant also challenged OPM’s computation of his annuity benefits and asserted that he had previously appealed the calculation of his benefits to the Board only to have OPM rescind its decisions regarding the same. Id. at 13-14. OPM thereafter requested that the appeal be dismissed for lack of jurisdiction, arguing that it had not yet issued a final, or even an initial, decision regarding the purported $7,088.50 overpayment. IAF, Tab 6 at 4-5.2 Without holding the appellant’s requested hearing, the administrative judge issued an initial decision dismissing the matter for lack of jurisdiction. IAF, Tab 9, Initial Decision (ID) at 1-2. In so doing, the administrative judge explained that, because OPM had not issued a final decision, the Board lacks jurisdiction over the matter. ID at 2. The initial decision did not address the appellant’s assertion that OPM had previously rescinded prior decisions regarding the calculation of his annuity benefits. The appellant thereafter filed a petition for review of the initial decision. Johnson v. Office of Personnel Management , MSPB Docket No. NY-831M-21-0122-I-1, Petition for Review File, Tab 1. On January 31, 2023, the Board issued a Remand Order in the matter. Johnson v. Office of Personnel Management , MSPB Docket No. NY-831M-21- 0122-I-1, Remand Order (Jan. 31, 2023) (Remand Order). The Remand Order explained that, although the Board generally has jurisdiction over OPM determinations affecting an appellant’s rights or interests under CSRS only after OPM has issued a final decision, the Board may assert jurisdiction over an appeal concerning a retirement matter in which OPM has refused or improperly failed to issue a final decision. Remand Order, ¶ 4. The Board explained that the appellant had repeatedly attempted, without success, to appeal a recalculation of his CSRS annuity benefits, which would impact the $7,088.50 overpayment at issue. Id., ¶¶ 5-6. The Board acknowledged that OPM had argued before the administrative judge that its June 21, 2021 determination regarding the $7,088.50 debt did not constitute an initial decision; however, the Board found this argument unpersuasive and stated that the June 21, 2021 determination “constitutes an initial decision.” Id., ¶ 7 n.5. The Board provided OPM with an opportunity “to clearly express its position regarding both the calculation of the appellant’s annuity benefits and any overpayment related thereto” before determining whether to exercise jurisdiction. Id., ¶ 6. The Board remanded both issues to OPM for further consideration and ordered OPM to inform the appellant in writing when it believed that it had carried out the Board’s order. Id., ¶¶ 7-8.3 On July 5, 2023, the appellant filed a petition for enforcement with the Board. Johnson v. Office of Personnel Management , MSPB Docket No. NY-831M-21-0122-C-1, Compliance File (CF), Tab 1. The appellant indicated that he sought enforcement of “his settlement agreement with OPM,” id. at 1, and he provided a copy of a 1980 settlement agreement entered into between the appellant and OPM before the U.S. Court of Appeals for the Second Circuit, id. at 3. He also requested a hearing regarding his annuity calculation and asserted, among other things, that OPM had committed fraud. Id. at 1-2. In response, OPM averred that it had reviewed the appellant’s file and prepared an initial decision explaining the appellant’s annuity calculation. CF, Tab 4 at 4. The agency provided a July 20, 2023 initial decision2 summarizing its calculation of the appellant’s CSRS deferred annuity. Id. at 6-10. This decision concluded that the assessment of the $7,088.50 overpayment debt “was in error.” Id. at 9. The decision also explained that the appellant’s annuity had been erroneously suspended “since June 2021” and indicated that his annuity would “be reinstated and all retroactive funds paid” once the appellant’s direct deposit information was verified. Id. OPM averred that the appellant had never been provided with an initial decision solely regarding the computation of his deferred annuity because the issue had previously been tied to an overpayment matter; accordingly, in “the interest of efficiency and having a clear record” it had issued a “new initial decision” on the issue. CF, Tab 7 at 5. OPM stated that, if the appellant wished to seek reconsideration of its initial decision, it would render a final, appealable decision within 30 days of receipt of his request. Id. at 6. On December 4, 2023, the administrative judge issued a compliance initial decision denying the appellant’s petition for enforcement. CF, Tab 9, Compliance Initial Decision (CID) at 1. The administrative judge found that the appellant had not pled a breach of the Board’s Remand Order and that, in any 2 The initial decision was erroneously dated July 20, 2021. CF, Tab 4 at 6, Tab 7 at 5, 12.4 event, OPM had demonstrated compliance with the Remand Order. CID at 4. The administrative judge also indicated that the appellant had sought enforcement of an over 40-year-old settlement agreement but had not established a breach of the settlement’s terms.3 Id. The appellant has filed a petition for review of the compliance initial decision, the agency has filed a response, and the appellant has filed a reply. Compliance Petition for Review (CPFR) File, Tabs 1, 4-5. ANALYSIS We agree with the administrative judge’s conclusion that the appellant’s petition for enforcement should be denied. CID at 1, 4. To this end, the appellant did not discernably allege a violation of the Board’s Remand Order. E.g., CF, Tab 8 at 1.4 Thus, we affirm the compliance initial decision. However, we forward the appellant’s claims regarding the computation of his annuity benefits to the regional office for docketing as a new appeal. As set 3 The compliance initial decision stated that OPM had “argued that the appellant missed the deadline for filing a reconsideration request from its July 2[0], 2023, initial decision on the appellant’s annuity, and argued that it is now final.” CID at 3 (citing CF, Tab 7 at 5). OPM, however, did not make such an argument. Indeed, OPM’s last filing before the administrative judge was submitted on August 11, 2023, and explained that the appellant still had until August 22, 2023, to request reconsideration of the July 20, 2023 initial decision. CF, Tab 7 at 5. In any event, we find that this misstatement is not material to the outcome of this matter. See Panter v. Department of the Air Force , 22 M.S.P.R. 281, 282 (1984) (stating that an adjudicatory error that is not prejudicial to a party’s substantive rights provides no basis for reversal of an initial decision) . 4 To the extent the appellant sought to have the Board enforce the 1980 settlement, which was entered into before the Second Circuit, we clarify that the Board has no authority to enforce or invalidate a settlement agreement reached in another forum. Johnson v. U.S. Postal Service , 108 M.S.P.R. 502, ¶ 8 n.5 (2008), aff’d, 315 F. App’x 274 (Fed. Cir. 2009). Moreover, it is well settled that the Board lacks jurisdiction to enforce a settlement agreement that has not been entered into the Board’s record for enforcement purposes. Barker v. Department of Agriculture , 100 M.S.P.R. 695, ¶ 6 (2006); see 5 C.F.R. § 1201.182(a) (“Any party may petition the Board for enforcement of a final decision or order issued under the Board’s appellate jurisdiction, or for enforcement of the terms of a settlement agreement that has been entered into the record for the purpose of enforcement in an order or decision under the Board’s appellate jurisdiction.”).5 forth in the Board’s Remand Order, OPM has already issued, and thereafter rescinded, reconsideration decisions pertaining to the appellant’s CSRS deferred annuity benefits. Remand Order, ¶ 5. Moreover, OPM’s July 20, 2023 decision was responsive to specific arguments raised by the appellant regarding the calculation of his annuity benefits. E.g., CF, Tab 4 at 8. We therefore find, based on the unusual circumstances of this case, that OPM’s July 20, 2023 decision constitutes an appealable reconsideration decision regarding the calculation of the appellant’s CSRS deferred annuity benefits, and we forward the matter to the regional office for adjudication of the merits of the decision.5 NOTICE OF APPEAL RIGHTS6 You may obtain review of this final decision. 5 U.S.C. § 7703(a)(1). By statute, the nature of your claims determines the time limit for seeking such review and the appropriate forum with which to file. 5 U.S.C. § 7703(b). Although we offer the following summary of available appeal rights, the Merit Systems Protection Board does not provide legal advice on which option is most appropriate for your situation and the rights described below do not represent a statement of how courts will rule regarding which cases fall within their jurisdiction. If you wish to seek review of this final decision, you should immediately review the law applicable to your claims and carefully follow all filing time limits and requirements. Failure to file within the applicable time limit may result in the dismissal of your case by your chosen forum. Please read carefully each of the three main possible choices of review below to decide which one applies to your particular case. If you have questions 5 The record suggests that, in lieu of requesting reconsideration of OPM’s July 20, 2023 decision, the pro se appellant awaited the issuance of the compliance initial decision and thereafter timely filed a petition for review of the same with the Board. CPFR File, Tab 1 at 2. 6 Since the issuance of the initial decision in this matter, the Board may have updated the notice of review rights included in final decisions. As indicated in the notice, the Board cannot advise which option is most appropriate in any matter.6 about whether a particular forum is the appropriate one to review your case, you should contact that forum for more information. (1) Judicial review in general . As a general rule, an appellant seeking judicial review of a final Board order must file a petition for review with the U.S. Court of Appeals for the Federal Circuit, which must be received by the court within 60 calendar days of the date of issuance of this decision. 5 U.S.C. § 7703(b)(1)(A). If you submit a petition for review to the U.S. Court of Appeals for the Federal Circuit, you must submit your petition to the court at the following address: U.S. Court of Appeals for the Federal Circuit 717 Madison Place, N.W. Washington, D.C. 20439 Additional information about the U.S. Court of Appeals for the Federal Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11. If you are interested in securing pro bono representation for an appeal to the U.S. Court of Appeals for the Federal Circuit, you may visit our website at http://www.mspb.gov/probono for information regarding pro bono representation for Merit Systems Protection Board appellants before the Federal Circuit. The Board neither endorses the services provided by any attorney nor warrants that any attorney will accept representation in a given case. (2) Judicial or EEOC review of cases involving a claim of discrimination . This option applies to you only if you have claimed that you were affected by an action that is appealable to the Board and that such action was based, in whole or in part, on unlawful discrimination. If so, you may obtain7 judicial review of this decision —including a disposition of your discrimination claims —by filing a civil action with an appropriate U.S. district court ( not the U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems Protection Board , 582 U.S. 420 (2017). If you have a representative in this case, and your representative receives this decision before you do, then you must file with the district court no later than 30 calendar days after your representative receives this decision. If the action involves a claim of discrimination based on race, color, religion, sex, national origin, or a disabling condition, you may be entitled to representation by a court-appointed lawyer and to waiver of any requirement of prepayment of fees, costs, or other security. See 42 U.S.C. § 2000e-5(f) and 29 U.S.C. § 794a. Contact information for U.S. district courts can be found at their respective websites, which can be accessed through the link below: http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx . Alternatively, you may request review by the Equal Employment Opportunity Commission (EEOC) of your discrimination claims only, excluding all other issues . 5 U.S.C. § 7702(b)(1). You must file any such request with the EEOC’s Office of Federal Operations within 30 calendar days after you receive this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case, and your representative receives this decision before you do, then you must file with the EEOC no later than 30 calendar days after your representative receives this decision. 8 If you submit a request for review to the EEOC by regular U.S. mail, the address of the EEOC is: Office of Federal Operations Equal Employment Opportunity Commission P.O. Box 77960 Washington, D.C. 20013 If you submit a request for review to the EEOC via commercial delivery or by a method requiring a signature, it must be addressed to: Office of Federal Operations Equal Employment Opportunity Commission 131 M Street, N.E. Suite 5SW12G Washington, D.C. 20507 (3) Judicial review pursuant to the Whistleblower Protection Enhancement Act of 2012 . This option applies to you only if you have raised claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D). If so, and your judicial petition for review “raises no challenge to the Board’s disposition of allegations of a prohibited personnel practice described in section 2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i), (B), (C), or (D),” then you may file a 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. 1510.9 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	Johnson_NormanNY-831M-21-0122-C-1_Final_Order.pdf	2025-02-21	NORMAN JOHNSON v. OFFICE OF PERSONNEL MANAGEMENT, MSPB Docket No. NY-831M-21-0122-C-1, February 21, 2025	NY-831M-21-0122-C-1	NP
140	https://www.mspb.gov/decisions/nonprecedential/Berg_ShirleySF-0831-24-0090-X-1__Final_Order.pdf	UNITED STATES OF AMERICA MERIT SYSTEMS PROTECTION BOARD SHIRLEY BERG, Appellant, v. OFFICE OF PERSONNEL MANAGEMENT, Agency.DOCKET NUMBER SF-0831-24-0090-X-1 DATE: February 20, 2025 THIS FINAL ORDER IS NONPRECEDENTIAL1 Jennifer D. Isaacs , Esquire, Atlanta, Georgia, for the appellant. Eva Ukkola , Tiffany Slade , and Alexandria R. Davis , Washington, D.C., for the agency. BEFORE Cathy A. Harris, Chairman Henry J. Kerner, Vice Chairman Raymond A. Limon, Member FINAL ORDER On May 30, 2024, the administrative judge issued a compliance initial decision finding the Office of Personnel Management (OPM) noncompliant with the February 7, 2024 final order in the underlying matter, which reversed OPM’s constructive denial of the appellant’s Civil Service Retirement System (CSRS) 1 A nonprecedential order is one that the Board has determined does not add significantly to the body of MSPB case law. Parties may cite nonprecedential orders, but such orders have no precedential value; the Board and administrative judges are not required to follow or distinguish them in any future decisions. In contrast, a precedential decision issued as an Opinion and Order has been identified by the Board as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c). survivor’s annuity benefit and remanded her claim to OPM. Berg v. Office of Personnel Management , MSPB Docket No. SF-0831-24-0090-C-1, Compliance File, Tab 14, Compliance Initial Decision (CID); Berg v. Office of Personnel Management, MSPB Docket No. SF-0831-24-0090-I-1, Initial Appeal File, Tab 10, Initial Decision (ID). For the reasons discussed below, we now find OPM in compliance and DISMISS the petition for enforcement. DISCUSSION OF ARGUMENTS AND EVIDENCE ON COMPLIANCE On February 7, 2024, the administrative judge issued an initial decision finding that OPM had constructively denied the appellant a CSRS survivor’s annuity to which she was entitled. The administrative judge found that the appellant’s late husband had submitted a timely, valid election to change his survivor’s annuity from his deceased first wife to the appellant, his second wife, but that OPM had erroneously found the election untimely based on its misreading of applicable authority. ID at 9-11. The administrative judge found that OPM subsequently ignored the appellant’s multiple requests for the annuity, and indeed failed to participate in the initial appeal, indicating “either a strategy of delay and inaction or continued neglect.” ID at 8. Under the circumstances, the administrative judge found that OPM had constructively denied the appellant her survivor’s annuity, reversed that determination, and remanded the matter to OPM to grant the annuity and calculate the amount owed. ID at 12. The initial decision became the Board’s final decision upon the expiration of the petition for review deadline. 5 C.F.R. § 1201.113. The appellant subsequently filed a petition for enforcement, to which OPM failed to respond despite multiple orders by the administrative judge. See CID at 3-5. The administrative judge accordingly issued a compliance initial decision finding OPM noncompliant with the ID and granting the appellant’s petition for enforcement. The administrative judge instructed OPM to come into compliance by granting the appellant’s claim for a CSRS survivor’s annuity, calculating the2 amount thereof, and informing the appellant of its actions and the date on which it believed it had complied. CID at 5. In the compliance initial decision, the administrative judge informed OPM that, if it decided to take the compliance actions required by the decision, it must submit to the Office of the Clerk of the Board, within the time limit for filing a petition for review under 5 C.F.R. § 1201.114(e), a statement that it had taken the actions identified in the compliance initial decision, along with evidence establishing that it had taken those actions. CID at 5-6; 5 C.F.R. § 1201.183(a)(6) (i). He also informed the parties of their option to request Board review of the compliance initial decision by filing a petition for review by July 4, 2024, the date on which the findings of noncompliance would become final unless a petition for review was filed. CID at 7; see 5 C.F.R. §§ 1201.114(e), 1201.183(a)(6)(ii), 1201.183(b). Neither party petitioned for review. Accordingly, pursuant to 5 C.F.R. § 1201.183(b)-(c), the administrative judge’s findings of noncompliance became final, and the appellant’s petition for enforcement was referred to the Board for a final decision on issues of compliance. Berg v. Office of Personnel Management, MSPB Docket No. SF-0831-24-0090-X-1 , Compliance Referral File (CRF), Tab 1. The Board then issued an Acknowledgement Order instructing OPM to file evidence of compliance within 15 calendar days, and advising the appellant that she should respond within 20 days of the date of OPM’s submission. The order noted that if she did not do so, the Board might assume she was satisfied and dismiss the petition for enforcement. CRF, Tab 1 at 3. On July 29, 2024, OPM filed a late response to the Acknowledgement Order. OPM asserted that it had “finalized the appellant’s survivor annuity and authorized payments on May 30, 2024.” CRF, Tab 2 at 4. OPM explained its annuity calculations and payments to date. Id. The appellant has not responded to this submission.3 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 she would have been in had the wrongful personnel action not occurred. House v. Department of the Army, 98 M.S.P.R. 530, ¶ 9 (2005). The agency bears the burden to prove its compliance with a Board order. Vaughan v. Department of Agriculture , 116 M.S.P.R. 319, ¶ 5 (2011). An agency’s assertions of compliance must include a clear explanation of its compliance actions supported by documentary evidence. Id. The appellant may rebut the agency’s evidence of compliance by making “specific, nonconclusory, and supported assertions of continued noncompliance.” Brown v. Office of Personnel Management , 113 M.S.P.R. 325, ¶ 5 (2010). We find that OPM has belatedly submitted evidence of compliance that appears to satisfy its obligations to grant the appellant’s survivor annuity and calculate its amount. The appellant has not responded to OPM’s submission, despite the warning in the Acknowledgement Order that failure to respond might cause the Board to assume she was satisfied and dismiss her petition for enforcement. The appellant therefore has not challenged OPM’s evidence that it granted and calculated her annuity.2 Accordingly, we find OPM in compliance and DISMISS the petition for enforcement. This is the final decision of the Merit Systems Protection Board in this compliance proceeding. Title 5 of the Code of Federal Regulations, section 1201.183(c)(1) (5 C.F.R. § 1201.183(c)(1)). 2 The appellant also has not alleged that OPM’s calculations and payments were incorrect —arguments that would, in any event, be beyond the scope of this compliance proceeding. If the appellant wishes to challenge the calculations or payments, she should follow OPM’s instructions regarding how to do so (or inquire of OPM if she has not received such instructions).4 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. Please read carefully each of the three main possible choices of review below to decide which one applies to your particular case. If you have questions about 3 Since the issuance of the initial decision in this matter, the Board may have updated the notice of review rights included in final decisions. As indicated in the notice, the Board cannot advise which option is most appropriate in any matter.5 whether a particular forum is the appropriate one to review your case, you should contact that forum for more information. (1) Judicial review in general . As a general rule, an appellant seeking judicial review of a final Board order must file a petition for review with the U.S. Court of Appeals for the Federal Circuit, which must be received by the court within 60 calendar days of the date of issuance of this decision. 5 U.S.C. § 7703(b)(1)(A). If you submit a petition for review to the U.S. Court of Appeals for the Federal Circuit, you must submit your petition to the court at the following address: U.S. Court of Appeals for the Federal Circuit 717 Madison Place, N.W. Washington, D.C. 20439 Additional information about the U.S. Court of Appeals for the Federal Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11. If you are interested in securing pro bono representation for an appeal to the U.S. Court of Appeals for the Federal Circuit, you may visit our website at http://www.mspb.gov/probono for information regarding pro bono representation for Merit Systems Protection Board appellants before the Federal Circuit. The Board neither endorses the services provided by any attorney nor warrants that any attorney will accept representation in a given case. (2) Judicial or EEOC review of cases involving a claim of discrimination . This option applies to you only if you have claimed that you were affected by an action that is appealable to the Board and that such action was based, in whole or in part, on unlawful discrimination. If so, you may obtain judicial review of this decision—including a disposition of your discrimination claims —by filing a civil6 action with an appropriate U.S. district court ( not the U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems Protection Board , 582 U.S. 420 (2017). If you have a representative in this case, and your representative receives this decision before you do, then you must file with the district court no later than 30 calendar days after your representative receives this decision. If the action involves a claim of discrimination based on race, color, religion, sex, national origin, or a disabling condition, you may be entitled to representation by a court- appointed lawyer and to waiver of any requirement of prepayment of fees, costs, or other security. See 42 U.S.C. § 2000e-5(f) and 29 U.S.C. § 794a. Contact information for U.S. district courts can be found at their respective websites, which can be accessed through the link below: http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx . Alternatively, you may request review by the Equal Employment Opportunity Commission (EEOC) of your discrimination claims only, excluding all other issues . 5 U.S.C. § 7702(b)(1). You must file any such request with the EEOC’s Office of Federal Operations within 30 calendar days after you receive this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case, and your representative receives this decision before you do, then you must file with the EEOC no later than 30 calendar days after your representative receives this decision. 7 If you submit a request for review to the EEOC by regular U.S. mail, the address of the EEOC is: Office of Federal Operations Equal Employment Opportunity Commission P.O. Box 77960 Washington, D.C. 20013 If you submit a request for review to the EEOC via commercial delivery or by a method requiring a signature, it must be addressed to: Office of Federal Operations Equal Employment Opportunity Commission 131 M Street, N.E. Suite 5SW12G Washington, D.C. 20507 (3) Judicial review pursuant to the Whistleblower Protection Enhancement Act of 2012 . This option applies to you only if you have raised claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D). If so, and your judicial petition for review “raises no challenge to the Board’s disposition of allegations of a prohibited personnel practice described in section 2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i), (B), (C), or (D),” then you may file a petition for judicial review either with the U.S. Court of Appeals for the Federal Circuit or any court of appeals of competent jurisdiction.4 The court of appeals must receive your petition for review within 60 days of the date of issuance of this decision. 5 U.S.C. § 7703(b)(1)(B). 4 The original statutory provision that provided for judicial review of certain whistleblower claims by any court of appeals of competent jurisdiction expired on December 27, 2017. The All Circuit Review Act, signed into law by the President on July 7, 2018, permanently allows appellants to file petitions for judicial review of MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals for the Federal Circuit or any other circuit court of appeals of competent jurisdiction. The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115-195, 132 Stat. 1510.8 If you submit a petition for judicial review to the U.S. Court of Appeals for the Federal Circuit, you must submit your petition to the court at the following address: U.S. Court of Appeals for the Federal Circuit 717 Madison Place, N.W. Washington, D.C. 20439 Additional information about the U.S. Court of Appeals for the Federal Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11. If you are interested in securing pro bono representation for an appeal to the U.S. Court of Appeals for the Federal Circuit, you may visit our website at http://www.mspb.gov/probono for information regarding pro bono representation for Merit Systems Protection Board appellants before the Federal Circuit. The Board neither endorses the services provided by any attorney nor warrants that any attorney will accept representation in a given case. Contact information for the courts of appeals can be found at their respective websites, which can be accessed through the link below: http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx . FOR THE BOARD: ______________________________ Gina K. Grippando Clerk of the Board Washington, D.C.9	Berg_ShirleySF-0831-24-0090-X-1__Final_Order.pdf	2025-02-20	SHIRLEY BERG v. OFFICE OF PERSONNEL MANAGEMENT, MSPB Docket No. SF-0831-24-0090-X-1, February 20, 2025	SF-0831-24-0090-I-1; SF-0831-24-0090-X-1	NP
141	https://www.mspb.gov/decisions/nonprecedential/Kreger_NancyDC-0841-23-0468-I-1_and_DC-0845-23-0399-I-1_Final_Order.pdf	UNITED STATES OF AMERICA MERIT SYSTEMS PROTECTION BOARD NANCY KREGER, Appellant, v. OFFICE OF PERSONNEL MANAGEMENT, Agency.DOCKET NUMBER DC-0841-23-0468-I-1 DC-0845-23-0399-I-1 DATE: February 20, 2025 THIS FINAL ORDER IS NONPRECEDENTIAL1 Jennifer Duke Isaacs , Esquire, Atlanta, Georgia, for the appellant. Kevin D. Alexander, Sr. , Karla W. Yeakle , and Maureen Kersey , 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 affirmed the reconsideration decisions of the Office of Personnel Management (OPM) finding that her refunded service is not creditable in her annuity computation, she had received an annuity overpayment, and she was not entitled 1 A nonprecedential order is one that the Board has determined does not add significantly to the body of MSPB case law. Parties may cite nonprecedential orders, but such orders have no precedential value; the Board and administrative judges are not required to follow or distinguish them in any future decisions. In contrast, a precedential decision issued as an Opinion and Order has been identified by the Board as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c). to a waiver. Generally, we grant 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 Effective April 30, 2022, the appellant retired from the Department of Agriculture (USDA) after several periods of intermittent Federal service beginning in August 1982. Kreger v. Office of Personnel Management , MSPB Docket No. DC-0841-23-0468-I-1, Initial Appeal File (0468 IAF), Tab 4 at 36, 91-93. She made retirement contributions under both the Civil Service Retirement System (CSRS) and the Federal Employees’ Retirement System (FERS). Id. at 36. At some point following the appellant’s retirement, OPM authorized interim payments to her and issued a gross payment of $11,725.00 covering the period from May 1 to September 30, 2022. Id. at 64. By letter dated October 4, 2022, OPM explained that the appellant had performed service during which no retirement deductions were withheld from her salary and/or for which she had received a refund of retirement deductions. Id. at 27-29. The letter further instructed the appellant to make an election about2 making a deposit and/or redeposit so that the agency could process her retirement application. Id. In response, the appellant asserted that she did not receive a check refunding her retirement deductions and requested reconsideration of her retirement calculation. Id. at 60-61. In another letter dated October 23, 2022, OPM notified the appellant that it had overpaid her $3,579.30 in annuity benefits. Id. at 63-64. OPM set a repayment schedule of 21 monthly payments of $162.91 and a final payment of $158.19. Id. at 20. The appellant requested that OPM reconsider the existence or the amount of the overpayment and waive the overpayment. Id. at 20-21, 23-24. OPM issued a final decision dated March 9, 2023, affirming its initial decision finding an overpayment of $3,579.30. Id. at 5-8. The appellant filed an appeal challenging its decision and requesting a hearing. Kreger v. Office of Personnel Management , MSPB Docket No. DC-0845-23-0399-I-1, Initial Appeal File (0399 IAF), Tab 1 at 2, 5. Shortly thereafter, OPM issued a special notice dated April 18, 2023, in response to the appellant’s reconsideration request regarding her retirement calculation. 0468 IAF, Tab 4 at 4. The notice affirmed that OPM correctly calculated her Federal retirement based on its evidence that she applied for, and received a refund of, her retirement deductions. Id. at 4, 40-42. The appellant filed a second appeal and again requested a hearing. 0468 IAF, Tab 1 at 2, 5. The administrative judge joined the appeals for adjudication. 0468 IAF, Tab 3. In an initial decision based on the written record, the administrative judge affirmed OPM’s reconsideration decisions. 0468 IAF, Tab 18, Initial Decision (ID) at 1-2, 12. She found that the appellant did not meet her burden of proving nonreceipt of the refunded retirement deductions. ID at 5-9. She also found that OPM established by preponderant evidence an overpayment of $3,579.30. ID at 9-10. She further found that the appellant was not without fault as to the overpayment and was not entitled to a waiver or an adjustment of the repayment. ID at 9-12.3 The appellant has filed a petition for review. Petition for Review (PFR) File, Tab 1. The agency has filed a pro forma response. PFR File, Tab 4. DISCUSSION OF ARGUMENTS ON REVIEW The administrative judge correctly found that the appellant did not meet her burden to show nonreceipt of the refund payment. On review, the appellant disagrees with the administrative judge’s determination that she requested and received a refund of her retirement deductions. PFR File, Tab 1 at 9-12. The appellant bears the burden to prove her entitlement to a retirement annuity by preponderant evidence. Rint v. Office of Personnel Management , 48 M.S.P.R. 69, 71, aff’d per curiam , 950 F.2d 731 (Fed. Cir. 1991) (Table). An individual’s receipt of retirement deductions for a period of service generally voids her right to a retirement annuity for that period absent a redeposit of those deductions. 5 U.S.C. §§ 8334(d)(1), 8342(a); Rint, 48 M.S.P.R. at 72; 5 C.F.R. §§ 831.112(a), 831.303(b). Thus, at a minimum, the appellant must prove by preponderant evidence that she did not receive the payment in question. Rint, 48 M.S.P.R. at 71. Here, the administrative judge found that, based on the agency’s documentary evidence, the appellant requested and received a refund of her retirement deductions for $13,954.14. ID at 5-9. The appellant challenges this finding on review, reasserting her claims that she did not apply for or receive a refund check. PFR File, Tab 1. Because the administrative judge’s findings are based on the written record, the Board is free to reweigh the evidence and make its own findings without deferring to her credibility findings. See Deskin v. U.S. Postal Service, 76 M.S.P.R. 505, 510 (1997) (finding that the Board may substitute its own credibility determinations for an administrative judge’s explicit or implicit credibility findings when such findings are not based on the demeanor of witnesses); see also Haebe v. Department of Justice , 288 F.3d 1288, 1302 (Fed. Cir. 2002). We have reviewed the record and, for the reasons below, find4 no reason to disturb the administrative judge’s decision. ID at 5-9; see Crosby v. U.S. Postal Service , 74 M.S.P.R. 98, 105-06 (1997) (finding no reason to disturb the administrative judge’s findings when she considered the evidence as a whole, drew appropriate inferences, and made reasoned conclusions); Broughton v. Department of Health and Human Services , 33 M.S.P.R. 357, 359 (1987) (same). The appellant reiterates on review that she did not apply for or receive a refund check authorized by OPM and argues that her tax returns corroborate her assertion. PFR File, Tab 1 at 9-12. We are not persuaded. As explained in the initial decision, the evidence does not support a finding that someone else forged the appellant’s CSRS application for a refund of retirement deductions. ID at 6-7. As for the appellant’s tax documents in the record, we find that they are not probative evidence of her nonreceipt of the $13,954.14 refund.2 0468 IAF, Tab 4 at 43-46. The appellant also argues, for the first time on review, that when the USDA reinstated her to Federal service, it “specifically provide[d] that [she] ha[d] not requested any refunds.” PFR File, Tab 1 at 9. In support of this argument, she submits a USDA form dated July 20, 2000, which purportedly certifies that she did not apply for a refund. Id. at 18. While the form reflects the period of service related to the refund, August 2, 1982, to July 12, 1991, there are asterisks beside both her prior FERS service from March 1, 1998, to January 2, 1999, and the statement that the “[i]ndividual has NOT applied for a refund.” Id. Therefore, the USDA form is related to her FERS, not her CSRS retirement contributions. Id. The appellant reasserts on review that OPM failed to produce a copy of the check or a record that it was “sent, received, cashed, or cancelled”; however, she bears the burden of proving nonreceipt of the refunded retirement deductions, and she has not met her burden. Id. at 10-12; 0468 IAF, Tab 17 at 9-10; see 2 The appellant’s tax documents include 1993 Federal and state tax forms that she submitted to the Internal Revenue Service, and wage and tax statements from the University of Pennsylvania. 0468 IAF, Tab 4 at 43-46. We cannot conclude that she proved nonreceipt based on these documents alone.5 Manoharan v. Office of Personnel Management , 103 M.S.P.R. 159, ¶ 12 (2006). The Board has held that normal office records, compiled in the ordinary course of business, are admissible and are entitled to substantial weight. Rint, 48 M.S.P.R. at 72. Further, OPM is not required to produce definitive proof of an appellant’s actual receipt of payment, such as a canceled Treasury check, when its ability to produce such evidence is impaired by an appellant’s lengthy delay in raising her claim of nonpayment. See Sosa v. Office of Personnel Management , 76 M.S.P.R. 683, 686 (1997) (finding that OPM was prejudiced by a 25-year delay in raising a claim of nonreceipt of a check); see also DeLeon v. Office of Personnel Management, 49 M.S.P.R. 369, 373 (1991) (finding that OPM was prejudiced by a 23-year delay in raising a claim of nonreceipt of a check). In such circumstances, the Board has found that OPM’s record of an appellant’s application for a refund, combined with records reflecting that it authorized payment, is sufficient to establish that the appellant received the refund. DeLeon, 49 M.S.P.R. at 372-73; Rint, 48 M.S.P.R. at 72. The Board has also found that if an appellant can show that she placed OPM on notice that she did not receive the requested refund within a period of time such that OPM could have ascertained whether the check it mailed was negotiated, she may be able to carry her burden to establish that the refund was not paid. See Manoharan, 103 M.S.P.R. 159, ¶ 18 (finding that the appellant informing OPM of his nonreceipt of a check less than 4 months after its apparent mailing would have allowed OPM to ascertain the status of the check). As the administrative judge correctly explained below, OPM’s normal business records demonstrate that the appellant applied for and that OPM authorized a refund of her CSRS retirement contributions in 1993 as well as an Individual Retirement Record showing an authorization for a refund check for6 $13,954.14 on August 9, 1993.3 0468 IAF, Tab 4 at 41, 53, 58, 106. For the first time on review, the appellant also submits a printout of OPM’s refund archive data, which she explains does not indicate a cancellation date or transaction date to show that a check for $13,954.14 was ever issued or received. PFR File, Tab 1 at 10, 19. However, the printout indicates that the voucher information is unavailable because it is over 9 years old. Id. at 19. As such, there is no evidence that the check was not processed, and there is no evidence showing nonreceipt of the refund by the appellant. In the present appeal, there is an almost 29-year delay between when OPM issued the refund check and when the appellant applied for retirement benefits and claimed nonreceipt of the refund check. Id. at 4, 58, 91-93. Because of the delay in raising the claim, and because the only definitive record of actual payment is not available, OPM would be unduly prejudiced were we to require that it produce definitive proof of actual receipt of the check. See Rint, 48 M.S.P.R. at 72. Accordingly, in weighing OPM’s documentary evidence against the appellant’s unsupported assertions, we agree with the administrative judge that the appellant has not overcome the evidence to the contrary and proven by preponderant evidence that she did not request or receive a refund of her retirement deductions in 1993. The administrative judge correctly found that OPM proved the existence and amount of the overpayment. OPM bears the burden of showing the existence and the amount of an annuity overpayment by a preponderance of the evidence. Vojas v. Office of Personnel Management , 115 M.S.P.R. 502, ¶ 10 (2011); see 5 C.F.R. § 845.307(a). The administrative judge concluded that OPM met this burden, finding that the appellant did not challenge its overpayment calculation and that 3 As recognized in the initial decision, OPM’s initial submission showed only the middle section of the appellant’s refund application. ID at 5 n.3; 0468 IAF, Tab 4 at 41, 53. OPM resubmitted the complete form; however, the top portion of the page is not included. ID at 5 n.3; 0468 IAF, Tab 4 at 106. However, the signature and address boxes are complete and legible on each page. 0468 IAF, Tab 4 at 41, 53, 106.7 she was not entitled to credit for Federal service for the periods of service for which she received a refund. ID at 9-10. The appellant argues on review that no overpayment exists because she never received a refund of her retirement contributions. PFR File, Tab 1 at 11-12. Her argument is unavailing. As set forth above, we agree with the administrative judge that the appellant did not establish by preponderant evidence that she did not receive a refund of her retirement contributions. The record also reflects that the interim payments the appellant received exceeded the amount of her accrued annuity due. 0468 IAF, Tab 4 at 6, 64. Therefore, we find no basis to disturb the administrative judge’s finding that OPM proved the existence and amount of the overpayment by preponderant evidence. The administrative judge correctly determined that the appellant is not entitled to waiver of the overpayment or an adjustment of the repayment schedule. If OPM meets its burden, the appellant then has the burden of proving by substantial evidence that she is entitled to a waiver or adjustment of the overpayment. Vojas, 115 M.S.P.R. 502, ¶ 18; 5 C.F.R. §§ 845.307(b), 1201.56(b) (2)(ii). Recovery of an overpayment may be waived when the annuitant is without fault and recovery would be against equity and good conscience. 5 U.S.C. § 8470(b); Vojas, 115 M.S.P.R. 502, ¶ 18; 5 C.F.R. § 845.301. A recipient of an overpayment is without fault if she performed no act of commission or omission that resulted in the overpayment. Vojas, 115 M.S.P.R. 502, ¶ 19; 5 C.F.R. § 845.302. Recovery is against equity and good conscience when it would cause financial hardship, the annuitant can show that she relinquished a valuable right or changed positions for the worse, or recovery would be unconscionable under the circumstances. Boone v. Office of Personnel Management, 119 M.S.P.R. 53, ¶ 5 (2012); 5 C.F.R. § 845.303. Here, the administrative judge found that the appellant was not entitled to a waiver of repayment. ID at 10-11. Specifically, she found that the appellant did not establish that she was without fault in creating the overpayment and that her8 claimed financial hardship is not an exceptional circumstance warranting a waiver of recovery. Id. We agree. We are not persuaded by the appellant’s arguments on review that she is entitled to a waiver. PFR File, Tab 1 at 12-14. We recognize that the appellant asserts that she relied on the estimates from the agency, which did not include a record of the 1993 refund. Id. at 13-14. Nonetheless, as explained above, she did not prove nonreceipt of the refund; thus, she is not entitled to credit for Federal service for the periods of service for which she received a refund. See Rint, 48 M.S.P.R. at 72. Accordingly, there is no basis to waive recovery of the overpayment. An annuitant who is ineligible for a waiver may nonetheless be entitled to an adjustment in the recovery schedule if she shows that it would cause her financial hardship to make payment at the rate scheduled. Maseuli v. Office of Personnel Management , 111 M.S.P.R. 439, ¶ 10 (2009); 5 C.F.R. § 845.301. Here, the administrative judge determined that the appellant did not establish entitlement to an adjustment of the repayment schedule because she did not submit a Financial Resources Questionnaire or provide any other information about her finances. ID at 12. She has not challenged this finding on review and we discern no basis to disturb it. Accordingly, we deny the petition for review and affirm the initial decision. NOTICE OF APPEAL RIGHTS4 You may obtain review of this final decision. 5 U.S.C. § 7703(a)(1). By statute, the nature of your claims determines the time limit for seeking such review and the appropriate forum with which to file. 5 U.S.C. § 7703(b). Although we offer the following summary of available appeal rights, the Merit Systems Protection Board does not provide legal advice on which option is most 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 appropriate for your situation and the rights described below do not represent a statement of how courts will rule regarding which cases fall within their jurisdiction. If you wish to seek review of this final decision, you should immediately review the law applicable to your claims and carefully follow all filing time limits and requirements. Failure to file within the applicable time limit may result in the dismissal of your case by your chosen forum. Please read carefully each of the three main possible choices of review below to decide which one applies to your particular case. If you have questions about whether a particular forum is the appropriate one to review your case, you should contact that forum for more information. (1) Judicial review in general . As a general rule, an appellant seeking judicial review of a final Board order must file a petition for review with the U.S. Court of Appeals for the Federal Circuit, which must be received by the court within 60 calendar days of the date of issuance of this decision. 5 U.S.C. § 7703(b)(1)(A). If you submit a petition for review to the U.S. Court of Appeals for the Federal Circuit, you must submit your petition to the court at the following address: U.S. Court of Appeals for the Federal Circuit 717 Madison Place, N.W. Washington, D.C. 20439 Additional information about the U.S. Court of Appeals for the Federal Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11. If you are interested in securing pro bono representation for an appeal to the U.S. Court of Appeals for the Federal Circuit, you may visit our website at http://www.mspb.gov/probono for information regarding pro bono representation10 for Merit Systems Protection Board appellants before the Federal Circuit. The Board neither endorses the services provided by any attorney nor warrants that any attorney will accept representation in a given case. (2) Judicial or EEOC review of cases involving a claim of discrimination . This option applies to you only if you have claimed that you were affected by an action that is appealable to the Board and that such action was based, in whole or in part, on unlawful discrimination. If so, you may obtain judicial review of this decision —including a disposition of your discrimination claims —by filing a civil action with an appropriate U.S. district court ( not the U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems Protection Board , 582 U.S. 420 (2017). If you have a representative in this case, and your representative receives this decision before you do, then you must file with the district court no later than 30 calendar days after your representative receives this decision. If the action involves a claim of discrimination based on race, color, religion, sex, national origin, or a disabling condition, you may be entitled to representation by a court-appointed lawyer and to waiver of any requirement of prepayment of fees, costs, or other security. See 42 U.S.C. § 2000e-5(f) and 29 U.S.C. § 794a. Contact information for U.S. district courts can be found at their respective websites, which can be accessed through the link below: http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx . Alternatively, you may request review by the Equal Employment Opportunity Commission (EEOC) of your discrimination claims only, excluding all other issues . 5 U.S.C. § 7702(b)(1). You must file any such request with the EEOC’s Office of Federal Operations within 30 calendar days after you receive this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case, and your representative receives this decision before you do, then you must file11 with the EEOC no later than 30 calendar days after your representative receives this decision. If you submit a request for review to the EEOC by regular U.S. mail, the address of the EEOC is: Office of Federal Operations Equal Employment Opportunity Commission P.O. Box 77960 Washington, D.C. 20013 If you submit a request for review to the EEOC via commercial delivery or by a method requiring a signature, it must be addressed to: Office of Federal Operations Equal Employment Opportunity Commission 131 M Street, N.E. Suite 5SW12G Washington, D.C. 20507 (3) Judicial review pursuant to the Whistleblower Protection Enhancement Act of 2012 . This option applies to you only if you have raised claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D). If so, and your judicial petition for review “raises no challenge to the Board’s disposition of allegations of a prohibited personnel practice described in section 2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i), (B), (C), or (D),” then you may file a petition for judicial review either with the U.S. Court of Appeals for the Federal Circuit or any court of appeals of competent jurisdiction.5 The court of appeals must receive your petition for 5 The original statutory provision that provided for judicial review of certain whistleblower claims by any court of appeals of competent jurisdiction expired on December 27, 2017. The All Circuit Review Act, signed into law by the President on July 7, 2018, permanently allows appellants to file petitions for judicial review of MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals for the Federal Circuit or any other circuit court of appeals of competent jurisdiction. The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115-195, 132 Stat. 1510. 12 review within 60 days of the date of issuance of this decision. 5 U.S.C. § 7703(b)(1)(B). If you submit a petition for judicial review to the U.S. Court of Appeals for the Federal Circuit, you must submit your petition to the court at the following address: U.S. Court of Appeals for the Federal Circuit 717 Madison Place, N.W. Washington, D.C. 20439 Additional information about the U.S. Court of Appeals for the Federal Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11. If you are interested in securing pro bono representation for an appeal to the U.S. Court of Appeals for the Federal Circuit, you may visit our website at http://www.mspb.gov/probono for information regarding pro bono representation for Merit Systems Protection Board appellants before the Federal Circuit. The Board neither endorses the services provided by any attorney nor warrants that any attorney will accept representation in a given case.13 Contact information for the courts of appeals can be found at their respective websites, which can be accessed through the link below: http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx . FOR THE BOARD: ______________________________ Gina K. Grippando Clerk of the Board Washington, D.C.14	Kreger_NancyDC-0841-23-0468-I-1_and_DC-0845-23-0399-I-1_Final_Order.pdf	2025-02-20	NANCY KREGER v. OFFICE OF PERSONNEL MANAGEMENT, MSPB Docket No. DC-0841-23-0468-I-1, February 20, 2025	DC-0841-23-0468-I-1; DC-0845-23-0399-I-1	NP
142	https://www.mspb.gov/decisions/nonprecedential/Lantis_William_A_DA-0845-23-0455-I-1_Final_Order.pdf	UNITED STATES OF AMERICA MERIT SYSTEMS PROTECTION BOARD WILLIAM A. LANTIS, Appellant, v. OFFICE OF PERSONNEL MANAGEMENT, Agency.DOCKET NUMBER DA-0845-23-0455-I-1 DATE: February 20, 2025 THIS FINAL ORDER IS NONPRECEDENTIAL1 William A. Lantis , New Braunfels, Texas, pro se. Shaquita Stockes and Michael Shipley , 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 his appeal for lack of jurisdiction based on the rescission of the final decision issued by the Office of Personnel Management (OPM). On petition for review, the appellant argues, among other things, that OPM wrongfully 1 A nonprecedential order is one that the Board has determined does not add significantly to the body of MSPB case law. Parties may cite nonprecedential orders, but such orders have no precedential value; the Board and administrative judges are not required to follow or distinguish them in any future decisions. In contrast, a precedential decision issued as an Opinion and Order has been identified by the Board as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c). discontinued his disability retirement annuity benefits under the Federal Employees’ Retirement System. Generally, we grant petitions such as this one only in the following circumstances: the initial decision contains erroneous findings of material fact; the initial decision is based on an erroneous interpretation of statute or regulation or the erroneous application of the law to the facts of the case; the administrative judge’s rulings during either the course of the appeal or the initial decision were not consistent with required procedures or involved an abuse of discretion, and the resulting error affected the outcome of the case; or new and material evidence or legal argument is available that, despite the petitioner’s due diligence, was not available when the record closed. Title 5 of the Code of Federal Regulations, section 1201.115 (5 C.F.R. § 1201.115). After fully considering the filings in this appeal, we conclude that the petitioner has not established any basis under section 1201.115 for granting the petition for review. Therefore, we DENY the petition for review and AFFIRM the initial decision, which is now the Board’s final decision. 5 C.F.R. § 1201.113(b). As explained in OPM’s November 15, 2023 submission to the Board, it was rescinding its final decision finding an overpayment and intended to further review the issue. Initial Appeal File (IAF), Tab 7 at 4. As the administrative judge correctly found, such a rescission divests the Board of jurisdiction over the appeal. See Campbell v. Office of Personnel Management , 123 M.S.P.R. 240, ¶ 7 (2016); Brown v. Office of Personnel Management , 51 M.S.P.R. 261, 263 (1991). If the appellant is dissatisfied with any subsequent OPM final decision regarding his disability retirement benefits, he may file a new appeal with the regional office consistent with the Board’s regulations.2 5 U.S.C. § 8461(e)(1); 5 C.F.R. § 841.308. 2 The appellant’s petition for review appears to have been untimely filed by 7 days, but in light of our finding that the administrative judge correctly found that the Board lacks jurisdiction over this appeal, we need not address the timeliness of the petition for review. See Fletcher v. Office of Personnel Management , 118 M.S.P.R. 632, ¶ 10 n.2 (2012).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	Lantis_William_A_DA-0845-23-0455-I-1_Final_Order.pdf	2025-02-20	WILLIAM A. LANTIS v. OFFICE OF PERSONNEL MANAGEMENT, MSPB Docket No. DA-0845-23-0455-I-1, February 20, 2025	DA-0845-23-0455-I-1	NP
143	https://www.mspb.gov/decisions/nonprecedential/Rivers_ClarenceAT-844E-23-0604-I-1_Final_Order.pdf	UNITED STATES OF AMERICA MERIT SYSTEMS PROTECTION BOARD CLARENCE RIVERS, Appellant, v. OFFICE OF PERSONNEL MANAGEMENT, Agency.DOCKET NUMBER AT-844E-23-0604-I-1 DATE: February 20, 2025 THIS FINAL ORDER IS NONPRECEDENTIAL1 Clarence Rivers , Orange Park, Florida, pro se. Shaquita Stockes and Linnette Scott , 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 his appeal of the reconsideration decision of the Office of Personnel Management (OPM) as untimely filed. Generally, we grant petitions such as this one only in the following circumstances: the initial decision contains erroneous 1 A nonprecedential order is one that the Board has determined does not add significantly to the body of MSPB case law. Parties may cite nonprecedential orders, but such orders have no precedential value; the Board and administrative judges are not required to follow or distinguish them in any future decisions. In contrast, a precedential decision issued as an Opinion and Order has been identified by the Board as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c). findings of material fact; the initial decision is based on an erroneous interpretation of statute or regulation or the erroneous application of the law to the facts of the case; the administrative judge’s rulings during either the course of the appeal or the initial decision were not consistent with required procedures or involved an abuse of discretion, and the resulting error affected the outcome of the case; or new and material evidence or legal argument is available that, despite the petitioner’s due diligence, was not available when the record closed. Title 5 of the Code of Federal Regulations, section 1201.115 (5 C.F.R. § 1201.115). After fully considering the filings in this appeal, we conclude that the petitioner has not established any basis under section 1201.115 for granting the petition for review. Therefore, we DENY the petition for review and AFFIRM the initial decision, which is now the Board’s final decision. 5 C.F.R. § 1201.113(b). On June 22, 2023, OPM issued a reconsideration decision, which denied the appellant’s application for disability retirement benefits. Initial Appeal File (IAF), Tab 2 at 2-9. The reconsideration decision informed the appellant that he had 30 days either after the date of the decision or after receipt of the decision, whichever was later, to appeal to the Board. Id. at 9. The record shows that the appellant received OPM’s decision at the U.S. post office on June 27, 2023. IAF, Tab 6 at 14-16. On August 7, 2023, the appellant filed a Board appeal of OPM’s reconsideration decision and requested a hearing. IAF, Tab 1. The administrative judge issued a timeliness order that ordered the appellant to show that his initial appeal was timely filed or that good caused existed for the delay. IAF, Tab 8. On September 6, 2023, having not received a response to the timeliness order from the appellant, the administrative judge dismissed the appeal as untimely filed without good cause shown. IAF, Tab 9, Initial Decision (ID) at 1-3. The appellant has submitted an untimely petition for review and a motion to accept the petition as timely or waive the time limit. Petition for Review (PFR) File, Tabs 1-3. The agency has not responded. 2 For the following reasons, we find that the appellant has not established a basis for disturbing the initial decision. In light of this determination, we do not reach the issue of the timeliness of his petition for review. To the extent he is arguing that he did not timely receive the initial decision, such an argument has no bearing on whether he demonstrated good cause for untimely filing his initial appeal. PFR File, Tab 3 at 3. On review, the appellant also argues that he did not receive the administrative judge’s timeliness order as an explanation for not responding to the administrative judge. PFR File, Tab 1 at 1-2, Tab 3 at 3. Even assuming this argument, his substantive rights have not been prejudiced because the Board is considering all relevant arguments regarding timeliness here. With exceptions not applicable here, the deadline for filing an appeal is 30 days after the effective date, if any, of the action being appealed, or 30 days after the date of the appellant’s receipt of the agency’s decision, whichever is later. 5 C.F.R. § 1201.22(b)(1). It is undisputed that the appellant timely received the June 22, 2023 reconsideration decision. IAF, Tab 1 at 9. He has not challenged the agency’s evidence showing delivery of the decision on June 27, 2023. IAF, Tab 6 at 15. Therefore, his appeal was due by July 27, 2023. See 5 C.F.R. § 1201.22(b)(1). Accordingly, the administrative judge correctly determined that the August 7, 2023 appeal was untimely filed by 11 days. ID at 2-3. The Board will dismiss any untimely filed appeal unless the appellant shows good cause for the delay. 5 C.F.R. § 1201.22(c). To establish good cause for the untimely filing of an appeal, a party must show that he exercised due diligence or ordinary prudence under the particular circumstances of the case. Alonzo v. Department of the Air Force , 4 M.S.P.R. 180, 184 (1980). To determine whether an appellant has shown good cause, the Board will consider the length of the delay, the reasonableness of his excuse and his showing of due diligence, whether he is proceeding pro se, and whether he has presented3 evidence of the existence of circumstances beyond his control that affected his ability to comply with the time limits or of unavoidable casualty or misfortune which similarly shows a causal relationship to his inability to timely file his appeal. Moorman v. Department of the Army , 68 M.S.P.R. 60, 62-63 (1995), aff’d, 79 F.3d 1167 (Fed. Cir. 1996) (Table). Despite the appellant’s pro se status at the time he filed his appeal, the 11-day delay was not minimal. Scott v. Social Security Administration , 110 M.S.P.R. 92, ¶ 8 (2008) (finding an 11-day delay in filing was not minimal, even considering the appellant’s status). Additionally, the appellant’s delay in filing the appeal to procure medical evidence documentation does not warrant a waiver of the filing deadline. PFR File, Tab 3 at 3; see Fitzhugh v. Office of Personnel Management , 54 M.S.P.R. 522, 524 (1992). We have considered the appellant’s assertion that he had problems logging onto e-Appeal that prevented him from timely filing the initial appeal. PFR File, Tab 1 at 1, Tab 3 at 3. Though we acknowledge that the appellant may have tried to contact a Board office for assistance without success, OPM’s reconsideration decision provided the mailing address for the Board’s Atlanta Regional Office and a copy of the Board’s regulations, and he has not shown why he could not have pursued alternate means to submit his appeal, such as by facsimile or mail, before the filing deadline. IAF, Tab 2 at 9; see 5 C.F.R. § 1201.22(d); see also Schuringa v. Department of Treasury , 106 M.S.P.R. 1, ¶ 9 (2007) (determining the appellant was not excused from filing his initial appeal 4 days late even though he asserted that he contacted the Board to request an extension of time but an unspecified person at the Board allegedly informed him the Board would not grant such a request); Moses v. Office of Personnel Management , 11 M.S.P.R. 68, 69-70 (1982) (declining to excuse a 5-day filing delay based on a pro se appellant’s inability to see an attorney or to understand his appeal rights, and him not noticing the deadline for filing a petition for review set forth in the initial decision).4 We have considered the arguments the appellant raises on review, but we find that he has not established good cause for waiver of the 30-day limit for filing an initial Board 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.5 If you submit a petition for review to the U.S. Court of Appeals for the Federal Circuit, you must submit your petition to the court at the following address: U.S. Court of Appeals for the Federal Circuit 717 Madison Place, N.W. Washington, D.C. 20439 Additional information about the U.S. Court of Appeals for the Federal Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11. If you are interested in securing pro bono representation for an appeal to the U.S. Court of Appeals for the Federal Circuit, you may visit our website at http://www.mspb.gov/probono for information regarding pro bono representation for Merit Systems Protection Board appellants before the Federal Circuit. The Board neither endorses the services provided by any attorney nor warrants that any attorney will accept representation in a given case. (2) Judicial or EEOC review of cases involving a claim of discrimination . This option applies to you only if you have claimed that you were affected by an action that is appealable to the Board and that such action was based, in whole or in part, on unlawful discrimination. If so, you may obtain judicial review of this decision —including a disposition of your discrimination claims —by filing a civil action with an appropriate U.S. district court ( not the U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems Protection Board , 582 U.S. 420 (2017). If you have a representative in this case, and your representative receives this decision before you do, then you must file with the district court no later than 30 calendar days after your representative receives this decision. If the action involves a claim of discrimination based on6 race, color, religion, sex, national origin, or a disabling condition, you may be entitled to representation by a court-appointed lawyer and to waiver of any requirement of prepayment of fees, costs, or other security. See 42 U.S.C. § 2000e-5(f) and 29 U.S.C. § 794a. Contact information for U.S. district courts can be found at their respective websites, which can be accessed through the link below: http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx . Alternatively, you may request review by the Equal Employment Opportunity Commission (EEOC) of your discrimination claims only, excluding all other issues . 5 U.S.C. § 7702(b)(1). You must file any such request with the EEOC’s Office of Federal Operations within 30 calendar days after you receive this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case, and your representative receives this decision before you do, then you must file with the EEOC no later than 30 calendar days after your representative receives this decision. If you submit a request for review to the EEOC by regular U.S. mail, the address of the EEOC is: Office of Federal Operations Equal Employment Opportunity Commission P.O. Box 77960 Washington, D.C. 20013 If you submit a request for review to the EEOC via commercial delivery or by a method requiring a signature, it must be addressed to: Office of Federal Operations Equal Employment Opportunity Commission 131 M Street, N.E. Suite 5SW12G Washington, D.C. 20507 (3) Judicial review pursuant to the Whistleblower Protection Enhancement Act of 2012 . This option applies to you only if you have raised claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or7 other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D). If so, and your judicial petition for review “raises no challenge to the Board’s disposition of allegations of a prohibited personnel practice described in section 2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i), (B), (C), or (D),” then you may file a petition for judicial review either with the U.S. Court of Appeals for the Federal Circuit or any court of appeals of competent jurisdiction.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. 8 Board neither endorses the services provided by any attorney nor warrants that any attorney will accept representation in a given case. Contact information for the courts of appeals can be found at their respective websites, which can be accessed through the link below: http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx . FOR THE BOARD: ______________________________ Gina K. Grippando Clerk of the Board Washington, D.C.9	Rivers_ClarenceAT-844E-23-0604-I-1_Final_Order.pdf	2025-02-20	CLARENCE RIVERS v. OFFICE OF PERSONNEL MANAGEMENT, MSPB Docket No. AT-844E-23-0604-I-1, February 20, 2025	AT-844E-23-0604-I-1	NP
144	https://www.mspb.gov/decisions/nonprecedential/Rowles_AntonioCH-844E-22-0479-I-1_Remand_Order.pdf	UNITED STATES OF AMERICA MERIT SYSTEMS PROTECTION BOARD ANTONIO ROWLES, Appellant, v. OFFICE OF PERSONNEL MANAGEMENT, Agency.DOCKET NUMBER CH-844E-22-0479-I-1 DATE: February 20, 2025 THIS ORDER IS NONPRECEDENTIAL1 Antonio Rowles , Kansas City, Missouri, pro se. Sheba Dunnings Banks and Linnette Scott , Washington, D.C., for the agency. BEFORE Cathy A. Harris, Chairman Henry J. Kerner, Vice Chairman Raymond A. Limon, Member REMAND ORDER The appellant has filed a petition for review of the initial decision, which affirmed the final decision of the Office of Personnel Management (OPM) denying his application for disability retirement 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 . For the reasons discussed below, we GRANT the appellant’s petition for review, VACATE the initial decision, and REMAND the case to the Central Regional Office for further adjudication in accordance with this Remand Order. DISCUSSION OF ARGUMENTS ON REVIEW On petition for review, the appellant submits alleged new documentation concerning a decision from the Department of Veterans Affairs (DVA) concerning his eligibility for Veteran Readiness and Employment (VR&E) benefits. Petition for Review (PFR) File, Tab 1 at 5-6. Under the Board’s regulations at 5 C.F.R. § 1201.115(d), the Board may grant a petition for review when new and material evidence is available that, despite due diligence, was not available when the record closed. The record in this matter closed at the conclusion of the December 2022 hearing. Initial Appeal File, Tab 9-1, Hearing Recording. The DVA issued its decision concerning VR&E benefits on May 12, 2023. PFR File, Tab 1 at 6. The VR&E decision indicates that, on April 5, 2023, the vocational rehabilitation counselor referred the appellant to Dr. R.K. and asked that he determine the appellant’s status and the impact of his service -connected disabilities on his ability to work as an accountant and in a sedentary environment and complete a bachelor’s degree. PFR File, Tab 1 at 5-6. The DVA decision relies on a report completed and signed by Dr. R.K. on April 27, 2023. Id. Although the DVA issued its decision on May 12, 2023, ten days before the administrative judge issued her initial decision, there is no indication that the appellant received it or the accompanying medical report before the issuance of the initial decision on May 22, 2023. Presuming 5 days for mail and delivery, he would have received these documents less than a week before the administrative judge issued the initial decision. See 5 C.F.R. § 1201.23. Under these circumstances, we find that the VR&E decision and supporting medical report were not readily available to2 the appellant before the record closed below and that the appellant showed due diligence in submitting the documentation to the Board along with his timely filed petition for review. See Gardner v. Office of Personnel Management , 91 M.S.P.R. 391, ¶¶ 6-7 (2002) (finding that a Social Security Administration (SSA) disability benefits award was new when there was no indication that the appellant received it before the issuance of the initial decision 12 days later); Redmond v. Office of Personnel Management , 90 M.S.P.R. 4, ¶ 7 (2001) (determining that the SSA’s disability decision relied on an examination and medical opinion that it obtained under its regulatory powers and was thus not readily available to the appellant before it issued its decision). Thus, we find that the evidence is new. We also find that the DVA decision and supporting medical evidence potentially affect the outcome and thus are material to the disposition of this appeal. See Russo v. Veterans Administration , 3 M.S.P.R. 345, 349 (1980) (holding that the Board will not grant a petition for review based on new evidence absent a showing that it is of sufficient weight to warrant an outcome different from that of the initial decision). The Board and OPM must consider an award of benefits by the DVA based on the same medical conditions as the appellant’s disability retirement application, although this evidence may be outweighed by other evidence. Sachs v. Office of Personnel Management , 99 M.S.P.R. 521, ¶ 11 (2005). Additionally, in disability retirement cases, the Board has frequently accepted as new evidence medical reports that were developed in concurrent proceedings conducted in other fora and unavailable to the appellant when the record closed. Harpole v. Office of Personnel Management , 98 M.S.P.R. 232, ¶ 14 & n.6 (2005). We find that it is in the interest of justice to allow the appellant to submit evidence and argument regarding the VR&E decision and underlying examination and information upon which it is based. The administrative judge should allow the appellant a supplemental hearing on these issues if he requests one. See, e.g., Gardner, 91 M.S.P.R. 391, ¶ 8. The3 administrative judge shall then issue a new initial decision based on the totality of the evidence. ORDER For the reasons discussed above, we remand this case to the Central Regional Office for further adjudication in accordance with this Remand Order. FOR THE BOARD: ______________________________ Gina K. Grippando Clerk of the Board Washington, D.C.4	Rowles_AntonioCH-844E-22-0479-I-1_Remand_Order.pdf	2025-02-20	ANTONIO ROWLES v. OFFICE OF PERSONNEL MANAGEMENT, MSPB Docket No. CH-844E-22-0479-I-1, February 20, 2025	CH-844E-22-0479-I-1	NP
145	https://www.mspb.gov/decisions/nonprecedential/Sellars_Carl_E_DA-0841-23-0126-I-1_Final_Order.pdf	UNITED STATES OF AMERICA MERIT SYSTEMS PROTECTION BOARD CARL ELDEN SELLARS, Appellant, v. OFFICE OF PERSONNEL MANAGEMENT, Agency.DOCKET NUMBER DA-0841-23-0126-I-1 DATE: February 20, 2025 THIS FINAL ORDER IS NONPRECEDENTIAL1 Carl E. Sellars , Pittsburg, Texas, pro se. Jo Bell , 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 affirmed the agency’s reconsideration decision finding that the appellant did not timely elect to provide a survivor annuity for his new wife after his 2014 marriage. On petition for review, the appellant states that he disagrees with 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). outcome of the initial decision, but he does not dispute any specific findings. Generally, we grant petitions such as this one only in the following circumstances: the initial decision contains erroneous findings of material fact; the initial decision is based on an erroneous interpretation of statute or regulation or the erroneous application of the law to the facts of the case; the administrative judge’s rulings during either the course of the appeal or the initial decision were not consistent with required procedures or involved an abuse of discretion, and the resulting error affected the outcome of the case; or new and material evidence or legal argument is available that, despite the petitioner’s due diligence, was not available when the record closed. Title 5 of the Code of Federal Regulations, section 1201.115 (5 C.F.R. § 1201.115). After fully considering the filings in this appeal, we conclude that the petitioner has not established any basis under section 1201.115 for granting the petition for review. Therefore, we DENY the petition for review and AFFIRM the initial decision, which is now the Board’s final decision. 5 C.F.R. § 1201.113(b). NOTICE OF APPEAL RIGHTS2 You may obtain review of this final decision. 5 U.S.C. § 7703(a)(1). By statute, the nature of your claims determines the time limit for seeking such review and the appropriate forum with which to file. 5 U.S.C. § 7703(b). Although we offer the following summary of available appeal rights, the Merit Systems Protection Board does not provide legal advice on which option is most appropriate for your situation and the rights described below do not represent a statement of how courts will rule regarding which cases fall within their jurisdiction. If you wish to seek review of this final decision, you should immediately review the law applicable to your claims and carefully follow all 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	Sellars_Carl_E_DA-0841-23-0126-I-1_Final_Order.pdf	2025-02-20	CARL ELDEN SELLARS v. OFFICE OF PERSONNEL MANAGEMENT, MSPB Docket No. DA-0841-23-0126-I-1, February 20, 2025	DA-0841-23-0126-I-1	NP
146	https://www.mspb.gov/decisions/nonprecedential/Washington_Brian_A_DA-0843-23-0355-I-1_Final_Order.pdf	UNITED STATES OF AMERICA MERIT SYSTEMS PROTECTION BOARD BRIAN A. WASHINGTON, Appellant, v. OFFICE OF PERSONNEL MANAGEMENT, Agency.DOCKET NUMBER DA-0843-23-0355-I-1 DATE: February 20, 2025 THIS FINAL ORDER IS NONPRECEDENTIAL1 Brian A. Washington , Kempner, Texas, pro se. Angerlia D. Johnson and Michael Shipley, Washington, D.C., for the agency. Marcia J. Mason , Saxonburg, Pennsylvania, 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 the Office of Personnel Management’s reconsideration decision denying 1 A nonprecedential order is one that the Board has determined does not add significantly to the body of MSPB case law. Parties may cite nonprecedential orders, but such orders have no precedential value; the Board and administrative judges are not required to follow or distinguish them in any future decisions. In contrast, a precedential decision issued as an Opinion and 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 request to change his election to provide a survivor annuity for his spouse more than 30 days after the commencement of his regular annuity. On petition for review, the appellant argues that a retirement counselor from his former employing agency provided him with a booklet stating that the deadline to reduce a survivor annuity election was 18 months after the commencement of a regular annuity.2 Generally, we grant petitions such as this one only in the following circumstances: the initial decision contains erroneous findings of material fact; the initial decision is based on an erroneous interpretation of statute or regulation or the erroneous application of the law to the facts of the case; the administrative judge’s rulings during either the course of the appeal or the initial decision were not consistent with required procedures or involved an abuse of discretion, and the resulting error affected the outcome of the case; or new and material evidence or legal argument is available that, despite the petitioner’s due diligence, was not available when the record closed. Title 5 of the Code of Federal Regulations, section 1201.115 (5 C.F.R. § 1201.115). After fully considering the filings in this appeal, we conclude that the petitioner has not established any basis under section 1201.115 for granting the petition for review. Therefore, we DENY the petition for review and AFFIRM the initial decision, which is now the Board’s final decision. 5 C.F.R. § 1201.113(b). 2 The appellant misinterprets the language in the material provided by his former employing agency. It sets forth a general rule that the election of a survivor annuity cannot be changed after more than 30 days have passed since the first regular monthly annuity payment by the Office of Personnel Management and also explains the limited circumstances in which a retiree may elect a reduced annuity to provide for a survivor or current annuity after the 30-day period has passed. Initial Appeal File, Tab 7 at 13; see 5 C.F.R. §§ 842.610(a), 842.610(b), 842.611, and 842.612. Here, the appellant sought to eliminate the survivor annuity, not provide for a survivor or current annuity, and thus, the exceptions are not applicable to his attempted belated election.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	Washington_Brian_A_DA-0843-23-0355-I-1_Final_Order.pdf	2025-02-20	BRIAN A. WASHINGTON v. OFFICE OF PERSONNEL MANAGEMENT, MSPB Docket No. DA-0843-23-0355-I-1, February 20, 2025	DA-0843-23-0355-I-1	NP
147	https://www.mspb.gov/decisions/nonprecedential/Maloney_Peggy_A_DC-531D-23-0410-I-1_Final_Order.pdf	UNITED STATES OF AMERICA MERIT SYSTEMS PROTECTION BOARD PEGGY ANNE MALONEY, Appellant, v. EXECUTIVE OFFICE OF THE PRESIDENT, OFFICE OF ADMINISTRATION, Agency.DOCKET NUMBER DC-531D-23-0410-I-1 DATE: February 20, 2025 THIS FINAL ORDER IS NONPRECEDENTIAL1 Peggy Anne Maloney , Alexandria, Virginia, pro se. Raheemah Abdulaleem , Esquire, and Tanesha Petty , Esquire, 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 appeal alleging the improper withholding of multiple within-grade 1 A nonprecedential order is one that the Board has determined does not add significantly to the body of MSPB case law. Parties may cite nonprecedential orders, but such orders have no precedential value; the Board and administrative judges are not required to follow or distinguish them in any future decisions. In contrast, a precedential decision issued as an Opinion and Order has been identified by the Board as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c). increases (WIGIs) in part for lack of Board jurisdiction and in part as untimely filed without good cause shown for the delay. On petition for review, the appellant primarily discusses pleadings and matters related to her other cases pending before the Board, claims that the administrative judge made procedural errors, and reargues issues related to her 2017 WIGI. Generally, we grant petitions such as this one only in the following circumstances: the initial decision contains erroneous findings of material fact; the initial decision is based on an erroneous interpretation of statute or regulation or the erroneous application of the law to the facts of the case; the administrative judge’s rulings during either the course of the appeal or the initial decision were not consistent with required procedures or involved an abuse of discretion, and the resulting error affected the outcome of the case; or new and material evidence or legal argument is available that, despite the petitioner’s due diligence, was not available when the record closed. Title 5 of the Code of Federal Regulations, section 1201.115 (5 C.F.R. § 1201.115). After fully considering the filings in this appeal, we conclude that the petitioner has not established any basis under section 1201.115 for granting the petition for review.2 Therefore, we DENY the petition for review and AFFIRM the initial decision, which is now the Board’s final decision. 5 C.F.R. § 1201.113(b).3 2 With her petition for review, the appellant submits documents including the agency’s final decision to withhold her WIGI for fiscal year 2017, copies of the Board’s regulations, a blank appeal form, a motion to compel issued in her individual right of action case, an addendum to her Office of Special Counsel complaint, and email correspondence. Petition for Review (PFR) File, Tab 1 at 27-56. The evidence related to her WIGI is already in the record, and evidence that is already part of the record is not new evidence that warrants granting review. Initial Appeal File, Tab 7 at 67-88; see Meier v. Department of the Interior , 3 M.S.P.R. 247, 256 (1980); 5 C.F.R. § 1201.115(d) (identifying new and material evidence as a basis on which the Board may, in appropriate circumstances, grant review). The evidence related to the appellant’s whistleblower claims is not relevant or material to the administrative judge’s findings in this case, and the Board generally will not grant a petition for review based on new evidence absent a showing that it is of sufficient weight to warrant an outcome different from that of the initial decision. Russo v. Veterans Administration , 3 M.S.P.R. 345, 349 (1980). 3 There are before the Board three outstanding motions filed by the appellant. PFR File, Tabs 4, 11, 14. The appellant’s first motion requests leave to file an additional pleading2 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. and appears to both address a separate and unrelated Board appeal and to request to submit a petition for review reply in excess of the page limit. PFR File, Tab 4. Her second motion requests leave to file a petition for review but also appears to mostly address a separate and unrelated Board appeal. PFR File, Tab 11. She also notes alleged new and material evidence related to the Board members’ licenses to practice law, although it is unclear what she is contending. Id. The appellant’s third motion requests leave to file a supplemental petition for review based on new allegations of evidence tampering, an ongoing mediation before the Equal Employment Opportunity Commission, the agency’s alleged noncompliance with disability requirements, and the agency’s failure to produce certain evidence. PFR File, Tab 14. However, this motion also appears to address an unrelated Board appeal. Again, the evidence related to the appellant’s other Board appeals is not relevant or material to the administrative judge’s jurisdictional and timeliness findings in this case. Russo, 3 M.S.P.R. at 349. Furthermore, not only did the agency not file a petition for review response in this case, but the appellant has not alleged information or otherwise put forward an argument that goes to the dispositive questions in this case. Accordingly, we DENY her motions. 4 Since the issuance of the initial decision in this matter, the Board may have updated the notice of review rights included in final decisions. As indicated in the notice, the Board cannot advise which option is most appropriate in any matter.3 (1) Judicial review in general . As a general rule, an appellant seeking judicial review of a final Board order must file a petition for review with the U.S. Court of Appeals for the Federal Circuit, which must be received by the court within 60 calendar days of the date of issuance of this decision. 5 U.S.C. § 7703(b)(1)(A). If you submit a petition for review to the U.S. Court of Appeals for the Federal Circuit, you must submit your petition to the court at the following address: U.S. Court of Appeals for the Federal Circuit 717 Madison Place, N.W. Washington, D.C. 20439 Additional information about the U.S. Court of Appeals for the Federal Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11. If you are interested in securing pro bono representation for an appeal to the U.S. Court of Appeals for the Federal Circuit, you may visit our website at http://www.mspb.gov/probono for information regarding pro bono representation for Merit Systems Protection Board appellants before the Federal Circuit. The Board neither endorses the services provided by any attorney nor warrants that any attorney will accept representation in a given case. (2) Judicial or EEOC review of cases involving a claim of discrimination . This option applies to you only if you have claimed that you were affected by an action that is appealable to the Board and that such action was based, in whole or in part, on unlawful discrimination. If so, you may obtain judicial review of this decision—including a disposition of your discrimination claims —by filing a civil action with an appropriate U.S. district court ( not the U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems Protection Board , 582 U.S. 420 (2017).4 If you have a representative in this case, and your representative receives this decision before you do, then you must file with the district court no later than 30 calendar days after your representative receives this decision. If the action involves a claim of discrimination based on race, color, religion, sex, national origin, or a disabling condition, you may be entitled to representation by a court- appointed lawyer and to waiver of any requirement of prepayment of fees, costs, or other security. See 42 U.S.C. § 2000e-5(f) and 29 U.S.C. § 794a. Contact information for U.S. district courts can be found at their respective websites, which can be accessed through the link below: http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx . Alternatively, you may request review by the Equal Employment Opportunity Commission (EEOC) of your discrimination claims only, excluding all other issues . 5 U.S.C. § 7702(b)(1). You must file any such request with the EEOC’s Office of Federal Operations within 30 calendar days after you receive this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case, and your representative receives this decision before you do, then you must file with the EEOC no later than 30 calendar days after your representative receives this decision. If you submit a request for review to the EEOC by regular U.S. mail, the address of the EEOC is: Office of Federal Operations Equal Employment Opportunity Commission P.O. Box 77960 Washington, D.C. 20013 If you submit a request for review to the EEOC via commercial delivery or by a method requiring a signature, it must be addressed to: Office of Federal Operations Equal Employment Opportunity Commission 131 M Street, N.E. Suite 5SW12G Washington, D.C. 205075 (3) Judicial review pursuant to the Whistleblower Protection Enhancement Act of 2012 . This option applies to you only if you have raised claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D). If so, and your judicial petition for review “raises no challenge to the Board’s disposition of allegations of a prohibited personnel practice described in section 2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i), (B), (C), or (D),” then you may file a 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 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 http://www.mspb.gov/probono for information regarding pro bono representation for Merit Systems Protection Board appellants before the 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	Maloney_Peggy_A_DC-531D-23-0410-I-1_Final_Order.pdf	2025-02-20	null	DC-531D-23-0410-I-1	NP
148	https://www.mspb.gov/decisions/nonprecedential/Binns_Shenita_S_CB-7121-24-0005-V-1_Final_Order.pdf	UNITED STATES OF AMERICA MERIT SYSTEMS PROTECTION BOARD SHENITA S. BINNS, Appellant, v. DEPARTMENT OF VETERANS AFFAIRS, Agency.DOCKET NUMBER CB-7121-24-0005-V-1 DATE: February 20, 2025 THIS FINAL ORDER IS NONPRECEDENTIAL1 Shenita S. Binns , Lithia Springs, Georgia, pro se. Winnie Reaves , Esquire, Winston-Salem, North Carolina, 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 arbitrator’s decision that denied her grievance concerning her removal. For the reasons set forth below, the appellant’s request for review is DISMISSED as untimely filed without good cause shown. 5 C.F.R. § 1201.155(b). 1 A nonprecedential order is one that the Board has determined does not add significantly to the body of MSPB case law. Parties may cite nonprecedential orders, but such orders have no precedential value; the Board and administrative judges are not required to follow or distinguish them in any future decisions. In contrast, a precedential decision issued as an Opinion and Order has been identified by the Board as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c). BACKGROUND The appellant was formerly a Program Specialist with the agency. Request for Review (RFR) File, Tab 1 at 1. On December 5, 2023, the Washington Regional Office issued an initial decision in Binns v. Department of Veterans Affairs, MSPB Docket No. DC-1221-23-0687-W-1, wherein it referred two pleadings submitted in that matter to the Office of the Clerk of the Board (Clerk’s Office) for docketing as a request for review of an arbitration decision. RFR File, Tab 3 at 1. Accordingly, the Clerk’s Office docketed the appellant’s August 26, 2023 initial appeal form in MSPB Docket No. DC-1221-23-0687-W-1 as a request for review of an arbitration decision. RFR File, Tab 1. The arbitration decision, dated June 30, 2023, denied the appellant’s grievance and affirmed her August 2022 removal from Federal service. RFR File, Tab 2 at 4-59. Upon docketing the instant request for review, the Clerk of the Board issued an acknowledgment order in December 2023 advising the appellant, among other things, that her request for review appeared to be untimely. RFR File, Tab 3 at 3. It ordered her to file evidence and argument to prove that her request for review was timely or that there was good cause for her delayed filing. Id. It also ordered her to supplement her request for review to comply with the Board’s requirements at 5 C.F.R. § 1201.155(d). Id. at 2. In relevant part, the appellant was ordered to file a copy of the agency’s removal decision. Id.; see 5 C.F.R. § 1201.155(d)(4). The appellant did not respond. DISCUSSION OF ARGUMENTS ON REVIEW A request for review must be filed within 35 days of the date of issuance of the arbitrator’s decision, or, if the appellant received the arbitrator’s decision more than 5 days after it was issued, within 30 days after she received the arbitrator’s decision. Kirkland v. Department of Homeland Security , 119 M.S.P.R. 74, ¶ 4 (2013); 5 C.F.R. § 1201.155(b). The appellant bears the burden of proof regarding the timeliness of her filing. 5 C.F.R.2 § 1201.56(b)(2)(i)(B). The Board will dismiss an untimely request unless the appellant establishes good cause for the delayed filing. Kirkland, 119 M.S.P.R. 74, ¶ 5. To establish good cause for an untimely filing, a party must show that she exercised due diligence or ordinary prudence under the particular circumstances of the case. Id.; see Alonzo v. Department of the Air Force , 4 M.S.P.R. 180, 184 (1980). Accepting as true the appellant’s assertion that she did not receive the arbitration decision until July 25, 2023, RFR File, Tab 1 at 3, 5, which is more than 5 days after its issuance, her request for review was due 30 days later, by August 24, 2023. 5 C.F.R. § 1201.155(b). Her request for review is therefore untimely by 2 days. To the extent the appellant asserts that the arbitrator did not notify her of right to appeal the arbitration decision to the Board, we find that she has not established good cause for her delayed filing. RFR File, Tab 1 at 5. Although an agency’s failure to notify an employee of her Board appeal rights when such notification is required generally constitutes good cause for late filing, Kirkland, 119 M.S.P.R. 74, ¶ 6, the Board has clarified that its regulations do not require arbitrators to notify appellants of their appeal rights, 5 C.F.R. § 1201.21(d) (requiring agencies to provide employees with notice of certain appeal rights); see McCurn v. Department of Defense , 119 M.S.P.R. 226, ¶ 11 n.6 (2013) (stating that the Board’s regulations do not impose a requirement on arbitrators to notify employees of appeal rights). In the absence of a clear allegation by the appellant that the agency, as opposed to the arbitrator, failed to provide her with notice of her right to appeal an arbitration decision to the Board, and because the appellant did not file a copy of the agency’s decision letter as directed by the Clerk in its acknowledgment order, we find that she has not established that she acted with due diligence and ordinary prudence in filing her request for review after receiving the arbitration decision. RFR File, Tab 3 at 1-2 (ordering the appellant to file a copy of the agency’s removal decision and warning that failure to comply3 with the order could result in dismissal of the request for review). To the extent the appellant alleges that her union representative’s failure to notify her of her right to request review of the arbitration decision with the Board is the cause of her untimeliness, RFR File, Tab 1 at 5, it is well settled that an appellant is responsible for the errors of her chosen representative, Sofio v. Internal Revenue Service, 7 M.S.P.R. 667, 670 (1981); see Miller v. Department of Homeland Security, 110 M.S.P.R. 258, ¶ 11 (2008) (holding that the failure of the appellant’s attorney to timely file a petition for review does not constitute good cause for an untimely filing). We have considered the appellant’s remaining arguments in her request for review and find that they do not warrant a different result. RFR File, Tab 1 at 5. Accordingly, we dismiss the appellant’s request for review as untimely filed. This is the final decision of the Merit Systems Protection Board regarding the timeliness of the appellant’s request for review of the arbitration decision. NOTICE OF APPEAL RIGHTS2 You may obtain review of this final decision. 5 U.S.C. § 7703(a)(1). By statute, the nature of your claims determines the time limit for seeking such review and the appropriate forum with which to file. 5 U.S.C. § 7703(b). Although we offer the following summary of available appeal rights, the Merit Systems Protection Board does not provide legal advice on which option is most appropriate for your situation and the rights described below do not represent a statement of how courts will rule regarding which cases fall within their jurisdiction. If you wish to seek review of this final decision, you should immediately review the law applicable to your claims and carefully follow all filing time limits and requirements. Failure to file within the applicable time limit may result in the dismissal of your case by your chosen forum. 2 Since the issuance of the initial decision in this matter, the Board may have updated the notice of review rights included in final decisions. As indicated in the notice, the Board cannot advise which option is most appropriate in any matter.4 Please read carefully each of the three main possible choices of review below to decide which one applies to your particular case. If you have questions about whether a particular forum is the appropriate one to review your case, you should contact that forum for more information. (1) Judicial review in general . As a general rule, an appellant seeking judicial review of a final Board order must file a petition for review with the U.S. Court of Appeals for the Federal Circuit, which must be received by the court within 60 calendar days of the date of issuance of this decision. 5 U.S.C. § 7703(b)(1)(A). If you submit a petition for review to the U.S. Court of Appeals for the Federal Circuit, you must submit your petition to the court at the following address: U.S. Court of Appeals for the Federal Circuit 717 Madison Place, N.W. Washington, D.C. 20439 Additional information about the U.S. Court of Appeals for the Federal Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11. If you are interested in securing pro bono representation for an appeal to the U.S. Court of Appeals for the Federal Circuit, you may visit our website at http://www.mspb.gov/probono for information regarding pro bono representation for Merit Systems Protection Board appellants before the Federal Circuit. The Board neither endorses the services provided by any attorney nor warrants that any attorney will accept representation in a given case. (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. 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	Binns_Shenita_S_CB-7121-24-0005-V-1_Final_Order.pdf	2025-02-20	SHENITA S. BINNS v. DEPARTMENT OF VETERANS AFFAIRS, MSPB Docket No. CB-7121-24-0005-V-1, February 20, 2025	DC-1221-23-0687-W-1; CB-7121-24-0005-V-1	NP
149	https://www.mspb.gov/decisions/nonprecedential/Carden_David_AT-1221-23-0377-W-1_Remand_Order.pdf	UNITED STATES OF AMERICA MERIT SYSTEMS PROTECTION BOARD DAVID CARDEN, Appellant, v. DEPARTMENT OF VETERANS AFFAIRS, Agency.DOCKET NUMBER AT-1221-23-0377-W-1 DATE: February 20, 2025 THIS ORDER IS NONPRECEDENTIAL1 Adam Paul Morel , Esquire, Birmingham, Alabama, for the appellant. Alfred Steinmetz , Esquire, 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 1 A nonprecedential order is one that the Board has determined does not add significantly to the body of MSPB case law. Parties may cite nonprecedential orders, but such orders have no precedential value; the Board and administrative judges are not required to follow or distinguish them in any future decisions. In contrast, a precedential decision issued as an Opinion and Order has been identified by the Board as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c). the reasons discussed below, we GRANT the appellant’s petition for review, REVERSE the initial decision, FIND that the appellant met his jurisdictional burden for some claims, and REMAND the case to the Atlanta Regional Office for further adjudication in accordance with this Remand Order. BACKGROUND The appellant was employed by the agency, in the Senior Executive Service, as the Associate Director for Nursing and Patient Care Services/Director of Nursing Service in Tuscaloosa, Alabama. Initial Appeal File (IAF), Tab 1 at 7, Tab 6 at 67. On September 27, 2021, the agency proposed the appellant’s removal under 38 U.S.C. § 713 based on the charges of failure to lead people and failure to lead change. IAF, Tab 5 at 9-13. On October 18, 2021, the agency issued a final decision that sustained both charges but mitigated the penalty to a demotion to the position of Clinical Assessor for the Caregiver Support Program, a Nurse III non-supervisory position. IAF, Tab 1 at 7-12. On October 6, 2021, the appellant filed a complaint with the Office of Special Counsel (OSC), alleging that he disclosed concerns pertaining to nurse pay and the flawed distribution process for COVID-related awards and he filed an anonymous complaint with his agency’s Office of Inspector General (OIG); he noted in the complaint and a sworn declaration he subsequently submitted to OSC that, in retaliation for his disclosures and activity, the agency issued him a letter of counseling, detailed him to a Nurse III position, demoted him to a Nurse III position after proposing his removal, and issued him an Unacceptable performance evaluation. IAF, Tab 1 at 5, Tab 10 at 8-31. On February 22, 2023, OSC notified the appellant that it was terminating its inquiry into his complaint and informed him of his right to file an IRA appeal with the Board. IAF, Tab 10 at 32-33. The appellant timely filed the instant IRA appeal on April 28, 2023, and he requested a hearing. IAF, Tab 1 at 2. The administrative judge issued an order setting forth the requirements for establishing jurisdiction over an IRA appeal and2 ordered him to submit evidence and argument on the jurisdictional issue. IAF, Tab 4. The appellant provided a copy of his OSC complaint and a November 5, 2021 sworn declaration that he asserts he submitted to OSC in support of his complaint. IAF, Tab 10 at 8-31, Tab 11 at 4. The administrative judge issued an order to show cause directing the appellant to provide more specific information regarding his alleged protected disclosures and/or protected activities. IAF, Tab 13 at 1-2. In his response to that order, the appellant asserted that: (1) on June 2, 2021, he made a protected disclosure to the EEO manager and agency officials that the proposing official abused his authority when he replaced his communication plan with his own “Return to Greatness” program, which was the subject of multiple employee complaints due to the proposing official’s use of racial slurs during the program and the program’s noncompliance with COVID distancing protocols; and (2) he engaged in a protected activity on July 7, 2021, when he filed an anonymous OIG complaint regarding security and safety issues that he believed constituted gross mismanagement. IAF, Tab 14 at 4-5. Without holding the requested hearing, the administrative judge dismissed the IRA appeal for lack of jurisdiction. IAF, Tab 18, Initial Decision (ID) at 1, 9. The administrative judge found that the appellant exhausted his administrative remedies before OSC and nonfrivolously alleged that he was subjected to personnel actions under 5 U.S.C. § 2302(a), including a proposed removal, a demotion, and a lowered performance appraisal. ID at 4-5. He concluded that the appellant failed to meet his burden of making a nonfrivolous allegation that he made a protected disclosure regarding his communication to the EEO manager and agency leadership on June 2, 2021. ID at 5-7. However, he concluded that the appellant nonfrivolously alleged that he engaged in a protected activity under 5 U.S.C. § 2302(b)(9)(C) when he made an anonymous OIG complaint on July 7, 2021. ID at 7. Nevertheless, the administrative judge concluded that the appellant failed to nonfrivolously allege that his protected activity was a contributing factor in the agency’s personnel actions because the individuals responsible for the personnel3 actions taken against him were not aware that the appellant had filed a complaint with OIG. ID at 8-9. Thus, the administrative judge concluded that the appellant had failed to make a nonfrivolous allegation to establish jurisdiction over his IRA appeal. ID at 9. The appellant has filed a petition for review of the initial decision. Petition for Review (PFR) File, Tab 1. He alleges that the administrative judge erroneously applied the standards of proof applicable to the merits stage rather than the nonfrivolous allegations stage. Id. at 5-7. He argues that he nonfrivolously alleged that his protected activity under 5 U.S.C. § 2302(b)(9)(C) of filing an anonymous OIG complaint was a contributing factor in the agency’s personnel actions, and therefore, that the administrative judge erred by dismissing his appeal for lack of jurisdiction. Id. at 7-8. The agency has not filed a response. ANALYSIS The Board has jurisdiction over an IRA appeal if the appellant has exhausted his administrative remedies before OSC, and makes nonfrivolous allegations that (1) he made a protected disclosure under 5 U.S.C. § 2302(b)(8) or engaged in protected activity under 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D); and (2) the protected disclosure or activity was a contributing factor in the agency’s decision to take or fail to take a personnel action as defined by 5 U.S.C. § 2302(a). Gabel v. Department of Veterans Affairs , 2023 MSPB 4, ¶ 5. The U.S. Court of Appeals for the Federal Circuit has found that, in the context of an IRA appeal, a nonfrivolous allegation is an allegation of “sufficient factual matter, accepted as true, to state a claim that is plausible on its face.” Hessami v. Merit Systems Protection Board , 979 F.3d 1362, 1364, 1369 (Fed. Cir. 2020). Once an appellant establishes jurisdiction over his IRA appeal, he is entitled to a hearing on the merits of his claim, which he must prove by preponderant evidence. Rebstock Consolidation v. Department of Homeland Security , 122 M.S.P.R. 661, ¶ 9 (2015). 4 Based on the appellant’s response to the show cause order, the administrative judge limited his attention to the appellant’s disclosure to the EEO manager and agency leadership on June 2, 2021, and the appellant’s anonymous OIG complaint on July 7, 2021, without addressing any other disclosures or activities. ID at 5; IAF, Tab 14 at 4-5. He determined that the appellant exhausted his administrative remedies before OSC as to the June 2, 2021 disclosure and the July 7, 2021 OIG complaint. ID at 4-5. However, as noted in OSC’s close-out letter, the appellant also alleged that he raised concerns regarding nurse pay and the taking away of COVID-related awards from the lowest-paid employees. IAF, Tab 10 at 27, 32. We find that the appellant exhausted his remedies before OSC on those claims and that the administrative judge erred in failing to address them. As explained below, however, this error did not prejudice the appellant’s substantive rights as the Board lacks jurisdiction over those claims . See Panter v. Department of the Air Force , 22 M.S.P.R. 281, 282 (1984) (holding that an adjudicatory error that is not prejudicial to a party’s substantive rights provides no basis for reversal of an initial decision). Nonetheless, as further discussed below, we find that the appellant has established jurisdiction over his appeal because he nonfrivolously alleged that he engaged in a protected activity that was a contributing factor in his proposed removal, the detail to a Nurse III position, the demotion to a Nurse III position, and the Unacceptable performance rating .2 2 The appellant also alleged in his OSC complaint and in Board proceedings below that a November 6, 2020 letter of counseling was retaliatory. IAF, Tab 10 at 11-12, 32. The counseling occurred before his OIG complaint, however, and therefore the protected activity could not have been a contributing factor in the counseling. See Orr v. Department of the Treasury , 83 M.S.P.R. 117, 124 (1999). OSC’s closure letter also references an October 2021 counseling, IAF, Tab 10 at 32, but there is no evidence or argument in the record pertaining to a counseling around that time. The record does contain an August 11, 2021 Letter of Concern, id. at 125-27; but, even assuming the appellant exhausted his remedies with OSC as to the letter, we find that it was not a threat to take disciplinary action and does not otherwise fall within the definition of “personnel action” in 5 U.S.C. § 2302(a)(2)(A). See Special Counsel v. Spears , 75 M.S.P.R. 639, 670 (1997).5 The appellant failed to nonfrivolously allege that he made protected disclosures. A nonfrivolous allegation of a protected whistleblowing disclosure is an allegation of facts that, if proven, would show that the appellant disclosed a matter that a reasonable person in his position would believe evidenced one of the 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, not vague allegations of wrongdoing. Id.; see El v. Department of Commerce , 123 M.S.P.R. 76, ¶ 6 (2015) (stating that vague, conclusory, unsupported, and pro forma allegations of alleged wrongdoing do not meet the nonfrivolous pleading standard needed to establish the Board’s jurisdiction over an IRA appeal), aff’d, 663 F. App’x 921 (Fed. Cir. 2016). The appellant does not challenge the administrative judge’s finding that he failed to nonfrivolously allege that he made a protected disclosure as to his communication to the EEO manager and agency leadership on June 2, 2021. ID at 5-7. Therefore, we decline to address that disclosure further. See 5 C.F.R. § 1201.115 (reflecting that the Board normally will consider only issues raised in a petition or cross petition for review); see also Weaver v. Department of the Navy , 2 M.S.P.R. 129, 133 (1980), (noting that, before the Board will undertake a complete review of the record, the petitioning party must explain why the challenged factual determination is incorrect and identify the specific evidence in the record that demonstrates the error). With respect to the appellant’s assertions regarding nurse pay and the taking away of COVID-related awards from the lowest-paid employees, they are too vague and conclusory to rise to the level of nonfrivolous allegations that would6 merit a finding of the Board’s jurisdiction. See Rzucidlo v. Department of the Army, 101 M.S.P.R. 616, ¶ 17 (2006) (requiring an appellant to provide more than vague and conclusory allegations of wrongdoing by others). Even if we were to construe the appellant as alleging that the agency’s actions amount to gross mismanagement, the substance of the appellant’s disclosures suggests, at most, that management committed de minimis wrongdoing or negligence. See Swanson v. General Services Administration , 110 M.S.P.R. 278, ¶ 11 (2008) (explaining that “gross mismanagement” means more than de minimis wrongdoing or negligence; it means a management action or inaction that creates a substantial risk of significant adverse impact on the agency’s ability to accomplish its mission). Thus, we find that the appellant has failed to nonfrivolously allege that he made any disclosures that were protected under section 2302(b)(8). The appellant nonfrivolously alleged that he engaged in a protected activity that was a contributing factor in several personnel actions. Under 5 U.S.C. § 2302(b)(9)(C), an employee engages in protected activity when he cooperates with or discloses information to an agency’s OIG (or any other component responsible for internal investigation or review) in accordance with applicable provisions of law. Thus, if an appellant’s disclosure of information to such an entity was lawful, the substance of the disclosure is not material to whether the appellant has satisfied the subject jurisdictional criterion.3 See Fisher v. Department of the Interior , 2023 MSPB 11, ¶ 8 (explaining that, under the broadly worded provision of 5 U.S.C. § 2302(b)(9)(C), any disclosure of information to OIG is protected regardless of its content as long as such disclosure is made in accordance with applicable provisions of law). Accordingly, we agree with the administrative judge that the appellant made a nonfrivolous allegation that he 3 However, the nature of an appellant’s 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. See Fisher, 2023 MSPB 11, ¶ 8 n.1.7 engaged in protected activity under 5 U.S.C. § 2302(b)(9)(C) through his disclosure of information to OIG. ID at 7. We next consider whether the appellant’s protected activity was a contributing factor in the personnel actions at issue. To satisfy the contributing factor criterion at the jurisdictional stage of the case, an appellant need only raise a nonfrivolous allegation that the fact or content of the protected disclosure was one factor that tended to affect the personnel action in any way. Sherman v. Department of Homeland Security , 122 M.S.P.R. 644, ¶ 8 (2015). One way to establish this criterion is the knowledge/timing test, under which an employee may nonfrivolously allege that the disclosure was a contributing factor in a personnel action through circumstantial evidence, such as evidence that the official taking the personnel action knew of the disclosure, and that the personnel action occurred within a period of time such that a reasonable person could conclude that the disclosure was a contributing factor in the personnel action. Id. The administrative judge concluded that the appellant failed to nonfrivolously allege that the individuals responsible for the personnel actions taken against him were aware of his OIG complaint and the appellant failed to identify any other relevant evidence that his OIG complaint was a contributing factor in any personnel actions at issue. ID at 8. Thus, he determined that the appellant failed to meet his burden in that regard. ID at 8-9. The appellant challenges on review the administrative judge’s finding that he did not make a nonfrivolous allegation that any decision maker had knowledge of his protected activity. PFR File, Tab 1 at 7. He argues that he raised such an allegation in his response to the show cause order. Id. In this regard, we note that, although the appellant did not allege that the official who proposed his removal had direct knowledge that he had filed the anonymous OIG complaint, as set out in more detail below, he alleged that the proposing official and/or individuals who had input into the proposed removal deduced that he was the employee who had filed the complaint. 8 In his jurisdictional submission, the appellant asserted that, although his OIG complaint was anonymous, the proposing official was searching for the person who submitted the complaint and believed that he was that person. IAF, Tab 10 at 21. He explained that the Quality Management Department (QUAD) was aligned directly under the proposing official, who was responsible for leading the response to OIG complaints. Id. at 13. He noted that, on July 12, 2021, the proposing official showed QUAD employees the OIG complaint he had authored and they agreed that it came from someone with inside knowledge. Id. at 16. He claimed that the proposing official and employees in the QUAD suspected him of submitting the OIG complaint, “although they never said it.” Id. He further opined that the proposing official and QUAD members viewed him as a “troublemaker and whistleblower” based on his previous disclosures regarding the same or similar issues to agency management. Id. at 16, 20. He noted that the issues that he raised in his OIG complaint were the focus of an OIG investigation starting in September 2021, which exposed systemic problems at the agency and reflected badly on the proposing official and the QUAD members. Id. at 20-21. He further noted that his removal was proposed in September 2021 and he believed that the QUAD members were involved in that decision. Id. at 17, 19. Based on the above, we find that the appellant has made a nonfrivolous allegation that the proposing official and/or individuals who had input in the action were aware that he had filed the anonymous OIG complaint. With regard to the other actions that the appellant alleges were retaliatory, we first find that the detail to the Nurse III position (Clinical Registered Nurse), demotion to the Clinical Assessor position with the Caregiver Support Program, and Unacceptable performance rating are all personnel actions within the definition of 5 U.S.C. § 2302(a)(2)(A). In considering whether the appellant has made a nonfrivolous allegation that the OIG complaint was a contributing factor in the actions, we note that the official who proposed the appellant’s removal also initiated the detail to the Nurse III position, and he did so on the same date he9 issued the proposal. IAF, Tab 10 at 197-98. The record further reflects that the appellant informed the deciding official about his protected activity during his reply to the proposed removal, and the deciding official acknowledged this information in the letter mitigating the action to a demotion to the Clinical Assessor position. Id. at 21, 201-02. Finally, with regard to the Unacceptable performance appraisal for fiscal year 2021, the same official who proposed the removal was the rater for the appraisal and the deciding official, who had made the decision to mitigate the proposed removal, was the approving official. Id. at 136-42. Accordingly, we find that the appellant has made a nonfrivolous allegation that individuals involved in taking all three personnel actions were either aware that he had filed the OIG complaint or had deduced that he had done so by the time the actions were taken. The Board has held that a personnel action taken within approximately 1 to 2 years of the appellant’s disclosures satisfies the timing component of the knowledge/timing test. Mastrullo v. Department of Labor , 123 M.S.P.R. 110, ¶ 21 (2015); Schnell v. Department of the Army , 114 M.S.P.R. 83, ¶¶ 20–22 (2010); see Redschlag v. Department of the Army , 89 M.S.P.R. 589, ¶ 87 (2001) (finding that the appellant’s disclosures were a contributing factor in her removal when they were made approximately 21 months and then slightly over a year before the agency removed her). All of the personnel actions the appellant alleges were retaliatory were taken within several months of his July 2021 OIG complaint. As such, we conclude that the appellant has made a nonfrivolous allegation through the knowledge/timing test that his protected activity was a contributing factor in the proposed removal, the detail to the Clinical Registered Nurse position, the demotion to the Clinical Assessor position, and the 2021 Unacceptable performance appraisal.10 ORDER For the reasons discussed above, we remand this case to the Atlanta Regional Office for adjudication on the merits of the appellant’s claims. FOR THE BOARD: ______________________________ Gina K. Grippando Clerk of the Board Washington, D.C.11	Carden_David_AT-1221-23-0377-W-1_Remand_Order.pdf	2025-02-20	DAVID CARDEN v. DEPARTMENT OF VETERANS AFFAIRS, MSPB Docket No. AT-1221-23-0377-W-1, February 20, 2025	AT-1221-23-0377-W-1	NP
150	https://www.mspb.gov/decisions/nonprecedential/Peaslee_Dianne_V_PH-0714-20-0060-I-1_Remand_Order.pdf	UNITED STATES OF AMERICA MERIT SYSTEMS PROTECTION BOARD DIANNE V. PEASLEE, Appellant, v. DEPARTMENT OF VETERANS AFFAIRS, Agency.DOCKET NUMBER PH-0714-20-0060-I-1 DATE: February 20, 2025 THIS ORDER IS NONPRECEDENTIAL1 Dianne V. Peaslee , Chelsea, Maine, pro se. Joshua Carver , Esquire, Augusta, Maine, for the agency. BEFORE Cathy A. Harris, Chairman Henry J. Kerner, Vice Chairman Raymond A. Limon, Member REMAND ORDER The appellant has filed a petition for review of the initial decision, which sustained her removal pursuant to 38 U.S.C. § 714. For the reasons discussed below, we GRANT the petition for review, VACATE the initial decision, and 1 A nonprecedential order is one that the Board has determined does not add significantly to the body of MSPB case law. Parties may cite nonprecedential orders, but such orders have no precedential value; the Board and administrative judges are not required to follow or distinguish them in any future decisions. In contrast, a precedential decision issued as an Opinion and Order has been identified by the Board as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c). REMAND the matter to the Northeastern Regional Office for further adjudication in accordance with this Remand Order. BACKGROUND At all times relevant to the present appeal, the appellant held the position of Housekeeping Aid. Initial Appeal File (IAF), Tab 4 at 15. By letter dated October 3, 2019, the agency proposed her removal pursuant to 38 U.S.C. § 714 based on the charges of conduct unbecoming a Federal employee (three specifications) and lack of candor (one specification). Id. at 36-38. The three specifications of conduct unbecoming concerned alleged actions or statements by the appellant concerning two fellow agency employees in a purported relationship during July 2019. Id. at 36. Specification one alleged that, on or about July 15, 2019, the appellant contacted via Facebook Messenger an acquaintance of the female coworker trying to obtain her home address and/or that of the male coworker, in an apparent “effort to convey the information” to patients who were concerned that she was going to report them for use or possession of marijuana. Id. Specification two alleged that, during the above-referenced conversation, the appellant referred to the male coworker, a veteran who also received medical treatment at the facility, as “half gay.” Id. Finally, specification three alleged that, on or about July 17, 2019, after receiving a harassment/trespass notice from VA police, the appellant commented “David is going to kill him” in reference to the male coworker. Id. The lack of candor charge alleged that, on or about July 17, 2019, when questioned by agency law enforcement regarding the “kill him” comment, the appellant first denied making the statement but changed her answer to “I don’t think I did” after being informed that there was a witness to the statement. Id. The proposal noted that the appellant had previously received a suspension for conduct unbecoming in January 2019. Id. at 37.2 In her written reply, the appellant asserted that she already knew both addresses and maintained that she had referred to the coworker as “half gay” because he identified himself using that term. Id. at 20. She also stated that, although she did not remember it, she did tell agency police that she made the statement “Dave is going to kill him” to a fellow employee, but she argued that the statement “should never have been taken literally” and a VA police officer told her that no threat had been made. Id. at 20-21. The appellant challenged the lack of candor charge and argued that “even” the proposing official did not believe that she knowingly denied making the statement during her VA police interview because he did not choose a charge such as “falsification of a statement.” Id. at 21. She maintained that she was not sure if the message chain that the proposing official had received was complete, in part because she did not have a copy of the “complaint” made against her. Id. at 23. Finally, the appellant submitted a separate reply addressing “the personality conflict” between herself and the proposing official. Id. at 19, 24-27. She also attached the “complete” Facebook messenger chain at issue in the appeal. Id. at 29-35. The deciding official sustained the three specifications of conduct unbecoming, and the agency removed the appellant effective October 23, 2019. Id. at 15-18. The removal decision did not address or make any findings regarding the lack of candor charge. Id. at 16. The appellant filed a Board appeal and requested a hearing. IAF, Tab 1 at 2. She alleged that, on the date on which she was placed on administrative leave, the proposing official had a “conversation” with a nonsupervisory agency employee and the employee asked the proposing official if the appellant had been fired. Id. at 5. The appellant alleged that the proposing official responded “yes” and stated that the appellant’s problem was that, when she saw a problem, she complained to him about it. Id. The appellant alleged that the complaints to which the proposing official was alluding included various problems she saw in the workplace concerning inadequate cleaning supplies, other employees3 receiving favorable treatment, and an individual being promoted to a supervisory position despite an alleged sexual harassment complaint under investigation. Id. Regarding the conduct unbecoming charge, she repeated her contention that she “already knew both of the addresses.” Id. She also acknowledged that she had referred to the individual as “half gay or whatever,” but she maintained she should not be punished for using a term used by the individual himself. Id. Finally, she argued that the campus police department had investigated her “going to kill him” statement and “it was decided that no threat had been made.” Id. The administrative judge scheduled a status conference. IAF, Tab 9. In email communications with the agency’s representative regarding her unavailability to attend the conference, the appellant stated that she “was going to approach the case in a different court.” Id. at 1. The administrative judge followed up with the appellant directly, who informed the administrative judge that “her intention was to do nothing more in this appeal” and “indicated that the Board could investigate her claims.” Id. The administrative judge issued an order informing the parties that the Board does not investigate claims and that, if the parties wish to pursue their claims, they are required to present evidence and argument. Id. The administrative judge notified the appellant that she would decide the case on the documentary record and set forth a close of record date. Id. at 1-2. The appellant submitted two additional pleadings after the close of the record, which either repeated information in her initial appeal or only tangentially concerned her removal. IAF, Tabs 11-12. The administrative judge issued a decision based on the written record affirming the removal. IAF, Tab 13, Initial Decision (ID) at 1, 5. The administrative judge found that the agency had proven the charges of conduct unbecoming (all specifications) and lack of candor by substantial evidence. ID at 3-4. Finally, the administrative judge found that the Board lacked the authority to mitigate the penalty of removal and that the agency’s action must be affirmed. ID at 4.4 The appellant has filed a petition for review, in which she repeats her argument regarding the proposing official’s improper communications, raises various new arguments both related and unrelated to the charged misconduct, and submits new evidence for the first time. Petition for Review (PFR) File, Tab 1. The agency has filed a response, arguing that the appellant has presented no basis for granting her petition for review. PFR File, Tab 3 at 4-5. DISCUSSION OF ARGUMENTS ON REVIEW The administrative judge properly found that the agency proved its charge of conduct unbecoming. On petition for review, the appellant argues that the administrative judge failed to ensure that the agency adhered to proper rules and protocols concerning her removal. PFR File, Tab 1 at 4. She repeats her allegation that the proposing official improperly told another employee that she had been “terminated” before the deciding official issued a decision and that the removal decision was invalid because it was not signed within 15 days of the proposed removal. Id.; IAF, Tab 1 at 5. The appellant also raises several arguments regarding her removal for the first time on review. She claims that the agency did not provide her with a copy of her employee or personnel file, which she “assume[s]” includes a broad range of information including her history of difficulties with the two coworkers involved in the charged misconduct and their work failures and verbal complaints she made against these and other individuals. PFR File, Tab 1 at 4. The appellant argues that the female coworker involved in the charged misconduct had been terminated but was improperly visiting VA property during the time period in which her alleged conduct unbecoming took place. Id. at 5. She alleges various agency wrongdoing concerning pay and benefits from the time she was placed on administrative leave until the date that her “termination paperwork was signed.” Id. at 5-6. The bulk of the appellant’s new arguments on review concern perceived errors in the agency’s investigation of the underlying circumstances, including her personal issues with the proposing official and his5 “inexcusable sexist attitude.” Id. at 6-8. Finally, she submits new evidence for the first time on review, consisting of messages between herself and a coworker between July 31, 2018, and April 30, 2020. Id. at 10-30. The Board will not consider an argument raised for the first time in a petition for review absent a showing that it is based on new and material evidence not previously available despite the party’s due diligence. See Banks v. Department of the Air Force , 4 M.S.P.R. 268, 271 (1980). Pursuant to 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. See Avansino v. U.S. Postal Service , 3 M.S.P.R. 211, 214 (1980). The appellant has made no such showing regarding the electronic messages, all but one page of which predated the close of the record on March 30, 2020. PFR File, Tab 1 at 10-30; IAF, Tab 9 at 1. Moreover, the appellant has offered no explanation as to how these messages are material to whether the agency proved the three specifications of conduct unbecoming a Federal employee. PFR File, Tab 1 at 10-30. Similarly, the appellant offers no explanation as to why she failed to previously raise her arguments regarding the insufficiency of the agency’s investigation into her alleged misconduct, tangential matters involving her personal issues with the proposing official and coworkers, and procedural complaints regarding the agency’s processing of her pay and benefits and failure to provide her personnel file. PFR File, Tab 1 at 4-8. Even after the appellant told the administrative judge that “her intention was to do nothing more in this appeal,” the administrative judge provided the parties the opportunity to file submissions with additional evidence and argument before reaching a decision based on the written record. IAF, Tab 9 at 1. The appellant nonetheless failed to raise any of these arguments in the additional pleadings that she submitted after the close of the record. IAF, Tabs 11-12. Having considered the appellant’s arguments on review, which largely constitute mere disagreement with the administrative judge’s findings, we find6 that she has presented no basis for disturbing the initial decision. See Crosby v. U.S. Postal Service , 74 M.S.P.R. 98, 105-06 (1997) (finding no reason to disturb the administrative judge’s findings when she considered the evidence as a whole, drew appropriate inferences, and made reasoned conclusions on issues of credibility); Broughton v. Department of Health and Human Services , 33 M.S.P.R. 357, 359 (1987) (same). The appellant has presented no basis for disturbing the administrative judge’s finding that the agency proved the three specifications of conduct unbecoming a Federal employee by substantial evidence, which is supported by the documentary record.2 ID at 3-4; IAF, Tab 4 at 29-35, 40-41, 44 -47, 50-52; see Canada v. Department of Homeland Security , 113 M.S.P.R. 509, ¶ 9 (2010) (explaining that a charge of “conduct unbecoming” has no specific elements of proof; it is established by proving that the employee committed the acts alleged in support of the broad label). To the extent that the appellant alleges that the proposing official violated her right to due process when he improperly told another employee that she had been “terminated” before the deciding official issued a decision, she has not alleged that the deciding official was aware of this communication or otherwise relied on new and material information as a basis for her decision sustaining the proposed removal. PFR File, Tab 1 at 4; IAF, Tab 1 at 5; see Ward v. U.S. Postal Service, 634, F.3d 1274, 1279-80 (Fed. Cir. 2011); Stone v. Federal Deposit Insurance Corporation , 179 F.3d 1368, 1376-77 (Fed. Cir. 1999). The administrative judge did not consider the appellant’s untimely harmful error argument that the deciding official failed to sign the removal decision within 15 days of the issuance of the proposed removal, which she raised more than 1 month after the close of the record. ID at 4 n.2; IAF, Tab 9 at 1, Tab 12 at 3-4. The appellant repeats this argument that her removal was not valid because “it 2 Substantial evidence is the “degree of relevant evidence that a reasonable person, considering the record as a whole, might accept as adequate to support a conclusion, even though other reasonable persons might disagree.” 5 C.F.R. § 1201.4(p). 7 was not complete within the allotted timeframe.” PFR File, Tab 1 at 4. The record demonstrates that the deciding official electronically signed the removal decision on October 25, 2019, fifteen business days3 after the date on the proposed removal, October 3, 2019, and therefore complied with the requirements of 38 U.S.C. § 714(c)(2).4 IAF, Tab 1 at 13, Tab 4 at 36; see 38 U.S.C. § 714(c) (2) (stating that the agency “shall issue a final decision with respect to a removal” taken pursuant to that section “not later than 15 business days after” the agency provides notice of the proposed action). We vacate the administrative judge’s finding sustaining the lack of candor charge because the deciding official did not sustain this charge in the removal decision. The administrative judge found that the agency proved the charge of lack of candor by substantial evidence. ID at 4. Although the proposed removal included the charge of lack of candor, the removal decision did not address or make any findings regarding that charge. IAF, Tab 4 at 16-18, 36. The Board is required to review the agency’s decision on an adverse action solely on the grounds invoked by the agency; the Board may not substitute what it considers to be a more adequate or proper basis. Fargnoli v. Department of Commerce , 123 M.S.P.R. 333, ¶ 7 (2016). Because the deciding official did not sustain the lack of candor charge in the four corners of the removal decision and the record is devoid of any further evidence regarding the deciding official’s determination, we find that the only charge at issue in the present appeal is conduct unbecoming. Therefore, we vacate the administrative judge’s finding regarding the lack of candor charge. ID at 4. 3 October 14, 2019 was a Federal holiday. See Ledbetter v. Department of Veterans Affairs, 2022 MSPB 41, ¶ 7 n.2 (excluding weekends and Federal holidays when calculating the filing deadline under 38 U.S.C. § 714(c)(4)(B)). 4 Although the date accompanying the appellant’s signature states “3 Sept ’19,” the proposed removal is dated October 3, 2019. IAF, Tab 4 at 38. 8 Remand is required for other reasons. Although the arguments the appellant raised on review are unavailing, this case requires remand for other reasons. After the initial decision in this appeal was issued, the U.S. Court of Appeals for the Federal Circuit (Federal Circuit) decided Rodriguez v. Department of Veterans Affairs , 8 F.4th 1290 (Fed. Cir. 2021), wherein it found that the agency erred when it applied the substantial evidence burden of proof instead of the preponderance of the evidence burden to its internal review of a disciplinary action under 38 U.S.C. § 714. In this case, the agency did the same. The record here is unclear as to what standard of proof the agency applied in this case. The Federal Circuit’s decision in Rodriguez applies to all pending cases, regardless of when the events at issue took place. Semenov v. Department of Veterans Affairs , 2023 MSPB 16, ¶ 22. The administrative judge and the parties did not have the benefit of Rodriguez or the Board’s application of it in Semenov when developing the record. Therefore, we are unable to address the impact of those decisions on this appeal. Accordingly, on remand, the administrative judge shall adjudicate what standard the agency applied in its internal review of the matter, and whether the agency committed harmful error in so doing. See id., ¶¶ 22-24 (finding it appropriate to apply the harmful error standard from 5 U.S.C. § 7701(c)(2) to actions taken under 38 U.S.C. § 714). We also remand this appeal on the issue of penalty. The appellant did not challenge the agency’s removal penalty either during the pendency of her appeal or in her petition for review. PFR File, Tab 1 at 4-8; IAF, Tab 1 at 5, Tab 11 at 4, Tab 12 at 3. The administrative judge did not conduct a penalty analysis in the initial decision. ID at 4. However, the Federal Circuit has clarified that, notwithstanding the Board’s lack of mitigation authority, the Board is required to review an agency’s selected penalty for legal sufficiency. Sayers v. Department of Veterans Affairs , 954 F.3d 1370, 1375-79 (Fed. Cir. 2020). The Federal Circuit later explained in Brenner v. Department of Veterans Affairs , 990 F.3d9 1313, 1323-27 (Fed. Cir. 2021) that the Board’s review must include the agency’s penalty determination whether the action is based on misconduct or performance. See Semenov, 2023 MSPB 16, ¶ 45. Finally, the Federal Circuit also found in Connor v. Department of Veterans Affairs , 8 F.4th 1319, 1325-26 (Fed. Cir. 2021) that the agency and the Board must still apply the Douglas factors to the selection and review of penalties in disciplinary actions taken under 38 U.S.C. § 714. See Semenov, 2023 MSPB 16, ¶ 49. Having reviewed the record, we note that the deciding official explained in the removal decision that she had taken numerous factors into account, including the seriousness of the offense, the appellant’s past work record and years of service, and the existence of any extenuating circumstances which would justify the mitigation of the proposed removal penalty, but she had determined that removal was appropriate and within the range of reasonableness. IAF, Tab 4 at 16. Moreover, the appellant’s record shows a prior disciplinary action for similar misconduct including a 3-day suspension for conduct unbecoming a Federal employee in January 2019, 9 months before the proposed removal at issue in the present appeal. Id. at 36-38, 54, 64. Nonetheless, the record is not clear as to the extent that the agency deciding official considered the Douglas factors. On remand, the administrative judge should permit the parties to submit additional evidence and argument on the penalty issue. See Semenov, 2023 MSPB 16, ¶ 50. In reviewing the penalty, the administrative judge should determine whether the agency proved by substantial evidence that it properly applied the Douglas factors and whether the agency’s penalty selection was reasonable, and, if not, he or she should remand the appellant’s removal to the agency for a new decision on the appropriate penalty. Id. (citing Connor, 8 F.4th at 1326-27; Sayers, 954 F.3d at 1375-76, 1379). If remanded to the agency, the agency should be mindful of its obligations to provide the appellant with the necessary due process. Bryant v. Department of Veterans Affairs , 2024 MSPB 16, ¶ 13 (finding that the DVA Accountability Act10 maintains due process protections for employees); see Brenner, 990 F.3d at 1324 (same); 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). The administrative judge who decided this case is no longer with the Board and this case must be assigned to a new administrative judge on remand. The administrative judge shall hold a hearing limited to the issues on remand, if one is requested by the appellant. 5 U.S.C. § 7701(a)(1); see Semenov, 2023 MSPB 16, ¶ 24 (instructing the administrative judge to hold a supplemental hearing addressing whether the agency’s use of the substantial evidence standard in a 38 U.S.C. § 714 removal decision constituted harmful error). ORDER For the reasons discussed above, we remand this case to the Northeastern Regional Office for further adjudication in accordance with this Remand Order. As outlined above, the administrative judge shall address what standard of proof the agency applied in its internal review of the matter and whether it committed harmful error in so doing. See Semenov, 2023 MSPB 16, ¶ 24. If the administrative judge determines that the agency did not commit harmful error in applying a burden of proof, then the administrative judge shall determine whether the agency proved by substantial evidence that it applied the relevant Douglas factors, and that the penalty was reasonable. If the administrative judge determines that the agency did not properly apply the relevant Douglas factors and that the agency’s penalty was not reasonable, the administrative judge shall remand the appellant’s removal to the agency for a new decision on the appropriate penalty. The administrative judge may, if appropriate, incorporate into the remand initial decision prior findings from the initial decision and this Remand Order. However, if any of the evidence and argument developed on remand causes the administrative judge to disagree with the previous findings11 contained in the initial decision, he or she should provide an explanation in the remand initial decision. FOR THE BOARD: ______________________________ Gina K. Grippando Clerk of the Board Washington, D.C.12	Peaslee_Dianne_V_PH-0714-20-0060-I-1_Remand_Order.pdf	2025-02-20	DIANNE V. PEASLEE v. DEPARTMENT OF VETERANS AFFAIRS, MSPB Docket No. PH-0714-20-0060-I-1, February 20, 2025	PH-0714-20-0060-I-1	NP
151	https://www.mspb.gov/decisions/nonprecedential/Holmes_KennethSF-0752-22-0425-A-1_Final_Order.pdf	UNITED STATES OF AMERICA MERIT SYSTEMS PROTECTION BOARD KENNETH HOLMES, Appellant, v. DEPARTMENT OF TRANSPORTATION, Agency.DOCKET NUMBER SF-0752-22-0425-A-1 DATE: February 20, 2025 THIS FINAL ORDER IS NONPRECEDENTIAL1 Sara Bloom , Esquire, Anchorage, Alaska, for the appellant. Maria Teresa Davenport , Esquire, Anchorage, Alaska, for the agency. Daniel James Silva , Miramar, Florida, for the agency. Rebecca G. Snowdall , Washington, D.C., for the agency. BEFORE Cathy A. Harris, Chairman Henry J. Kerner, Vice Chairman Raymond A. Limon, 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 addendum initial decision, which granted in part the appellant’s motion for attorney fees and costs in the amount of $78,243.50. On petition for review, the agency primarily disputes the administrative judge’s initial decision in a separate addendum proceeding but also briefly reargues that the administrative judge should have reduced the fee award here based on the appellant’s alleged limited success. Attorney Fee Petition for Review File, Tab 1 at 23-25. Generally, we grant 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 pay the attorney of record $78,243.50 in fees and costs. The agency must complete this action no later than 20 days after the date of this decision. Title 5 of the United States Code, section 1204(a)(2) (5 U.S.C. § 1204(a)(2)). We also ORDER the agency to tell the appellant and the attorney promptly in writing when it believes it has fully carried out the Board’s Order and of the2 actions it has taken to carry out the Board’s Order. We ORDER the appellant and the attorney to provide all necessary information that the agency requests to help it carry out the Board’s Order. The appellant and the attorney, 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 or the attorney that it has fully carried out the Board’s Order, the appellant or the attorney may file a petition for enforcement with the office that issued the initial decision on this appeal, if the appellant or the attorney believes that the agency did not fully carry out the Board’s Order. The petition should contain specific reasons why the appellant or the attorney believes the agency has not fully carried out the Board’s Order, and should include the dates and results of any communications with the agency. See 5 C.F.R. § 1201.182(a). NOTICE OF APPEAL RIGHTS2 You may obtain review of this final decision. 5 U.S.C. § 7703(a)(1). By statute, the nature of your claims determines the time limit for seeking such review and the appropriate forum with which to file. 5 U.S.C. § 7703(b). Although we offer the following summary of available appeal rights, the Merit Systems Protection Board does not provide legal advice on which option is most appropriate for your situation and the rights described below do not represent a statement of how courts will rule regarding which cases fall within their jurisdiction. If you wish to seek review of this final decision, you should immediately review the law applicable to your claims and carefully follow all filing time limits and requirements. Failure to file within the applicable time limit may result in the dismissal of your case by your chosen forum. Please read carefully each of the three main possible choices of review below to decide which one applies to your particular case. If you have questions 2 Since the issuance of the initial decision in this matter, the Board may have updated the notice of review rights included in final decisions. As indicated in the notice, the Board cannot advise which option is most appropriate in any matter.3 about whether a particular forum is the appropriate one to review your case, you should contact that forum for more information. (1) Judicial review in general . As a general rule, an appellant seeking judicial review of a final Board order must file a petition for review with the U.S. Court of Appeals for the Federal Circuit, which must be received by the court within 60 calendar days of the date of issuance of this decision. 5 U.S.C. § 7703(b)(1)(A). If you submit a petition for review to the U.S. Court of Appeals for the Federal Circuit, you must submit your petition to the court at the following address: U.S. Court of Appeals for the Federal Circuit 717 Madison Place, N.W. Washington, D.C. 20439 Additional information about the U.S. Court of Appeals for the Federal Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11. If you are interested in securing pro bono representation for an appeal to the U.S. Court of Appeals for the Federal Circuit, you may visit our website at http://www.mspb.gov/probono for information regarding pro bono representation for Merit Systems Protection Board appellants before the Federal Circuit. The Board neither endorses the services provided by any attorney nor warrants that any attorney will accept representation in a given case. (2) Judicial or EEOC review of cases involving a claim of discrimination . This option applies to you only if you have claimed that you were affected by an action that is appealable to the Board and that such action was based, in whole or in part, on unlawful discrimination. If so, you may obtain4 judicial review of this decision —including a disposition of your discrimination claims —by filing a civil action with an appropriate U.S. district court ( not the U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems Protection Board , 582 U.S. 420 (2017). If you have a representative in this case, and your representative receives this decision before you do, then you must file with the district court no later than 30 calendar days after your representative receives this decision. If the action involves a claim of discrimination based on race, color, religion, sex, national origin, or a disabling condition, you may be entitled to representation by a court-appointed lawyer and to waiver of any requirement of prepayment of fees, costs, or other security. See 42 U.S.C. § 2000e-5(f) and 29 U.S.C. § 794a. Contact information for U.S. district courts can be found at their respective websites, which can be accessed through the link below: http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx . Alternatively, you may request review by the Equal Employment Opportunity Commission (EEOC) of your discrimination claims only, excluding all other issues . 5 U.S.C. § 7702(b)(1). You must file any such request with the EEOC’s Office of Federal Operations within 30 calendar days after you receive this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case, and your representative receives this decision before you do, then you must file with the EEOC no later than 30 calendar days after your representative receives this decision. If you submit a request for review to the EEOC by regular U.S. mail, the address of the EEOC is: Office of Federal Operations Equal Employment Opportunity Commission P.O. Box 77960 Washington, D.C. 200135 If you submit a request for review to the EEOC via commercial delivery or by a method requiring a signature, it must be addressed to: Office of Federal Operations Equal Employment Opportunity Commission 131 M Street, N.E. Suite 5SW12G Washington, D.C. 20507 (3) Judicial review pursuant to the Whistleblower Protection Enhancement Act of 2012 . This option applies to you only if you have raised claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D). If so, and your judicial petition for review “raises no challenge to the Board’s disposition of allegations of a prohibited personnel practice described in section 2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i), (B), (C), or (D),” then you may file a petition for judicial review either with the U.S. Court of Appeals for the Federal Circuit or any court of appeals of competent jurisdiction.3 The court of appeals must receive your petition for review within 60 days of the date of issuance of this decision. 5 U.S.C. § 7703(b)(1)(B). If you submit a petition for judicial review to the U.S. Court of Appeals for the Federal Circuit, you must submit your petition to the court at the following address: 3 The original statutory provision that provided for judicial review of certain whistleblower claims by any court of appeals of competent jurisdiction expired on December 27, 2017. The All Circuit Review Act, signed into law by the President on July 7, 2018, permanently allows appellants to file petitions for judicial review of MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals for the Federal Circuit or any other circuit court of appeals of competent jurisdiction. The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115-195, 132 Stat. 1510. 6 U.S. Court of Appeals for the Federal Circuit 717 Madison Place, N.W. Washington, D.C. 20439 Additional information about the U.S. Court of Appeals for the Federal Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11. If you are interested in securing pro bono representation for an appeal to the U.S. Court of Appeals for the Federal Circuit, you may visit our website at http://www.mspb.gov/probono for information regarding pro bono representation for Merit Systems Protection Board appellants before the Federal Circuit. The Board neither endorses the services provided by any attorney nor warrants that any attorney will accept representation in a given case. Contact information for the courts of appeals can be found at their respective websites, which can be accessed through the link below: http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx . FOR THE BOARD: ______________________________ Gina K. Grippando Clerk of the Board Washington, D.C.7	Holmes_KennethSF-0752-22-0425-A-1_Final_Order.pdf	2025-02-20	KENNETH HOLMES v. DEPARTMENT OF TRANSPORTATION, MSPB Docket No. SF-0752-22-0425-A-1, February 20, 2025	SF-0752-22-0425-A-1	NP
152	https://www.mspb.gov/decisions/nonprecedential/Holmes_KennethSF-0752-22-0425-C-1_Order.pdf	UNITED STATES OF AMERICA MERIT SYSTEMS PROTECTION BOARD KENNETH HOLMES, Appellant, v. DEPARTMENT OF TRANSPORTATION, Agency.DOCKET NUMBER SF-0752-22-0425-C-1 DATE: February 20, 2025 THIS ORDER IS NONPRECEDENTIAL1 Sara L. Bloom , Esquire, Anchorage, Alaska, for the appellant. Maria Teresa Davenport , Esquire, Anchorage, Alaska, for the agency. Daniel James Silva , Miramar, Florida, for the agency. BEFORE Cathy A. Harris, Chairman Henry J. Kerner, Vice Chairman Raymond A. Limon, Member ORDER The agency has filed a petition for review of the compliance initial decision, which granted the appellant’s petition for enforcement and found the agency in noncompliance with the Board’s final order reversing 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). removal. For the reasons set forth below, we DENY the agency’s petition for review and AFFIRM the compliance initial decision’s finding that the agency is in noncompliance with the Board’s final order concerning the appellant’s reinstatement. BACKGROUND The agency issued a decision removing the appellant from his position as a FV-0802-H Engineering Technician (802 ET) based on the charge of inability to perform the essential functions of his position because of a medical condition. Holmes v. Department of Transportation , MSPB Docket No. SF-0752-22-0425- I-1, Initial Appeal File (IAF), Tab 6 at 14-18. The appellant retired in lieu of removal on December 22, 2020. IAF, Tab 9 at 128-29. On appeal, the appellant challenged the merits of the charge and raised allegations of disparate treatment disability discrimination, retaliation for making a reasonable accommodation request, and discrimination based on a denial of a reasonable accommodation. IAF, Tabs 1, 14, 43. The administrative judge properly found that the Board had jurisdiction over the removal action.2 IAF, Tab 11. He then issued an initial decision reversing the appellant’s removal and ordering the agency to restore the appellant effective December 22, 2020. IAF, Tab 60, Initial Decision (ID) at 47. Specifically, the administrative judge found that the agency did not prove its charge, ID at 15-40, that the appellant proved his affirmative defense of disability discrimination based on a denial of a reasonable accommodation, ID at 40-41, and that the appellant did not establish his claim of disparate treatment disability discrimination or his claim of retaliation for making a reasonable accommodation request, ID at 42-47. Following the agency’s petition for review, the Board issued a January 22, 2024 Final Order affirming the 2 When an employee decides to retire because his employing agency has issued a decision to remove him and the employee retires on the date the removal was to become effective, the employee does not lose the right to file a Board appeal contesting the removal. Scalese v. Department of the Air Force , 68 M.S.P.R. 247, 249 (1995).2 initial decision and again ordering the agency to reverse the appellant’s removal and restore him effective December 22, 2020, within 20 days of the Board’s decision. Holmes v. Department of Transportation , MSPB Docket No. SF-0752- 22-0425-I-1, Final Order (Jan. 22, 2024); Holmes v. Department of Transportation, MSPB Docket No. SF-0752-22-0425-I-1, Petition for Review File, Tab 6, Final Order at 21. In the Final Order, the Board ordered the agency to pay the appellant the correct amount of back pay, interest on back pay, and other required benefits. Id. On February 15, 2024, the appellant filed a petition for enforcement regarding the reinstatement portion of the Board’s January 22, 2024 Final Order. Holmes v. Department of Transportation , MSPB Docket No. SF-0752-22-0425- C-1, Compliance File (CF), Tab 1. He claimed that the agency had not reinstated him to his prior position by the deadline in the Final Order even though he was ready, willing, and able to return to work.3 Id. While the appeal was pending before the administrative judge, the agency submitted documentation contending that it had returned the appellant to duty on April 8, 2024, and that it was in compliance with the Board’s reinstatement order. CF, Tab 11. The agency explained that it had exercised its “right to assign work” and decided that the appellant should be returned full -time to the Complex, but still as an 802 ET.4 Id. 3 This petition for enforcement is one of four addendum proceedings in this appeal: Holmes v. Department of Transportation , MSPB Docket No. SF-0752-22-0425-A-1, concerns the appellant’s request for attorney’s fees; Holmes v. Department of Transportation, MSPB Docket No. SF-0752-22-0425-P-1, concerns the appellant’s request for compensatory damages; and Holmes v. Department of Transportation , MSPB Docket No. SF-0752-22-0425-C-2, is a petition for enforcement concerning the backpay component of the Final Order. 4 In the Board’s January 22, 2024 Final Order, we determined that the essential functions of the 802 ET position include some Contracting Officer Representative (COR) duties, which is project coordinator work that involves monitoring Federal contractors performing installation and construction at various worksites; some work at the “Complex,” a warehouse facility that Engineering Services uses to store items and build out projects; and some installation and construction work. Final Order at 7-11. We agreed with the administrative judge that the appellant showed he could perform3 at 7; CF, Tab 12. The appellant’s new supervisor, R.N., who testified at the hearing in the removal appeal, determined that the appellant was incapable of performing enough installation and construction work to contribute to the unit and that the agency would not be assigning him such duties. CF, Tab 11 at 50-52, Tab 12 at 6-9. The appellant, however, argued that the agency was still not in compliance with the reinstatement order because its delay was inexcusable and because it had improperly assigned him full-time to the Complex without engaging in an interactive process with him to determine the installation and construction duties he could perform both with and without accommodation. CF, Tab 13. The administrative judge subsequently issued a compliance initial decision finding the agency in noncompliance with the Board’s Final Order. CF, Tab 14, Compliance Initial Decision (CID) at 1. The administrative judge recognized that the agency returned the appellant to work as an 802 ET, but he concluded that the agency did not properly reinstate the appellant to a position encompassing the same duties. CID at 5-11. The administrative judge noted that installation and construction duties are essential functions of the 802 ET position and that stationing the appellant at the Complex was modifying his duties and the essential functions of the position.5 CID at 8, 11. The administrative judge considered R.N.’s declaration that based on the medical information from the removal appeal the appellant could not perform, with or without accommodation, enough installation and construction duties to advance the Agency’s mission—even though the appellant maintained he was ready and willing to do installation and work in the Complex, COR work, and some installation and construction work, both with and without accommodations. Id. at 7-15. Nevertheless, we recognized, as did the administrative judge, that the 802 ET position currently involves mostly installation and construction duties, and that COR duties and work at the Complex are now performed by employees in a different job series. Id. 5 The administrative judge explained that R.N. indicated that work at the Complex is now typically performed by 346 Logistics Management Specialists, whose work does not involve the essential functions of installation and construction duties. CID at 8.4 construction work—but ultimately determined that the agency did not show that it had a strong overriding interest or compelling reason for limiting the appellant’s duties solely to the Complex, and that, in fact, the agency’s actions constituted a clear declaration of noncompliance with the Board’s Final Order. CID at 5-16. The administrative judge thus concluded that the agency had not returned the appellant to duties consistent with his 802 ET position and had not engaged in a renewed interactive process with him to ascertain what particular accommodations, if any, he needed to perform those duties, and he granted the petition for enforcement. CID at 16-17. In its petition for review of the compliance initial decision, the agency argues that the administrative judge incorrectly found that it did not comply with the Board’s reinstatement order, Compliance Petition for Review (CPFR) File, Tab 1 at 14-21, that the compliance initial decision improperly permits the Board to “micromanage” the agency’s assignment of work, id. at 21-23, and that the administrative judge’s erroneous decision in this case “infected” the other addendum proceedings in this appeal, id. at 23-24.6 The agency also submits a declaration from its human resources director discussing the appellant’s backpay and related documentation. Id. at 26-112. The appellant filed a response, and the agency filed a reply. CPFR File, Tabs 3, 4. ANALYSIS When the Board corrects a wrongful personnel action, it is required to ensure that the employee is returned, as nearly as possible, to the status quo ante. Kerr v. National Endowment for the Arts , 726 F.2d 730, 733 (Fed. Cir. 1984). The agency bears the burden of proving compliance with the Board’s order by a preponderance of the evidence. Vaughan v. Department of Agriculture , 116 M.S.P.R. 319, ¶ 5 (2011); 5 C.F.R. § 1201.183(d). An agency’s assertions of 6 The agency submitted one petition for review for all four addendum proceedings. CPFR File, Tab 1 at 4. The petition for review almost exclusively addresses issues presented in this specific appeal.5 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. Restoration to the status quo ante requires that the employee be placed back in his former position or in a position substantially equivalent in scope and status to his former position. Taylor v. Department of the Treasury , 43 M.S.P.R. 221, 224-25 (1990). If the agency does not return the employee to his prior position and prior duties, it must show first that it has a strong overriding interest or compelling reason requiring reassignment to a different position, and second that it has reassigned the employee to a position that is substantially similar to the former position. Gorny v. Department of the Interior , 115 M.S.P.R. 520, ¶ 6 (2011). In analyzing such an issue, the Board must look beyond the title and grade of the positions involved and must compare the scope of the actual duties and responsibilities of the new position with those of the former position. Id. We agree with the administrative judge that the agency is not in compliance with the Board’s order. Here, the administrative judge concluded that although the agency returned the appellant to an 802 ET position of the same title and grade, there was “no question” that it had not returned him to a position encompassing the same duties because it adamantly maintained that it would not assign the appellant installation and construction work, and, therefore, the appellant would in actuality be functioning as a 346 Logistics Management Specialist (346 LMS) instead of an 802 ET. CID at 11. The administrative judge further concluded after a thorough discussion that the agency did not show that it has a strong overriding interest or compelling reason for limiting the appellant’s duties to those of a 346 LMS working at the Complex. CID at 11-16. We see no error in the administrative judge’s analysis. 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 she6 considered the evidence as a whole, drew appropriate inferences, and made reasoned conclusions). On review, the agency argues that the administrative judge erred legally in finding that it did not restore the appellant to an 802 ET position with duties substantially equivalent in scope and status to those performed by other 802 ETs. CPFR File, Tab 1 at 15. It maintains that although work at the Complex—which involves support functions such as handling FedEx, cargo, and other deliveries, procuring supplies and materials for upcoming projects, and managing tool and equipment inventories—is not the same as installation and construction duties performed in the field, the administrative judge did not meaningfully assess whether these functions are nonetheless substantially equivalent in scope and status. Id. However, such a contention is without merit. The administrative judge explicitly and correctly cited the Board’s case law explaining that in cases such as this the Board must undertake a substantive assessment of whether the actual duties and responsibilities to which the employee was returned are either the same as or substantially equivalent in scope and status to the duties and responsibilities held prior to the wrongful discharge, and he directly analyzed this issue. CID at 7-8 (citing Kerr, 726 F.2d at 733). The administrative judge discussed the relevant evidence and testimony related to the appellant’s reinstatement and the duties of his position, addressed the agency’s argument that the change in duties was justified, and explicitly found that the appellant was assigned to a different position with different duties, with a clear implicit finding that those duties were not substantially equivalent in scope and status. CID at 6-11. The agency’s mere disagreement with the administrative judge’s weighing of the evidence on this point does not establish a basis for review. Broughton v. Department of Health and Human Services , 33 M.S.P.R. 357, 359 (1987). To this end, the agency also argues that an administrative judge with the Equal Employment Opportunity Commission (EEOC) found in a different case7 that the work the appellant performed at the Complex was neither “outside his job description or his physical limits” nor “demeaning or atypical of the types of assignments” performed by other 802 ETs, thus suggesting that the appellant’s current position and duties are substantially equivalent in scope and status. CPFR File, Tab 1 at 15; CF, Tab 3 at 78. However, not only did this EEOC case involve a separate issue, but the agency raised this argument before the administrative judge and is therefore rearguing issues already raised and properly resolved below. CF, Tab 3 at 9, 13, 59-60; Broughton, 33 M.S.P.R. at 359. Although the administrative judge did not specifically discuss the EEOC administrative judge’s comment in the initial decision, an administrative judge’s failure to mention all of the evidence of record does not mean that he did not consider it in reaching his decision. Marques v. Department of Health and Human Services , 22 M.S.P.R. 129, 132 (1984) (recognizing that), aff’d, 776 F.2d 1062 (Fed. Cir. 1985) (Table). Finally, the agency claims in this regard that the appellant’s full-time assignment to the Complex does not preclude his ability to do installation and construction work because, “[a]lthough not usual,” 802 ETs have performed installation and construction duties at the Complex before, such as installing shelving units, and therefore it could satisfy an obligation to assign the appellant some installation and construction work. CPFR File, Tab 1 at 16. However, not only does the agency’s argument again merely reargue an issue already raised before and properly decided by the administrative judge, but we find that this contention only underscores the reasoned conclusion that the scope of the appellant’s current 802 ET duties are not equivalent to the installation and construction field work performed by the other 802 ETs. In its petition for review, the agency also argues that the administrative judge ignored newly submitted evidence and, as a result, erroneously concluded that the agency does not have a strong overriding interest or compelling reasons for not assigning the appellant work in the field. CPFR File, Tab 1 at 17. Specifically, the agency disputes the administrative judge’s conclusion that to8 accept the agency’s arguments about the appellant’s inability to perform the essential functions of the 802 ET position because he cannot perform enough installation and construction work and agree that it has compelling reasons to assign the appellant the duties of the 346 LMS position, he would have to conclude that the Board’s Final Order was incorrect and that the appellant cannot perform the essential functions of the 802 ET position with a reasonable accommodation. Id.; CID at 14. The agency alleges instead that “[t]he limited question in the underlying proceeding, and the basis of Board jurisdiction, was whether the [a]gency established the charge of inability to perform the essential functions of the position and whether the [a]gency should have offered an accommodation that would allow the [a]gency to avoid removal—not whether the [a]gency could keep [a]ppellant fully occupied in the field, an issue that the full Board refused to reopen the underlying proceedings to address.” CPFR File, Tab 1 at 17. The agency thus argues that it was free to consider evidence as to its ability to keep the appellant fully occupied in the field, and that the administrative judge “disregarded” the new evidence that R.N. had determined that he could not keep the appellant occupied in the field and that no light duty assignments could reasonably be performed in the field. Id. We disagree with the agency for several reasons. To start, the administrative judge by no means “ignored” R.N.’s new declarations explaining that he does not believe that the appellant can perform enough installation and construction work to advance the agency’s mission. CF, Tab 11 at 50-52, Tab 12 at 6-9. The administrative judge discussed at length R.N.’s declarations expressing concerns about the appellant’s qualifications to perform such tasks, a potential disruption to workplace operations and negative employee morale, and the agency’s responsibility to be an “effective steward of taxpayer money.” CID at 8-9, 11, 14-16; CF, Tab 11 at 52. He instead found, for example, that the agency’s speculative and conclusory claim that accommodating the appellant’s disabilities in the field would lower the morale of his coworkers was9 unconvincing and unsupported. CID at 16. More importantly, the administrative judge determined that the agency’s arguments in total improperly sought to relitigate the conclusions in the Board’s Final Order. CID at 14.7 Furthermore, the Board did not previously “refuse” to reopen the proceedings to address the issue of whether the agency could keep the appellant fully occupied in the field. CPFR File, Tab 1 at 17. Instead, the Board denied the agency’s request to solicit testimony from R.N. as to whether a “modified” installation and construction position could constitute a full-time position because we disagreed with the agency’s characterization of the Board as creating a “modified” position. Final Order at 20-21. We specifically rejected the agency’s contention that it was required to reinstate the appellant to a permanent “modified” position at the Complex because we determined that the appellant could perform 802 ET installation and construction work with and without accommodations. Final Order at 21. Yet, the agency has reinstated the appellant to a permanent position at the Complex anyway, contrary to reasoning in the Final Order. We agree with the administrative judge that the agency’s argument indeed represents a declaration of noncompliance and that the agency’s arguments both below and on review misconstrue and misrepresent the Board’s January 2024 Final Order, seek to revisit claims already rejected by the Board, and appear to represent an effort to sidestep the Board’s reinstatement order. CID at 13-14; see also Henry v. Department of Veterans Affairs , 108 M.S.P.R. 458, ¶ 24 (2008) (explaining that enforcement proceedings are not to be used to revisit the merits of an underlying 7 The agency also argues that the administrative judge made an improper theoretical credibility determination against R.N. CPFR File, Tab 1 at 18-19. In the compliance initial decision, the administrative judge noted that he would not find R.N.’s claims in the declarations to be credible, largely because they were inconsistent with R.N.’s previous candid live testimony about ways in which he might accommodate an employee like the appellant, but that the administrative judge did not need to reach this point because the agency may not relitigate the merits of the appeal in a petition for enforcement. CID at 14 n.7. We see no issue with the administrative judge’s comment.10 appeal). As the administrative judge astutely pointed out, proper compliance with the Board’s Final Order could be something like a collaborative discussion between the appellant and his managers to determine the precise contours of an accommodation that could help the appellant with a particular field assignment, which, due to the nature of the work, may occur on an ongoing basis. CID at 15. We agree with the administrative judge that the appellant’s claim that he discussed ways he might perform installation and construction tasks and how his medical limitations could be accommodated with R.N. and various coworkers’ sounds like an appropriate renewed interactive process contemplated by the Final Order. Id.; CF, Tab 13 at 17-23. Although it may be that after constructively working with the appellant to accommodate him the agency subsequently determines that the appellant cannot perform in the 802 ET position, or, as the administrative judge noted, the parties come to an agreement for the appellant to perform some other duties. CID at 15. However, the agency must first at least attempt to work with the appellant and comply with the Board’s order. As the administrative judge observed, the agency may not disregard its obligations under the Rehabilitation Act. CID at 11. We fully concur with the administrative judge’s reasoning on this point. In this regard, the agency also contends that the compliance initial decision impermissibly permits the Board to “micromanage” the agency, allowing Board oversight of the agency to continue in perpetuity, skipping established processes such as equal employment opportunity or negotiated grievance procedures, as the appellant could challenge any accommodation or particular assignment. CPFR File, Tab 1 at 21-23. Similarly, the agency claims that the compliance initial decision gives the appellant “license to prematurely invoke the Board’s jurisdiction” without waiting for final agency action by pursuing a new compliance action to challenge any agency effort to assess his ability to perform the essential functions of the 802 ET position. Id. at 23. The agency also11 expresses concerns as to whether the appellant is qualified to perform direct installation and construction duties. Id. at 22. We are not swayed by the agency’s contentions. The compliance initial decision has not inserted the Board as a “micromanager” of the agency’s assignment of work. The Board concluded in the removal appeal that the appellant can perform some installation and construction work with and without accommodation and that the agency engaged in disability discrimination based on its failure to provide the appellant a reasonable accommodation. Final Order at 7-18. The compliance initial decision simply requires that the agency engage in a renewed interactive process with the appellant to reach an agreement with him as to his duties as an 802 ET or appropriate accommodations, instead of unilaterally assigning him to work full-time at the Complex based on information and reasons that were rejected in the underlying appeal. CID at 17. Lastly, the agency argues in its petition for review that the administrative judge factually erred by ignoring record evidence of the appellant’s medical limitations and his prior injury on the job. CPFR File, Tab 1 at 19-21. The agency asserts that the Board stated in the Final Order that it “underst[oo]d the agency’s concern that it cannot ‘simply ignore’ medical recommendations that put it on notice of appellant’s physical limitations,” and argues that it properly relied on medical evidence from the underlying proceedings to conclude that it had compelling reasons for assigning the appellant different duties. Id. at 19; see also Final Order at 13-14. The agency claims that the appellant’s prior medical documentation is “replete with warnings” he could suffer further injury, that the administrative judge ignored hearing evidence from the removal appeal regarding the appellant’s prior work-related injury, which is “perhaps inevitable,” and that the administrative judge erroneously faulted the agency for not requesting new medical documentation before assessing its ability to keep the appellant fully occupied out in the field. CPFR File, Tab 1 at 19-21.12 The agency’s assertions are again unavailing for several reasons. Although the Board did indeed comment in the Final Order that the agency cannot simply ignore medical evidence of the appellant’s physical limitations, we also cautioned the agency that its arguments on the whole “largely ignore[d]” medical evidence “explicitly indicat[ing] that the appellant can perform some installation and construction work.” Final Order at 14. And we explicitly found no error in the administrative judge’s finding that 802 ETs mostly perform installation and construction work and that the appellant can perform some of this work with accommodations. Id. at 21. The agency’s assertion above is thus misleading and in opposition to the Board’s final decision in this case. Additionally, the administrative judge did not erroneously fault the agency for not requesting new medical documentation from the appellant. Instead, the administrative judge contrasted the facts of this case against one in which the Board found that the agency appropriately altered the appellant’s duties based on medical documentation provided upon reinstatement, noting that here there was no new medical documentation, the agency made no attempt to talk with the appellant about any accommodations he may need, and the agency unilaterally decided to assign the appellant the duties of a different position. CID at 13 (citing Bruton v. Department of Veterans Affairs , 112 M.S.P.R. 313, ¶¶ 8-9 (2009)). The administrative judge simply highlighted the fact that it appears the agency has done nothing to work with the appellant. Moreover, the agency’s arguments regarding the appellant’s medical documentation from the removal appeal and his prior injury are again directly contrary to the Board’s Final Order in this case and therefore cannot support the agency’s continued noncompliance with the Board’s reinstatement order. It is well established that 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. See Sarver v. Department of the Treasury, 26 M.S.P.R. 685, 688 (1985).13 Finally, because we agree with the administrative judge that the agency is not in compliance with the Board’s Final Order, we also disagree with the agency’s assertion that the administrative judge’s conclusions in the other addendum proceedings were necessarily erroneous. CPFR File, Tab 1 at 23-24. ORDER We ORDER the agency to submit to the Clerk of the Board within 60 days of the date of this Order satisfactory evidence of compliance as described herein. This 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 agency must serve all parties with copies of its submissions. The agency’s submission should be filed under the new docket number assigned to the compliance referral matter, SF-0752-22-0425-X-1 . All subsequent filings should refer to the compliance referral 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(a) (8). If the appellant does not respond to the agency’s evidence of compliance, the Board may assume that he is satisfied with the agency’s actions 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 Protection14 Board to show cause why the Board should not impose sanctions for the agency’s noncompliance in this case. 5 C.F.R. § 1201.183(c). 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 the Board’s final resolution of the remaining issues in this petition for enforcement, 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.15	Holmes_KennethSF-0752-22-0425-C-1_Order.pdf	2025-02-20	KENNETH HOLMES v. DEPARTMENT OF TRANSPORTATION, MSPB Docket No. SF-0752-22-0425-C-1, February 20, 2025	SF-0752-22-0425-I-1; SF-0752-22-0425-C-1	NP
153	https://www.mspb.gov/decisions/nonprecedential/Holmes_KennethSF-0752-22-0425-P-1_Final_Order.pdf	UNITED STATES OF AMERICA MERIT SYSTEMS PROTECTION BOARD KENNETH HOLMES, Appellant, v. DEPARTMENT OF TRANSPORTATION, Agency.DOCKET NUMBER SF-0752-22-0425-P-1 DATE: February 20, 2025 THIS FINAL ORDER IS NONPRECEDENTIAL1 Sara Bloom , Esquire, Anchorage, Alaska, for the appellant. Maria Teresa Davenport , Esquire, Anchorage, Alaska, for the agency. Daniel James Silva , Miramar, Florida, 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 addendum initial decision, which granted in part and denied in part the appellant’s motion for compensatory 1 A nonprecedential order is one that the Board has determined does not add significantly to the body of MSPB case law. Parties may cite nonprecedential orders, but such orders have no precedential value; the Board and administrative judges are not required to follow or distinguish them in any future decisions. In contrast, a precedential decision issued as an Opinion and Order has been identified by the Board as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c). damages and ordered the agency to pay him $25,000.00 in non-pecuniary damages. On petition for review, the agency primarily disputes the administrative judge’s initial decision in a separate addendum proceeding but also briefly reargues that compensatory damages are barred here because the agency made a good faith effort to accommodate the appellant. Generally, we grant 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 concur with the administrative judge’s decision to grant the appellant’s motion for compensatory damages and award him $25,000.00 in non-pecuniary damages. The agency is ORDERED to issue a check to the appellant in this amount. 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. The appellant, if not notified, should ask the agency about its progress. See 5 C.F.R. § 1201.181(b).2 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). NOTICE TO THE APPELLANT REGARDING YOUR RIGHT TO REQUEST ATTORNEY FEES AND COSTS You may be entitled to be paid by the agency for your reasonable attorney fees and costs. To be paid, you must meet the requirements set forth at Title 5 of the United States Code (5 U.S.C.), sections 7701(g), 1221(g), or 1214(g). The regulations may be found at 5 C.F.R. §§ 1201.201, 1201.202, and 1201.203. If you believe you meet these requirements, you must file a motion for attorney fees and costs WITHIN 60 CALENDAR DAYS OF THE DATE OF THIS DECISION. You must file your motion for attorney fees and costs with the office that issued the initial decision on your appeal. NOTICE OF APPEAL RIGHTS2 You may obtain review of this final decision. 5 U.S.C. § 7703(a)(1). By statute, the nature of your claims determines the time limit for seeking such review and the appropriate forum with which to file. 5 U.S.C. § 7703(b). Although we offer the following summary of available appeal rights, the Merit Systems Protection Board does not provide legal advice on which option is most appropriate for your situation and the rights described below do not represent a statement of how courts will rule regarding which cases fall within their jurisdiction. If you wish to seek review of this final decision, you should 2 Since the issuance of the initial decision in this matter, the Board may have updated the notice of review rights included in final decisions. As indicated in the notice, the Board cannot advise which option is most appropriate in any matter.3 immediately review the law applicable to your claims and carefully follow all filing time limits and requirements. Failure to file within the applicable time limit may result in the dismissal of your case by your chosen forum. Please read carefully each of the three main possible choices of review below to decide which one applies to your particular case. If you have questions about whether a particular forum is the appropriate one to review your case, you should contact that forum for more information. (1) Judicial review in general . As a general rule, an appellant seeking judicial review of a final Board order must file a petition for review with the U.S. Court of Appeals for the Federal Circuit, which must be received by the court within 60 calendar days of the date of issuance of this decision. 5 U.S.C. § 7703(b)(1)(A). If you submit a petition for review to the U.S. Court of Appeals for the Federal Circuit, you must submit your petition to the court at the following address: U.S. Court of Appeals for the Federal Circuit 717 Madison Place, N.W. Washington, D.C. 20439 Additional information about the U.S. Court of Appeals for the Federal Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11. If you are interested in securing pro bono representation for an appeal to the U.S. Court of Appeals for the Federal Circuit, you may visit our website at http://www.mspb.gov/probono for information regarding pro bono representation for Merit Systems Protection Board appellants before the Federal Circuit. The Board neither endorses the services provided by any attorney nor warrants that any attorney will accept representation in a given case. 4 (2) Judicial or EEOC review of cases involving a claim of discrimination . This option applies to you only if you have claimed that you were affected by an action that is appealable to the Board and that such action was based, in whole or in part, on unlawful discrimination. If so, you may obtain judicial review of this decision —including a disposition of your discrimination claims —by filing a civil action with an appropriate U.S. district court ( not the U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems Protection Board , 582 U.S. 420 (2017). If you have a representative in this case, and your representative receives this decision before you do, then you must file with the district court no later than 30 calendar days after your representative receives this decision. If the action involves a claim of discrimination based on race, color, religion, sex, national origin, or a disabling condition, you may be entitled to representation by a court-appointed lawyer and to waiver of any requirement of prepayment of fees, costs, or other security. See 42 U.S.C. § 2000e-5(f) and 29 U.S.C. § 794a. Contact information for U.S. district courts can be found at their respective websites, which can be accessed through the link below: http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx . Alternatively, you may request review by the Equal Employment Opportunity Commission (EEOC) of your discrimination claims only, excluding all other issues . 5 U.S.C. § 7702(b)(1). You must file any such request with the EEOC’s Office of Federal Operations within 30 calendar days after you receive this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case, and your representative receives this decision before you do, then you must file with the EEOC no later than 30 calendar days after your representative receives this decision. If you submit a request for review to the EEOC by regular U.S. mail, the address of the EEOC is: 5 Office of Federal Operations Equal Employment Opportunity Commission P.O. Box 77960 Washington, D.C. 20013 If you submit a request for review to the EEOC via commercial delivery or by a method requiring a signature, it must be addressed to: Office of Federal Operations Equal Employment Opportunity Commission 131 M Street, N.E. Suite 5SW12G Washington, D.C. 20507 (3) Judicial review pursuant to the Whistleblower Protection Enhancement Act of 2012 . This option applies to you only if you have raised claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D). If so, and your judicial petition for review “raises no challenge to the Board’s disposition of allegations of a prohibited personnel practice described in section 2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i), (B), (C), or (D),” then you may file a petition for judicial review either with the U.S. Court of Appeals for the Federal Circuit or any court of appeals of competent jurisdiction.3 The court of appeals must receive your petition for review within 60 days of the date of issuance of this decision. 5 U.S.C. § 7703(b)(1)(B). 3 The original statutory provision that provided for judicial review of certain whistleblower claims by any court of appeals of competent jurisdiction expired on December 27, 2017. The All Circuit Review Act, signed into law by the President on July 7, 2018, permanently allows appellants to file petitions for judicial review of MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals for the Federal Circuit or any other circuit court of appeals of competent jurisdiction. The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115-195, 132 Stat. 1510. 6 If you submit a petition for judicial review to the U.S. Court of Appeals for the Federal Circuit, you must submit your petition to the court at the following address: U.S. Court of Appeals for the Federal Circuit 717 Madison Place, N.W. Washington, D.C. 20439 Additional information about the U.S. Court of Appeals for the Federal Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11. If you are interested in securing pro bono representation for an appeal to the U.S. Court of Appeals for the Federal Circuit, you may visit our website at http://www.mspb.gov/probono for information regarding pro bono representation for Merit Systems Protection Board appellants before the Federal Circuit. The Board neither endorses the services provided by any attorney nor warrants that any attorney will accept representation in a given case. Contact information for the courts of appeals can be found at their respective websites, which can be accessed through the link below: http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx . FOR THE BOARD: ______________________________ Gina K. Grippando Clerk of the Board Washington, D.C.7	Holmes_KennethSF-0752-22-0425-P-1_Final_Order.pdf	2025-02-20	KENNETH HOLMES v. DEPARTMENT OF TRANSPORTATION, MSPB Docket No. SF-0752-22-0425-P-1, February 20, 2025	SF-0752-22-0425-P-1	NP
154	https://www.mspb.gov/decisions/nonprecedential/Holmes_KennethSF-0752-22-0425-C-2_Order.pdf	UNITED STATES OF AMERICA MERIT SYSTEMS PROTECTION BOARD KENNETH HOLMES, Appellant, v. DEPARTMENT OF TRANSPORTATION, Agency.DOCKET NUMBER SF-0752-22-0425-C-2 DATE: February 20, 2025 THIS ORDER IS NONPRECEDENTIAL1 Sara L. Bloom , Esquire, Anchorage, Alaska, for the appellant. Maria Teresa Davenport , Esquire, Anchorage, Alaska, for the agency. Daniel James Silva , Miramar, Florida, for the agency. BEFORE Cathy A. Harris, Chairman Henry J. Kerner, Vice Chairman Raymond A. Limon, Member ORDER The agency has filed a petition for review of the compliance initial decision, which granted the appellant’s petition for enforcement and found the agency in noncompliance with the Board’s final order reversing 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). removal. For the reasons set forth below, we DENY the agency’s petition for review and AFFIRM the compliance initial decision’s finding that the agency is in noncompliance with the back pay portion of the Board’s final order. BACKGROUND The agency issued a decision removing the appellant from his position as a FV-0802-H Engineering Technician (802 ET) based on the charge of inability to perform the essential functions of his position because of a medical condition. Holmes v. Department of Transportation , MSPB Docket No. SF-0752-22-0425- I-1, Initial Appeal File (IAF), Tab 6 at 14-18. The appellant retired in lieu of removal on December 22, 2020. IAF, Tab 9 at 128-29. On appeal, the appellant challenged the merits of the charge and raised allegations of disparate treatment disability discrimination, retaliation for making a reasonable accommodation request, and discrimination based on a denial of a reasonable accommodation. IAF, Tabs 1, 14, 43. The administrative judge properly found that the Board had jurisdiction over the removal action. IAF, Tab 11. He then issued an initial decision reversing the appellant’s removal and ordering the agency to restore the appellant effective December 22, 2020. IAF, Tab 60, Initial Decision (ID) at 47. Specifically, the administrative judge found that the agency did not prove its charge, ID at 15-40, that the appellant proved his affirmative defense of disability discrimination based on a denial of a reasonable accommodation, ID at 40-41, and that the appellant did not establish his claim of disparate treatment disability discrimination nor his claim of retaliation for making a reasonable accommodation request, ID at 42-47. Following the agency’s petition for review, the Board issued a January 22, 2024 Final Order affirming the initial decision and again ordering the agency to reverse the appellant’s removal and restore him effective December 22, 2020. Holmes v. Department of Transportation , MSPB Docket No. SF-0752-22-0425-I-1, Final Order (Jan. 22, 2024); Holmes v. Department of Transportation , MSPB Docket2 No. SF-0752-22-0425-I-1, Petition for Review File, Tab 6, Final Order at 21. As relevant here, the Final Order also ordered the agency to pay the appellant the correct amount of back pay, interest on back pay, and other required benefits. Id. On March 25, 2024, the appellant filed a petition for enforcement regarding the back pay component of the Board’s January 22, 2024 Final Order. Holmes v. Department of Transportation , MSPB Docket No. SF-0752-22-0425-C-2, Compliance File (CF), Tab 1.2 He claimed that the agency had yet to pay him any back pay or provide any accounting of its back pay and benefits calculation despite his cooperation in providing the necessary information. Id. On May 30, 2024, the administrative judge issued a compliance initial decision finding the agency in noncompliance with the Board’s Final Order as to the back pay requirement. CF, Tab 17, Compliance Initial Decision (CID) at 1, 13. The administrative judge agreed that, as of that date, the agency had not yet paid the appellant any back pay or provided any accounting. CID at 7. The administrative judge also considered the agency’s assertion that it would pay the appellant back pay for the period between December 22, 2020, and October 31, 2021—the date that the appellant had at one time indicated he intended to retire— but that it did not believe the appellant was entitled to back pay up to the date of his reinstatement because of its conclusion that he was not “ready, willing, and able to work” during that period. CID at 7-11; CF, Tab 5 at 12-13. The administrative judge first rejected the agency’s claim that the appellant was only due back pay up to a date he had once indicated he planned to retire, noting that Federal employees often change their retirement plans up to the date of retirement 2 This petition for enforcement is one of four addendum proceedings in this appeal: Holmes v. Department of Transportation , MSPB Docket No. SF-0752-22-0425-A-1, concerns the appellant’s request for attorney’s fees; Holmes v. Department of Transportation, MSPB Docket No. SF-0752-22-0425-P-1, concerns the appellant’s request for compensatory damages; and Holmes v. Department of Transportation , MSPB Docket No. SF-0752-22-0425-C-1, is a petition for enforcement concerning the reinstatement component of the Final Order.3 and that there is no way to know what would have happened had the agency not removed the appellant. CID at 11. The administrative judge then rejected the agency’s argument that the appellant was not entitled to back pay up to his reinstatement because he was not “ready, willing, and able to work” during that period. CID at 11-13. Specifically, the administrative judge addressed the agency’s claim that the appellant’s new supervisor, R.N., had determined based on medical documentation from the removal appeal that the appellant could not perform enough installation and construction duties with or without accommodations to advance the agency’s mission and that, although it would be reinstating him as an 802 ET, it would not be assigning him installation and construction duties and would instead be assigning him full-time to warehouse duties at the “Complex.”3 CID at 7-8; CF, Tab 5 at 6-11, Tab 14 at 7-15. The administrative judge explained that the agency had thus concluded that because the appellant “is not, and was not at the time of separation, medically capable of performing the essential installation and construction functions of the 802 ET position,” he was not ready, willing, and able to work during the entirety of the period from December 22, 2020, up to his reinstatement and was therefore not entitled to backpay. CF, Tab 5 at 9; CID at 7-8. But the administrative judge determined that the agency’s claims represented “baseline disagreement” with the Board’s January 2024 Final Order finding that the appellant could perform the essential 3 In the Board’s January 22, 2024 Final Order, we determined that the essential functions of the 802 ET position include some Contracting Officer Representative (COR) duties, which is project coordinator work that involves monitoring Federal contractors performing installation and construction at various worksites; some work at the “Complex,” a warehouse facility that Engineering Services uses to store items and build out projects; and some installation and construction work. Final Order at 7-11. We agreed with the administrative judge that the appellant showed he could perform work in the Complex, COR work, and some installation and construction work, both with and without accommodations. Id. at 7-15. We also recognized, as did the administrative judge, that the 802 ET position currently involves mostly installation and construction duties, and that COR duties and work at the Complex are now performed by employees in a different job series. Id.4 functions of the 802 ET position with a reasonable accommodation and that it inappropriately sought to revisit the merits of the removal appeal. CID at 12. The administrative judge therefore concluded that the appellant is entitled to back pay from the date of his separation through the date of reinstatement and that the agency had not paid him such back pay, and he thus granted the appellant’s petition for enforcement. CID at 11-13. The agency has filed a petition for review of the compliance initial decision. Compliance Petition for Review (CPFR) File, Tab 1. The agency filed the same petition for review in all four addendum proceedings related to the initial removal appeal, and the arguments in its petition for review almost exclusively concern issues presented in the compliance appeal related to the appellant’s reinstatement. Id.; see also Holmes v. Department of Transportation , MSPB Docket No. SF-0752-22-0425-C-1. However, with respect to the instant matter, the agency briefly claims that the administrative judge erroneously required it to have “adduced new medical documentation post-hearing” for a finding that the appellant was not ready, available, and willing to work, which rendered “superfluous” the requirement that the appellant be “willing” to work. CPFR File, Tab 1 at 24. The agency also claims that because the appellant “rejected” the agency’s efforts to reassign him to the Complex before his removal, he was not willing to accept duties that were “indisputably” available and is therefore not entitled to full back pay. Id. The agency also includes a declaration from its human resources director stating that the agency has now processed appropriate back pay for the undisputed period (December 20, 2020, until October 31, 2021) and provides supporting documentation to that effect. Id. at 26-112. The appellant filed a response. CPFR File, Tab 3. The agency filed a reply, again mostly discussing issues related to the appellant’s reinstatement. CPFR File, Tab 4.5 ANALYSIS When the Board corrects a wrongful personnel action, it is required to ensure that the employee is returned, as nearly as possible, to the status quo ante. Kerr v. National Endowment for the Arts , 726 F.2d 730, 733 (Fed. Cir. 1984). Consistent with Office of Personnel Management regulations and the Board’s case law, however, an employee is not entitled to back pay for any period of time during which he was not “ready, willing, and able” to perform his duties because of an incapacitating illness or injury, or for reasons unrelated to or not caused by the unjustified or unwarranted personnel action. 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); 5 C.F.R. § 550.805(c). The agency bears the initial burden of proving that it has provided an appellant the appropriate amount of back pay. King, 100 M.S.P.R. 116, ¶ 13. When the agency produces “concrete and positive evidence, as opposed to a mere theoretical argument,” that the appellant was not ready, willing, and able to work during all or part of the period during which back pay is claimed, the burden of proof shifts to the appellant to show his entitlement to back pay. Id. (quoting Piccone v. United States , 407 F.2d 866, 876 (Cl. Ct. 1969)). We agree with the administrative judge that the agency is not in compliance with the Board’s order regarding back pay. We see no error in the administrative judge’s conclusion that the appellant is entitled to back pay from the date of his separation through the date of his reinstatement and that the agency’s arguments to the contrary constitute inappropriate attempts to reargue the merits of the underlying removal appeal. CID at 12 (citing Henry v. Department of Veterans Affairs , 108 M.S.P.R. 458, ¶ 24 (2008) (explaining that enforcement proceedings are not to be used to revisit the merits of an underlying appeal)); see also Crosby v. U.S. Postal Service , 74 M.S.P.R. 98, 106 (1997) (finding no reason to disturb the administrative6 judge’s findings when she considered the evidence as a whole, drew appropriate inferences, and made reasoned conclusions on issues of credibility). The agency’s brief claims on review are without merit. The administrative judge did not require that the agency produce new medical documentation post-hearing in order to find the appellant “willing” to work during the back pay period up to his reinstatement. CPFR File, Tab 1 at 24. Instead, the administrative judge properly explained that the agency had determined that the appellant cannot work as an 802 ET based on the same medical evidence it possessed at the time of the removal to highlight the fact that the agency’s arguments directly contradict the Board’s Final Order, which determined that the appellant can perform the essential functions of the 802 ET position with accommodation. CID at 11-12. The administrative judge simply emphasized that there has been no new, intervening medical information that changed the appellant’s ability to perform the 802 ET position. CID at 11-13. We are also unpersuaded by the agency’s claim that the administrative judge should not have found the appellant “ready, willing, and able” to perform his duties because the appellant “rejected” the agency’s efforts to reassign him to the Complex before his removal. CPFR File, Tab 1 at 24. The agency raised this argument below, and the mere reargument of issues already raised and properly resolved by the administrative judge below does not establish a basis for review. Broughton v. Department of Health and Human Services , 33 M.S.P.R. 357, 359 (1987); CF, Tab 5 at 11. In any event, the agency’s argument again ignores that the Board’s Final Order found that the appellant can perform the essential functions of the 802 ET position with accommodation and ordered the agency to reinstate him to that position. Final Order at 21. The agency has not provided “concrete and positive evidence” that the appellant was not ready, willing, and able to work during the period during which back pay is claimed. King, 100 M.S.P.R. 116, ¶ 13. 7 Finally, the new evidence that the agency submits with its petition for review does not establish that it is in compliance with the Board’s Final Order. The agency claims that it has now paid the appellant the appropriate amount of back pay and benefits for December 22, 2020, through October 31, 2021. CPFR File, Tab 1 at 26-112.4 However, as discussed above, we agree with the administrative judge that the appellant is entitled to back pay from December 22, 2020, through the date of his reinstatement. Therefore, the agency is still in noncompliance with the back pay portion of the Board’s Final Order. ORDER We ORDER the agency to submit to the Clerk of the Board within 60 days of the date of this Order satisfactory evidence of compliance as described herein. This 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 agency must serve all parties with copies of its submissions. The agency’s submission should be filed under the new docket number assigned to the compliance referral matter, SF-0752-22-0425-X-2 . All subsequent filings should refer to the compliance referral 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. 4 In his response to the agency’s petition for review, the appellant questions the accounting that the agency provides. CPFR File, Tab 3 at 7 n.3. However, its unnecessary to address the appellant’s concerns because we have found that the agency is still in noncompliance with the Board’s Final Order. 8 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(a) (8). If the appellant does not respond to the agency’s evidence of compliance, the Board may assume that he is satisfied with the agency’s actions 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 cause why the Board should not impose sanctions for the agency’s noncompliance in this case. 5 C.F.R. § 1201.183(c). 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 the Board’s final resolution of the remaining issues in this petition for enforcement, 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.9	Holmes_KennethSF-0752-22-0425-C-2_Order.pdf	2025-02-20	KENNETH HOLMES v. DEPARTMENT OF TRANSPORTATION, MSPB Docket No. SF-0752-22-0425-C-2, February 20, 2025	SF-0752-22-0425-I-1; SF-0752-22-0425-C-2	NP
155	https://www.mspb.gov/decisions/nonprecedential/Ruiz_Miguel_A_AT-0731-24-0080-I-1_Final_Order.pdf	UNITED STATES OF AMERICA MERIT SYSTEMS PROTECTION BOARD MIGUEL ANGEL RUIZ, Appellant, v. DEPARTMENT OF TRANSPORTATION, Agency.DOCKET NUMBER AT-0731-24-0080-I-1 DATE: February 20, 2025 THIS FINAL ORDER IS NONPRECEDENTIAL1 Louis Francis Robbio , Esquire, North Port, Florida, for the appellant. Robert Espy , Esquire, College Park, Georgia, for the agency. Marquitta Robinson , Fort Worth, Texas, 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 probationary termination and negative suitability determination appeal for lack of jurisdiction. On petition for review, the appellant reargues that 1 A nonprecedential order is one that the Board has determined does not add significantly to the body of MSPB case law. Parties may cite nonprecedential orders, but such orders have no precedential value; the Board and administrative judges are not required to follow or distinguish them in any future decisions. In contrast, a precedential decision issued as an Opinion and Order has been identified by the Board as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c). the Board should exercise jurisdiction over his appeal because he believes that his right to due process is guaranteed by the Fifth Amendment to the U.S. Constitution and his procedural due process rights were violated when the agency terminated him because of “false and misleading information,” that the agency engaged in harmful error, and that the agency’s suitability determination should be rendered null as a result of all of the above. Generally, we grant petitions such as this one only in the following circumstances: the initial decision contains erroneous findings of material fact; the initial decision is based on an erroneous interpretation of statute or regulation or the erroneous application of the law to the facts of the case; the administrative judge’s rulings during either the course of the appeal or the initial decision were not consistent with required procedures or involved an abuse of discretion, and the resulting error affected the outcome of the case; or new and material evidence or legal argument is available that, despite the petitioner’s due diligence, was not available when the record closed. Title 5 of the Code of Federal Regulations, section 1201.115 (5 C.F.R. § 1201.115). After fully considering the filings in this appeal, we conclude that the petitioner has not established any basis under section 1201.115 for granting the petition for review. Therefore, we DENY the petition for review and AFFIRM the initial decision, which is now the Board’s final decision. 5 C.F.R. § 1201.113(b). NOTICE OF APPEAL RIGHTS2 You may obtain review of this final decision. 5 U.S.C. § 7703(a)(1). By statute, the nature of your claims determines the time limit for seeking such review and the appropriate forum with which to file. 5 U.S.C. § 7703(b). Although we offer the following summary of available appeal rights, the Merit Systems Protection Board does not provide legal advice on which option is most appropriate for your situation and the rights described below do not represent a 2 Since the issuance of the initial decision in this matter, the Board may have updated the notice of review rights included in final decisions. As indicated in the notice, the Board cannot advise which option is most appropriate in any matter.2 statement of how courts will rule regarding which cases fall within their jurisdiction. If you wish to seek review of this final decision, you should immediately review the law applicable to your claims and carefully follow all filing time limits and requirements. Failure to file within the applicable time limit may result in the dismissal of your case by your chosen forum. Please read carefully each of the three main possible choices of review below to decide which one applies to your particular case. If you have questions about whether a particular forum is the appropriate one to review your case, you should contact that forum for more information. (1) Judicial review in general . As a general rule, an appellant seeking judicial review of a final Board order must file a petition for review with the U.S. Court of Appeals for the Federal Circuit, which must be received by the court within 60 calendar days of the date of issuance of this decision. 5 U.S.C. § 7703(b)(1)(A). If you submit a petition for review to the U.S. Court of Appeals for the Federal Circuit, you must submit your petition to the court at the following address: U.S. Court of Appeals for the Federal Circuit 717 Madison Place, N.W. Washington, D.C. 20439 Additional information about the U.S. Court of Appeals for the Federal Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11. If you are interested in securing pro bono representation for an appeal to the U.S. Court of Appeals for the Federal Circuit, you may visit our website at http://www.mspb.gov/probono for information regarding pro bono representation for Merit Systems Protection Board appellants before the Federal Circuit. The3 Board neither endorses the services provided by any attorney nor warrants that any attorney will accept representation in a given case. (2) Judicial or EEOC review of cases involving a claim of discrimination . This option applies to you only if you have claimed that you were affected by an action that is appealable to the Board and that such action was based, in whole or in part, on unlawful discrimination. If so, you may obtain judicial review of this decision —including a disposition of your discrimination claims —by filing a civil action with an appropriate U.S. district court ( not the U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems Protection Board , 582 U.S. 420 (2017). If you have a representative in this case, and your representative receives this decision before you do, then you must file with the district court no later than 30 calendar days after your representative receives this decision. If the action involves a claim of discrimination based on race, color, religion, sex, national origin, or a disabling condition, you may be entitled to representation by a court-appointed lawyer and to waiver of any requirement of prepayment of fees, costs, or other security. See 42 U.S.C. § 2000e-5(f) and 29 U.S.C. § 794a. Contact information for U.S. district courts can be found at their respective websites, which can be accessed through the link below: http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx . Alternatively, you may request review by the Equal Employment Opportunity Commission (EEOC) of your discrimination claims only, excluding all other issues . 5 U.S.C. § 7702(b)(1). You must file any such request with the EEOC’s Office of Federal Operations within 30 calendar days after you receive this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case, and your representative receives this decision before you do, then you must file4 with the EEOC no later than 30 calendar days after your representative receives this decision. If you submit a request for review to the EEOC by regular U.S. mail, the address of the EEOC is: Office of Federal Operations Equal Employment Opportunity Commission P.O. Box 77960 Washington, D.C. 20013 If you submit a request for review to the EEOC via commercial delivery or by a method requiring a signature, it must be addressed to: Office of Federal Operations Equal Employment Opportunity Commission 131 M Street, N.E. Suite 5SW12G Washington, D.C. 20507 (3) Judicial review pursuant to the Whistleblower Protection Enhancement Act of 2012 . This option applies to you only if you have raised claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D). If so, and your judicial petition for review “raises no challenge to the Board’s disposition of allegations of a prohibited personnel practice described in section 2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i), (B), (C), or (D),” then you may file a petition for judicial review either with the U.S. Court of Appeals for the Federal Circuit or any court of appeals of competent jurisdiction.3 The court of appeals must receive your petition for 3 The original statutory provision that provided for judicial review of certain whistleblower claims by any court of appeals of competent jurisdiction expired on December 27, 2017. The All Circuit Review Act, signed into law by the President on July 7, 2018, permanently allows appellants to file petitions for judicial review of MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals for the Federal Circuit or any other circuit court of appeals of competent jurisdiction. The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115-195, 132 Stat. 1510. 5 review within 60 days of the date of issuance of this decision. 5 U.S.C. § 7703(b)(1)(B). If you submit a petition for judicial review to the U.S. Court of Appeals for the Federal Circuit, you must submit your petition to the court at the following address: U.S. Court of Appeals for the Federal Circuit 717 Madison Place, N.W. Washington, D.C. 20439 Additional information about the U.S. Court of Appeals for the Federal Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11. If you are interested in securing pro bono representation for an appeal to the U.S. Court of Appeals for the Federal Circuit, you may visit our website at http://www.mspb.gov/probono for information regarding pro bono representation for Merit Systems Protection Board appellants before the Federal Circuit. The Board neither endorses the services provided by any attorney nor warrants that any attorney will accept representation in a given case. Contact information for the courts of appeals can be found at their respective websites, which can be accessed through the link below: http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx . FOR THE BOARD: ______________________________ Gina K. Grippando Clerk of the Board Washington, D.C.6	Ruiz_Miguel_A_AT-0731-24-0080-I-1_Final_Order.pdf	2025-02-20	MIGUEL ANGEL RUIZ v. DEPARTMENT OF TRANSPORTATION, MSPB Docket No. AT-0731-24-0080-I-1, February 20, 2025	AT-0731-24-0080-I-1	NP
156	https://www.mspb.gov/decisions/nonprecedential/Spriggs_Angela_T_DC-0752-22-0038-I-4_Remand_Order.pdf	UNITED STATES OF AMERICA MERIT SYSTEMS PROTECTION BOARD ANGELA TERESA SPRIGGS, Appellant, v. DEPARTMENT OF TRANSPORTATION, Agency.DOCKET NUMBER DC-0752-22-0038-I-4 DATE: February 20, 2025 THIS ORDER IS NONPRECEDENTIAL1 Angela Teresa Spriggs , Owings, Maryland, pro se. Samuel Pinsky , Washington, D.C., for the agency. BEFORE Cathy A. Harris, Chairman Henry J. Kerner, Vice Chairman Raymond A. Limon, Member REMAND ORDER The appellant has filed a petition for review of the initial decision, which dismissed the appeal for failure to prosecute . For the reasons discussed below, we GRANT the appellant’s petition for review, VACATE the initial decision , and 1 A nonprecedential order is one that the Board has determined does not add significantly to the body of MSPB case law. Parties may cite nonprecedential orders, but such orders have no precedential value; the Board and administrative judges are not required to follow or distinguish them in any future decisions. In contrast, a precedential decision issued as an Opinion and Order has been identified by the Board as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c). REMAND the case to the Washington Regional Office for further adjudication in accordance with this Remand Order. BACKGROUND The appellant was employed by the agency as an FV-343/I Management & Program Analyst. Spriggs v. Department of Transportation, MSPB Docket No. DC-0752-22-0038-I-1, Initial Appeal File (IAF), Tab 4 at 7. On October 22, 2021, the agency removed the appellant for failure to follow instructions and absence without leave. Id. at 7-8. She filed an appeal challenging her removal on the same day. IAF, Tab 1. In her initial appeal, the appellant explained that she is no longer able to perform her duties because she had spinal surgery and suffers from severe pain as a result. Id. at 5. On October 25, 2021, the administrative judge issued an acknowledgment order, which, in relevant part, notified the parties that “[i]f any party fails to follow [his] orders or the Board’s regulations, [he] may impose sanctions pursuant to 5 C.F.R. § 1201.43.” IAF, Tab 2 at 2. Explaining that the appellant previously applied for disability retirement benefits with the Office of Personnel Management (OPM) and that application was pending at the time she filed her initial appeal, the agency moved to dismiss the appeal without prejudice to refiling, arguing that “if [the a]ppellant’s disability retirement application is granted, it will obviate the instant appeal.” IAF, Tab 4 at 4-5. The appellant did not oppose the motion, and on November 12, 2021, the administrative judge dismissed the appeal without prejudice for 180 days subject to automatic refiling. IAF, Tab 6. The appeal was refiled and dismissed without prejudice two more times before automatically being refiled on May 22, 2023. Spriggs v. Department of Transportation, MSPB Docket No. DC-0752-22-0038-I-2, Appeal File (I-2 AF), Tabs 1, 5; Spriggs v. Department of Transportation, MSPB Docket No. DC-0752-22-0038-I-3, Appeal File (I-3 AF), Tabs 1, 3; Spriggs v. Department of Transportation, MSPB Docket No. DC-0752-22-0038-I-4, Appeal File (I-4 AF), Tab 1.2 On May 24, 2023, the administrative judge issued an acknowledgment order, ordering the parties “to appear for a telephonic status conference to be held on May 30, 2023.” I-4 AF, Tab 2 at 2. When the appellant did not appear for the conference, the administrative judge attempted to reach her via email and by telephone. I-4 AF, Tab 3, Tab 4 at 1. He also left a voicemail requesting she “call [him] as soon as possible.” I-4 AF, Tab 4 at 1. On May 31, 2023, when the appellant did not respond to his various attempts to contact her, the administrative judge ordered the appellant to submit a “written statement providing good cause for her failure to comply,” and ordered her to appear for a second telephonic status conference on June 7, 2023. Id. at 1-2. The administrative judge once again warned the appellant that if she “fail[ed] to comply with these orders, [he] will consider sanctions up to an[d] including the dismissal of her appeal for failure to prosecute.” Id. at 2. The appellant did not appear for the second status conference, and the administrative judge issued an order to show cause, stating “based on the appellant’s repeated failure to comply with Orders and directives, it appears that the appellant has abandoned this appeal[,] and it should be dismissed for failure to prosecute.” I-4 AF, Tab 5 at 2. The administrative judge ordered the appellant to respond to the Order to Show Cause by June 14, 2023, and warned “[if] the appellant fails to timely comply with this Order, this appeal WILL BE DISMISSED for failure to prosecute on June 15, 2023.” Id. at 3 (emphasis in original). On June 15, 2023, when the appellant did not respond to the order to show cause, the administrative judge issued an initial decision, which dismissed the appeal for failure to prosecute. I-4 AF, Tab 6, Initial Decision (ID). He found that the imposition of the sanction of dismissal was warranted because “the record demonstrate[d] that the appellant has failed to comply with numerous orders and/or directives to include an Order to Show Cause that informed her that this appeal3 would be dismissed for failure to prosecute in the absence of a timely response.” ID at 4. The appellant has filed a timely petition for review. Petition for Review (PFR) File, Tab 1. She argues that she “diligently checked [her] email” and did not understand how she missed all the notifications regarding her appeal. PFR File, Tab 1 at 2. She also states that she called the regional office, and it confirmed that it had her correct email on file. Id. The agency has filed a response stating that it does not oppose the petition for review and it “supports the case being reopened.” PFR File, Tab 3 at 4. DISCUSSION OF ARGUMENTS ON REVIEW The sanction of dismissal with prejudice may be imposed if a party does not prosecute or defend an appeal, as necessary to serve the needs of justice. Gordon v. Department of the Air Force , 104 M.S.P.R. 358, ¶ 4 (2006); 5 C.F.R. § 1201.43(b). Such a severe sanction should be imposed only if a party has not exercised basic due diligence in complying with the Board’s orders or has exhibited negligence or bad faith in its efforts to comply. Williams v. U.S. Postal Service, 116 M.S.P.R. 377, ¶¶ 7-8 (2011). Additionally, an appeal should not be dismissed with prejudice for failure to prosecute when a pro se appellant has made incomplete responses to the Board’s orders but has not exhibited bad faith or evidenced any intent to abandon her appeal. Chandler v. Department of the Navy, 87 M.S.P.R. 369, ¶ 8 (2000). Absent a showing of abuse of discretion, the Board will not reverse an administrative judge’s determination regarding the imposition of dismissal for failure to prosecute. Williams, 116 M.S.P.R. 377, ¶ 7. Here, we find that the administrative judge abused his discretion. While the appellant did not appear for two status conferences or submit an explanation for her absences, under all of the circumstances of this appeal, we find that the sanction for failure to prosecute is too severe. Chandler, 87 M.S.P.R. 377, ¶ 8. To begin, the time between the appellant’s absence at the first scheduling4 conference and the administrative judge’s dismissal of her appeal was remarkably short, only 16 days. I -4 AF, Tabs 2, 6. This is after the appeal had been dismissed without prejudice subject to automatic refiling three times —covering a period of a year and a half—while the appellant’s disability retirement application was being processed by OPM. IAF, Tabs 4, 6 ; I-2 AF, Tabs 1, 5; I-3 AF, Tabs 1, 3. The agency consented to each of those dismissals, indicating that the extended time needed to adjudicate this appeal did not prejudice the agency. Further, we find that the appellant did not intend to abandon her appeal or fail to exercise due diligence. Williams, 116 M.S.P.R. 377, ¶ 7; Chandler, 87 M.S.P.R. 377, ¶ 8. On review, the appellant stated that she “diligently checked [her] email” for updates regarding her appeal and that she called the regional office to confirm that her correct email address was on file. PFR File, Tab 1 at 2. Further, she timely filed a petition for review. I-4 AF, Tab 6 at 5-6; PFR File, Tab 1; see Reggans v. U.S. Postal Service , 3 M.S.P.R. 260, 262 (1980) (finding that an appellant filing a timely petition for review indicates that she did not intend to abandon her appeal). Additionally, there is nothing in the record to support a finding that the appellant acted in bad faith by not responding to the administrative judge’s orders. Finally, as observed previously, in its response to the petition for review, the agency stated that it “supports the case being reopened.” PFR File, Tab 3 at 4. Under these circumstances, we find that the sanction of dismissal for failure to prosecute is too severe. 5 ORDER For the reasons discussed above, we remand this case to the Washington Regional Office for further adjudication in accordance with this Remand Order.2 FOR THE BOARD: ______________________________ Gina K. Grippando Clerk of the Board Washington, D.C. 2 On remand, the administrative judge should, among other things, ascertain the status of the appellant’s disability retirement application and the effect of any determination by OPM on the appellant’s appeal. 6	Spriggs_Angela_T_DC-0752-22-0038-I-4_Remand_Order.pdf	2025-02-20	ANGELA TERESA SPRIGGS v. DEPARTMENT OF TRANSPORTATION, MSPB Docket No. DC-0752-22-0038-I-4, February 20, 2025	DC-0752-22-0038-I-4	NP
157	https://www.mspb.gov/decisions/nonprecedential/Whittaker_Casey_A_DC-3443-24-0085-I-1_Final_Order.pdf	UNITED STATES OF AMERICA MERIT SYSTEMS PROTECTION BOARD CASEY ADAM WHITTAKER, Appellant, v. DEPARTMENT OF TRANSPORTATION, Agency.DOCKET NUMBER DC-3443-24-0085-I-1 DATE: February 20, 2025 THIS FINAL ORDER IS NONPRECEDENTIAL1 Casey Adam Whittaker , Henrico, Virginia, pro se. Marquitta Robinson , Fort Worth, Texas, for the agency. Timothy O. Schranck , Esquire, and Christopher Jennison , Esquire, 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 for lack of jurisdiction his appeal of the agency’s denial of a reasonable 1 A nonprecedential order is one that the Board has determined does not add significantly to the body of MSPB case law. Parties may cite nonprecedential orders, but such orders have no precedential value; the Board and administrative judges are not required to follow or distinguish them in any future decisions. In contrast, a precedential decision issued as an Opinion and Order has been identified by the Board as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c). accommodation. Generally, we grant 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. 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	Whittaker_Casey_A_DC-3443-24-0085-I-1_Final_Order.pdf	2025-02-20	CASEY ADAM WHITTAKER v. DEPARTMENT OF TRANSPORTATION, MSPB Docket No. DC-3443-24-0085-I-1, February 20, 2025	DC-3443-24-0085-I-1	NP
158	https://www.mspb.gov/decisions/nonprecedential/Melendez_JaimeSF-0752-24-0246-I-1_Final_Order.pdf	UNITED STATES OF AMERICA MERIT SYSTEMS PROTECTION BOARD JAIME MELENDEZ, Appellant, v. DEPARTMENT OF THE TREASURY, Agency.DOCKET NUMBER SF-0752-24-0246-I-1 DATE: February 20, 2025 THIS FINAL ORDER IS NONPRECEDENTIAL1 Jaime Melendez , Lancaster, California, pro se. Andrea Campanile , Esquire, and Timothy E. Heinlein , Esquire, San Francisco, 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 his alleged involuntary resignation appeal for lack of jurisdiction because he was not an “employee” as defined at 5 U.S.C. § 7511(a)(1) with adverse action appeal rights under 5 U.S.C. chapter 75, subchapter II, and he did 1 A nonprecedential order is one that the Board has determined does not add significantly to the body of MSPB case law. Parties may cite nonprecedential orders, but such orders have no precedential value; the Board and administrative judges are not required to follow or distinguish them in any future decisions. In contrast, a precedential decision issued as an Opinion and 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 allege a claim that could be a basis for jurisdiction under 5 C.F.R. § 315.806. On petition for review, the appellant argues that he was constructively removed because he was going to be terminated, but the agency did not prove misconduct or poor performance, agency management did not give him an opportunity to explain his side of the story, and the agency was required to justify his termination by a preponderance of the evidence. Generally, we grant petitions such as this one only in the following circumstances: the initial decision contains erroneous findings of material fact; the initial decision is based on an erroneous interpretation of statute or regulation or the erroneous application of the law to the facts of the case; the administrative judge’s rulings during either the course of the appeal or the initial decision were not consistent with required procedures or involved an abuse of discretion, and the resulting error affected the outcome of the case; or new and material evidence or legal argument is available that, despite the petitioner’s due diligence, was not available when the record closed. Title 5 of the Code of Federal Regulations, section 1201.115 (5 C.F.R. § 1201.115). After fully considering the filings in this appeal, we conclude that the petitioner has not established any basis under section 1201.115 for granting the petition for review. Therefore, we DENY the petition for review and AFFIRM the initial decision, which is now the Board’s final decision. 5 C.F.R. § 1201.113(b). NOTICE OF APPEAL RIGHTS2 You may obtain review of this final decision. 5 U.S.C. § 7703(a)(1). By statute, the nature of your claims determines the time limit for seeking such review and the appropriate forum with which to file. 5 U.S.C. § 7703(b). Although we offer the following summary of available appeal rights, the Merit Systems Protection Board does not provide legal advice on which option is most appropriate for your situation and the rights described below do not represent a 2 Since the issuance of the initial decision in this matter, the Board may have updated the notice of review rights included in final decisions. As indicated in the notice, the Board cannot advise which option is most appropriate in any matter.2 statement of how courts will rule regarding which cases fall within their jurisdiction. If you wish to seek review of this final decision, you should immediately review the law applicable to your claims and carefully follow all filing time limits and requirements. Failure to file within the applicable time limit may result in the dismissal of your case by your chosen forum. Please read carefully each of the three main possible choices of review below to decide which one applies to your particular case. If you have questions about whether a particular forum is the appropriate one to review your case, you should contact that forum for more information. (1) Judicial review in general . As a general rule, an appellant seeking judicial review of a final Board order must file a petition for review with the U.S. Court of Appeals for the Federal Circuit, which must be received by the court within 60 calendar days of the date of issuance of this decision. 5 U.S.C. § 7703(b)(1)(A). If you submit a petition for review to the U.S. Court of Appeals for the Federal Circuit, you must submit your petition to the court at the following address: U.S. Court of Appeals for the Federal Circuit 717 Madison Place, N.W. Washington, D.C. 20439 Additional information about the U.S. Court of Appeals for the Federal Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11. If you are interested in securing pro bono representation for an appeal to the U.S. Court of Appeals for the Federal Circuit, you may visit our website at http://www.mspb.gov/probono for information regarding pro bono representation for Merit Systems Protection Board appellants before the Federal Circuit. The3 Board neither endorses the services provided by any attorney nor warrants that any attorney will accept representation in a given case. (2) Judicial or EEOC review of cases involving a claim of discrimination . This option applies to you only if you have claimed that you were affected by an action that is appealable to the Board and that such action was based, in whole or in part, on unlawful discrimination. If so, you may obtain judicial review of this decision —including a disposition of your discrimination claims —by filing a civil action with an appropriate U.S. district court ( not the U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems Protection Board , 582 U.S. 420 (2017). If you have a representative in this case, and your representative receives this decision before you do, then you must file with the district court no later than 30 calendar days after your representative receives this decision. If the action involves a claim of discrimination based on race, color, religion, sex, national origin, or a disabling condition, you may be entitled to representation by a court-appointed lawyer and to waiver of any requirement of prepayment of fees, costs, or other security. See 42 U.S.C. § 2000e-5(f) and 29 U.S.C. § 794a. Contact information for U.S. district courts can be found at their respective websites, which can be accessed through the link below: http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx . Alternatively, you may request review by the Equal Employment Opportunity Commission (EEOC) of your discrimination claims only, excluding all other issues . 5 U.S.C. § 7702(b)(1). You must file any such request with the EEOC’s Office of Federal Operations within 30 calendar days after you receive this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case, and your representative receives this decision before you do, then you must file4 with the EEOC no later than 30 calendar days after your representative receives this decision. If you submit a request for review to the EEOC by regular U.S. mail, the address of the EEOC is: Office of Federal Operations Equal Employment Opportunity Commission P.O. Box 77960 Washington, D.C. 20013 If you submit a request for review to the EEOC via commercial delivery or by a method requiring a signature, it must be addressed to: Office of Federal Operations Equal Employment Opportunity Commission 131 M Street, N.E. Suite 5SW12G Washington, D.C. 20507 (3) Judicial review pursuant to the Whistleblower Protection Enhancement Act of 2012 . This option applies to you only if you have raised claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D). If so, and your judicial petition for review “raises no challenge to the Board’s disposition of allegations of a prohibited personnel practice described in section 2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i), (B), (C), or (D),” then you may file a petition for judicial review either with the U.S. Court of Appeals for the Federal Circuit or any court of appeals of competent jurisdiction.3 The court of appeals must receive your 3 The original statutory provision that provided for judicial review of certain whistleblower claims by any court of appeals of competent jurisdiction expired on December 27, 2017. The All Circuit Review Act, signed into law by the President on July 7, 2018, permanently allows appellants to file petitions for judicial review of MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals for the Federal Circuit or any other circuit court of appeals of competent jurisdiction. The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115-195, 132 Stat. 1510. 5 petition for review within 60 days of the date of issuance of this decision. 5 U.S.C. § 7703(b)(1)(B). If you submit a petition for judicial review to the U.S. Court of Appeals for the Federal Circuit, you must submit your petition to the court at the following address: U.S. Court of Appeals for the Federal Circuit 717 Madison Place, N.W. Washington, D.C. 20439 Additional information about the U.S. Court of Appeals for the Federal Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11. If you are interested in securing pro bono representation for an appeal to the U.S. Court of Appeals for the Federal Circuit, you may visit our website at http://www.mspb.gov/probono for information regarding pro bono representation for Merit Systems Protection Board appellants before the Federal Circuit. The Board neither endorses the services provided by any attorney nor warrants that any attorney will accept representation in a given case. 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	Melendez_JaimeSF-0752-24-0246-I-1_Final_Order.pdf	2025-02-20	JAIME MELENDEZ v. DEPARTMENT OF THE TREASURY, MSPB Docket No. SF-0752-24-0246-I-1, February 20, 2025	SF-0752-24-0246-I-1	NP
159	https://www.mspb.gov/decisions/nonprecedential/Pinkston_Valerie_C_AT-0752-23-0301-I-1_Remand_Order.pdf	UNITED STATES OF AMERICA MERIT SYSTEMS PROTECTION BOARD VALERIE C. PINKSTON, Appellant, v. DEPARTMENT OF THE TREASURY, Agency.DOCKET NUMBER AT-0752-23-0301-I-1 DATE: February 20, 2025 THIS ORDER IS NONPRECEDENTIAL1 Valerie C. Pinkston , Jonesboro, Georgia, pro se. Javon Coatie , Esquire, Atlanta, Georgia, for the agency. BEFORE Cathy A. Harris, Chairman Henry J. Kerner, Vice Chairman Raymond A. Limon, Member REMAND ORDER The appellant has filed a petition for review of the initial decision, which dismissed her alleged involuntary resignation 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 Atlanta Regional Office for further adjudication in accordance with this Remand Order. BACKGROUND On March 28, 2022, the agency appointed the appellant as a GS-05 Contact Representative position, subject to a 1-year probationary period. Initial Appeal File (IAF), Tab 15 at 4. On September 16, 2022, the appellant resigned from her position. IAF, Tab 10 at 8-9. As relevant here, she filed an equal employment opportunity (EEO) complaint with the agency, alleging that it constructively discharged her based on her religion. IAF, Tab 1 at 19. On March 20, 2023, the agency issued a final agency decision finding no discrimination and constructive discharge. Id. at 19-25. The appellant timely filed the instant mixed-case appeal. IAF, Tab 1; see 5 C.F.R. § 1201.154(b)(1). The administrative judge issued a jurisdiction order noting that the Board may not have jurisdiction over the appellant’s appeal, setting forth the jurisdictional burden over involuntary resignation claims and ordering the appellant to file evidence and argument amounting to a nonfrivolous allegation that the Board had jurisdiction over her appeal. IAF, Tab 3 at 2-3. The appellant submitted numerous documents that appear to detail the merits of her alleged involuntary resignation; however, her submissions were not responsive to the jurisdictional order. IAF, Tabs 3-7, 9. The agency responded, requesting that the Board dismiss the appellant’s appeal for lack of jurisdiction because she voluntarily resigned from her position. IAF, Tab 12. Subsequently, the administrative judge recognized that it appeared that the appellant was serving in a probationary period and issued an order advising the appellant that she had to establish that she was an “employee” under 5 U.S.C. § 7511(a)(1)(A) entitled to Board appeal rights and ordering her to file evidence in support of her claim. IAF, Tab 16. In response, the appellant submitted documents in support of her claim that she had prior Federal service. IAF, Tabs 18-19. 2 Without holding the requested hearing, the administrative judge issued an initial decision dismissing the appeal for lack of jurisdiction. IAF, Tab 20, Initial Decision (ID) at 1, 4. Specifically, the administrative judge found that the appellant was serving an initial probationary period and had not completed 1 year of current continuous service; thus, she lacked chapter 75 adverse action appeal rights. ID at 4. She further found that the appellant failed to make a nonfrivolous allegation that her probationary termination was based on partisan political reasons or marital status. Id. The appellant has filed a petition for review of the initial decision. Petition for Review (PFR) File, Tab 1. The agency has filed a response to the appellant’s petition, PFR File, Tab 5, to which the appellant has replied, PFR File, Tab 6. DISCUSSION OF ARGUMENTS ON REVIEW The Board’s jurisdiction is not plenary; it is limited to those matters over which it has been given jurisdiction by law, rule, or regulation. Maddox v. Merit Systems Protection Board , 759 F.2d 9, 10 (Fed. Cir. 1985). To establish Board jurisdiction under 5 U.S.C. chapter 75, an individual must, among other things, show that she satisfied one of the definitions of “employee” in 5 U.S.C. § 7511(a) (1). Walker v. Department of the Army , 119 M.S.P.R. 391, ¶ 5 (2013). For an individual in the competitive service, such as the appellant, this means that she either must not be serving a probationary or trial period under an initial appointment, or must have completed 1 year of current continuous service under other than a temporary appointment limited to 1 year or less. 5 U.S.C. § 7511(a)(1)(A)(i), (ii). An individual who has not served a full year under her appointment can show that she has completed the probationary period, and so is no longer a probationer, by tacking on prior service if: (1) the prior service was rendered immediately preceding the probationary appointment; (2) it was performed in the same agency; (3) it was performed in the same line of work; and (4) it was completed with no more than one break in service of less than 30 days.3 Hurston, 113 M.S.P.R. 34, ¶ 9; 5 C.F.R. § 315.802(b). Alternatively, an individual can show that, while she may be a probationer, she is an “employee” with chapter 75 appeals rights because, immediately preceding the adverse action, she had completed at least 1 year of current continuous service without a break in Federal civilian employment of a workday. Hurston, 113 M.S.P.R. 34, ¶ 9. For the reasons that follow, we find that this appeal must be remanded to give the appellant an opportunity to meet her burden to establish that she is an “employee.” We remand the appeal for a determination of whether the Board has chapter 75 jurisdiction over the appellant’s removal appeal. Generally, an appellant has the burden of proving by preponderant evidence that the Board has jurisdiction over her appeal. 5 C.F.R. § 1201.56(b)(2)(i)(A). However, an appellant must receive explicit information on what is required to establish an appealable jurisdictional issue. Burgess v. Merit Systems Protection Board , 758 F.2d 641, 643-44 (Fed. Cir. 1985). Based on our review of the record, we find that the appellant did not receive explicit information regarding the jurisdictional standard to show that she qualifies as an “employee” with appeal rights under 5 U.S.C. Chapter 75. The administrative judge’s orders, the initial decision, and the agency’s submissions did not provide the pro se appellant with proper notice of the jurisdictional requirements for establishing her status as an “employee.” See Harris v. U.S. Postal Service , 112 M.S.P.R. 186, ¶ 9 (2009); see also Scott v. Department of Justice , 105 M.S.P.R. 482, ¶ 6 (2007) (explaining that an administrative judge’s failure to provide an appellant with proper notice can be cured if the agency’s pleadings or the initial decision puts the appellant on notice of what he must do to establish jurisdiction). We therefore find that this case should be remanded to allow the appellant an opportunity to establish that she is an “employee” as defined by chapter 75. On remand, the administrative judge shall allow the parties to present additional4 evidence and argument relating to the jurisdictional issue. If, on remand, the administrative judge finds that the appellant has not established that she is an “employee” with chapter 75 appeal rights, she shall issue a remand initial decision dismissing the appeal for lack of jurisdiction. If, however, she finds that the appellant is an “employee,” the administrative judge shall determine whether the appellant has made nonfrivolous allegations that, if proven, could establish jurisdiction over her involuntary resignation claim. If the administrative judge finds that the appellant made nonfrivolous allegations, the appellant is entitled to a jurisdictional hearing at which she must prove jurisdiction by a preponderance of the evidence. Garcia v. Department of Homeland Security , 437 F.3d 1322, 1344 (Fed. Cir. 2006) (en banc). If the administrative judge determines that the Board has jurisdiction over that claim, the administrative judge shall adjudicate the merits of the appellant’s appeal. ORDER For the reasons discussed above, we remand this case to the Atlanta Regional Office for further adjudication in accordance with this Remand Order.2 FOR THE BOARD: ______________________________ Gina K. Grippando Clerk of the Board Washington, D.C. 2 In the remand initial decision, the administrative judge may reincorporate prior findings as appropriate, consistent with this Remand Order.5	Pinkston_Valerie_C_AT-0752-23-0301-I-1_Remand_Order.pdf	2025-02-20	VALERIE C. PINKSTON v. DEPARTMENT OF THE TREASURY, MSPB Docket No. AT-0752-23-0301-I-1, February 20, 2025	AT-0752-23-0301-I-1	NP
160	https://www.mspb.gov/decisions/nonprecedential/Pyrdeck_Frank_S_DE-315H-24-0154-I-1_Remand_Order.pdf	UNITED STATES OF AMERICA MERIT SYSTEMS PROTECTION BOARD FRANK STANLEY PYRDECK, JR., Appellant, v. DEPARTMENT OF THE NAVY, Agency.DOCKET NUMBER DE-315H-24-0154-I-1 DATE: February 20, 2025 THIS ORDER IS NONPRECEDENTIAL1 Frank Stanley Pyrdeck, Jr. , Tucson, Arizona, pro se. Lisa Wood , Philadelphia, Pennsylvania, for the agency. BEFORE Cathy A. Harris, Chairman Henry J. Kerner, Vice Chairman Raymond A. Limon, Member REMAND ORDER The appellant has filed a petition for review of the initial decision, which dismissed his probationary termination appeal for lack of jurisdiction. For the reasons 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 Denver Field Office for further adjudication in accordance with this Remand Order. BACKGROUND Effective June 6, 2022, the agency appointed the appellant to a competitive-service position as a GS-12 Logistics Management Specialist, subject to completion of a 2-year probationary period. Initial Appeal File (IAF), Tab 1 at 1, Tab 6 at 42-43. Effective January 11, 2024, the agency issued a decision terminating the appellant for unsatisfactory work performance that outlined instances of his alleged “problematic conduct” and performance deficiencies. IAF, Tab 6 at 28-33. On January 25, 2024, the appellant filed a Board appeal challenging the manner and the merit of his termination and acknowledged on his appeal form that he was serving in a probationary period at the time of his termination. IAF, Tab 1 at 2. He also indicated that he had filed a complaint with the Office of Special Counsel (OSC) challenging his termination on January 19, 2024, and provided a copy of the complaint he provided to OSC with his initial appeal. Id. at 3, 13-19. The administrative judge issued an order informing the appellant that the Board may not have jurisdiction over his appeal based on his probationer status, notified him of the standards for establishing Board jurisdiction under chapter 75 and 5 C.F.R. §§ 315.805-315.806, and directed him to file evidence and argument on that issue. IAF, Tab 5. The appellant responded, arguing that he met the definition of “employee” under chapter 75 and that the Board had jurisdiction over his appeal. IAF, Tab 5 at 3-5. Specifically, he argued that although he was appointed to a 2-year probationary period at the time he was hired, pursuant to the National Defense Authorization Act for Fiscal Year 2022 (2022 NDAA), Pub. L. No. 117-81, 135 Stat. 1541 , the Department of Defense (DOD) had rescinded and replaced the 2-year probationary period with a 1-year probationary period, effective December 31, 2022, and he had completed more2 than 1 year of service as of his January 11, 2024 separation. Id. at 3-4, 7-16. Alternatively, he argued that even if a 2-year probationary period applied to his appointment, the DOD provision setting forth a 2-year probationary period was incompatible with 5 C.F.R. §§ 315.801, 315.802(a), which stated that the probationary period was limited to 1 year and could not be extended. Id. at 4. Consequently, he argued that he was an “employee” with Board appeal rights at the time of his termination and the Board had jurisdiction over his appeal. Id. at 4-5. Without holding the appellant’s requested hearing, IAF, Tab 1 at 1, the administrative judge issued an initial decision dismissing the appeal for lack of jurisdiction, IAF, Tab 7, Initial Decision (ID) at 1, 8. First addressing the appellant’s OSC complaint, the administrative judge noted that the appellant filed an OSC complaint challenging his termination prior to filing his Board appeal, and so it appeared that he had elected to challenge his termination through the procedures for seeking corrective action from OSC under 5 U.S.C. §§ 1211-1222, which would ordinarily preclude him from pursuing a later Board appeal under chapter 75. ID at 2 n.3. He nevertheless determined that because the agency’s termination letter failed to apprise the appellant of the preclusive effect of his decision to challenge his termination with OSC, his election was not a “valid, informed election” under 5 U.S.C. § 7121, and so he was not precluded from filing a subsequent Board appeal challenging the agency’s action. Id. (citing Kaszowski v. Department of the Air Force , 2023 MSPB 15, ¶ 5; Agoranos v. Department of Justice , 119 M.S.P.R. 498, ¶ 14 (2013)). Turning to the appellant’s claims on appeal, the administrative judge concluded that the appellant had failed to nonfrivolously allege that he met the definition of an “employee” with adverse action appeal rights under 5 U.S.C. § 7511(a)(1)(A)(i) or (ii). ID at 4-7. He further concluded that the appellant had failed to nonfrivolously allege that he had a regulatory right of appeal under 5 C.F.R.3 §§ 315.805-315.806. ID at 7-8. Consequently, he dismissed the appeal for lack of jurisdiction. ID at 8. The appellant has timely filed a petition for review in which he reargues that DOD’s interpretation of 5 U.S.C. § 1599e conflicts with 5 C.F.R. §§ 315.801, 315.802(a) and provides copies of emails he sent to DOD requesting additional guidance regarding their interpretation of this provision. Petition for Review (PFR) File, Tab 1 at 4, 6 -10. The appellant also notes that on March 25, 2024, after the initial decision was issued, OSC terminated its investigation into his complaint and provided him with notice of his Board appeal rights, and he provides a copy of OSC’s close-out letter. Id. at 4-5, 11. The agency has filed a response, PFR File, Tab 3, and the appellant has filed a reply, PFR File, Tab 4. DISCUSSION OF ARGUMENTS ON REVIEW The administrative judge correctly concluded that the Board lacks jurisdiction under chapter 75 and OPM regulations over the appellant’s probationary termination. The Board’s jurisdiction is limited to those matters over which it has been given jurisdiction by law, rule, or regulation; the Board does not have jurisdiction over all matters alleged to be unfair or incorrect. Johnson v. U.S. Postal Service , 67 M.S.P.R. 573, 577 (1995); Maddox v. Merit Systems Protection Board , 759 F.2d 9, 10 (Fed. Cir. 1985). To establish Board jurisdiction under 5 U.S.C. chapter 75, an individual must show, among other things, that he satisfies one of the definitions of “employee” in 5 U.S.C. § 7511(a)(1). Walker v. Department of the Army, 119 M.S.P.R. 391, ¶ 5 (2013). An individual in the competitive service can establish that he is an employee with Board appeal rights if he is not serving a probationary or trial period under an initial appointment or has completed 1 year of current continuous service under other than a temporary appointment limited to 1 year or less. Id.; see 5 U.S.C. § 7511(a)(1)(A)(i), (ii). However, as the administrative judge correctly noted, in 2015, Congress amended the statute that defines “employee” for the purpose of chapter 75 appeal4 rights for competitive-service positions within DOD to state that such appointments were subject to a 2-year probationary period instead of 1 -year and that an individual only qualified as an “employee” with Board appeal rights under 5 U.S.C. § 7511(a)(1)(A)(ii) if he completed 2 years of current continuous service. 10 U.S.C. § 1599e(a), (b)(1)(A), (d), repealed by 2022 NDAA , Pub. L. No. 117-81, 135 Stat. 1541; see National Defense Authorization Act for Fiscal Year 2016, Pub. L. No. 114-92, § 1105, 129 Stat. 726 (Nov. 25, 2015); ID at 4. Thereafter, on December 27, 2021, Congress passed the 2022 NDAA, which repealed the 2-year probationary requirement and replaced it with a 1-year probationary period. Pub. L. No. 117-81, § 1106, 135 Stat. 1541, 1950; Bryant v. Department of the Army , 2022 MSPB 1, ¶ 8; ID at 5. In doing so, however, Congress specified that the provision in the 2022 NDAA repealing and replacing the 2-year probationary period with a 1-year period did not go into effect until December 31, 2022, and only applied to individuals appointed on or after that date. Bryant, 2022 MSPB 1, ¶ 8; see Pub. L. No. 117-81, § 1106(a)(2); ID at 4-6. Consequently, the administrative judge correctly concluded that the appellant’s appointment, which was effective June 6, 2022, remained subject to the 2-year probationary period requirement. Bryant, 2022 MSPB 1, ¶¶ 8-9; ID at 6. Because the appellant was appointed the position effective June 6, 2022, and was terminated effective January 11, 2024, prior to completion of the 2-year probationary period, we agree with the administrative judge that the appellant failed to meet the first prong of the definition of “employee” set forth in 5 U.S.C. § 7511(a)(1)(A)(ii). ID at 5-6. Alternatively, a DOD employee who has not served his full 2-year appointment can show that he has completed the probationary period by “tacking” on prior Federal service if (1) the prior service was rendered immediately preceding the probationary appointment; (2) it was performed in the same agency; (3) it was performed in the same line of work; and (4) it was completed with no more than one break in service of less than 30 days. Hurston v. Department of5 the Army, 113 M.S.P.R. 34, ¶ 9 (2010); 5 C.F.R. § 315.802(b). An individual can also show that, while he may be a probationer, he is an “employee” with chapter 75 appeals rights because, immediately preceding the adverse action at issue, he had completed at least 2 years of current continuous service without a break in Federal civilian employment of a workday. Hurston, 113 M.S.P.R. 34, ¶ 9. As the administrative correctly concluded, because the appellant had not alleged that he had any prior Federal service, he also failed to meet the second prong of the definition of “employee” set forth in section 7511(a)(1)(A)(ii). ID at 6-7. Finally, an individual in the competitive service who does not have a statutory right of appeal may nevertheless have a regulatory right to appeal under 5 C.F.R. § 315.806 if he alleges that his termination was based on partisan political reasons or marital status discrimination, or that his termination was based in whole or in part on conditions arising before his appointment and was not effected in accordance with certain procedural requirements under 5 C.F.R. § 315.805. Walker, 119 M.S.P.R. 391, ¶ 5. On review, the appellant has not challenged the administrative judge’s finding that he did not allege that his termination was based on conditions arising before his appointment, that it was because of his marital status, or that it was based on partisan political reasons, which would give rise to a regulatory right of appeal under 5 C.F.R. §§ 315.805-315.806. For the foregoing reason, we find no reason to disturb the administrative judge’s finding that the appellant failed to meet his burden of proving that the Board has jurisdiction over his appeal challenging his termination. We nevertheless remand the appeal for further proceedings because the appellant did not receive explicit notice of what is required to establish Board jurisdiction based on his allegations. Despite the above finding, we conclude that the appeal must be remanded for further proceedings under 5 U.S.C. § 7701 because it appears that the appellant may be attempting to raise an individual right of action (IRA) appeal6 under the Whistleblower Protection Enhancement Act of 2012. As previously noted, in his initial appeal, the appellant provided evidence that he had filed an OSC complaint challenging his termination prior to filing his Board appeal. IAF, Tab 1 at 3. The administrative judge acknowledged that the appellant had provided a copy of his OSC complaint with his initial appeal, but determined that because the agency had failed to inform the appellant that his decision to seek corrective action from OSC could preclude a later challenge of his termination in a Board appeal under chapter 75, his election to file with OSC was not “knowing and informed” and thus did not preclude him from filing a subsequent IRA appeal. ID at 2 n.3 (citing Kaszowski, 2023 MSPB 15, ¶ 5; Agoranos, 119 M.S.P.R. 498, ¶ 14). An appellant must receive explicit information on what is required to establish Board jurisdiction. Burgess v. Merit Systems Protection Board , 758 F.2d 641, 643-44 (Fed. Cir. 1985); Burwell v. Department of the Army , 78 M.S.P.R. 645, ¶¶ 8-9 (1998) (remanding an appeal due to the administrative judge’s failure to advise the appellant what was required to establish Board jurisdiction over an IRA appeal). The administrative judge’s jurisdictional order informed the appellant of his burden of establishing jurisdiction over his appeal as a challenge to his probationary termination but did not apprise the appellant of his burden of proving Board jurisdiction over his appeal as an IRA appeal. IAF, Tab 4. The agency’s response to the administrative judge’s jurisdictional order identified that the order had not provided jurisdictional notice for an IRA appeal, provided some information regarding the appellant’s burden, and requested that a second jurisdictional order outlining the appellant’s IRA jurisdictional burdens be issued. IAF, Tab 6 at 15-18; see Harris v. U.S. Postal Service , 112 M.S.P.R. 186, ¶ 9 (2009) (stating that an administrative judge’s failure to provide an appellant with proper Burgess notice can be cured if the agency’s pleadings or the initial decision contain the notice that was otherwise lacking). Nevertheless, the administrative judge did not issue a supplemental IRA jurisdictional order, and7 although the initial decision identified the appellant’s filing of an OSC complaint and apparent attempt to pursue an IRA appeal, it too did not identify the appellant’s burden of establishing Boad jurisdiction over his appeal as an IRA. ID at 1-8. The appellant needs to be advised that to establish Board jurisdiction over an IRA appeal he must show that he exhausted his administrative remedies before OSC and make nonfrivolous allegations of the following: (1) he engaged in whistleblowing activity by making a disclosure protected 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 was a contributing factor in the agency’s decision to take or fail to take a personnel action as defined by 5 U.S.C. § 2302(a). Edwards v. Department of Labor , 2022 MSPB 9, ¶ 8, aff’d, No. 2022-1967, 2023 WL 4398002 (Fed. Cir. July 7, 2023); 5 U.S.C. §§ 1214(a) (3), 1221(a), (e)(1). Because the appellant was not so informed, it is necessary to remand this appeal to the field office to provide him with an adequate opportunity to establish jurisdiction.2 Burwell, 78 M.S.P.R. 645, ¶ 9. 2 As previously noted, in his initial appeal, the appellant identified that he had filed a complaint with OSC prior to filing his Board appeal and provided a copy of his complaint. IAF, Tab 1 at 3, 11-19. With his petition for review, the appellant has included a copy of a March 25, 2024 close-out letter from OSC providing him with Board appeal rights. PFR File, Tab 1 at 11. The March 25, 2024 OSC close-out letter postdates the close of the record and therefore meets the Board’s definition of new evidence. PFR File, Tab 1 at 11; ID at 1; see Avansino v. U.S. Postal Service , 3 M.S.P.R. 211, 214 (1980); 5 C.F.R. § 1201.115(d). The close-out letter is also material because it bears on the issue of the Board’s jurisdiction over the appeal as an IRA. Stoglin v. Department of the Air Force , 123 M.S.P.R. 163, ¶ 7 (2015) (acknowledging that the issue of jurisdiction is always before the Board and may be raised at any time), aff’d, 640 F. App’x 864 (Fed. Cir. 2016). Accordingly, we have considered it. On remand, the administrative judge should consider whether the appellant has established that he has exhausted his administrative remedies with OSC based on the March 25, 2024 close-out letter in addition to considering whether he has established the remaining jurisdictional elements of an IRA appeal. Edwards v. Department of the Air Force , 120 M.S.P.R. 307, ¶ 18 (2013) (instructing the administrative judge on remand to consider the remaining jurisdictional elements in an IRA appeal after determining that the appellant had proven OSC exhaustion), overruled on other grounds by Requena v. Department of Homeland Security , 2022 MSPB 39,8 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. ¶ 14; see Simnitt v. Department of Veterans Affairs , 113 M.S.P.R. 313, ¶ 9 (2010) (noting that the Board’s ordinary practice is to adjudicate an IRA appeal that was premature when it was filed but becomes ripe while pending with the Board); Becker v. Department of Veterans Affairs , 112 M.S.P.R. 516, ¶ 7 (2009) (same).9	Pyrdeck_Frank_S_DE-315H-24-0154-I-1_Remand_Order.pdf	2025-02-20	null	DE-315H-24-0154-I-1	NP
161	https://www.mspb.gov/decisions/nonprecedential/Rennard_James_J_AT-0752-24-0072-I-1_Final_Order.pdf	UNITED STATES OF AMERICA MERIT SYSTEMS PROTECTION BOARD JAMES JOSEPH RENNARD IV, Appellant, v. DEPARTMENT OF THE NAVY, Agency.DOCKET NUMBER AT-0752-24-0072-I-1 DATE: February 20, 2025 THIS FINAL ORDER IS NONPRECEDENTIAL1 James Joseph Rennard IV , Middleburg, Florida, pro se. Geoffrey Douglas Chun , Esquire, and Jennifer Ann Misciagna , Esquire, Jacksonville, 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 removal appeal for failure to prosecute. On petition for review, the appellant asserts that he was not contacted during his initial appeal even though he had elected to receive electronic service when he registered with e -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). The appellant also claims that he was wrongfully terminated because of injuries he suffered on the job. Generally, we grant 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	Rennard_James_J_AT-0752-24-0072-I-1_Final_Order.pdf	2025-02-20	JAMES JOSEPH RENNARD IV v. DEPARTMENT OF THE NAVY, MSPB Docket No. AT-0752-24-0072-I-1, February 20, 2025	AT-0752-24-0072-I-1	NP
162	https://www.mspb.gov/decisions/nonprecedential/Curtiss_William_P_DE-0752-23-0216-I-1_Final_Order.pdf	UNITED STATES OF AMERICA MERIT SYSTEMS PROTECTION BOARD WILLIAM P. CURTISS, Appellant, v. DEPARTMENT OF THE AIR FORCE, Agency.DOCKET NUMBER DE-0752-23-0216-I-1 DATE: February 20, 2025 THIS FINAL ORDER IS NONPRECEDENTIAL1 Denise L. Faulkner , Malmstrom Air Force Base, Montana, for the appellant. John Malek , Esquire, Idaho Falls, Idaho, for the appellant. Matthew Mackey and Ray Shackelford , Joint Base Andrews, Maryland, 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 this indefinite suspension appeal for failure to prosecute. Generally, 1 A nonprecedential order is one that the Board has determined does not add significantly to the body of MSPB case law. Parties may cite nonprecedential orders, but such orders have no precedential value; the Board and administrative judges are not required to follow or distinguish them in any future decisions. In contrast, a precedential decision issued as an Opinion and Order has been identified by the Board as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c). we grant petitions such as this one only in the following circumstances: the initial decision contains erroneous findings of material fact; the initial decision is based on an erroneous interpretation of statute or regulation or the erroneous application of the law to the facts of the case; the administrative judge’s rulings during either the course of the appeal or the initial decision were not consistent with required procedures or involved an abuse of discretion, and the resulting error affected the outcome of the case; or new and material evidence or legal argument is available that, despite the petitioner’s due diligence, was not available when the record closed. Title 5 of the Code of Federal Regulations, section 1201.115 (5 C.F.R. § 1201.115). After fully considering the filings in this appeal, we conclude that the petitioner has not established any basis under section 1201.115 for granting the petition for review. Therefore, we DENY the petition for review and AFFIRM the initial decision, which is now the Board’s final decision. 5 C.F.R. § 1201.113(b). BACKGROUND Effective April 3, 2023, the agency indefinitely suspended the appellant without pay from his Construction Control Inspector position based on the suspension of his access to classified information. Initial Appeal File (IAF), Tab 4 at 50-51, 53, 56. On April 28, 2023, union representative Denise Faulkner filed a Board appeal on behalf of the appellant. IAF, Tab 1 at 3-4, 6. She requested a hearing. Id. at 2. The initial filing includes the appellant’s endorsed designation of Ms. Faulkner as his representative. Id. at 3, 13. The administrative judge scheduled a prehearing conference for June 30, 2023. IAF, Tab 5 at 4. On May 31, 2023, the administrative judge convened a status conference attended by Ms. Faulkner, two other union officials, and the agency’s representative. IAF, Tab 6. On June 27, 2023, the agency filed a motion for a 30-day stay of proceedings. IAF, Tab 7 at 3. The agency indicated that the appellant had recently obtained counsel to represent him who desired a2 30-day stay to which the agency did not object. Id. The agency agreed to file the motion on behalf of the attorney due to alleged difficulties the new counsel had with the Board’s electronic filing system. Id. It did so with the understanding that the new representative would be filing a notice of representation and motion for stay by the end of the day. Id. That did not occur, and the subsequent orders and initial decision state that the Denver Field Office received no communication about problems doing so. IAF, Tab 8 at 2, Tab 11, Initial Decision (ID) at 3. Neither party appeared for the scheduled prehearing conference on June 30, 2023. IAF, Tab 8 at 1-2. Consequently, the administrative judge cancelled the hearing and ordered the appellant to provide good cause for not submitting prehearing submissions or attending the conference. Id. at 2. She warned that, if the appellant did not timely submit a close of record submission, she may dismiss the appeal with prejudice for failure to prosecute. Id. at 3-4. The agency submitted a response, but the appellant did not. IAF, Tab 9, Tab 10 at 3. The administrative judge issued a show cause order on failure to prosecute. IAF, Tab 10 at 3. The appellant did not respond. The administrative judge then issued an initial decision dismissing the appeal for failure to prosecute. ID at 1, 6. The appellant has filed a petition for review. Petition for Review (PFR) File, Tab 1. The agency also has not responded. DISCUSSION OF ARGUMENTS ON REVIEW The appellant filed the petition for review, which includes an electronically signed designation of representative. The initial appeal indicated the appellant’s intent to register as an e-filer, IAF, Tab 1 at 2, and the petition for review was filed from the appellant’s e-Appeal account, PFR File, Tab 1. The petition for review contains, among other things, a notice of appearance, which indicates that the appellant retained an attorney to represent him in this appeal. Id. at 7. In its acknowledgment letter, the Clerk of the Board informed the appellant and the attorney that the appellant3 had not filed a designation of representative and informed them how to do so. PFR File, Tab 2. Neither did so. Nevertheless, we deem that the appellant electronically filed and effectively signed the notice of appearance, PFR File, Tab 1 at 7, among the other documents with his petition for review, see 5 C.F.R. § 1201.14(k) (2023). Therefore, the appellant has submitted his designation of representation on review, and we will consider the petition for review. The administrative judge did not abuse her discretion in dismissing the appeal for failure to prosecute. The sanction of dismissal with prejudice may be imposed if a party does not prosecute or defend an appeal. Leseman v. Department of the Army , 122 M.S.P.R. 139, ¶ 6 (2015); Davis v. Department of Commerce , 120 M.S.P.R. 34, ¶¶ 17-19 (2013); 5 C.F.R. § 1201.43(b). Such a sanction should be imposed only when a party has not exercised basic due diligence in complying with Board orders or a party has exhibited negligence or bad faith in its efforts to comply. Leseman, 122 M.S.P.R. 139, ¶ 6. When an appellant repeatedly does not respond to multiple Board orders, reflecting a failure to exercise basic due diligence, the sanction of dismissal for failure to prosecute is appropriate. Williams v. U.S. Postal Service, 116 M.S.P.R. 377, ¶ 9 (2011). Absent an abuse of discretion, the Board will not reverse an administrative judge’s determination regarding sanctions. Leseman, 122 M.S.P.R. 139, ¶ 6. We find that the administrative judge did not abuse her discretion in dismissing the appeal for failure to prosecute. Based on our review of the record, the appellant did not exercise due diligence in prosecuting his appeal. The record reflects that the appellant did not file prehearing submissions as ordered by the administrative judge, did not appear at the prehearing conference, did not file a close of record submission, and did not file a response when the administrative judge informed him that his appeal would be dismissed for failure to prosecute absent a showing of good cause. IAF, Tabs 5, 8, 10; ID at 5. The Board has4 upheld dismissals for failure to prosecute in similar situations. See, e.g., Leseman, 122 M.S.P.R. 139, ¶¶ 3-4, 7 (upholding a dismissal for failure to prosecute after the appellant did not appear at two conferences, did not submit a close of record submission, and did not respond to an order to show cause). The administrative judge issued warnings that not abiding by her orders may result in a dismissal for failure to prosecute. IAF, Tabs 5, 8, 10. Additionally, other than appearing at the status conference, IAF, Tab 6, Ms. Faulkner made no further appearances or submitted any filings on behalf of the appellant or his new attorney. There is no sufficient explanation as to why she, who had been representing the appellant since the beginning of the appeal, and for whom there is no record of withdrawal as representative, should be excused from complying with the administrative judge’s repeated orders. The Board has long held that an appellant is responsible for the errors of his chosen representative. See Sofio v. Internal Revenue Service , 7 M.S.P.R. 667, 670 (1981). On review, the appellant provides email correspondence, which indicates that his attorney emailed Ms. Faulkner a notice of representation on June 27, 2023. PFR File, Tab 1 at 8. Later that day, Ms. Faulkner forwarded him an email from the Board that confirmed that a “Motion to Stay Processing for 30 Days” pleading had been filed by the agency, which reflects what is in the record. Id. at 9; IAF, Tab 7 at 3. The appellant’s attorney asserts on review that the June 27, 2023 “submission was a notice of appearance with a request for a continuance attached, along with counsel’s contact information.” PFR File, Tab 1 at 5-6. This assertion is not supported by the record, which reflects that no such submission was filed. IAF, Tab 8 at 2, Tab 10 at 2; ID at 3. Further, on July 3, 2023, the MSPB Application Team emailed the appellant’s attorney in response to his inquiry and informed him that he could not review case material because the appellant still needed to designate him as his representative. PFR File, Tab 1 at 10. Moreover, because they were both electronically served5 with the administrative judge’s orders, the appellant and Ms. Faulkner were on notice that a new representative had not been designated. IAF, Tab 8 at 2, 5, Tab 10 at 2, 4; ID at 3; see Lima v. Department of the Air Force , 101 M.S.P.R. 64, ¶ 5 (2006) (noting that, pursuant to the Board’s regulations, documents served electronically on registered e-filers are deemed received on the date of electronic submission); 5 C.F.R. § 1201.14(m)(2) (2023)). Yet, the record contains no subsequent attempt to do so until after the issuance of the initial decision. PFR File, Tab 1. Under the circumstances of this appeal, we conclude that the appellant has not shown that the administrative judge abused her discretion in dismissing his appeal for failure to prosecute. 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.6 about whether a particular forum is the appropriate one to review your case, you should contact that forum for more information. (1) Judicial review in general . As a general rule, an appellant seeking judicial review of a final Board order must file a petition for review with the U.S. Court of Appeals for the Federal Circuit, which must be received by the court within 60 calendar days of the date of issuance of this decision. 5 U.S.C. § 7703(b)(1)(A). If you submit a petition for review to the U.S. Court of Appeals for the Federal Circuit, you must submit your petition to the court at the following address: U.S. Court of Appeals for the Federal Circuit 717 Madison Place, N.W. Washington, D.C. 20439 Additional information about the U.S. Court of Appeals for the Federal Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11. If you are interested in securing pro bono representation for an appeal to the U.S. Court of Appeals for the Federal Circuit, you may visit our website at http://www.mspb.gov/probono for information regarding pro bono representation for Merit Systems Protection Board appellants before the Federal Circuit. The Board neither endorses the services provided by any attorney nor warrants that any attorney will accept representation in a given case. (2) Judicial or EEOC review of cases involving a claim of discrimination . This option applies to you only if you have claimed that you were affected by an action that is appealable to the Board and that such action was based, in whole or in part, on unlawful discrimination. If so, you may obtain7 judicial review of this decision —including a disposition of your discrimination claims —by filing a civil action with an appropriate U.S. district court ( not the U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems Protection Board , 582 U.S. 420 (2017). If you have a representative in this case, and your representative receives this decision before you do, then you must file with the district court no later than 30 calendar days after your representative receives this decision. If the action involves a claim of discrimination based on race, color, religion, sex, national origin, or a disabling condition, you may be entitled to representation by a court-appointed lawyer and to waiver of any requirement of prepayment of fees, costs, or other security. See 42 U.S.C. § 2000e-5(f) and 29 U.S.C. § 794a. Contact information for U.S. district courts can be found at their respective websites, which can be accessed through the link below: http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx . Alternatively, you may request review by the Equal Employment Opportunity Commission (EEOC) of your discrimination claims only, excluding all other issues . 5 U.S.C. § 7702(b)(1). You must file any such request with the EEOC’s Office of Federal Operations within 30 calendar days after you receive this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case, and your representative receives this decision before you do, then you must file with the EEOC no later than 30 calendar days after your representative receives this decision. If you submit a request for review to the EEOC by regular U.S. mail, the address of the EEOC is: Office of Federal Operations Equal Employment Opportunity Commission P.O. Box 77960 Washington, D.C. 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.3 The court of appeals must receive your petition for review within 60 days of the date of issuance of this decision. 5 U.S.C. § 7703(b)(1)(B). If you submit a petition for judicial review to the U.S. Court of Appeals for the Federal Circuit, you must submit your petition to the court at the following address: 3 The original statutory provision that provided for judicial review of certain whistleblower claims by any court of appeals of competent jurisdiction expired on December 27, 2017. The All Circuit Review Act, signed into law by the President on July 7, 2018, permanently allows appellants to file petitions for judicial review of MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals for the Federal Circuit or any other circuit court of appeals of competent jurisdiction. The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115-195, 132 Stat. 1510. 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. Contact information for the courts of appeals can be found at their respective websites, which can be accessed through 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	Curtiss_William_P_DE-0752-23-0216-I-1_Final_Order.pdf	2025-02-20	WILLIAM P. CURTISS v. DEPARTMENT OF THE AIR FORCE, MSPB Docket No. DE-0752-23-0216-I-1, February 20, 2025	DE-0752-23-0216-I-1	NP
163	https://www.mspb.gov/decisions/nonprecedential/Cook_Reginald_J_AT-315H-23-0619-I-1_Final_Order.pdf	UNITED STATES OF AMERICA MERIT SYSTEMS PROTECTION BOARD REGINALD JOSEPH COOK, Appellant, v. DEPARTMENT OF LABOR, Agency.DOCKET NUMBER AT-315H-23-0619-I-1 DATE: February 20, 2025 THIS FINAL ORDER IS NONPRECEDENTIAL1 Reginald Joseph Cook , Atlanta, Georgia, pro se. Monica Moukalif , Esquire, and Michael C. Wynter , Esquire, Atlanta, Georgia, 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. For the reasons set forth below, the appellant’s petition for review is DISMISSED as untimely filed without good cause shown. 5 C.F.R. § 1201.114(e), (g). 1 A nonprecedential order is one that the Board has determined does not add significantly to the body of MSPB case law. Parties may cite nonprecedential orders, but such orders have no precedential value; the Board and administrative judges are not required to follow or distinguish them in any future decisions. In contrast, a precedential decision issued as an Opinion and Order has been identified by the Board as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c). BACKGROUND The administrative judge issued an initial decision on November 27, 2023, dismissing the appellant’s appeal for lack of jurisdiction. Initial Appeal File (IAF), Tab 7, Initial Decision (ID). The initial decision advised the appellant that the deadline to file a petition for review was January 1, 2024, and provided information as to how to file a petition for review. ID at 3-4. On December 31, 2023, the appellant emailed the Board and attached a document he wished to have docketed as a petition for review. Petition for Review (PFR) File, Tab 1 at 2-5. The Office of the Clerk of the Board informed the appellant in a January 2, 2024 email that a petition for review had to be filed electronically, through the Board’s e-Appeal Online System, or by mail, fax, or commercial delivery. Id. at 2. The email also stated that no further action would be taken in response to the appellant’s December 31, 2023, email and attachment. Id. The appellant filed a petition for review by facsimile transmittal on January 31, 2024. PFR File, Tab 1. The Clerk of the Board issued an acknowledgment letter explaining that the filing deadline was January 1, 2024, identifying January 31, 2024, as the filing date, and providing information regarding how the appellant could file a motion for the Board to accept the filing as timely or to waive the time limit for good cause. PFR File, Tab 2 at 2, 4-5. The appellant did not respond to the acknowledgment letter. DISCUSSION OF ARGUMENTS ON REVIEW A petition for review generally must be filed within 35 days after the date of the issuance of the initial decision or, if the appellant shows that the initial decision was received more than 5 days after the initial decision was issued, 30 days after the date the appellant received the initial decision. 5 C.F.R. § 1201.114(e). It is the appellant’s burden of proof, by a preponderance of the evidence, to establish the timeliness of his petition for review. 5 C.F.R. § 1201.56(b)(2)(B); see McPherson v. Department of the Treasury , 104 M.S.P.R. 547, ¶ 4 (2007). Under the Board’s2 regulations, a pleading, such as a petition for review, may be filed by mail, facsimile, commercial or personal delivery, or electronic filing. 5 C.F.R. § 1201.4(i). The Board’s e-Appeal Online system is the exclusive system for electronic filing with the Board; the Board will not accept pleadings by email. 5 C.F.R. § 1201.14(d) (2023); 5 C.F.R. § 1201.14(b) (2024).2 Here, as discussed above, the deadline to file the appellant’s petition for review was January 1, 2024, but because that day was a Federal holiday, the actual filing deadline was January 2, 2024. ID at 3; 5 C.F.R. § 1201.23 (explaining that, if the last day for filing falls on a Federal holiday, the filing period includes the first workday after that date). After his December 31, 2023 email was rejected in accordance with the Board’s regulations, the appellant filed his petition for review on January 31, 2024. PFR File, Tab 1. Thus, the petition for review was 29 days late. As the appellant filed his petition for review late, the issue is whether he established good cause to waive the time limit. The Board will waive a petition for review filing deadline only upon a showing of good cause for the delay in filing. 5 C.F.R. § 1201.114(g). To establish good cause for the untimely filing of a petition for review, a party must show that he exercised due diligence or ordinary prudence under the particular circumstances of the case. Rivera v. Social Security Administration, 111 M.S.P.R. 581, ¶ 4 (2009) (citing Alonzo v. Department of the Air Force, 4 M.S.P.R. 180, 184 (1980)). To determine whether an appellant has shown good cause, the Board will consider the length of the delay, the reasonableness of his excuse and his showing of due diligence, whether he is proceeding pro se, and whether he has presented evidence of the existence of 2 The Board revised its regulations regarding electronic filing procedures in 2023, but the version in effect when the appellant filed his appeal specifically provided that filing by email was not allowed and the current version only allows email pleadings when specifically provided. Compare 5 C.F.R. § 1201.14(d) (2023), with 5 C.F.R. § 1201.14(b) (2024). The appellant was not specifically provided with authorization to file a petition for review by email. Thus, regardless of which version of the regulations is applied, the appellant’s email filing was not allowed. 3 circumstances beyond his control which affected his ability to comply with the time limits or of unavoidable casualty or misfortune which similarly shows a causal relationship to his inability to timely file his petition. Rivera, 111 M.S.P.R. 581, ¶ 4 (citing Moorman v. Department of the Army , 68 M.S.P.R. 60, 62-63 (1995), aff’d, 79 F.3d 1167 (Fed. Cir. 1996) (Table)). As noted, the appellant did not respond to the letter affording him an opportunity to show good cause for the filing delay. In the appellant’s petition for review, he states that he included his December 31, 2023, email to the Board to show that he attempted to timely file his petition. PFR File, Tab 1 at 1. The appellant also acknowledges that he received an email from the Board on January 2, 2024, informing him that the December 31, 2023, filing via email was not acceptable. Id. He has offered no explanation for the 29-day delay between January 2, 2024, and January 31, 2024, and thus has not shown that he acted with due diligence or ordinary prudence in filing his petition for review. Moreover, although the appellant was proceeding pro se, the 29-day delay in filing is not minimal. Hodge v. U.S. Postal Service, 88 M.S.P.R. 50, ¶¶ 4, 6 (2001) (finding that a pro se appellant’s 28–day delay in filing a petition for review was not minimal and did not provide a basis for waiving the filing deadline); Robinson v. Office of Personnel Management, 85 M.S.P.R. 589, ¶ 6 (2000) (finding that a pro se appellant’s approximately 30–day delay in filing a petition for review was not minimal and did not provide a basis for waiving the filing deadline) . Thus, the appellant has not shown good cause for his delay in filing his petition for review. The Board has consistently denied waiver of the filing deadline in the absence of good cause for the filing delay, even when the delay is minimal and the petitioning party is pro se. Lockhart v. Office of Personnel Management, 94 M.S.P.R. 396, ¶¶ 7–8 (2003) (declining to excuse a 5–day delay in filing a petition for review where the pro se appellant failed to show good cause for the delay); Beckley v. U.S. Postal Service, 43 M.S.P.R. 397, 399 (1990) (stating that in the interest of judicial4 efficiency and fairness, the Board will not waive its timeliness requirements in the absence of good cause) . Based on the analysis set forth above, we dismiss the petition for review as untimely filed without good cause shown for the delay. This is the final decision of the Merit Systems Protection Board concerning the timeliness of the appellant’s petition for review. The initial decision remains the final decision of the Board concerning the merits of the appeal. 5 C.F.R. § 1201.113(c). NOTICE OF APPEAL RIGHTS3 You may obtain review of this final decision. 5 U.S.C. § 7703(a)(1). By statute, the nature of your claims determines the time limit for seeking such review and the appropriate forum with which to file. 5 U.S.C. § 7703(b). Although we offer the following summary of available appeal rights, the Merit Systems Protection Board does not provide legal advice on which option is most appropriate for your situation and the rights described below do not represent a statement of how courts will rule regarding which cases fall within their jurisdiction. If you wish to seek review of this final decision, you should immediately review the law applicable to your claims and carefully follow all filing time limits and requirements. Failure to file within the applicable time limit may result in the dismissal of your case by your chosen forum. Please read carefully each of the three main possible choices of review below to decide which one applies to your particular case. If you have questions about whether a particular forum is the appropriate one to review your case, you should contact that forum for more information. (1) Judicial review in general . As a general rule, an appellant seeking judicial review of a final Board order must file a petition for review with the U.S. 3 Since the issuance of the initial decision in this matter, the Board may have updated the notice of review rights included in final decisions. As indicated in the notice, the Board cannot advise which option is most appropriate in any matter.5 Court of Appeals for the Federal Circuit, which must be received by the court within 60 calendar days of the date of issuance of this decision. 5 U.S.C. § 7703(b)(1)(A). If you submit a petition for review to the U.S. Court of Appeals for the Federal Circuit, you must submit your petition to the court at the following address: U.S. Court of Appeals for the Federal Circuit 717 Madison Place, N.W. Washington, D.C. 20439 Additional information about the U.S. Court of Appeals for the Federal Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11. If you are interested in securing pro bono representation for an appeal to the U.S. Court of Appeals for the Federal Circuit, you may visit our website at http://www.mspb.gov/probono for information regarding pro bono representation for Merit Systems Protection Board appellants before the Federal Circuit. The Board neither endorses the services provided by any attorney nor warrants that any attorney will accept representation in a given case. (2) Judicial or EEOC review of cases involving a claim of discrimination . This option applies to you only if you have claimed that you were affected by an action that is appealable to the Board and that such action was based, in whole or in part, on unlawful discrimination. If so, you may obtain judicial review of this decision—including a disposition of your discrimination claims —by filing a civil action with an appropriate U.S. district court ( not the U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems Protection Board , 582 U.S. 420 (2017). If you have a representative in this case, and your representative receives this decision before you do, then you must file with the district court no later than 306 calendar days after your representative receives this decision. If the action involves a claim of discrimination based on race, color, religion, sex, national origin, or a disabling condition, you may be entitled to representation by a court- appointed lawyer and to waiver of any requirement of prepayment of fees, costs, or other security. See 42 U.S.C. § 2000e-5(f) and 29 U.S.C. § 794a. Contact information for U.S. district courts can be found at their respective websites, which can be accessed through the link below: http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx . Alternatively, you may request review by the Equal Employment Opportunity Commission (EEOC) of your discrimination claims only, excluding all other issues . 5 U.S.C. § 7702(b)(1). You must file any such request with the EEOC’s Office of Federal Operations within 30 calendar days after you receive this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case, and your representative receives this decision before you do, then you must file with the EEOC no later than 30 calendar days after your representative receives this decision. If you submit a request for review to the EEOC by regular U.S. mail, the address of the EEOC is: Office of Federal Operations Equal Employment Opportunity Commission P.O. Box 77960 Washington, D.C. 20013 If you submit a request for review to the EEOC via commercial delivery or by a method requiring a signature, it must be addressed to: Office of Federal Operations Equal Employment Opportunity Commission 131 M Street, N.E. Suite 5SW12G Washington, D.C. 20507 (3) Judicial review pursuant to the Whistleblower Protection Enhancement Act of 2012 . This option applies to you only if you have raised7 claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D). If so, and your judicial petition for review “raises no challenge to the Board’s disposition of allegations of a prohibited personnel practice described in section 2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i), (B), (C), or (D),” then you may file a petition for judicial review either with the U.S. Court of Appeals for the Federal Circuit or any court of appeals of competent jurisdiction.4 The court of appeals must receive your petition for review within 60 days of the date of issuance of this decision. 5 U.S.C. § 7703(b)(1)(B). If you submit a petition for judicial review to the U.S. Court of Appeals for the Federal Circuit, you must submit your petition to the court at the following address: U.S. Court of Appeals for the Federal Circuit 717 Madison Place, N.W. Washington, D.C. 20439 Additional information about the U.S. Court of Appeals for the Federal Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11. If you are interested in securing pro bono representation for an appeal to the U.S. Court of Appeals for the Federal Circuit, you may visit our website at http://www.mspb.gov/probono for information regarding pro bono representation for Merit Systems Protection Board appellants before the Federal Circuit. The 4 The original statutory provision that provided for judicial review of certain whistleblower claims by any court of appeals of competent jurisdiction expired on December 27, 2017. The All Circuit Review Act, signed into law by the President on July 7, 2018, permanently allows appellants to file petitions for judicial review of MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals for the Federal Circuit or any other circuit court of appeals of competent jurisdiction. The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115-195, 132 Stat. 1510. 8 Board neither endorses the services provided by any attorney nor warrants that any attorney will accept representation in a given case. Contact information for the courts of appeals can be found at their respective websites, which can be accessed through the link below: http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx . FOR THE BOARD: ______________________________ Gina K. Grippando Clerk of the Board Washington, D.C.9	Cook_Reginald_J_AT-315H-23-0619-I-1_Final_Order.pdf	2025-02-20	REGINALD JOSEPH COOK v. DEPARTMENT OF LABOR, MSPB Docket No. AT-315H-23-0619-I-1, February 20, 2025	AT-315H-23-0619-I-1	NP
164	https://www.mspb.gov/decisions/nonprecedential/Roskind_Michael_T_DC-1221-22-0230-W-1_Final_Order.pdf	UNITED STATES OF AMERICA MERIT SYSTEMS PROTECTION BOARD MICHAEL ROSKIND, Appellant, v. DEPARTMENT OF HOMELAND SECURITY, Agency.DOCKET NUMBER DC-1221-22-0230-W-1 DATE: February 20, 2025 THIS FINAL ORDER IS NONPRECEDENTIAL1 Sara Furlow , Esquire, Daniel Meyer , Esquire, and Lachlan McKinion , Esquire, Washington, D.C., for the appellant. William Parker , Esquire, Washington, D.C., for the agency. Michelle McCluer , Esquire, and Angela Williams , Arlington, 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. 1 A nonprecedential order is one that the Board has determined does not add significantly to the body of MSPB case law. Parties may cite nonprecedential orders, but such orders have no precedential value; the Board and administrative judges are not required to follow or distinguish them in any future decisions. In contrast, a precedential decision issued as an Opinion and 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 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 material fact; the initial decision is based on an erroneous interpretation of statute or regulation or the erroneous application of the law to the facts of the case; the administrative judge’s rulings during either the course of the appeal or the initial decision were not consistent with required procedures or involved an abuse of discretion, and the resulting error affected the outcome of the case; or new and material evidence or legal argument is available that, despite the petitioner’s due diligence, was not available when the record closed. Title 5 of the Code of Federal Regulations, section 1201.115 (5 C.F.R. § 1201.115). After fully considering the filings in this appeal, we conclude that 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 proved that he engaged in protected activity, we AFFIRM the initial decision. BACKGROUND The appellant is a GS-15 employee with the Department of Homeland Security’s Cybersecurity and Infrastructure Security Agency (CISA). Initial Appeal File (IAF), Tab 1 at 3. On February 9, 2022, the appellant filed this IRA appeal with the Board. Id. In his pleadings before the administrative judge, he alleged that he made 31 protected disclosures between February 23, 2017, and July 15, 2021, and that the agency took 16 personnel actions between March 14, 2018, and May 15, 2021, in retaliation for said disclosures. IAF, Tab 8 at 10-23. Although his alleged disclosures included various matters, his disclosures in 2017 generally concerned a colleague’s unauthorized absences from work, and his later disclosures, beginning in 2020, generally concerned the2 agency’s fraudulent use of a direct-hire authority (DHA) to hire six unqualified individuals and pay them a recruitment and retention incentive to which they were not entitled. Id. at 10-15, 129-30. He also allegedly disclosed that the agency’s hiring actions discriminated against veterans and minorities. Id. After holding the requested hearing, the administrative judge issued an initial decision on December 1, 2023, denying corrective action. IAF, Tab 47, Initial Decision (ID). The administrative judge found that, of the allegedly protected disclosures exhausted with the Office of Special Counsel (OSC), the appellant did not prove that he made a disclosure that he reasonably believed evidenced a category of wrongdoing listed under 5 U.S.C. § 2302(b)(8)(A). ID at 10-34, 40. Thus, she concluded that the appellant did not prove that he made a disclosure protected under the Whistleblower Protection Enhancement Act of 2012 (WPEA). Id. She also found that the appellant’s complaints made to the agency’s Office of Inspector General (OIG), the agency’s Internal Affairs Division (IAD), or other agency components did not rise to the level of whistleblowing, and she further noted that his complaints of discrimination were not protected under the WPEA. ID at 14-15, 24, 28, 33. Nevertheless, she made alternative findings to the extent that any of the appellant’s complaints to the OIG or other agency components constituted protected whistleblower activity. ID at 34-40. Specifically, she found that the agency proved by clear and convincing evidence that it would have issued him a management-directed reassignment in March 2018, i.e., the first personnel action alleged by the appellant, absent any protected disclosure or activity. ID at 34-36. Concerning the remaining personnel actions alleged by the appellant, she found that the appellant either did not prove that the agency’s actions constituted personnel actions within the meaning of 5 U.S.C. § 2302(a)(2)(A) or that he did not prove that he exhausted these alleged personnel actions with OSC. ID at 37-40. 3 DISCUSSION OF ARGUMENTS ON REVIEW The appellant raises various arguments on petition for review. Petition for Review (PFR) File, Tabs 1, 4. Among other things, he argues that the administrative judge erred by failing to conduct a proper analysis of whether he engaged in protected activity under 5 U.S.C. § 2302(b)(9), which he argues does not require a reasonable belief in a category of wrongdoing listed in section 2302(b)(8)(A). PFR File, Tab 1 at 4, 10-11. We agree. We modify the initial decision to find that the appellant proved that he engaged in protected activity. Under 5 U.S.C. § 2302(b)(9)(C), “cooperating with or disclosing information to the Inspector General . . . of an agency, or the Special Counsel” is protected activity—irrespective of whether an individual had a reasonable belief that he was disclosing wrongdoing. Pridgen v. Office of Management and Budget, 2022 MSPB 31, ¶ 62. Furthermore, as of December 12, 2017, cooperating or disclosing information to “any . . . component responsible for internal investigations or review” is also protected under section 2302(b)(9)(C). Id., ¶ 62 n.22; Edwards v. Department of Labor , 2022 MSPB 9, ¶¶ 29-33, aff’d, No. 22-1967 (Fed. Cir. July 7, 2023). Such complaints are protected regardless of their content. Pridgen, 2022 MSPB 31, ¶ 62. Accordingly, we find that the appellant engaged in protected activity by filing a complaint with the agency’s OIG concerning his colleague’s alleged timecard fraud on April 14, 2017. IAF, Tab 8 at 10 (disclosure #3), 31, 142.2 Furthermore, we find that the appellant engaged in protected activity by disclosing information to the agency’s OIG and IAD3 concerning hiring fraud and a discriminatory impact on veterans and 2 As noted in the initial decision, the agency stipulated at the hearing that the appellant filed this complaint. ID at 12; see IAF, Tab 44-5, Hearing Recording (HR). 3 We find that the IAD was an agency component responsible for internal investigations or review as described under section 2302(b)(9)(C), as demonstrated by its acceptance of the appellant’s formal complaints and its subsequent investigation. IAF, Tab 10 at 118-30. 4 minorities. IAF, Tab 8 at 11-12, 146-49, 174-87, 237-44, Tab 33 at 72-76. His protected activity includes, but is not limited to, the following: a February 4, 2020 complaint to OIG, IAF, Tab 8 at 11 (disclosure #5), Tab 33 at 72-76; February 18 and 19, 2020 emails to the IAD, IAF, Tab 8 at 11 (disclosure #6), 146-49; a sworn statement to IAD on March 18, 2020, id. at 12 (disclosure #9), 174-87; and a second sworn statement to IAD on May 11, 2020, id. at 12 (disclosure #10), 237-44.4 Furthermore, we find that OSC’s letter to the appellant notifying him of the closure of its inquiry into his allegations, which expressly mentions multiple complaints made to the agency’s OIG and IAD, is sufficient to show that the appellant exhausted these protected activities with OSC. IAF, Tab 8 at 129-30; see Chambers v. Department of Homeland Security , 2022 MSPB 8, ¶¶ 10-11. The appellant also argues on review that the administrative judge erred in finding that he did not have a reasonable belief in a category of wrongdoing under section 2302(b)(8)(A) regarding his colleague’s unauthorized absences or the agency’s hiring fraud. PFR File, Tab 1 at 11-13. However, the appellant merely recites evidence presented below, which the administrative judge expressly considered. ID at 13-19. We find that the appellant’s mere reargument of issues already raised and properly resolved by the administrative judge does not establish a basis for review. See Broughton v. Department of Health and Human Services, 33 M.S.P.R. 357, 359 (1987). In any event, because the appellant’s allegedly protected disclosures under section 2302(b)(8)(A) were made around the same time, to the same individuals, and concerned the same subject matter as his protected activity described above, we find any error to be immaterial.5 4 The appellant also referenced, in his emails to agency officials, additional complaints that he allegedly made to the OIG concerning hiring fraud and whistleblower retaliation. See, e.g., IAF, Tab 8 at 13 (disclosures #12, 13, 16, 22), 272, 278-79, 314-15. 5 The appellant also argues on review that the administrative judge “cut-off” the testimony of one of his witnesses at the hearing, PFR File, Tab 1 at 14-15; however, we5 Because the appellant has not shown a material error in the administrative judge’s alternative findings, we affirm the initial decision. Assuming arguendo that the appellant made protected disclosures or engaged in protected activity, the administrative judge presented alternative findings concerning the 16 retaliatory personnel actions alleged by the appellant. ID at 34-40; see IAF, Tab 8 at 19-23. On review, the appellant appears to challenge only the administrative judge’s findings with respect to alleged personnel actions 1, 9, 10, and 15. PFR File, Tabs 1, 4; see IAF, Tab 8 at 19-23. We find his arguments unpersuasive. Concerning personnel action 1, i.e., his management-directed reassignment in March 2018, the appellant challenges the administrative judge’s conclusion that the agency proved by clear and convincing evidence that it would have taken the same personnel action absent his protected disclosures or activities. PFR File, Tab 1 at 13, Tab 4 at 11-12; ID at 34-36. Specifically, he argues that the administrative judge made erroneous findings of fact in concluding that the first Carr factor, which concerns the strength of the agency’s evidence in support of its action, favored the agency, and he highlights some aspects of his testimony at the hearing. PFR File, Tab 1 at 13, Tab 4 at 11-12; ID at 34-36; see Carr v. Social Security Administration , 185 F.3d 1318, 1323 (Fed. Cir. 1999). Given the administrative judge’s finding that the appellant did not prove that he made a protected disclosure or engaged in protected activity, she should not have determined whether the agency proved by clear and convincing evidence that it would have taken the same action in the absence of such a disclosure or activity. See Clarke v. Department of Veterans Affairs , 121 M.S.P.R. 154, ¶ 19 n.10 (2014), aff’d, 623 F. App’x 1016 (Fed. Cir. 2015), disagreed with on other grounds by Delgado v. Merit Systems Protection Board , 880 F.3d 913 (7th Cir. 2018). However, in light of our determination that the appellant proved that he find no abuse of discretion in her control of the hearing proceedings, IAF, Tab 45-6, HR (testimony of the former Associate Director of the Emergency Communications Division). 6 engaged in protected activity before the agency took this personnel action, that error was harmless, and we agree with the administrative judge’s alternative findings, which were based on well-reasoned credibility determinations, and in which she credited the testimony of the responsible agency official regarding his reasons for reassigning the appellant and discredited the appellant’s testimony to the contrary. ID at 34-35; see IAF, Tab 10 at 72-74, Tab 44-4, HR (testimony of the appellant), Tab 45-1, HR (testimony of Deputy Assistant Secretary, Office of Cybersecurity and Communications). The Board will defer to an administrative judge’s credibility determinations when they are based, explicitly or implicitly, on observing the demeanor of witnesses testifying at a hearing; the Board may overturn such determinations only when it has “sufficiently sound” reasons for doing so. Haebe v. Department of Justice , 288 F.3d 1288, 1301 (Fed. Cir. 2002). We find that the appellant’s mere disagreement with the administrative judge’s credibility determinations and findings of fact does not provide a basis for granting review. See Diggs v. Department of Housing and Urban Development , 114 M.S.P.R. 464, ¶ 8 (2010). Alleged personnel actions 9 and 10 concern the agency’s alleged actions in September 2020 of relieving the appellant of his leadership role on a project called Cybersecurity Concept of Operations (CONOPS) within the Emergency Communications Division (ECD), and excluding him from all CONOPS meetings, respectively. IAF, Tab 8 at 21. The administrative judge found that the alleged actions did not appear to have caused a “significant change” in his duties, responsibilities, or working conditions. ID at 37 (citing Skarada v. Department of Veterans Affairs , 2022 MSPB 17, ¶ 16). On review, the appellant argues that “clearly, not being able to attend ECD meetings . . . prevented [him] from effectively performing his tasks.” PFR File, Tab 1 at 10. However, as we explained in Skarada, an appellant “must provide sufficient information and evidence to allow the Board to determine whether the agency’s alleged actions were ‘significant.’” Skarada, 2022 MSPB 17, ¶ 23. Only agency actions that,7 individually or collectively, have practical and significant effects on the overall nature and quality of an employee’s working conditions, duties, or responsibilities and are likely to have a chilling effect on whistleblowing or otherwise undermine the merit system will be found to constitute a covered personnel action under section 2302(a)(2)(A)(xii). Id. Here, we agree with administrative judge that the appellant has not proven that the removal of his CONOPS duties had practical and significant effects on the overall nature and quality of his work. Moreover, as the ECD Assistant Director testified that the CONOPS project had naturally concluded at the end of the fiscal year and was not continued the following year—with or without the appellant—this does not appear to be the type of agency action that is likely to have a chilling effect on whistleblowing or otherwise undermine the merit system. IAF, Tab 45-2, HR (testimony of the ECD Assistant Director); see Skarada, 2022 MSPB 17, ¶ 23. Lastly, personnel action 15 constitutes an Anti-Harassment Unit (AHU) complaint filed against the appellant by the agency official accused by him of hiring fraud. IAF, Tab 8 at 22; see IAF Tab 10 at 123, Tab 33 at 122-25. A retaliatory investigation, either on its own or as part of a broader set of circumstances, may qualify as a personnel action if it rises to the level of a “significant change in . . . working conditions.” Sistek v. Department of Veterans Affairs, 955 F.3d 948, 955 (Fed. Cir. 2020). The administrative judge correctly found no evidence that the investigation resulted in any change in working conditions and that, therefore, the AHU compliant was not a personnel action within the meaning of the WPEA. ID at 39. On review, the appellant reraises the AHU complaint but does not identify any error in the administrative judge’s finding. PFR File, Tab 1 at 14. Moreover, the appellant has not alleged or shown that the investigation was so closely related to a resulting personnel action that it could have been a pretext for gathering evidence to retaliate against him. See Young v. Department of Homeland Security , 2024 MSPB 18, ¶¶ 14-16. Thus, we need not address this allegation further.8 As mentioned above, the appellant has not raised any arguments on review regarding the administrative judge’s findings as to the remaining personnel actions, and we see no reason to disturb them. ID at 37-40; see generally 5 C.F.R. § 1201.115 (“The Board normally will consider only issues raised in a timely filed petition or cross petition for review.”). Accordingly, we affirm the initial decision as modified. NOTICE OF APPEAL RIGHTS6 The initial decision, as supplemented by this Final Order, constitutes the Board’s final decision in this matter. 5 C.F.R. § 1201.113. You may obtain review of this final decision. 5 U.S.C. § 7703(a)(1). By statute, the nature of your claims determines the time limit for seeking such review and the appropriate forum with which to file. 5 U.S.C. § 7703(b). Although we offer the following summary of available appeal rights, the Merit Systems Protection Board does not provide legal advice on which option is most appropriate for your situation and the rights described below do not represent a statement of how courts will rule regarding which cases fall within their jurisdiction. If you wish to seek review of this final decision, you should immediately review the law applicable to your claims and carefully follow all filing time limits and requirements. Failure to file within the applicable time limit may result in the dismissal of your case by your chosen forum. Please read carefully each of the three main possible choices of review below to decide which one applies to your particular case. If you have questions about whether a particular forum is the appropriate one to review your case, you should contact that forum for more information. 6 Since the issuance of the initial decision in this matter, the Board may have updated the notice of review rights included in final decisions. As indicated in the notice, the Board cannot advise which option is most appropriate in any matter.9 (1) Judicial review in general . As a general rule, an appellant seeking judicial review of a final Board order must file a petition for review with the U.S. Court of Appeals for the Federal Circuit, which must be received by the court within 60 calendar days of the date of issuance of this decision. 5 U.S.C. § 7703(b)(1)(A). If you submit a petition for review to the U.S. Court of Appeals for the Federal Circuit, you must submit your petition to the court at the following address: U.S. Court of Appeals for the Federal Circuit 717 Madison Place, N.W. Washington, D.C. 20439 Additional information about the U.S. Court of Appeals for the Federal Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11. If you are interested in securing pro bono representation for an appeal to the U.S. Court of Appeals for the Federal Circuit, you may visit our website at http://www.mspb.gov/probono for information regarding pro bono representation for Merit Systems Protection Board appellants before the Federal Circuit. The Board neither endorses the services provided by any attorney nor warrants that any attorney will accept representation in a given case. (2) Judicial or EEOC review of cases involving a claim of discrimination . This option applies to you only if you have claimed that you were affected by an action that is appealable to the Board and that such action was based, in whole or in part, on unlawful discrimination. If so, you may obtain judicial review of this decision —including a disposition of your discrimination claims —by filing a civil action with an appropriate U.S. district court ( not the U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you10 receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems Protection Board , 582 U.S. 420 (2017). If you have a representative in this case, and your representative receives this decision before you do, then you must file with the district court no later than 30 calendar days after your representative receives this decision. If the action involves a claim of discrimination based on race, color, religion, sex, national origin, or a disabling condition, you may be entitled to representation by a court-appointed lawyer and to waiver of any requirement of prepayment of fees, costs, or other security. See 42 U.S.C. § 2000e-5(f) and 29 U.S.C. § 794a. Contact information for U.S. district courts can be found at their respective websites, which can be accessed through the link below: http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx . Alternatively, you may request review by the Equal Employment Opportunity Commission (EEOC) of your discrimination claims only, excluding all other issues . 5 U.S.C. § 7702(b)(1). You must file any such request with the EEOC’s Office of Federal Operations within 30 calendar days after you receive this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case, and your representative receives this decision before you do, then you must file with the EEOC no later than 30 calendar days after your representative receives this decision. If you submit a request for review to the EEOC by regular U.S. mail, the address of the EEOC is: Office of Federal Operations Equal Employment Opportunity Commission P.O. Box 77960 Washington, D.C. 2001311 If you submit a request for review to the EEOC via commercial delivery or by a method requiring a signature, it must be addressed to: Office of Federal Operations Equal Employment Opportunity Commission 131 M Street, N.E. Suite 5SW12G Washington, D.C. 20507 (3) Judicial review pursuant to the Whistleblower Protection Enhancement Act of 2012 . This option applies to you only if you have raised claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D). If so, and your judicial petition for review “raises no challenge to the Board’s disposition of allegations of a prohibited personnel practice described in section 2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i), (B), (C), or (D),” then you may file a 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. 12 If you submit a petition for judicial review to the U.S. Court of Appeals for the Federal Circuit, you must submit your petition to the court at the following address: U.S. Court of Appeals for the Federal Circuit 717 Madison Place, N.W. Washington, D.C. 20439 Additional information about the U.S. Court of Appeals for the Federal Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11. If you are interested in securing pro bono representation for an appeal to the U.S. Court of Appeals for the Federal Circuit, you may visit our website at http://www.mspb.gov/probono for information regarding pro bono representation for Merit Systems Protection Board appellants before the Federal Circuit. The Board neither endorses the services provided by any attorney nor warrants that any attorney will accept representation in a given case. Contact information for the courts of appeals can be found at their respective websites, which can be accessed through the link below: http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx . FOR THE BOARD: ______________________________ Gina K. Grippando Clerk of the Board Washington, D.C.13	Roskind_Michael_T_DC-1221-22-0230-W-1_Final_Order.pdf	2025-02-20	MICHAEL ROSKIND v. DEPARTMENT OF HOMELAND SECURITY, MSPB Docket No. DC-1221-22-0230-W-1, February 20, 2025	DC-1221-22-0230-W-1	NP
165	https://www.mspb.gov/decisions/nonprecedential/Stanislaw_RebeccaCB-7121-23-0001-V-1_Final_Order.pdf	UNITED STATES OF AMERICA MERIT SYSTEMS PROTECTION BOARD REBECCA STANISLAW, Appellant, v. DEPARTMENT OF HOMELAND SECURITY, Agency.DOCKET NUMBER CB-7121-23-0001-V-1 DATE: February 20, 2025 THIS FINAL ORDER IS NONPRECEDENTIAL1 Nicole M. Ferree , Las Vegas, Nevada, 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 Pursuant to the Board’s instructions in this arbitration review matter,2 the administrative judge issued a March 21, 2024 Recommended Decision in which 1 A nonprecedential order is one that the Board has determined does not add significantly to the body of MSPB case law. Parties may cite nonprecedential orders, but such orders have no precedential value; the Board and administrative judges are not required to follow or distinguish them in any future decisions. In contrast, a precedential decision issued as an Opinion and Order has been identified by the Board as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c). 2 In its prior order, the Board clarified that the appellant’s due process claim constituted a claim of harmful procedural error and the appellant failed to prove this claim. Stanislaw v. Department of Homeland Security , MSPB Docket No. CB-7121-23-0001- V-1, Order, ¶¶ 10-11 (Jul. 7, 2023). We incorporate the Board’s findings in this regard. he recommended finding that the agency proved the elements of an unacceptable performance charge, the appellant did not prove her affirmative defenses of disability discrimination, retaliation, and “administrative double jeopardy,” and the removal should be upheld. Stanislaw v. Department of Homeland Security , MSPB Docket No. CB-7121-23-0001-H-1, Referral Proceeding File (RPF), Tab 27, Recommended Decision (RD). The appellant has filed Exceptions to the Recommended Decision, and the agency has filed a response. Stanislaw v. Department of Homeland Security , MSPB Docket No. CB-7121-23-0001-V-1, Request for Review File (RFRF), Tabs 9-10. For the reasons set forth below, we ADOPT the administrative judge’s recommendations regarding the unacceptable performance charge and the appellant’s affirmative defenses of failure to accommodate disability discrimination and retaliation, and we uphold the removal action. We DO NOT ADOPT the administrative judge’s recommendation regarding the claim of “administrative double jeopardy,” but we have analyzed it, and we find that the appellant has not proven this claim. Having found that the agency proved the elements of an unacceptable performance charge and the appellant did not prove her affirmative defenses, we uphold the removal action. ANALYSIS We adopt the administrative judge’s recommendations relating to the unacceptable performance charge. The Recommended Decision reflects the administrative judge’s thorough discussion of the evidence, he cited the proper case law, and his analysis reflected his thoughtful consideration of the relevant legal issues. RD at 2-35; see Lee v. Department of Veterans Affairs , 2022 MSPB 11, ¶ 15. The Board will not disturb an administrative judge’s findings when he considered the evidence as a whole, drew appropriate inferences, and made reasoned conclusions on issues of credibility. Crosby v. U.S. Postal Service , 74 M.S.P.R. 98, 106 (1997); Broughton v. Department of Health & Human Services, 33 M.S.P.R. 357, 359 (1987). We have considered the appellant’s2 assertions regarding the elements of an unacceptable performance charge, RFRF, Tab 9 at 6-12, but none warrants a different outcome. For example, the supervisor’s testimony regarding her view of the “Achieved Expectations” standard does not change the fact that the agency communicated its performance standards and critical elements to the appellant in writing. We also adopt the administrative judge’s recommendation that the appellant did not prove her failure to accommodate claim. The appellant identifies in her Exceptions the agency’s failure to provide her certain requested accommodations, including detailed, written topics of weekly meetings, written follow-up instructions for trainings or assignments, positive feedback, and its “insistence” that there would be in-person weekly meetings.3 RFRF, Tab 9 at 18-19. The administrative judge carefully and thoroughly evaluated the evidence before him on these issues, and the appellant’s Exceptions do not persuade us that the administrative judge erred in his analysis. RD at 42-44. For example, the administrative judge found that the appellant’s supervisor granted her request to take one of the weekly meetings from home, and the appellant never requested that the weekly meetings be held remotely as an accommodation. RD at 17-18, 45. Regarding the appellant’s request for positive feedback, the administrative judge stated that, in the context of this case, the appellant requested positive feedback even though she was not submitting any work, and it is “impossible to give feedback on work that is not done.” RD at 44. He also noted that her supervisor gave her positive feedback for requesting do-not-disturb time or submitting a list of cases. Id. However, even after she started giving this positive feedback, the appellant submitted no cases and did very little work that 3 Importantly, the appellant does not challenge the administrative judge’s discussion of her other accommodations, such as approved leave requests, do-not-disturb time, additional time to respond to supervisors, 24-hour notice of scheduled meetings, and telework. 3 was submitted to the agency. Id. The administrative judge’s findings in this regard are supported by the record.4 Regarding reassignment, we have considered the appellant’s citation to Julius C. v. Department of the Air Force , EEOC Appeal No. 0120151295, 2017 WL 2730361 (June 16, 2017), and Bill A. v. Department of the Army , EEOC Appeal No. 0120131989, 2016 WL 6662825 (Oct. 26, 2016), to support her contention that the agency had an obligation to conduct a proper vacancy search. RFRF, Tab 9 at 20-22. However, these cases are distinguishable because the complainants requested reassignment as an accommodation. Julius C., EEOC Appeal No. 0120151295, 2017 WL 2730361 at 2; Bill A., EEOC Appeal No. 0120131989, 2016 WL 6662825 at 2, 11. By contrast, here, the administrative judge found that the appellant never asked for a reassignment, RD at 47, and the appellant does not dispute this finding in her Exceptions. See Collins v. U.S. Postal Service, 100 M.S.P.R. 332, ¶ 11 (2005) (stating that both parties have an obligation to assist in the search for an appropriate accommodation). The Board has held that, even if the agency fails to meet its reassignment obligations before it removes an employee, the agency’s failure does not relieve the appellant of her ultimate burden to show that a vacant, funded position existed and was available. Jackson v. U.S. Postal Service , 79 M.S.P.R. 46, 54 (1998); see Clemens v. Department of the Army , 120 M.S.P.R. 616, ¶ 17 (2014) (finding that the appellant bears the ultimate burden of proving that there was a position the agency would have found and could have assigned to her if it had looked). We have considered the appellant’s assertion that there were “other positions available within the agency” at the time of her removal, such as Fraud Detection 4 In pertinent part, the administrative judge found that, even crediting the appellant’s version of events, and finding that the agency should have given her more do-not- disturb time, more written feedback, and more detailed meeting notices, the appellant did not meet her burden to show that it was more likely than not that she could have performed the Asylum Officer duties within established production and timeliness expectations. RD at 46. We discern no error with his conclusion in this regard.4 and National Security positions. RFRF, Tab 9 at 21; see RPF, Tab 26-6 at 43-44 (testimony of the appellant). However, this single, generic statement does not persuade us that the administrative judge erred when he concluded that the appellant did not introduce any evidence developed during discovery that there were such positions available, and that she did not meet her burden to show that there were vacant, funded positions to which she could have been reassigned. RD at 47-48. We further adopt the administrative judge’s finding that the appellant did not prove her claim of retaliation for prior equal employment opportunity activity. RD at 48-51. The administrative judge considered the appellant’s argument about the timing between her initial accommodation request and the agency’s actions; however, we agree with the administrative judge that the appellant has not met her burden to show that her accommodation requests were the “but-for” cause of the agency’s actions. Finally, in the Recommended Decision, the administrative judge discussed the appellant’s claim of “administrative double jeopardy.” RD at 36-38. However, the administrative judge lacked the authority to review this issue because the Board did not discuss it in its order forwarding the matter to him for further adjudication. Stanislaw v. Department of Homeland Security , MSPB Docket No. CB-7121-23-0001-V-1, Order, ¶¶ 1, 5-9, 12 (Jul. 7, 2023). Accordingly, we do not adopt the administrative judge’s recommendation on this issue. Nevertheless, because the appellant raised this issue in her request for review, RFRF, Tab 1 at 21-22, we will address it herein. In her request for review, the appellant asserted that the misconduct which led to her May 2021 suspension was later “characterized as ‘performance’ and used to support placement on the [P]OP, and subsequently, the performance-based removal.” RFRF, Tab 1 at 22. In her Exceptions, the appellant acknowledges that the concept of administrative double jeopardy does not apply to “purely administrative actions” and the Board has not issued “clear guidance” when there5 is an “overlap of discipline and performance.” RFRF, Tab 9 at 12, 14. She clarifies that she was not asserting that the suspension and removal itself were based on the same events; rather, she asserts that the prior suspension and the POP were based on the same events. Id. at 12. In this regard, she asserts that the POP was “so inextricably tied to the removal that it is . an extension of the [c]hapter 43 removal process.” Id. In pertinent part, the appellant contends that she was suspended for failing to follow instructions and submit biweekly reports from late 2020 to early 2021, and the June 8, 2021 POP highlighted the fact that she did not submit biweekly reports after December 2020. Id. at 13. She asserts that the “exact same reports cannot be used . against [her] to support a new action.” Id. The appellant has not cited, and we have not found, any Board decisions or cases from the U.S. Court of Appeals for the Federal Circuit that applied the concept of administrative double jeopardy to successive misconduct and performance actions. However, even if we assumed for the purposes of our analysis that administrative double jeopardy applied to an adverse action and a subsequent performance-based action, and we assumed more specifically that it applied to the appellant’s suspension and the POP, a different outcome is not warranted. We have examined the factual specifications supporting the charges levied against the appellant, i.e., the underlying “cause” relied upon by the agency for taking the action. Frederick v. Department of Homeland Security , 122 M.S.P.R. 401, ¶ 9 (2015).5 Most of the events described in the notice of proposed suspension are distinguishable from the events described in the POP. For example, the suspension discussed the appellant’s failure to follow instructions and failure to follow leave procedures, and it cited examples from December 17, 2020, to February 5, 2021. By contrast, the POP discussed the appellant’s unacceptable 5 For the purposes of our analysis, we have relied on cases applying the concept of administrative double jeopardy to successive disciplinary or adverse actions.6 performance in the Communication and Technical Proficiency core competencies and provided examples from January 5, 2021, to April 26, 2021. The only identical date between the suspension and the POP was January 5, 2021, but there were different allegations against the appellant from this date.6 The appellant’s failure to submit biweekly reports is discussed in both the March 8, 2021 notice of proposed suspension and the June 8, 2021 POP. However, the appellant had a continuing obligation to submit biweekly reports, and her continued failure to submit the biweekly reports was relevant to her performance. We see nothing improper about the agency’s reliance on the appellant’s failure to submit biweekly reports on certain dates to support the suspension action and its reliance on her continued failure to submit those reports, and other deficiencies in her work, as examples of her unacceptable performance in the POP. See, e.g., Bowen v. Department of the Navy , 112 M.S.P.R. 607, ¶ 13 (2009) (finding that the agency did not subject the appellant to double punishment when it issued a letter of reprimand for one instance of refusing to use his Government credit card and imposed his removal based on his continued refusal to comply with orders to use the card and the fact that he closed the credit card account), aff’d, 402 F. App’x 521 (Fed. Cir. 2010). Because we find that the agency proved the elements of an unacceptable performance charge and the appellant did not prove her affirmative defenses, we uphold the removal action. See, e.g., Lisiecki v. Merit Systems Protection Board , 769 F.2d 1558, 1566 -67 (Fed. Cir. 1985) (holding that the Board has no authority 6 For example, related to the suspension, the agency charged the appellant with failing to follow her supervisor’s instruction to provide her with information regarding nine cases that she had worked by close of business that day. RFRF, Tab 1 at 861. By contrast, in the POP, as an example of the appellant’s unacceptable performance in the Technical Proficiency core competency, the agency identified a communication from the appellant’s supervisor on this date in which she reached out to the appellant about five separate cases that the appellant had said were completed but were missing required notices, and the appellant indicated a few days later she would upload the proper notices. Id. at 559. 7 to mitigate a removal action taken under 5 U.S.C. chapter 43 for unacceptable performance). 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 OF APPEAL RIGHTS7 You may obtain review of this final decision. 5 U.S.C. § 7703(a)(1). By statute, the nature of your claims determines the time limit for seeking such review and the appropriate forum with which to file. 5 U.S.C. § 7703(b). Although we offer the following summary of available appeal rights, the Merit Systems Protection Board does not provide legal advice on which option is most appropriate for your situation and the rights described below do not represent a statement of how courts will rule regarding which cases fall within their jurisdiction. If you wish to seek review of this final decision, you should immediately review the law applicable to your claims and carefully follow all filing time limits and requirements. Failure to file within the applicable time limit may result in the dismissal of your case by your chosen forum. Please read carefully each of the three main possible choices of review below to decide which one applies to your particular case. If you have questions about whether a particular forum is the appropriate one to review your case, you should contact that forum for more information. (1) Judicial review in general . As a general rule, an appellant seeking judicial review of a final Board order must file a petition for review with the U.S. Court of Appeals for the Federal Circuit, which must be received by the court 7 Since the issuance of the initial decision in this matter, the Board may have updated the notice of review rights included in final decisions. As indicated in the notice, the Board cannot advise which option is most appropriate in any matter.8 within 60 calendar days of the date of issuance of this decision. 5 U.S.C. § 7703(b)(1)(A). If you submit a petition for review to the U.S. Court of Appeals for the Federal Circuit, you must submit your petition to the court at the following address: U.S. Court of Appeals for the Federal Circuit 717 Madison Place, N.W. Washington, D.C. 20439 Additional information about the U.S. Court of Appeals for the Federal Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11. If you are interested in securing pro bono representation for an appeal to the U.S. Court of Appeals for the Federal Circuit, you may visit our website at http://www.mspb.gov/probono for information regarding pro bono representation for Merit Systems Protection Board appellants before the Federal Circuit. The Board neither endorses the services provided by any attorney nor warrants that any attorney will accept representation in a given case. (2) Judicial or EEOC review of cases involving a claim of discrimination . This option applies to you only if you have claimed that you were affected by an action that is appealable to the Board and that such action was based, in whole or in part, on unlawful discrimination. If so, you may obtain judicial review of this decision —including a disposition of your discrimination claims —by filing a civil action with an appropriate U.S. district court ( not the U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems Protection Board , 582 U.S. 420 (2017). If you have a representative in this case, and your representative receives this decision before you do, then you must file9 with the district court no later than 30 calendar days after your representative receives this decision. If the action involves a claim of discrimination based on race, color, religion, sex, national origin, or a disabling condition, you may be entitled to representation by a court-appointed lawyer and to waiver of any requirement of prepayment of fees, costs, or other security. See 42 U.S.C. § 2000e-5(f) and 29 U.S.C. § 794a. Contact information for U.S. district courts can be found at their respective websites, which can be accessed through the link below: http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx . Alternatively, you may request review by the Equal Employment Opportunity Commission (EEOC) of your discrimination claims only, excluding all other issues . 5 U.S.C. § 7702(b)(1). You must file any such request with the EEOC’s Office of Federal Operations within 30 calendar days after you receive this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case, and your representative receives this decision before you do, then you must file with the EEOC no later than 30 calendar days after your representative receives this decision. If you submit a request for review to the EEOC by regular U.S. mail, the address of the EEOC is: Office of Federal Operations Equal Employment Opportunity Commission P.O. Box 77960 Washington, D.C. 20013 If you submit a request for review to the EEOC via commercial delivery or by a method requiring a signature, it must be addressed to: Office of Federal Operations Equal Employment Opportunity Commission 131 M Street, N.E. Suite 5SW12G Washington, D.C. 2050710 (3) Judicial review pursuant to the Whistleblower Protection Enhancement Act of 2012 . This option applies to you only if you have raised claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D). If so, and your judicial petition for review “raises no challenge to the Board’s disposition of allegations of a prohibited personnel practice described in section 2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i), (B), (C), or (D),” then you may file a petition for judicial review either with the U.S. Court of Appeals for the Federal Circuit or any court of appeals of competent jurisdiction.8 The court of appeals must receive your petition for review within 60 days of the date of issuance of this decision. 5 U.S.C. § 7703(b)(1)(B). If you submit a petition for judicial review to the U.S. Court of Appeals for the Federal Circuit, you must submit your petition to the court at the following address: U.S. Court of Appeals for the Federal Circuit 717 Madison Place, N.W. Washington, D.C. 20439 Additional information about the U.S. Court of Appeals for the Federal Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11. 8 The original statutory provision that provided for judicial review of certain whistleblower claims by any court of appeals of competent jurisdiction expired on December 27, 2017. The All Circuit Review Act, signed into law by the President on July 7, 2018, permanently allows appellants to file petitions for judicial review of MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals for the Federal Circuit or any other circuit court of appeals of competent jurisdiction. The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115-195, 132 Stat. 1510. 11 If you are interested in securing pro bono representation for an appeal to the U.S. Court of Appeals for the Federal Circuit, you may visit our website at http://www.mspb.gov/probono for information regarding pro bono representation for Merit Systems Protection Board appellants before the 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	Stanislaw_RebeccaCB-7121-23-0001-V-1_Final_Order.pdf	2025-02-20	REBECCA STANISLAW v. DEPARTMENT OF HOMELAND SECURITY, MSPB Docket No. CB-7121-23-0001-V-1, February 20, 2025	CB-7121-23-0001-V-1	NP
166	https://www.mspb.gov/decisions/nonprecedential/Jevaji_PadmaraoDE-1221-20-0216-W-2_Final_Order.pdf	UNITED STATES OF AMERICA MERIT SYSTEMS PROTECTION BOARD PADMARAO JEVAJI, Appellant, v. DEPARTMENT OF HEALTH AND HUMAN SERVICES, Agency.DOCKET NUMBER DE-1221-20-0216-W-2 DATE: February 20, 2025 THIS FINAL ORDER IS NONPRECEDENTIAL1 Daniel K.R. Maharaj , Esquire, Tampa, Florida, for the appellant. Althea Smiley , Esquire, Denver, Colorado, for the agency. Jennifer Smith , 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 denied his request for corrective action in his individual right of action (IRA) 1 A nonprecedential order is one that the Board has determined does not add significantly to the body of MSPB case law. Parties may cite nonprecedential orders, but such orders have no precedential value; the Board and administrative judges are not required to follow or distinguish them in any future decisions. In contrast, a precedential decision issued as an Opinion and Order has been identified by the Board as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c). appeal. Generally, we grant petitions such as this one only in the following circumstances: the initial decision contains erroneous findings of material fact; the initial decision is based on an erroneous interpretation of statute or regulation or the erroneous application of the law to the facts of the case; the administrative judge’s rulings during either the course of the appeal or the initial decision were not consistent with required procedures or involved an abuse of discretion, and the resulting error affected the outcome of the case; or new and material evidence or legal argument is available that, despite the petitioner’s due diligence, was not available when the record closed. Title 5 of the Code of Federal Regulations, section 1201.115 (5 C.F.R. § 1201.115). After fully considering the filings in this appeal, we conclude that the petitioner has not established any basis under section 1201.115 for granting the petition for review. Therefore, we DENY the petition for review. Except as expressly MODIFIED to VACATE the administrative judge’s findings that the appellant did not exhaust all alleged disclosures with the Office of Special Counsel (OSC), we AFFIRM the initial decision. BACKGROUND The appellant was a Supervisory Physician (Clinical Director), GP-15, with the Indian Health Service at the Fort Belknap Service Unit (FBSU) in Harlem, Montana. Jevaji v. Department of Health and Human Services , MSPB Docket No. DE-1221-20-0216-W-2, Appeal File (W-2 AF), Tab 14 at 12, Tab 45 at 8. In January 2020, the agency issued a notice of termination to the appellant during his 1-year probationary period, and the appellant resigned to avoid termination. W-2 AF, Tab 14 at 13-14, 27-31. He subsequently filed a whistleblower retaliation complaint with OSC. W-2 AF, Tab 10. After OSC closed its investigation into his complaint, id. at 71, the appellant filed an IRA appeal with the Board, Jevaji v. Department of Health and Human Services , MSPB Docket No. DE-1221-20-0216-W-1, Initial Appeal File (IAF), Tab 1. The appeal was2 dismissed without prejudice and automatically refiled by the Board. IAF, Tab 13; W-2 AF, Tabs 1-3. The administrative judge issued an order apprising the appellant of the jurisdictional requirements for an IRA appeal and ordering him to submit argument and evidence on jurisdiction. W-2 AF, Tab 4. Both parties responded. W-2 AF, Tabs 10, 13-14. After considering those submissions, the administrative judge issued a jurisdictional ruling finding that the appellant exhausted four alleged disclosures with the OSC but made nonfrivolous allegations of only two protected disclosures. W-2 AF, Tab 34 at 4-20. He also found nonfrivolous allegations that those disclosures were a contributing factor in covered personnel actions of a threat of termination and involuntary resignation. Id. at 20-23; W-2 AF, Tab 43. After holding the requested hearing, the administrative judge issued an initial decision incorporating his jurisdiction rulings and finding that the appellant did not meet his burden of proving that he made a protected whistleblowing disclosure. W-2 AF, Tab 55, Initial Decision (ID). The appellant has filed a petition for review, reraising all allegedly protected disclosures raised before the administrative judge, arguing that they were a contributing factor in the agency’s personnel action, and asserting that the agency did not prove by clear and convincing evidence that it would have issued him a notice of termination absent his protected disclosures. Petition for Review (PFR) File, Tabs 1, 3. The agency has filed a response. PFR File, Tab 4. ANALYSIS The appellant exhausted his administrative remedies with OSC concerning all alleged disclosures raised in his Board appeal. In an IRA appeal based on whistleblower reprisal under the Whistleblower Protection Act (WPA),2 an appellant shall seek corrective action from OSC before 2 The WPA has been amended several times, including by the Whistleblower Protection Enhancement Act. The references herein to the WPA include those amendments.3 seeking corrective action from the Board. 5 U.S.C. § 1214(a)(3); Chambers v. Department of Homeland Security , 2022 MSPB 8, ¶ 5. This requirement of administrative exhaustion entails both substantive and procedural requirements . Chambers, 2022 MSPB 8, ¶ 5. The administrative judge, while finding that the appellant satisfied the procedural requirements, found that the appellant did not satisfy the substantive requirements for some of his allegedly protected whistleblowing disclosures. W-2 AF, Tab 34 at 3-6. The substantive requirements of exhaustion are met when an appellant has provided OSC with sufficient basis to pursue an investigation. Chambers, 2022 MSPB 8, ¶ 10. An appellant may demonstrate exhaustion through his initial OSC complaint or correspondence with OSC or, in the alternative, through other sufficiently reliable evidence, such as an affidavit or declaration attesting that the appellant raised with OSC the substance of the facts in his Board appeal. Id., ¶ 11. Here, the appellant’s OSC complaint and attached exhibits provided OSC with sufficient basis to pursue an investigation concerning all alleged disclosures raised in his Board appeal. W-2 AF, Tab 10. We expressly vacate the administrative judge’s findings concluding otherwise. W-2 AF, Tab 34 at 4-6. Specifically, we modify the administrative judge’s jurisdictional order incorporated in the initial decision to find that the appellant exhausted with OSC the following additional disclosures: (1) his July 10, 2019 statement that a supervisor at the FBSU had misused government vehicles, W-2 AF, Tab 10 at 44, 56, 71; (2) his November 2019 complaint that a former chief executive officer (CEO) of the FBSU had displayed favoritism to a nurse practitioner, id. at 28, 65; and (3) his contemporaneous complaint regarding this supervisor’s inappropriate conduct on November 7, 2019, id. at 46-48, 63-65. The appellant did not nonfrivolously allege that these additional disclosures were protected whistleblowing disclosures. The Board must address the matter of jurisdiction before proceeding to the merits of the appeal. Bishop v. Department of Agriculture , 2022 MSPB 28, ¶ 11.4 Only after Board jurisdiction is established is the Board required to provide the appellant with a hearing on the merits. Spencer v. Department of the Navy , 327 F.3d 1354, 1356 (Fed. Cir. 2003). If an appellant has exhausted his administrative remedies before OSC, he can establish Board jurisdiction by nonfrivolously alleging that (1) he made a protected disclosure described under 5 U.S.C. § 2302(b)(8) or engaged in protected activity described under 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D); and (2) the disclosure or protected activity was a contributing factor in the agency’s decision to take or fail to take a personnel action as defined by 5 U.S.C. § 2302(a)(2)(A). Chambers, 2022 MSPB 8, ¶ 14. Thus, we have considered whether the appellant has made nonfrivolous allegations concerning the three allegedly protected disclosures erroneously excluded in the jurisdictional order based on the exhaustion requirement. The Board’s regulations define a nonfrivolous allegation as an assertion that, if proven, could establish the matter at issue. 5 C.F.R. § 1201.4(s).3 As the U.S. Court of Appeals for the Federal Circuit in Hessami v. Merit Systems Protection Board , 979 F.3d 1362, 1364, 1369 (Fed. Cir. 2020) determined: “[T]he question of whether the appellant has non-frivolously alleged protected disclosures [or activities] that contributed to a personnel action must be determined based on whether the employee alleged sufficient factual matter, accepted as true, to state a claim that is plausible on its face.”4 A nonfrivolous allegation of a protected whistleblowing disclosure is an allegation of facts that, if proven, would show that the appellant disclosed a matter that a reasonable person in his position would believe evidenced a category of wrongdoing under section 2302(b)(8)(A). Gabel v. Department of 3 The regulation further provides that an allegation generally will be considered nonfrivolous when, under oath or penalty of perjury, an individual makes an allegation that (1) is more than conclusory; (2) is plausible on its face; and (3) is material to the legal issues in the appeal. 5 C.F.R. § 1201.4(s). Pro forma allegations are insufficient to meet the nonfrivolous standard. Clark v. U.S Postal Service , 123 M.S.P.R. 466, ¶ 6 (2016), aff’d, 679 F. App’x 1006 (Fed. Cir. 2017), and overruled on other grounds by Cronin v. U.S. Postal Service , 2022 MSPB 13, ¶ 20 n.11.5 Veterans Affairs , 2023 MSPB 4, ¶ 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.; see El v. Department of Commerce , 123 M.S.P.R. 76, ¶ 6 (2015), aff’d, 663 F. App’x 921 (Fed. Cir. 2016). Concerning the appellant’s disclosure of a supervisor’s misuse of a government vehicle, i.e., disclosure (1), the administrative judge made an alternative finding that the appellant’s disclosure was an example of “vague, conclusory, unsupported” alleged wrongdoing that did not meet the Board’s nonfrivolous pleading standard. W-2 AF, Tab 34 at 6 n.6 ( citing El, 123 M.S.P.R. 76, ¶ 6). We affirm this alternative finding. The appellant reported to the CEO of the FBSU that the supervisor “had misused GSA vehicles” but provided no specifics such as what actions constituted “misuse.” W-2 AF, Tab 10 at 56. Therefore, the appellant has not made nonfrivolous allegations concerning this disclosure. Concerning the appellant’s disclosure of favoritism, i.e., disclosure (2), the administrative judge also stated that this disclosure was too vague. W-2 AF, Tab 34 at 6. To the extent that the administrative judge found that the appellant did not make nonfrivolous allegations of a protected disclosure, we agree. The 4 Historically, the Board has been bound by the precedent of the Federal Circuit on these types of whistleblower issues. However, pursuant to the All Circuit Review Act, Pub. L. No. 115-195, 132 Stat. 1510, appellants may file petitions for judicial review of Board decisions in whistleblower reprisal cases with any circuit court of appeals of competent jurisdiction. See 5 U.S.C. § 7703(b)(1)(B). Therefore, we must consider these issues with the view that the appellant may seek review of this decision before any appropriate court of appeal.6 appellant’s written disclosure, which he allegedly submitted to the acting CEO at the time, contained assertions that the former CEO had displayed favoritism towards a nurse practitioner with whom she had a close friendship. W-2 AF, Tab 10 at 63-65. Specifically, he asserted that the nurse practitioner received frequent overtime, received a higher retention bonus than others, and was “rescue[d]” by the former CEO during conflicts with other staff members. Id. at 65. In this disclosure, we find no assertion that the former CEO’s actions violated a law, rule, or regulation, and the appellant has not identified an applicable law, rule, or regulation in any of his pleadings. See, e.g., W-2 AF, Tab 10 at 10, Tab 35 at 11; PFR File, Tab 3 at 13-14. Considering whether his disclosure of favoritism might amount to a nonfrivolous allegation of any of the other categories listed under 5 U.S.C. § 2302(b)(8)(A)(ii), we note that the most relevant category is an abuse of authority.5 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 herself or to other preferred persons. See Chavez v. Department of Veterans Affairs , 120 M.S.P.R. 285, ¶ 22 (2013). Abuse of authority does not incorporate a de minimis standard. Embree v. Department of the Treasury, 70 M.S.P.R. 79, 85 (1996). In Smolinski v. Merit Systems Protection Board , 23 F.4th 1345, 1351-52 (Fed. Cir. 2022), the Federal Circuit defined an abuse of authority more broadly as an arbitrary and capricious exercise of authority that is contrary to the agency’s mission. In any event, a claim of non-merit-based favoritism resulting in personal gain to a preferred person appears to fall within the bounds of abuse of authority. 5 The Board does not require, as a basis for its jurisdiction, that an appellant in an IRA appeal correctly label a category of wrongdoing. Rzucidlo v. Department of the Army , 101 M.S.P.R. 616, ¶ 13 (2006).7 We find, however, that a disinterested observer with knowledge of the essential facts known to and readily ascertainable by the appellant would not reasonably conclude that the former CEO engaged in non-merit-based preferential treatment constituting an abuse of authority. We can discern no specific facts from the appellant’s alleged disclosure or pleadings that support such a belief. W-2 AF, Tab 10 at 11, 65, Tab 35 at 11; Hearing Transcript, May 5, 2023 (HT-2) at 52-53 (testimony of the appellant); PFR File, Tab 3 at 13-14. First, the appellant’s complaint of disproportionate overtime was vague and conclusory: for example, he asserted that the former CEO had an “overly soft corner towards [the nurse practitioner’s] frequent overtime grants” and that the timekeeper had raised questions regarding “unusual overtime.” W-2 AF, Tab 10 at 65. It is unclear whether the appellant believed that the nurse practitioner was requesting overtime more frequently than others or whether the former CEO approved her overtime while denying requests by others under the same circumstances. Id. at 11, 65; HT-2 at 52-53 (testimony of the appellant); PFR File, Tab 3 at 13. Similarly, although the appellant asserted that the nurse practitioner was awarded a higher retention bonus than any other provider, he did not expressly allege that the CEO was responsible for the alleged disproportionality or provide any facts regarding her involvement in that decision. W-2 AF, Tab 10 at 11, 65, Tab 35 at 11; PFR File, Tab 3 at 13. Lastly, the appellant’s disclosure that the former CEO regularly went to the nurse practitioner’s rescue when conflicts arose with other employees only vaguely alleged wrongdoing and was devoid of details. W-2 AF, Tab 10 at 65. Accordingly, we find that the appellant’s vague disclosure of favoritism does not satisfy the Board’s nonfrivolous pleading standard and is not within the Board’s jurisdiction. See El, 123 M.S.P.R. 76, ¶ 6. Disclosure (3) involves the appellant’s alleged complaints that a supervisor temporarily acting as CEO had repeatedly yelled at him during an impromptu meeting on November 7, 2019, because she was upset on learning that a complaint that he had submitted about the nurse practitioner had been forwarded8 to area executives the previous day. W-2 AF, Tab 10 at 46-48, 62-65, Tab 35 at 9-12; HT-2 at 47 (testimony of the appellant); PFR File, Tab 3 at 12-14. We find that one instance of yelling, alone, would not form the basis of a reasonable belief in a violation of law, rule, or regulation; abuse of authority; or any other category of wrongdoing under section 2302(b)(8). Importantly, we find that it was not a retaliatory personnel action under the WPA because it did not have a significant impact on the overall nature or quality of the appellant’s working conditions, responsibilities, or duties. See Skarada v. Department of Veterans Affairs, 2022 MSPB 17, ¶¶ 14-16 (explaining that harassment may constitute a personnel action under the WPA but must be considered on a case-by-case basis).6 In other words, assuming arguendo that the appellant held a reasonable belief that his supervisor perceived him as a whistleblower as a result of his November 6, 2019 complaint, he did not disclose a matter that a reasonable person in his position would have believed evidenced whistleblower reprisal. We also find that he has not made a sufficiently specific disclosure that he was subjected to a threat of personnel action covered under the WPA, or to threats that might evidence a reasonable belief in an abuse of authority. W-2 AF, Tab 10 at 63-65; cf. Cooper v. Department of Veterans Affairs , 2023 MSPB 24, ¶¶ 11-13 (discussing agency actions that amount to a threat to take a personnel action under the WPA); Murphy v. Department of the Treasury , 86 M.S.P.R. 131, ¶¶ 6-7 (2000) (finding that a supervisor’s use of his influence to denigrate other staff members in an abusive manner and to threaten the staff members with whom he disagreed constituted an abuse of authority). 6 The appellant also allegedly disclosed that he was not given a proper orientation, was excluded from meetings to which he should have been invited, and, when he was invited to meetings, felt uninvolved in the matters discussed. W-2 AF, Tab 10 at 65. We note that while these actions together might constitute a retaliatory personnel action covered by WPA if they involved a change in his working conditions, the appellant complained that the alleged mistreatment began more or less on his entry to the position. Id. In any event, he did not clearly link these alleged actions to any specific whistleblower activity. Id.9 Because we find that the appellant has not made nonfrivolous allegations concerning these disclosures, we find no material error in the administrative judge’s jurisdictional rulings. W-2 AF, Tabs 34, 43; see generally Spencer , 327 F.3d at 1356 (explaining that only after Board jurisdiction is established is the Board required to provide the appellant with a hearing on the merits of an IRA appeal). We affirm the administrative judge’s remaining findings. Of the four allegedly protected disclosures that the administrative judge found to have been exhausted with OSC, he found that the appellant made nonfrivolous allegations with respect to only two allegedly protected disclosures. W-2 AF, Tab 34 at 6-20. Following a hearing on the merits, he found that the appellant did not meet his burden of proving by preponderant evidence that he made a protected whistleblowing disclosure. ID at 6-14. We find no error in the administrative judge’s thorough and well-reasoned findings on these issues.7 Id. Although the appellant challenges these findings on review, his arguments constitute mere disagreement with the administrative judge’s explained findings and, thus, are not a basis to disturb the initial decision. PFR File, Tab 3 at 15-19; see Dieter v. Department of Veterans Affairs , 2022 MSPB 32, ¶ 14. Accordingly, we find that the administrative judge correctly found that the appellant did not make a prima facie case of whistleblower reprisal and properly denied the appellant’s request for corrective action. ID at 15; see 5 U.S.C. § 1221(e)(1)-(2); Webb v. Department of the Interior , 122 M.S.P.R. 248, ¶ 6 (2015). We affirm the initial decision as modified. 7 Applying the definition of abuse of authority in Smolinski, 23 F.4th at 1351-52, we reach the same result.10 NOTICE OF APPEAL RIGHTS8 The initial decision, as modified by this Final Order, constitutes the Board’s final decision in this matter. 5 C.F.R. § 1201.113. You may obtain review of this final decision. 5 U.S.C. § 7703(a)(1). By statute, the nature of your claims determines the time limit for seeking such review and the appropriate forum with which to file. 5 U.S.C. § 7703(b). Although we offer the following summary of available appeal rights, the Merit Systems Protection Board does not provide legal advice on which option is most appropriate for your situation and the rights described below do not represent a statement of how courts will rule regarding which cases fall within their jurisdiction. If you wish to seek review of this final decision, you should immediately review the law applicable to your claims and carefully follow all filing time limits and requirements. Failure to file within the applicable time limit may result in the dismissal of your case by your chosen forum. Please read carefully each of the three main possible choices of review below to decide which one applies to your particular case. If you have questions about whether a particular forum is the appropriate one to review your case, you should contact that forum for more information. (1) Judicial review in general . As a general rule, an appellant seeking judicial review of a final Board order must file a petition for review with the U.S. Court of Appeals for the Federal Circuit, which must be received by the court within 60 calendar days of the date of issuance of this decision. 5 U.S.C. § 7703(b)(1)(A). If you submit a petition for review to the U.S. Court of Appeals for the Federal Circuit, you must submit your petition to the court at the following address: 8 Since the issuance of the initial decision in this matter, the Board may have updated the notice of review rights included in final decisions. As indicated in the notice, the Board cannot advise which option is most appropriate in any matter.11 U.S. Court of Appeals for the Federal Circuit 717 Madison Place, N.W. Washington, D.C. 20439 Additional information about the U.S. Court of Appeals for the Federal Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11. If you are interested in securing pro bono representation for an appeal to the U.S. Court of Appeals for the Federal Circuit, you may visit our website at http://www.mspb.gov/probono for information regarding pro bono representation for Merit Systems Protection Board appellants before the Federal Circuit. The Board neither endorses the services provided by any attorney nor warrants that any attorney will accept representation in a given case. (2) Judicial or EEOC review of cases involving a claim of discrimination . This option applies to you only if you have claimed that you were affected by an action that is appealable to the Board and that such action was based, in whole or in part, on unlawful discrimination. If so, you may obtain judicial review of this decision —including a disposition of your discrimination claims —by filing a civil action with an appropriate U.S. district court ( not the U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems Protection Board , 582 U.S. 420 (2017). If you have a representative in this case, and your representative receives this decision before you do, then you must file with the district court no later than 30 calendar days after your representative receives this decision. If the action involves a claim of discrimination based on race, color, religion, sex, national origin, or a disabling condition, you may be entitled to representation by a court-appointed lawyer and to waiver of any12 requirement of prepayment of fees, costs, or other security. See 42 U.S.C. § 2000e-5(f) and 29 U.S.C. § 794a. Contact information for U.S. district courts can be found at their respective websites, which can be accessed through the link below: http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx . Alternatively, you may request review by the Equal Employment Opportunity Commission (EEOC) of your discrimination claims only, excluding all other issues . 5 U.S.C. § 7702(b)(1). You must file any such request with the EEOC’s Office of Federal Operations within 30 calendar days after you receive this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case, and your representative receives this decision before you do, then you must file with the EEOC no later than 30 calendar days after your representative receives this decision. If you submit a request for review to the EEOC by regular U.S. mail, the address of the EEOC is: Office of Federal Operations Equal Employment Opportunity Commission P.O. Box 77960 Washington, D.C. 20013 If you submit a request for review to the EEOC via commercial delivery or by a method requiring a signature, it must be addressed to: Office of Federal Operations Equal Employment Opportunity Commission 131 M Street, N.E. Suite 5SW12G Washington, D.C. 20507 (3) Judicial review pursuant to the Whistleblower Protection Enhancement Act of 2012 . This option applies to you only if you have raised claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D). If so, and your judicial petition for review “raises no challenge to the Board’s13 disposition of allegations of a prohibited personnel practice described in section 2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i), (B), (C), or (D),” then you may file a petition for judicial review either with the U.S. Court of Appeals for the Federal Circuit or any court of appeals of competent jurisdiction.9 The court of appeals must receive your petition for review within 60 days of the date of issuance of this decision. 5 U.S.C. § 7703(b)(1)(B). If you submit a petition for judicial review to the U.S. Court of Appeals for the Federal Circuit, you must submit your petition to the court at the following address: U.S. Court of Appeals for the Federal Circuit 717 Madison Place, N.W. Washington, D.C. 20439 Additional information about the U.S. Court of Appeals for the Federal Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11. If you are interested in securing pro bono representation for an appeal to the U.S. Court of Appeals for the Federal Circuit, you may visit our website at http://www.mspb.gov/probono for information regarding pro bono representation for Merit Systems Protection Board appellants before the Federal Circuit. The Board neither endorses the services provided by any attorney nor warrants that any attorney will accept representation in a given case. 9 The original statutory provision that provided for judicial review of certain whistleblower claims by any court of appeals of competent jurisdiction expired on December 27, 2017. The All Circuit Review Act, signed into law by the President on July 7, 2018, permanently allows appellants to file petitions for judicial review of MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals for the Federal Circuit or any other circuit court of appeals of competent jurisdiction. The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115-195, 132 Stat. 1510. 14 Contact information for the courts of appeals can be found at their respective websites, which can be accessed through the link below: http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx . FOR THE BOARD: ______________________________ Gina K. Grippando Clerk of the Board Washington, D.C.15	Jevaji_PadmaraoDE-1221-20-0216-W-2_Final_Order.pdf	2025-02-20	PADMARAO JEVAJI v. DEPARTMENT OF HEALTH AND HUMAN SERVICES, MSPB Docket No. DE-1221-20-0216-W-2, February 20, 2025	DE-1221-20-0216-W-2	NP
167	https://www.mspb.gov/decisions/nonprecedential/Bronner-Stafford_A._ChristinaAT-0752-16-0683-X-1_Final_Order.pdf	UNITED STATES OF AMERICA MERIT SYSTEMS PROTECTION BOARD A. CHRISTINA BRONNER- STAFFORD, Appellant, v. DEPARTMENT OF DEFENSE, Agency.DOCKET NUMBER AT-0752-16-0683-X-1 DATE: February 20, 2025 THIS FINAL ORDER IS NONPRECEDENTIAL1 Armand C. Stafford , Smyrna, Georgia, for the appellant. Jeffrey S. Brockmeier , Esquire, Santa Ana, California, for the agency. BEFORE Cathy A. Harris, Chairman Henry J. Kerner, Vice Chairman Raymond A. Limon, Member FINAL ORDER The administrative judge issued a compliance initial decision finding the agency in noncompliance with the decision in the underlying appeal and granting the appellant’s petition for enforcement. Bronner-Stafford 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). Defense, MSPB Docket No. AT-0752-26-0683-C-1, Compliance File, Tab 14, Compliance Initial Decision (CID); Bronner-Stafford v. Department of Defense , MSPB Docket No. AT-0752-26-0683-I-1, Tab 42, Final Order (June 20, 2023). For the reasons discussed below, we now find the agency in compliance and DISMISS the appellant’s petition for enforcement. DISCUSSION OF ARGUMENTS AND EVIDENCE OF COMPLIANCE On June 20, 2023, the Board issued a final order affirming the initial decision of the administrative judge in the underlying appeal, which reversed the appellant’s removal and ordered appropriate relief. Final Order, ¶¶ 1, 7-8. The appellant subsequently filed a petition for enforcement, which the administrative judge granted in a compliance initial decision dated March 27, 2024. CID at 1. In pertinent part, the administrative judge ordered the agency to initiate corrections for the appellant’s Thrift Savings Plan deductions and correct any errors related to those deductions. CID at 4. On April 4, 2024, the agency informed the Board that it had taken the actions identified in the compliance initial decision. Bronner-Stafford v. Department of Defense, MSPB Docket No. AT-0752-26-0683-X-1, Compliance Referral File (CRF), Tab 1. As the agency has submitted evidence of compliance and neither party filed an administrative petition for review, the appellant’s petition for enforcement has been referred to the Board for a final decision on issues of compliance pursuant to 5 C.F.R. § 1201.183(c).2 2 As noted in the compliance initial decision, the Board’s regulations provide that, on 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).2 On May 10, 2024, the Clerk of the Board issued an Acknowledgement Order informing the parties of the continued processing of this matter and setting forth deadlines for additional compliance submissions. CRF, Tab 2. The Acknowledgement Order warned the appellant that if she did not respond to the agency’s submission, the Board might assume she was satisfied and dismiss her petition for enforcement. Id. at 2. The appellant has not responded to the agency’s submission. 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 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.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. We find that the agency has submitted evidence of compliance that appears to satisfy its obligations as set forth in the CID. CRF, Tab 1. The appellant has not responded to the agency’s submission, despite the warning in the Acknowledgement Order that failure to respond might cause the Board to assume she was satisfied and dismiss her petition for enforcement. 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).3 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 in this compliance proceeding. Title 5 of the Code of Federal Regulations, section 1201.183(c)(1) (5 C.F.R. § 1201.183(c)(1)). NOTICE TO THE APPELLANT REGARDING YOUR RIGHT TO REQUEST ATTORNEY FEES AND COSTS You may be entitled to be paid by the agency for your reasonable attorney fees and costs. To be paid, you must meet the requirements set out at Title 5 of the United States Code (5 U.S.C.), sections 7701(g), 1221(g), or 1214(g). The regulations may be found at 5 C.F.R. §§ 1201.201, 1201.202, and 1201.203. If you believe you meet these requirements, you must file a motion for attorney fees WITHIN 60 CALENDAR DAYS OF THE DATE OF THIS DECISION. You must file your attorney fees motion with the office that issued the initial decision on your appeal. NOTICE OF APPEAL 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 4 Since the issuance of the initial decision in this matter, the Board may have updated the notice of review rights included in final decisions. As indicated in the notice, the Board cannot advise which option is most appropriate in any matter.4 requirements. Failure to file within the applicable time limit may result in the dismissal of your case by your chosen forum. Please read carefully each of the three main possible choices of review below to decide which one applies to your particular case. If you have questions about whether a particular forum is the appropriate one to review your case, you should contact that forum for more information. (1) Judicial review in general . As a general rule, an appellant seeking judicial review of a final Board order must file a petition for review with the U.S. Court of Appeals for the Federal Circuit, which must be received by the court within 60 calendar days of the date of issuance of this decision. 5 U.S.C. § 7703(b)(1)(A). If you submit a petition for review to the U.S. Court of Appeals for the Federal Circuit, you must submit your petition to the court at the following address: U.S. Court of Appeals for the Federal Circuit 717 Madison Place, N.W. Washington, D.C. 20439 Additional information about the U.S. Court of Appeals for the Federal Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11. If you are interested in securing pro bono representation for an appeal to the U.S. Court of Appeals for the Federal Circuit, you may visit our website at http://www.mspb.gov/probono for information regarding pro bono representation for Merit Systems Protection Board appellants before the Federal Circuit. The Board neither endorses the services provided by any attorney nor warrants that any attorney will accept representation in a given case. (2) Judicial or EEOC review of cases involving a claim of discrimination . This option applies to you only if you have claimed that you were affected by an action that is appealable to the Board and that such action was based, in whole or in5 part, on unlawful discrimination. If so, you may obtain judicial review of this decision—including a disposition of your discrimination claims —by filing a civil action with an appropriate U.S. district court ( not the U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems Protection Board , 582 U.S. 420 (2017). If you have a representative in this case, and your representative receives this decision before you do, then you must file with the district court no later than 30 calendar days after your representative receives this decision. If the action involves a claim of discrimination based on race, color, religion, sex, national origin, or a disabling condition, you may be entitled to representation by a court- appointed lawyer and to waiver of any requirement of prepayment of fees, costs, or other security. See 42 U.S.C. § 2000e-5(f) and 29 U.S.C. § 794a. Contact information for U.S. district courts can be found at their respective websites, which can be accessed through the link below: http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx . Alternatively, you may request review by the Equal Employment Opportunity Commission (EEOC) of your discrimination claims only, excluding all other issues . 5 U.S.C. § 7702(b)(1). You must file any such request with the EEOC’s Office of Federal Operations within 30 calendar days after you receive this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case, and your representative receives 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.5 The court of appeals must receive your petition for review within 60 days of the date of issuance of this decision. 5 U.S.C. § 7703(b)(1)(B). 5 The original statutory provision that provided for judicial review of certain whistleblower claims by any court of appeals of competent jurisdiction expired on December 27, 2017. The All Circuit Review Act, signed into law by the President on July 7, 2018, permanently allows appellants to file petitions for judicial review of MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals for the Federal Circuit or any other circuit court of appeals of competent jurisdiction. The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115-195, 132 Stat. 1510.7 If you submit a petition for judicial review to the U.S. Court of Appeals for the Federal Circuit, you must submit your petition to the court at the following address: U.S. Court of Appeals for the Federal Circuit 717 Madison Place, N.W. Washington, D.C. 20439 Additional information about the U.S. Court of Appeals for the Federal Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11. If you are interested in securing pro bono representation for an appeal to the U.S. Court of Appeals for the Federal Circuit, you may visit our website at http://www.mspb.gov/probono for information regarding pro bono representation for Merit Systems Protection Board appellants before the Federal Circuit. The Board neither endorses the services provided by any attorney nor warrants that any attorney will accept representation in a given case. Contact information for the courts of appeals can be found at their respective websites, which can be accessed through the link below: http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx . FOR THE BOARD: ______________________________ Gina K. Grippando Clerk of the Board Washington, D.C.8	Bronner-Stafford_A._ChristinaAT-0752-16-0683-X-1_Final_Order.pdf	2025-02-20	null	AT-0752-26-0683-I-1; AT-0752-16-0683-X-1	NP
168	https://www.mspb.gov/decisions/nonprecedential/Bronner-Stafford_A._ChristinaAT-0752-16-0611-X-1_Final_Order.pdf	UNITED STATES OF AMERICA MERIT SYSTEMS PROTECTION BOARD A. CHRISTINA BRONNER- STAFFORD, Appellant, v. DEPARTMENT OF DEFENSE, Agency.DOCKET NUMBER AT-0752-16-0611-X-1 DATE: February 20, 2025 THIS FINAL ORDER IS NONPRECEDENTIAL1 Armand C. Stafford , Smyrna, Georgia, for the appellant. Jeffrey S. Brockmeier , Esquire, Santa Ana, California, for the agency. BEFORE Cathy A. Harris, Chairman Henry J. Kerner, Vice Chairman Raymond A. Limon, Member FINAL ORDER The administrative judge issued a compliance initial decision finding the agency in noncompliance with the decision in the underlying appeal and granting the appellant’s petition for enforcement. Bronner-Stafford 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). Defense, MSPB Docket No. AT-0752-26-0611-C-1, Compliance File, Tab 14, Compliance Initial Decision (CID); Bronner-Stafford v. Department of Defense , MSPB Docket No. AT-0752-26-0611-I-1, Tab 42, Final Order (June 20, 2023). For the reasons discussed below, we now find the agency in compliance and DISMISS the appellant’s petition for enforcement. DISCUSSION OF ARGUMENTS AND EVIDENCE OF COMPLIANCE On June 20, 2023, the Board issued a final order affirming the initial decision of the administrative judge in the underlying appeal, which reversed the appellant’s enforced leave suspension and ordered appropriate relief. Final Order, ¶¶ 1, 6-7. The appellant subsequently filed a petition for enforcement, which the administrative judge granted in a compliance initial decision dated March 27, 2024. CID at 1. In pertinent part, the administrative judge ordered the agency to initiate corrections for the appellant’s Thrift Savings Plan deductions and correct any errors related to those deductions. CID at 4. On April 4, 2024, the agency informed the Board that it had taken the actions identified in the compliance initial decision. Bronner-Stafford v. Department of Defense, MSPB Docket No. AT-0752-26-0611-X-1, Compliance Referral File (CRF), Tab 1. As the agency has submitted evidence of compliance and neither party filed an administrative petition for review, the appellant’s petition for enforcement has been referred to the Board for a final decision on issues of compliance pursuant to 5 C.F.R. § 1201.183(c).2 2 As noted in the compliance initial decision, the Board’s regulations provide that, on 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).2 On May 10, 2024, the Clerk of the Board issued an Acknowledgement Order informing the parties of the continued processing of this matter and setting forth deadlines for additional compliance submissions. CRF, Tab 2. The Acknowledgement Order warned the appellant that if she did not respond to the agency’s submission, the Board might assume she was satisfied and dismiss her petition for enforcement. Id. at 2. The appellant has not responded to the agency’s submission. 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 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.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. We find that the agency has submitted evidence of compliance that appears to satisfy its obligations as set forth in the CID. CRF, Tab 1. The appellant has not responded to the agency’s submission, despite the warning in the Acknowledgement Order that failure to respond might cause the Board to assume she was satisfied and dismiss her petition for enforcement. 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).3 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 in this compliance proceeding. Title 5 of the Code of Federal Regulations, section 1201.183(c)(1) (5 C.F.R. § 1201.183(c)(1)). NOTICE TO THE APPELLANT REGARDING YOUR RIGHT TO REQUEST ATTORNEY FEES AND COSTS You may be entitled to be paid by the agency for your reasonable attorney fees and costs. To be paid, you must meet the requirements set out at Title 5 of the United States Code (5 U.S.C.), sections 7701(g), 1221(g), or 1214(g). The regulations may be found at 5 C.F.R. §§ 1201.201, 1201.202, and 1201.203. If you believe you meet these requirements, you must file a motion for attorney fees WITHIN 60 CALENDAR DAYS OF THE DATE OF THIS DECISION. You must file your attorney fees motion with the office that issued the initial decision on your appeal. NOTICE OF APPEAL 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 4 Since the issuance of the initial decision in this matter, the Board may have updated the notice of review rights included in final decisions. As indicated in the notice, the Board cannot advise which option is most appropriate in any matter.4 requirements. Failure to file within the applicable time limit may result in the dismissal of your case by your chosen forum. Please read carefully each of the three main possible choices of review below to decide which one applies to your particular case. If you have questions about whether a particular forum is the appropriate one to review your case, you should contact that forum for more information. (1) Judicial review in general . As a general rule, an appellant seeking judicial review of a final Board order must file a petition for review with the U.S. Court of Appeals for the Federal Circuit, which must be received by the court within 60 calendar days of the date of issuance of this decision. 5 U.S.C. § 7703(b)(1)(A). If you submit a petition for review to the U.S. Court of Appeals for the Federal Circuit, you must submit your petition to the court at the following address: U.S. Court of Appeals for the Federal Circuit 717 Madison Place, N.W. Washington, D.C. 20439 Additional information about the U.S. Court of Appeals for the Federal Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11. If you are interested in securing pro bono representation for an appeal to the U.S. Court of Appeals for the Federal Circuit, you may visit our website at http://www.mspb.gov/probono for information regarding pro bono representation for Merit Systems Protection Board appellants before the Federal Circuit. The Board neither endorses the services provided by any attorney nor warrants that any attorney will accept representation in a given case. (2) Judicial or EEOC review of cases involving a claim of discrimination . This option applies to you only if you have claimed that you were affected by an action that is appealable to the Board and that such action was based, in whole or in5 part, on unlawful discrimination. If so, you may obtain judicial review of this decision—including a disposition of your discrimination claims —by filing a civil action with an appropriate U.S. district court ( not the U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems Protection Board , 582 U.S. 420 (2017). If you have a representative in this case, and your representative receives this decision before you do, then you must file with the district court no later than 30 calendar days after your representative receives this decision. If the action involves a claim of discrimination based on race, color, religion, sex, national origin, or a disabling condition, you may be entitled to representation by a court appointed lawyer and to waiver of any requirement of prepayment of fees, costs, or other security. See 42 U.S.C. § 2000e-5(f) and 29 U.S.C. § 794a. Contact information for U.S. district courts can be found at their respective websites, which can be accessed through the link below: http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx . Alternatively, you may request review by the Equal Employment Opportunity Commission (EEOC) of your discrimination claims only, excluding all other issues . 5 U.S.C. § 7702(b)(1). You must file any such request with the EEOC’s Office of Federal Operations within 30 calendar days after you receive this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case, and your representative receives 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.5 The court of appeals must receive your petition for review within 60 days of the date of issuance of this decision. 5 U.S.C. § 7703(b)(1)(B). 5 The original statutory provision that provided for judicial review of certain whistleblower claims by any court of appeals of competent jurisdiction expired on December 27, 2017. The All Circuit Review Act, signed into law by the President on July 7, 2018, permanently allows appellants to file petitions for judicial review of MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals for the Federal Circuit or any other circuit court of appeals of competent jurisdiction. The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115-195, 132 Stat. 1510.7 If you submit a petition for judicial review to the U.S. Court of Appeals for the Federal Circuit, you must submit your petition to the court at the following address: U.S. Court of Appeals for the Federal Circuit 717 Madison Place, N.W. Washington, D.C. 20439 Additional information about the U.S. Court of Appeals for the Federal Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11. If you are interested in securing pro bono representation for an appeal to the U.S. Court of Appeals for the Federal Circuit, you may visit our website at http://www.mspb.gov/probono for information regarding pro bono representation for Merit Systems Protection Board appellants before the Federal Circuit. The Board neither endorses the services provided by any attorney nor warrants that any attorney will accept representation in a given case. Contact information for the courts of appeals can be found at their respective websites, which can be accessed through the link below: http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx . FOR THE BOARD: ______________________________ Gina K. Grippando Clerk of the Board Washington, D.C.8	Bronner-Stafford_A._ChristinaAT-0752-16-0611-X-1_Final_Order.pdf	2025-02-20	null	AT-0752-26-0611-I-1; AT-0752-16-0611-X-1	NP
169	https://www.mspb.gov/decisions/nonprecedential/Caputo_Cynthia_J_CH-0752-17-0019-X-1_and_CH-0752-17-0019-C-1_Final_Order.pdf	UNITED STATES OF AMERICA MERIT SYSTEMS PROTECTION BOARD CYNTHIA J. CAPUTO, Appellant, v. DEPARTMENT OF DEFENSE, Agency.DOCKET NUMBERS CH-0752-17-0019-C-1 CH-0752-17-0019-X-1 DATE: February 20, 2025 THIS FINAL ORDER IS NONPRECEDENTIAL1 Julie R. Gold , Esquire, and Kevin L. Owen , Esquire, Silver Spring, Maryland, for the appellant. Daniel S. Lacy , North Chicago, Illinois, for the agency. BEFORE Cathy A. Harris, Chairman Henry J. Kerner, Vice Chairman Raymond A. Limon, Member FINAL ORDER Because the Board found the agency in noncompliance with a settlement agreement, this compliance matter, Caputo v. Department of Defense , MSPB Docket No. CH-0752-17-0019-C-1, was referred to the Board’s Office of General Counsel and assigned MSPB Docket No. CH-0752-17-0019-X-1. We now JOIN 1 A nonprecedential order is one that the Board has determined does not add significantly to the body of MSPB case law. Parties may cite nonprecedential orders, but such orders have no precedential value; the Board and administrative judges are not required to follow or distinguish them in any future decisions. In contrast, a precedential decision issued as an Opinion and Order has been identified by the Board as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c). these matters and, for the reasons set forth below, DISMISS the petition for enforcement as settled. After the Board’s referral to the Office of General Counsel its finding that the agency was in noncompliance with a settlement agreement, the parties submitted a document entitled “NEGOTIATED SETTLEMENT AGREEMENT” signed by the appellant and one of her attorneys on January 18, 2025, and by the agency’s Chief of Staff on January 19, 2025. The document provides, among other things, for the appellant’s withdrawal of her petition for enforcement in MSPB Docket No. CH-0752-17-0019-C-1. 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 settlement agreement, understand its terms, and intend for the agreement to be entered into the record for enforcement by the Board. Caputo v. Department of Defense , MSPB Docket No. CH-0752-17-0019-X-1, Compliance Referral File, Tab 8 at 6. Accordingly, we find that dismissing the above captioned compliance matters with prejudice to refiling (i.e., the parties normally may not refile this appeal) is appropriate under these circumstances.2 2 Although the settlement agreement only references MSPB Docket No. CH-0752-17- 0019-C-1, the resolution of the petition for enforcement of a settlement agreement necessarily resolves the referral of a finding of noncompliance with the settlement agreement.2 This is the final decision of the Merit Systems Protection Board in these compliance matters. Title 5 of the Code of Federal Regulations, section 1201.113 (5 C.F.R. § 1201.113). 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 RIGHTS3 You may obtain review of this final decision. 5 U.S.C. § 7703(a)(1). By statute, the nature of your claims determines the time limit for seeking such review and the appropriate forum with which to file. 5 U.S.C. § 7703(b). Although we offer the following summary of available appeal rights, the Merit Systems Protection Board does not provide legal advice on which option is most appropriate for your situation and the rights described below do not represent a statement of how courts will rule regarding which cases fall within their jurisdiction. If you wish to seek review of this final decision, you should immediately review the law applicable to your claims and carefully follow all filing time limits and requirements. Failure to file within the applicable time limit may result in the dismissal of your case by your chosen forum. Please read carefully each of the three main possible choices of review below to decide which one applies to your particular case. If you have questions 3 Since the issuance of the initial decision in this matter, the Board may have updated the notice of review rights included in final decisions. As indicated in the notice, the Board cannot advise which option is most appropriate in any matter.3 about whether a particular forum is the appropriate one to review your case, you should contact that forum for more information. (1) Judicial review in general . As a general rule, an appellant seeking judicial review of a final Board order must file a petition for review with the U.S. Court of Appeals for the Federal Circuit, which must be received by the court within 60 calendar days of the date of issuance of this decision. 5 U.S.C. § 7703(b)(1)(A). If you submit a petition for review to the U.S. Court of Appeals for the Federal Circuit, you must submit your petition to the court at the following address: U.S. Court of Appeals for the Federal Circuit 717 Madison Place, N.W. Washington, D.C. 20439 Additional information about the U.S. Court of Appeals for the Federal Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11. If you are interested in securing pro bono representation for an appeal to the U.S. Court of Appeals for the Federal Circuit, you may visit our website at http://www.mspb.gov/probono for information regarding pro bono representation for Merit Systems Protection Board appellants before the Federal Circuit. The Board neither endorses the services provided by any attorney nor warrants that any attorney will accept representation in a given case. (2) Judicial or EEOC review of cases involving a claim of discrimination . This option applies to you only if you have claimed that you were affected by an action that is appealable to the Board and that such action was based, in whole or in part, on unlawful discrimination. If so, you may obtain4 judicial review of this decision —including a disposition of your discrimination claims —by filing a civil action with an appropriate U.S. district court ( not the U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems Protection Board , 582 U.S. 420 (2017). If you have a representative in this case, and your representative receives this decision before you do, then you must file with the district court no later than 30 calendar days after your representative receives this decision. If the action involves a claim of discrimination based on race, color, religion, sex, national origin, or a disabling condition, you may be entitled to representation by a court-appointed lawyer and to waiver of any requirement of prepayment of fees, costs, or other security. See 42 U.S.C. § 2000e-5(f) and 29 U.S.C. § 794a. Contact information for U.S. district courts can be found at their respective websites, which can be accessed through the link below: http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx . Alternatively, you may request review by the Equal Employment Opportunity Commission (EEOC) of your discrimination claims only, excluding all other issues . 5 U.S.C. § 7702(b)(1). You must file any such request with the EEOC’s Office of Federal Operations within 30 calendar days after you receive this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case, and your representative receives this decision before you do, then you must file with the EEOC no later than 30 calendar days after your representative receives this decision. If you submit a request for review to the EEOC by regular U.S. mail, the address of the EEOC is: Office of Federal Operations Equal Employment Opportunity Commission P.O. Box 77960 Washington, D.C. 200135 If you submit a request for review to the EEOC via commercial delivery or by a method requiring a signature, it must be addressed to: Office of Federal Operations Equal Employment Opportunity Commission 131 M Street, N.E. Suite 5SW12G Washington, D.C. 20507 (3) Judicial review pursuant to the Whistleblower Protection Enhancement Act of 2012 . This option applies to you only if you have raised claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D). If so, and your judicial petition for review “raises no challenge to the Board’s disposition of allegations of a prohibited personnel practice described in section 2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i), (B), (C), or (D),” then you may file a petition for judicial review either with the U.S. Court of Appeals for the Federal Circuit or any court of appeals of competent jurisdiction.4 The court of appeals must receive your petition for review within 60 days of the date of issuance of this decision. 5 U.S.C. § 7703(b)(1)(B). If you submit a petition for judicial review to the U.S. Court of Appeals for the Federal Circuit, you must submit your petition to the court at the following address: 4 The original statutory provision that provided for judicial review of certain whistleblower claims by any court of appeals of competent jurisdiction expired on December 27, 2017. The All Circuit Review Act, signed into law by the President on July 7, 2018, permanently allows appellants to file petitions for judicial review of MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals for the Federal Circuit or any other circuit court of appeals of competent jurisdiction. The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115-195, 132 Stat. 1510. 6 U.S. Court of Appeals for the Federal Circuit 717 Madison Place, N.W. Washington, D.C. 20439 Additional information about the U.S. Court of Appeals for the Federal Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11. If you are interested in securing pro bono representation for an appeal to the U.S. Court of Appeals for the Federal Circuit, you may visit our website at http://www.mspb.gov/probono for information regarding pro bono representation for Merit Systems Protection Board appellants before the Federal Circuit. The Board neither endorses the services provided by any attorney nor warrants that any attorney will accept representation in a given case. Contact information for the courts of appeals can be found at their respective websites, which can be accessed through the link below: http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx . FOR THE BOARD: ______________________________ Gina K. Grippando Clerk of the Board Washington, D.C.7	Caputo_Cynthia_J_CH-0752-17-0019-X-1_and_CH-0752-17-0019-C-1_Final_Order.pdf	2025-02-20	CYNTHIA J. CAPUTO v. DEPARTMENT OF DEFENSE, MSPB Docket No. CH-0752-17-0019-C-1, February 20, 2025	CH-0752-17-0019-C-1; CH-0752-17-0019-X-1	NP
170	https://www.mspb.gov/decisions/nonprecedential/Schultz__Denise_D_DC-0841-24-0158-I-1__Final_Order.pdf (1).pdf	UNITED STATES OF AMERICA MERIT SYSTEMS PROTECTION BOARD DENISE DESTRILL SCHULTZ , Appellant, v. DEPARTMENT OF DEFENSE, Agency.DOCKET NUMBER DC-0841-24-0158-I-1 DATE: February 20, 2025 THIS FINAL ORDER IS NONPRECEDENTIAL1 Michael Ludwig , Esquire, Alexandria, Virginia, for the appellant. Justin Nell , Esquire, New Cumberland, Pennsylvania, for the agency. Shy Y. Wang , Esquire, Whitehall, Ohio, for the agency. Christine Roark , Esquire, and Amy Marshall , Esquire, Columbus, Ohio, for the agency. BEFORE Cathy A. Harris, Chairman Henry J. Kerner, Vice Chairman Raymond A. Limon, 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 dismissed her appeal for lack of jurisdiction. Generally, we grant petitions such as this one only in the following circumstances: the initial decision contains erroneous findings of material fact; the initial decision is based on an erroneous interpretation of statute or regulation or the erroneous application of the law to the facts of the case; the administrative judge’s rulings during either the course of the appeal or the initial decision were not consistent with required procedures or involved an abuse of discretion, and the resulting error affected the outcome of the case; or new and material evidence or legal argument is available that, despite the petitioner’s due diligence, was not available when the record closed. Title 5 of the Code of Federal Regulations, section 1201.115 (5 C.F.R. § 1201.115). After fully considering the filings in this appeal, we conclude that 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 Board’s jurisdiction is limited to those matters over which it has been given jurisdiction by law, rule, or regulation. Maddox v. Merit Systems Protection Board , 759 F.2d 9, 10 (Fed. Cir. 1985). Under 5 U.S.C. § 8461(e)(1), the Board has jurisdiction to review “[a]n administrative action or order affecting the rights or interests of an individual” under the Federal Employees’ Retirement System. The Board has recognized the following three situations in which the Office of Personnel Management (OPM) is deemed to have issued an appealable decision under the statute: (1) when OPM issues a reconsideration decision under 5 C.F.R. § 841.306; (2) when OPM issues an initial decision without reconsideration rights under 5 C.F.R. § 841.307; and (3) when OPM has refused or improperly failed to issue a final decision. Okello v. Office of Personnel Management, 120 M.S.P.R. 498, ¶ 14 (2014).2 On review, the appellant does not challenge the administrative judge’s determination that the Board lacks jurisdiction over her appeal because she did not nonfrivolously allege that she received a determination from OPM affecting her rights or interests under the Federal retirement laws. Petition for Review (PFR) File, Tab 1; Initial Appeal File (IAF), Tab 17, Initial Decision at 4-5. We discern no basis to disturb this finding. In her initial appeal, the appellant indicated that she believed her individual retirement record (IRR) was incomplete and contained the following errors: incorrect service computation dates for leave purposes; missing total service credits and non-credited Federal service; problems with delayed promotions and wage grade increases that negatively affected her “top salaries (to include LOC pay) for her Federal retirement;” incorrect recording of her military service deposit and overseas service time; and concerns about the calculation of her “‛high 3’ salary.” IAF, Tab 1 at 2, Tab 13 at 1, Tab 16 at 1. However, the appellant provides no indication that she received a decision from OPM regarding these matters or her retirement benefits before filing this appeal or that OPM refused to issue an initial or final decision.2 Accordingly, there is no basis for the Board to assert jurisdiction over this appeal in the absence of a final decision. Cf. Okello, 120 M.S.P.R. 498, ¶¶ 15-16. This jurisdictional finding is without prejudice to the appellant pursuing an appeal if she has or does receive a final decision from OPM affecting her rights and interests under Federal retirement law. See 5 U.S.C. § 8461(e)(1). Our decision is without making a finding over the timeliness or the Board’s jurisdiction at this time. See 5 C.F.R. §§ 841.306, 841.308, 1201.22. 2 With her petition for review, the appellant has submitted the same documents she did before the administrative judge, including her IRR, correspondence from OPM concerning court ordered retirement benefits, a judgment and decree of her dissolution of marriage, military service deposits sheets, a certificate of discharge from active duty, plus the initial decision. PFR File, Tab 1 at 7-69; IAF, Tab 3 at 4-51. As such, these documents are not new, and they do not provide a basis for disturbing the initial decision. See Meier v. Department of the Interior , 3 M.S.P.R. 247, 256 (1980).3 NOTICE OF APPEAL RIGHTS3 You may obtain review of this final decision. 5 U.S.C. § 7703(a)(1). By statute, the nature of your claims determines the time limit for seeking such review and the appropriate forum with which to file. 5 U.S.C. § 7703(b). Although we offer the following summary of available appeal rights, the Merit Systems Protection Board does not provide legal advice on which option is most appropriate for your situation and the rights described below do not represent a statement of how courts will rule regarding which cases fall within their jurisdiction. If you wish to seek review of this final decision, you should immediately review the law applicable to your claims and carefully follow all filing time limits and requirements. Failure to file within the applicable time limit may result in the dismissal of your case by your chosen forum. Please read carefully each of the three main possible choices of review below to decide which one applies to your particular case. If you have questions about whether a particular forum is the appropriate one to review your case, you should contact that forum for more information. (1) Judicial review in general . As a general rule, an appellant seeking judicial review of a final Board order must file a petition for review with the U.S. Court of Appeals for the Federal Circuit, which must be received by the court within 60 calendar days of the date of issuance of this decision. 5 U.S.C. § 7703(b)(1)(A). 3 Since the issuance of the initial decision in this matter, the Board may have updated the notice of review rights included in final decisions. As indicated in the notice, the Board cannot advise which option is most appropriate in any matter.4 If you submit a petition for review to the U.S. Court of Appeals for the Federal Circuit, you must submit your petition to the court at the following address: U.S. Court of Appeals for the Federal Circuit 717 Madison Place, N.W. Washington, D.C. 20439 Additional information about the U.S. Court of Appeals for the Federal Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11. If you are interested in securing pro bono representation for an appeal to the U.S. Court of Appeals for the Federal Circuit, you may visit our website at http://www.mspb.gov/probono for information regarding pro bono representation for Merit Systems Protection Board appellants before the Federal Circuit. The Board neither endorses the services provided by any attorney nor warrants that any attorney will accept representation in a given case. (2) Judicial or EEOC review of cases involving a claim of discrimination . This option applies to you only if you have claimed that you were affected by an action that is appealable to the Board and that such action was based, in whole or in part, on unlawful discrimination. If so, you may obtain judicial review of this decision —including a disposition of your discrimination claims —by filing a civil action with an appropriate U.S. district court ( not the U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems Protection Board , 582 U.S. 420 (2017). If you have a representative in this case, and your representative receives this decision before you do, then you must file with the district court no later than 30 calendar days after your representative receives this decision. If the action involves a claim of discrimination based on5 race, color, religion, sex, national origin, or a disabling condition, you may be entitled to representation by a court-appointed lawyer and to waiver of any requirement of prepayment of fees, costs, or other security. See 42 U.S.C. § 2000e-5(f) and 29 U.S.C. § 794a. Contact information for U.S. district courts can be found at their respective websites, which can be accessed through the link below: http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx . Alternatively, you may request review by the Equal Employment Opportunity Commission (EEOC) of your discrimination claims only, excluding all other issues . 5 U.S.C. § 7702(b)(1). You must file any such request with the EEOC’s Office of Federal Operations within 30 calendar days after you receive this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case, and your representative receives this decision before you do, then you must file with the EEOC no later than 30 calendar days after your representative receives this decision. If you submit a request for review to the EEOC by regular U.S. mail, the address of the EEOC is: Office of Federal Operations Equal Employment Opportunity Commission P.O. Box 77960 Washington, D.C. 20013 If you submit a request for review to the EEOC via commercial delivery or by a method requiring a signature, it must be addressed to: Office of Federal Operations Equal Employment Opportunity Commission 131 M Street, N.E. Suite 5SW12G Washington, D.C. 20507 (3) Judicial review pursuant to the Whistleblower Protection Enhancement Act of 2012 . This option applies to you only if you have raised claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or6 other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D). If so, and your judicial petition for review “raises no challenge to the Board’s disposition of allegations of a prohibited personnel practice described in section 2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i), (B), (C), or (D),” then you may file a petition for judicial review either with the U.S. Court of Appeals for the Federal Circuit or any court of appeals of competent jurisdiction.4 The court of appeals must receive your petition for review within 60 days of the date of issuance of this decision. 5 U.S.C. § 7703(b)(1)(B). If you submit a petition for judicial review to the U.S. Court of Appeals for the Federal Circuit, you must submit your petition to the court at the following address: U.S. Court of Appeals for the Federal Circuit 717 Madison Place, N.W. Washington, D.C. 20439 Additional information about the U.S. Court of Appeals for the Federal Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11. If you are interested in securing pro bono representation for an appeal to the U.S. Court of Appeals for the Federal Circuit, you may visit our website at http://www.mspb.gov/probono for information regarding pro bono representation for Merit Systems Protection Board appellants before the Federal Circuit. The 4 The original statutory provision that provided for judicial review of certain whistleblower claims by any court of appeals of competent jurisdiction expired on December 27, 2017. The All Circuit Review Act, signed into law by the President on July 7, 2018, permanently allows appellants to file petitions for judicial review of MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals for the Federal Circuit or any other circuit court of appeals of competent jurisdiction. The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115-195, 132 Stat. 1510.7 Board neither endorses the services provided by any attorney nor warrants that any attorney will accept representation in a given case. Contact information for the courts of appeals can be found at their respective websites, which can be accessed through the link below: http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx . FOR THE BOARD: ______________________________ Gina K. Grippando Clerk of the Board Washington, D.C.8	Schultz__Denise_D_DC-0841-24-0158-I-1__Final_Order.pdf (1).pdf	2025-02-20	DENISE DESTRILL SCHULTZ v. DEPARTMENT OF DEFENSE, MSPB Docket No. DC-0841-24-0158-I-1, February 20, 2025	DC-0841-24-0158-I-1	NP
171	https://www.mspb.gov/decisions/nonprecedential/Young_ChristinaAT-315H-24-0006-I-1_Final_Order.pdf	UNITED STATES OF AMERICA MERIT SYSTEMS PROTECTION BOARD CHRISTINA L. YOUNG, Appellant, v. DEPARTMENT OF DEFENSE, Agency.DOCKET NUMBER AT-315H-24-0006-I-1 DATE: February 20, 2025 THIS FINAL ORDER IS NONPRECEDENTIAL1 Monica Evette Eddy and Raymond Mitchell , Columbia, South Carolina, for the appellant. John Schettler Chamblee , Esquire, Peachtree City, Georgia, 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 termination appeal for lack of jurisdiction. Generally, we grant petitions such as this one only in the following circumstances: the initial decision contains erroneous findings of material fact; the initial decision is based on an 1 A nonprecedential order is one that the Board has determined does not add significantly to the body of MSPB case law. Parties may cite nonprecedential orders, but such orders have no precedential value; the Board and administrative judges are not required to follow or distinguish them in any future decisions. In contrast, a precedential decision issued as an Opinion and Order has been identified by the Board as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c). erroneous interpretation of statute or regulation or the erroneous application of the law to the facts of the case; the administrative judge’s rulings during either the course of the appeal or the initial decision were not consistent with required procedures or involved an abuse of discretion, and the resulting error affected the outcome of the case; or new and material evidence or legal argument is available that, despite the petitioner’s due diligence, was not available when the record closed. Title 5 of the Code of Federal Regulations, section 1201.115 (5 C.F.R. § 1201.115). After fully considering the filings in this appeal, we conclude that the petitioner has not established any basis under section 1201.115 for granting the petition for review. Therefore, we DENY the petition for review. Except as expressly MODIFIED to find that the appellant was not an “employee” pursuant to 5 U.S.C. § 7511(a)(1)(A), we AFFIRM the initial decision. The administrative judge properly determined that the Board lacks jurisdiction over the appellant’s probationary termination pursuant to 5 C.F.R. § 315.806(b), and she did not exhaust administrative remedies with the Office of Special Counsel (OSC) regarding her whistleblower reprisal claim. The Board’s jurisdiction is limited to those matters over which it has been given jurisdiction by law, rule, or regulation. Maddox v. Merit Systems Protection Board , 759 F.2d 9, 10 (Fed. Cir. 1985). Generally, if an appellant makes a nonfrivolous allegation that the Board has jurisdiction over her appeal, she is entitled to a hearing on the jurisdictional question. Hurston v. Department of the Army, 113 M.S.P.R. 34, ¶ 5 (2010). The administrative judge found that the agency terminated the appellant for post-appointment reasons, and he implicitly found that she did not allege that her termination was based on partisan political reasons or marital status discrimination. Initial Appeal File (IAF), Tab 11, Initial Decision (ID) at 1-4. He also found that the appellant failed to exhaust her administrative remedies with OSC regarding her whistleblower reprisal claim. ID at 3-4. The appellant2 does not challenge these findings on review. Petition for Review (PFR) File, Tabs 1, 3. We affirm the administrative judge’s findings in this regard.2 We modify the initial decision to find that the appellant has not nonfrivolously alleged that she was an “employee” with Board appeal rights to challenge the agency’s action pursuant to 5 U.S.C. § 7511(a)(1)(A). In addition to the other legal bases to challenge her termination, discussed above, the appellant could have adverse action appeal rights under 5 U.S.C. chapter 75 if she was an “employee” pursuant to 5 U.S.C. § 7511(a)(1). See Bryant v. Department of the Army , 2022 MSPB 1, ¶ 8. Because the appellant was appointed to a competitive service position, she was entitled to notice of her jurisdictional burden under 5 U.S.C. § 7511(a)(1)(A). In the acknowledgment order, the administrative judge only provided notice on establishing Board jurisdiction under 5 U.S.C. § 7511(a)(1)(B) and (C). IAF, Tab 2 at 2-5. This was problematic because an appellant must receive explicit information on what is required to establish an appealable jurisdictional issue. Burgess v. Merit Systems Protection Board , 758 F.2d 641, 643-44 (Fed. Cir. 1985). However, an 2 In her petition for review supplement, the appellant attaches several documents that she did not submit before the administrative judge, including, among other things, emails between her and agency personnel, memoranda about various school policies, and photographs. PFR File, Tab 3 at 8-84. Under 5 C.F.R. § 1201.115, the Board generally will not consider evidence submitted for the first time with a petition for review absent a showing that it was unavailable before the record was closed before the administrative judge despite the party’s due diligence. Avansino v. U.S. Postal Service , 3 M.S.P.R. 211, 213-14 (1980). Even if she did make such a showing, the information is not material to the issue of jurisdiction and does not warrant a different outcome from that of the initial decision. See Russo v. Veterans Administration , 3 M.S.P.R. 345, 349 (1980). Importantly, the appellant’s evidence and argument on review largely relate to the merits of the termination decision and her claims of harmful procedural error and/or due process violations. However, because the Board lacks jurisdiction over the appeal, it also lacks jurisdiction to hear these additional claims. See, e.g., Rivera v. Department of Homeland Security , 116 M.S.P.R. 429, ¶ 16 (2011) (finding that, because the Board lacks jurisdiction over the appeal, it also lacks jurisdiction to hear the appellant’s claim that the agency violated his due process rights and other affirmative defenses); 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).3 administrative judge’s failure to provide an appellant with proper Burgess notice can be cured if the agency’s pleadings contain the notice that was lacking in the acknowledgment order, or if the initial decision puts the appellant on notice of what she must do to establish jurisdiction, thus affording her the opportunity to meet her jurisdictional burden in the petition for review. Easterling v. U.S. Postal Service, 110 M.S.P.R. 41, ¶ 11 (2008). In the initial decision, the administrative judge correctly identified the appellant’s position as being in the competitive service, but he did not discuss the appropriate jurisdictional standard, and he did not make explicit findings on whether she was an “employee” pursuant to 5 U.S.C. § 7511(a)(1)(A) for purposes of chapter 75 Board jurisdiction. ID at 1-4. We find, however, that the agency’s motion to dismiss cured the deficient notice because it provided notice of her jurisdictional burden pursuant to 5 U.S.C. § 7511(a)(1)(A)(i)-(ii) (2016). IAF, Tab 7 at 8-10. We may therefore decide this jurisdictional issue on the existing record. At the time of the appellant’s appointment in August 2022, an individual appointed to a permanent competitive-service position at the Department of Defense (DOD) was subject to a 2-year probationary period and only qualified as an “employee” if she was not serving a probationary or trial period under an initial appointment, or if she had completed 2 years of current continuous service under other than a temporary appointment limited to 1 year or less.3 IAF, Tab 7 at 8-9; see Bryant, 2022 MSPB 1, ¶ 8 (discussing 5 U.S.C. § 7511(a)(1)(A)(i)-(ii) (2016) and 10 U.S.C. § 1599e (2016)). In December 2021, Congress repealed 10 U.S.C. § 1599e and the 2-year probationary period for such DOD appointments. Bryant, 2022 MSPB 1, ¶ 8. However, this repeal was made 3 The appellant’s appointment Standard Form 50 (SF-50) reflected that her appointment was subject to a 1-year probationary period. IAF, Tab 7 at 34-35. However, it is well-settled that “the SF-50 is not a legally operative document controlling on its face an employee’s status and rights.” Grigsby v. Department of Commerce , 729 F.2d 772, 776 (Fed. Cir. 1984 ).4 effective December 31, 2022, and it only applied to individuals appointed on or after that date. Id. Because the appellant was appointed on August 28, 2022, IAF, Tab 1 at 12, the repeal of 10 U.S.C. § 1599e (2016) does not affect the outcome of this appeal. The appellant has not nonfrivolously alleged that she was an “employee” pursuant to 5 U.S.C. § 7511(a)(1)(A)(i) (2016), which refers to an individual in the competitive service “who is not serving a probationary or trial period under an initial appointment.” Bryant, 2022 MSPB 1, ¶ 8. To the contrary, she was in her probationary period when she was terminated. We cannot tack the appellant’s prior service at the Federal Emergency Management Agency (FEMA) to her probationary period because such service was in a different agency, the Department of Homeland Security.4 IAF, Tab 1 at 17-18; see Hurston, 113 M.S.P.R. 34, ¶ 10; Ellefson v. Department of the Army , 98 M.S.P.R. 191, ¶ 16 (2005); 5 C.F.R. § 315.802(b). Likewise, the appellant has not nonfrivolously alleged that she was an employee pursuant to 5 U.S.C. § 7511(a)(1)(A)(ii) (2016), which refers to an individual in the competitive service who completed 2 years of current continuous service. Bryant, 2022 MSPB 1, ¶ 8 (discussing 5 U.S.C. § 7511(a)(1)(A)(ii) (2016), and 10 U.S.C. § 1599e(a), (b)(1)(A), (d) (2016)). The appellant’s service in the instant position was 4 days shy of 1 year. IAF, Tab 1 at 12-13, Tab 7 at 14-17. Even if we included, for the purposes of our analysis, the appellant’s 10 months of service in her prior FEMA appointment, IAF, Tab 1 at 17-18, she did not satisfy the requirement of 2 years of current continuous service set forth in 5 U.S.C. § 7511(a)(1)(A)(ii) (2016) and 10 U.S.C. § 1599e (2016). 4 The record reflects that the appellant was previously employed by the Social Security Administration for some time during 2019, and she was employed by the Department of Veterans Affairs from June 9, 2019, until she resigned on June 5, 2020. IAF, Tab 1 at 19-21. However, there is no evidence that the appellant was employed by the Federal Government between June 6, 2020, and October 24, 2021, when she was appointed to the FEMA position.5 For these reasons, we conclude that the appellant has not nonfrivolously alleged that she was an “employee” pursuant to 5 U.S.C. § 7511(a)(1)(A) (2016), and therefore, the Board lacks jurisdiction over the appeal on this basis. We modify the initial decision accordingly. NOTICE OF APPEAL RIGHTS5 The initial decision, as supplemented by this Final Order, constitutes the Boards final decision in this matter. 5 C.F.R. § 1201.113. You may obtain review of this final decision. 5 U.S.C. § 7703(a)(1). By statute, the nature of your claims determines the time limit for seeking such review and the appropriate forum with which to file. 5 U.S.C. § 7703(b). Although we offer the following summary of available appeal rights, the Merit Systems Protection Board does not provide legal advice on which option is most appropriate for your situation and the rights described below do not represent a statement of how courts will rule regarding which cases fall within their jurisdiction. If you wish to seek review of this final decision, you should immediately review the law applicable to your claims and carefully follow all filing time limits and requirements. Failure to file within the applicable time limit may result in the dismissal of your case by your chosen forum. Please read carefully each of the three main possible choices of review below to decide which one applies to your particular case. If you have questions about whether a particular forum is the appropriate one to review your case, you should contact that forum for more information. (1) Judicial review in general . As a general rule, an appellant seeking judicial review of a final Board order must file a petition for review with the U.S. Court of Appeals for the Federal Circuit, which must be received by the court 5 Since the issuance of the initial decision in this matter, the Board may have updated the notice of review rights included in final decisions. As indicated in the notice, the Board cannot advise which option is most appropriate in any matter.6 within 60 calendar days of the date of issuance of this decision. 5 U.S.C. § 7703(b)(1)(A). If you submit a petition for review to the U.S. Court of Appeals for the Federal Circuit, you must submit your petition to the court at the following address: U.S. Court of Appeals for the Federal Circuit 717 Madison Place, N.W. Washington, D.C. 20439 Additional information about the U.S. Court of Appeals for the Federal Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11. If you are interested in securing pro bono representation for an appeal to the U.S. Court of Appeals for the Federal Circuit, you may visit our website at http://www.mspb.gov/probono for information regarding pro bono representation for Merit Systems Protection Board appellants before the Federal Circuit. The Board neither endorses the services provided by any attorney nor warrants that any attorney will accept representation in a given case. (2) Judicial or EEOC review of cases involving a claim of discrimination . This option applies to you only if you have claimed that you were affected by an action that is appealable to the Board and that such action was based, in whole or in part, on unlawful discrimination. If so, you may obtain judicial review of this decision —including a disposition of your discrimination claims —by filing a civil action with an appropriate U.S. district court ( not the U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems Protection Board , 582 U.S. 420 (2017). If you have a representative in this case, and your representative receives this decision before you do, then you must file7 with the district court no later than 30 calendar days after your representative receives this decision. If the action involves a claim of discrimination based on race, color, religion, sex, national origin, or a disabling condition, you may be entitled to representation by a court-appointed lawyer and to waiver of any requirement of prepayment of fees, costs, or other security. See 42 U.S.C. § 2000e-5(f) and 29 U.S.C. § 794a. Contact information for U.S. district courts can be found at their respective websites, which can be accessed through the link below: http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx . Alternatively, you may request review by the Equal Employment Opportunity Commission (EEOC) of your discrimination claims only, excluding all other issues . 5 U.S.C. § 7702(b)(1). You must file any such request with the EEOC’s Office of Federal Operations within 30 calendar days after you receive this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case, and your representative receives this decision before you do, then you must file with the EEOC no later than 30 calendar days after your representative receives this decision. If you submit a request for review to the EEOC by regular U.S. mail, the address of the EEOC is: Office of Federal Operations Equal Employment Opportunity Commission P.O. Box 77960 Washington, D.C. 20013 If you submit a request for review to the EEOC via commercial delivery or by a method requiring a signature, it must be addressed to: Office of Federal Operations Equal Employment Opportunity Commission 131 M Street, N.E. Suite 5SW12G Washington, D.C. 205078 (3) Judicial review pursuant to the Whistleblower Protection Enhancement Act of 2012 . This option applies to you only if you have raised claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D). If so, and your judicial petition for review “raises no challenge to the Board’s disposition of allegations of a prohibited personnel practice described in section 2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i), (B), (C), or (D),” then you may file a petition for judicial review either with the U.S. Court of Appeals for the Federal Circuit or any court of appeals of competent jurisdiction.6 The court of appeals must receive your petition for review within 60 days of the date of issuance of this decision. 5 U.S.C. § 7703(b)(1)(B). If you submit a petition for judicial review to the U.S. Court of Appeals for the Federal Circuit, you must submit your petition to the court at the following address: U.S. Court of Appeals for the Federal Circuit 717 Madison Place, N.W. Washington, D.C. 20439 Additional information about the U.S. Court of Appeals for the Federal Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11. 6 The original statutory provision that provided for judicial review of certain whistleblower claims by any court of appeals of competent jurisdiction expired on December 27, 2017. The All Circuit Review Act, signed into law by the President on July 7, 2018, permanently allows appellants to file petitions for judicial review of MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals for the Federal Circuit or any other circuit court of appeals of competent jurisdiction. The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115-195, 132 Stat. 1510. 9 If you are interested in securing pro bono representation for an appeal to the U.S. Court of Appeals for the Federal Circuit, you may visit our website at http://www.mspb.gov/probono for information regarding pro bono representation for Merit Systems Protection Board appellants before the Federal Circuit. The Board neither endorses the services provided by any attorney nor warrants that any attorney will accept representation in a given case. Contact information for the courts of appeals can be found at their respective websites, which can be accessed through the link below: http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx . FOR THE BOARD: ______________________________ Gina K. Grippando Clerk of the Board Washington, D.C.10	Young_ChristinaAT-315H-24-0006-I-1_Final_Order.pdf	2025-02-20	CHRISTINA L. YOUNG v. DEPARTMENT OF DEFENSE, MSPB Docket No. AT-315H-24-0006-I-1, February 20, 2025	AT-315H-24-0006-I-1	NP
172	https://www.mspb.gov/decisions/nonprecedential/Kraus_Susan_I_DE-3443-22-0238-I-1_Final_Order.pdf	UNITED STATES OF AMERICA MERIT SYSTEMS PROTECTION BOARD SUSAN KRAUS, Appellant, v. DEPARTMENT OF COMMERCE, Agency.DOCKET NUMBER DE-3443-22-0238-I-1 DATE: February 20, 2025 THIS FINAL ORDER IS NONPRECEDENTIAL1 Susan Kraus , Fountain Hills, Arizona, pro se. Ryan Holguin , Esquire, Suitland, Maryland, 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 alleged constructive suspension appeal for lack of jurisdiction. Generally, we grant petitions such as this one only in the following circumstances: the initial decision contains erroneous findings of material fact; 1 A nonprecedential order is one that the Board has determined does not add significantly to the body of MSPB case law. Parties may cite nonprecedential orders, but such orders have no precedential value; the Board and administrative judges are not required to follow or distinguish them in any future decisions. In contrast, a precedential decision issued as an Opinion and Order has been identified by the Board as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c). the initial decision is based on an erroneous interpretation of statute or regulation or the erroneous application of the law to the facts of the case; the administrative judge’s rulings during either the course of the appeal or the initial decision were not consistent with required procedures or involved an abuse of discretion, and the resulting error affected the outcome of the case; or new and material evidence or legal argument is available that, despite the petitioner’s due diligence, was not available when the record closed. Title 5 of the Code of Federal Regulations, section 1201.115 (5 C.F.R. § 1201.115). After fully considering the filings in this appeal, we conclude that the petitioner has not established any basis under section 1201.115 for granting the petition for review. Therefore, we DENY the petition for review. Except as expressly MODIFIED to find that involuntary use of accrued leave may constitute an enforced leave suspension but that, in any event, the appellant did not serve an enforced leave suspension of more than 14 days, we AFFIRM the initial decision. BACKGROUND The agency’s Bureau of the Census employed the appellant as a Field Representative, beginning in April 2006. Initial Appeal File (IAF), Tab 1 at 1, Tab 6 at 14-15. In May 2018, the agency changed her work schedule from intermittent to part time. IAF, Tab 21 at 20. The appellant had a minimum tour of duty of 2 hours of pay per biweekly pay period.2 IAF, Tab 6 at 33, Tab 21 at 20. The agency issued the appellant a notice that it was placing her on administrative leave until further notice, beginning on March 18, 2022, and again on June 28, 2022, for failure to abide by agency policy. IAF, Tab 6 at 22, 29. The basis for its decision was the appellant’s refusal to undergo COVID-19 testing every 7 days, as required for individuals who were unvaccinated, such as 2 The appellant has indicated that she no longer works for the agency. Petition for Review File, Tab 1 at 3.2 the appellant. Id. The notices informed the appellant that, while she was on administrative leave, she would be in a “paid, non-duty, status” and that the actions were not disciplinary. Id. In July 2022, the appellant filed the instant Board appeal challenging the agency’s decision to place her on administrative leave. IAF, Tab 1. She asserted that, as a result of the agency’s decision, she was constructively suspended for more than 14 days from March 18 to April 22, 2022, and again from June 28 to August 8, 2022. IAF, Tab 1 at 5, Tab 6 at 22, 29; Petition for Review (PFR) File, Tab 3 at 2. The administrative judge initially found that the appellant nonfrivolously alleged Board jurisdiction over her appeal as an alleged suspension exceeding 14 days. IAF, Tab 7 at 2. After the Board issued a nonprecedential decision with facts comparable to the instant appeal in Conaway v. Department of Commerce , MSPB Docket No. CH-0752-16-0165-I-1, Final Order (Sept. 22, 2022),3 the administrative judge reopened the record on jurisdiction for the parties to address whether the appellant nonfrivolously alleged that she was suspended for more than 14 days when the agency placed her on administrative leave for a minimum of 2 hours per pay period. IAF, Tab 19 at 1-2, 7. Both parties responded. IAF, Tabs 21 -22. Without holding the appellant’s requested hearing, the administrative judge dismissed the appeal for lack of Board jurisdiction. IAF, Tab 1 at 2, Tab 24, Initial Decision (ID) at 1. She found that the appellant failed to nonfrivolously allege that she was suspended because she was paid at least 2 hours per pay period, either as accrued or administrative leave, during the periods in question, which was the minimum tour of duty hours for her position. ID at 5-7. The 3 In the initial decision, the administrative judge erroneously cited to Conaway v. Department of Commerce , MSPB Docket No. CH-0752-16-0166-I-2, Final Order (Sept. 22, 2022), which was issued on the same day but involved the appellant’s removal appeal. ID at 3. However, it is clear the administrative judge was referring to the decision cited above because she provided a copy of that decision to the parties. IAF, Tab 19 at 4-8.3 administrative judge also concluded that the appellant did not nonfrivolously allege that she was in an enforced leave status from March 14 through 16, 2022, because she used this leave on those dates before being placed on administrative leave on March 18, 2022, later in that same pay period. ID at 6. Lastly, the administrative judge found that, absent an otherwise appealable action, the Board lacks jurisdiction over the appellant’s allegations of discrimination or reprisal. ID at 8. The appellant has filed a petition for review of the initial decision, to which the agency has responded. PFR File, Tabs 3, 5. Following these submissions, the Clerk of the Board issued an order setting forth the standard for establishing jurisdiction over an enforced leave suspension and instructing the parties to provide evidence and argument regarding the appellant’s schedule and leave usage during the relevant dates. PFR File, Tab 6 at 1-2. Both parties have responded. PFR File, Tabs 7-8. The agency argues that it paid the appellant for 2 hours per pay period, as guaranteed by her part-time schedule, as accrued leave, administrative leave, or work hours, or a combination of the three. PFR File, Tab 7 at 4-8. The appellant argues that, despite being paid the 2-hour per pay period minimum, there were two periods of longer than 14 days with no payroll entries, which constituted a suspension, and she used leave on certain dates because she was neither allowed to work nor placed in an administrative leave status.4 PFR File, Tab 8 at 1-2. 4 In her response to the Clerk’s order, the appellant indicates that she is unable to “sign in to MSPB online” because she was not a “valid user.” On June 30, 2024, the appellant attempted to access the Board’s e-Appeal repository but was unable to do so because she used a different email address than her email address of record. The Board has updated her e-Appeal profile to include her new email address. Therefore, the access issue is now resolved. 4 DISCUSSION OF ARGUMENTS ON REVIEW The appellant was not subject to an appealable suspension of more than 14 days. The administrative judge found that the appellant was not constructively suspended because she was paid for a minimum of 2 hours per biweekly pay period. ID at 5-7. On review, the appellant breaks her absences from work into periods of greater than 14 days, regardless of whether those periods coincide with pay periods. PFR File, Tab 3 at 1 at 1. We conclude that the administrative judge properly used the pay periods as a guide in deciding whether the appellant suffered an appealable constructive suspension of more than 14 days because of the nature of the appellant’s schedule. Under chapter 75, the Board has jurisdiction over a suspension of more than 14 days. 5 U.S.C. §§ 7512(2), 7513(d); Sikes v. Department of the Navy , 2022 MSPB 12, ¶ 6. Placement of an employee in a nonduty, nonpay status that is not in accordance with the conditions of her employment can constitute a suspension. Drake v. Department of the Army , 77 M.S.P.R. 424, 427 (1998). In its Drake decision, the Board remanded an intermittent employee’s claim that he was placed in a nonduty, nonpay status for more than 14 days to determine, as relevant here, if he had been constructively suspended because he was guaranteed a minimum number of hours per week. Id. at 427-29. Here, the parties agree and have provided evidence that the appellant was a part-time employee without a regular schedule. PFR File, Tab 7 at 4-5, 12, Tab 8 at 1; IAF, Tab 21 at 20. However, the agency has indicated and provided records indicating that her tour of duty was 2 hours per pay period. IAF, Tab 6 at 33, Tab 21 at 20; see Ferdon v. U.S. Postal Service , 60 M.S.P.R. 325, 329 (1994) (recognizing that, in determining whether the appellant has made a nonfrivolous allegation of jurisdiction entitling him to a hearing, an administrative judge may consider an agency’s documentary submissions to the extent that they do not contradict the appellant’s nonfrivolous allegations). 5 Although the appellant has not alleged that she was guaranteed a minimum number of hours, for purposes of establishing jurisdiction, we interpret this schedule as sufficient to establish a nonfrivolous allegation that the appellant was guaranteed at least 2 hours of work per pay period. A pay period is 14 days. E.g., IAF, Tab 6 at 32. Therefore, given her 2 hours per pay period minimum, to exceed 14 days and fall within the scope of the Board’s jurisdiction, the appellant would need to establish that the agency prevented her from working 2 hours or more for two full pay periods in a row. The appellant has alleged that she was denied work and not paid administrative leave at various times between March 15 and August 8, 2022. PFR File, Tab 3 at 2, 4-6, Tab 8 at 1; IAF, Tab 1 at 5. However, she only identifies two periods of over 14 days “with no daily payroll entries” as follows: a “20 day period” from March 15 to April 2, 2022, and a “17 day period” from April 6 to 21, 2022. PFR File, Tab 3 at 1; IAF, Tab 1 at 3, 5. The agency submitted timesheets showing that the appellant worked during the biweekly pay periods that coincide with these dates as follows: 15 minutes of work for the pay period between March 13 and 26, 2022, IAF, Tab 6 at 32, 10 hours and 30 minutes of work from March 27 to April 9, 2022, id. at 35, and 16 hours of work between April 10 and 23, 2022, id. at 38. The appellant has not contested the information in the timesheets. Because the appellant worked for 2 hours per pay period for two of these three consecutive pay periods, she was never in a nonpay, nonduty status for two pay periods or more. Accordingly, she has not identified an absence that violated the conditions of her employment for more than 14 days. We modify the initial decision to clarify that involuntary use of accrued leave may constitute an enforced leave suspension. The administrative judge found that it was not material to the jurisdictional question whether the appellant was paid for using her accrued leave, administrative leave, or work hours. ID at 5-7. As discussed above, the appellant argues that she was constructively suspended because she neither worked nor was6 paid administrative leave for periods greater than 14 days and only received earnings because she used accrued leave. PFR File, Tab 3 at 1. We modify the initial decision to the extent that the administrative judge suggested that the use of accrued leave could never constitute a suspension. A “suspension” is the temporary placement of an employee in a nonpay, nonduty status “for disciplinary reasons.” 5 U.S.C. § 7501(2); Abbott v. U.S. Postal Service, 121 M.S.P.R. 294, ¶ 6 (2014). It includes not just unpaid disciplinary absences, but also other types of enforced leave imposed on an employee against her will. Engler v. Department of the Army , 121 M.S.P.R. 547, ¶ 6 (2014). For jurisdictional purposes, the only question is whether the employee’s placement in a leave status was voluntary or involuntary; only the latter is appealable. Abbott, 121 M.S.P.R. 294, ¶ 6. To the extent that the administrative judge concluded that the appellant’s accrued leave usage could not be considered in determining whether she was suspended, we modify the initial decision to find otherwise. In any event, the appellant has failed to nonfrivolously allege that she was in a nonpay, nonduty status for more than 14 days for the reasons stated above. NOTICE OF APPEAL RIGHTS5 The initial decision, as supplemented by this Final Order, constitutes the Board’s final decision in this matter. 5 C.F.R. § 1201.113. You may obtain review of this final decision. 5 U.S.C. § 7703(a)(1). By statute, the nature of your claims determines the time limit for seeking such review and the appropriate forum with which to file. 5 U.S.C. § 7703(b). Although we offer the following summary of available appeal rights, the Merit Systems Protection Board does not provide legal advice on which option is most appropriate for your situation and the rights described below do not represent a statement of how courts will rule 5 Since the issuance of the initial decision in this matter, the Board may have updated the notice of review rights included in final decisions. As indicated in the notice, the Board cannot advise which option is most appropriate in any matter.7 regarding which cases fall within their jurisdiction. If you wish to seek review of this final decision, you should immediately review the law applicable to your claims and carefully follow all filing time limits and requirements. Failure to file within the applicable time limit may result in the dismissal of your case by your chosen forum. Please read carefully each of the three main possible choices of review below to decide which one applies to your particular case. If you have questions about whether a particular forum is the appropriate one to review your case, you should contact that forum for more information. (1) Judicial review in general . As a general rule, an appellant seeking judicial review of a final Board order must file a petition for review with the U.S. Court of Appeals for the Federal Circuit, which must be received by the court within 60 calendar days of the date of issuance of this decision. 5 U.S.C. § 7703(b)(1)(A). If you submit a petition for review to the U.S. Court of Appeals for the Federal Circuit, you must submit your petition to the court at the following address: U.S. Court of Appeals for the Federal Circuit 717 Madison Place, N.W. Washington, D.C. 20439 Additional information about the U.S. Court of Appeals for the Federal Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11. If you are interested in securing pro bono representation for an appeal to the U.S. Court of Appeals for the Federal Circuit, you may visit our website at http://www.mspb.gov/probono for information regarding pro bono representation for Merit Systems Protection Board appellants before the Federal Circuit. The8 Board neither endorses the services provided by any attorney nor warrants that any attorney will accept representation in a given case. (2) Judicial or EEOC review of cases involving a claim of discrimination . This option applies to you only if you have claimed that you were affected by an action that is appealable to the Board and that such action was based, in whole or in part, on unlawful discrimination. If so, you may obtain judicial review of this decision —including a disposition of your discrimination claims —by filing a civil action with an appropriate U.S. district court ( not the U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems Protection Board , 582 U.S. 420 (2017). If you have a representative in this case, and your representative receives this decision before you do, then you must file with the district court no later than 30 calendar days after your representative receives this decision. If the action involves a claim of discrimination based on race, color, religion, sex, national origin, or a disabling condition, you may be entitled to representation by a court-appointed lawyer and to waiver of any requirement of prepayment of fees, costs, or other security. See 42 U.S.C. § 2000e-5(f) and 29 U.S.C. § 794a. Contact information for U.S. district courts can be found at their respective websites, which can be accessed through the link below: http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx . Alternatively, you may request review by the Equal Employment Opportunity Commission (EEOC) of your discrimination claims only, excluding all other issues . 5 U.S.C. § 7702(b)(1). You must file any such request with the EEOC’s Office of Federal Operations within 30 calendar days after you receive this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case, and your representative receives this decision before you do, then you must file9 with the EEOC no later than 30 calendar days after your representative receives this decision. If you submit a request for review to the EEOC by regular U.S. mail, the address of the EEOC is: Office of Federal Operations Equal Employment Opportunity Commission P.O. Box 77960 Washington, D.C. 20013 If you submit a request for review to the EEOC via commercial delivery or by a method requiring a signature, it must be addressed to: Office of Federal Operations Equal Employment Opportunity Commission 131 M Street, N.E. Suite 5SW12G Washington, D.C. 20507 (3) Judicial review pursuant to the Whistleblower Protection Enhancement Act of 2012 . This option applies to you only if you have raised claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D). If so, and your judicial petition for review “raises no challenge to the Board’s disposition of allegations of a prohibited personnel practice described in section 2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i), (B), (C), or (D),” then you may file a petition for judicial review either with the U.S. Court of Appeals for the Federal Circuit or any court of appeals of competent jurisdiction.6 The court of appeals must receive your 6 The original statutory provision that provided for judicial review of certain whistleblower claims by any court of appeals of competent jurisdiction expired on December 27, 2017. The All Circuit Review Act, signed into law by the President on July 7, 2018, permanently allows appellants to file petitions for judicial review of MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals for the Federal Circuit or any other circuit court of appeals of competent jurisdiction. The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115-195, 132 Stat. 1510. 10 petition for review within 60 days of the date of issuance of this decision. 5 U.S.C. § 7703(b)(1)(B). If you submit a petition for judicial review to the U.S. Court of Appeals for the Federal Circuit, you must submit your petition to the court at the following address: U.S. Court of Appeals for the Federal Circuit 717 Madison Place, N.W. Washington, D.C. 20439 Additional information about the U.S. Court of Appeals for the Federal Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11. If you are interested in securing pro bono representation for an appeal to the U.S. Court of Appeals for the Federal Circuit, you may visit our website at http://www.mspb.gov/probono for information regarding pro bono representation for Merit Systems Protection Board appellants before the Federal Circuit. The Board neither endorses the services provided by any attorney nor warrants that any attorney will accept representation in a given case. 11 Contact information for the courts of appeals can be found at their respective websites, which can be accessed through the link below: http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx . FOR THE BOARD: ______________________________ Gina K. Grippando Clerk of the Board Washington, D.C.12	Kraus_Susan_I_DE-3443-22-0238-I-1_Final_Order.pdf	2025-02-20	SUSAN KRAUS v. DEPARTMENT OF COMMERCE, MSPB Docket No. DE-3443-22-0238-I-1, February 20, 2025	DE-3443-22-0238-I-1	NP
173	https://www.mspb.gov/decisions/nonprecedential/Peel_JasonSF-0752-19-0236-I-2_Final_Order.pdf	UNITED STATES OF AMERICA MERIT SYSTEMS PROTECTION BOARD JASON PEEL, Appellant, v. DEPARTMENT OF AGRICULTURE, Agency.DOCKET NUMBER SF-0752-19-0236-I-2 DATE: February 20, 2025 THIS FINAL ORDER IS NONPRECEDENTIAL1 Morgan Velasquez , Esquire, and Tyler Sroufe , Esquire, Dallas, Texas, for the appellant. Janet Robinson-Card , and Noreen Joice , Kansas City, Missouri, for the agency. Patricia McNamee , Washington, D.C., for the agency. BEFORE Cathy A. Harris , Chairman Henry J. Kerner , Vice Chairman Raymond A. Limon , 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 sustained his removal. Generally, we grant petitions such as this one only in the following circumstances: the initial decision contains erroneous findings of material fact; the initial decision is based on an erroneous interpretation of statute or regulation or the erroneous application of the law to the facts of the case; the administrative judge’s rulings during either the course of the appeal or the initial decision were not consistent with required procedures or involved an abuse of discretion, and the resulting error affected the outcome of the case; or new and material evidence or legal argument is available that, despite the petitioner’s due diligence, was not available when the record closed. Title 5 of the Code of Federal Regulations, section 1201.115 (5 C.F.R. § 1201.115). After fully considering the filings in this appeal, we conclude that the petitioner has not established any basis under section 1201.115 for granting the petition for review. Therefore, we DENY the petition for review. Except as expressly MODIFIED to supplement the administrative judge’s penalty analysis, we AFFIRM the initial decision. BACKGROUND The following facts, as further detailed in the initial decision, are not disputed. The appellant most recently held the position of Assistant Director. Peel v. Department of Agriculture , MSPB Docket No. SF-0752-19-0236-I-1, Initial Appeal File (IAF), Tab 1 at 1; Peel v. Department of Agriculture , MSPB Docket No. SF-0752-19-0236-I-2, Appeal File (I-2 AF), Tab 22, Initial Decision (ID) at 1-2. In December 2018, the agency proposed his removal, based on six charges, most of which included multiple specifications. IAF, Tab 9 at 35-44. After the appellant responded, id. at 23-34, the deciding official sustained all charges and specifications, along with the proposed removal, id. at 18-22.2 The appellant filed the instant appeal, challenging his removal. IAF, Tab 1. The administrative judge developed the record and held a hearing. I-2 AF, Tab 15, Hearing Recording, Day 1 (HR1), Tab 17, Hearing Recording, Day 2 (HR2); ID at 2. The administrative judge found that the agency proved five of its six charges but not all the underlying specifications. ID at 3-24. He also found that the appellant failed to prove his affirmative defenses, which included discrimination based on religion, ID at 24-27, sex, ID at 27-29, and disability, ID at 29-34. Finally, the administrative judge found that the agency proved the requisite nexus and reasonableness of its penalty, affirming the removal action. ID at 34-36. The appellant has filed a timely petition for review. Peel v. Department of Agriculture, MSPB Docket No. SF-0752-19-0236-I-2, Petition for Review (PFR) File, Tabs 1-3. In his petition, the appellant disputes the administrative judge’s findings regarding the charges, nexus, and penalty. PFR File, Tab 3 at 7-16. He also reasserts each of the affirmative defenses raised below. Id. at 16-21. Finally, the appellant argues that the administrative judge erred by allowing the agency to submit some evidence and identify a witness after its deadline for doing so. Id. at 21-22. The agency has filed a response. PFR File, Tab 6. DISCUSSION OF ARGUMENTS ON REVIEW The administrative judge did not abuse his discretion regarding the agency’s submission of evidence or requests for witnesses. Regarding the appellant argument on review that the administrative judge erred by allowing the agency to untimely submit some evidence and identify a witness, PFR File, Tab 3 at 21-22, we are not persuaded. In his prehearing submissions, the appellant requested one particular witness to testify about parking and key cards. IAF, Tab 19 at 8. The agency objected because that individual left the area years before the events leading to the appellant’s removal from his position. IAF, Tab 25 at 4-5. Nevertheless, the administrative judge allowed the witness. Id. In response, the agency requested3 permission to locate a witness of its own regarding the same matter, and the administrative judge agreed. Id. at 5. The administrative judge indicated that the witness must be identified by May 28, 2019. Id. After the deadline for doing so, the agency submitted a pleading identifying the witness it located, while also providing some untimely documentary evidence. I-2 AF, Tab 4. The appellant objected to the agency’s untimely identified witness and documentation. I-2 AF, Tab 5 at 4-6. The administrative judge overruled the appellant’s objection, noting that the agency’s untimeliness was the result of technical difficulties with the Board’s e-Appeal system. I-2 AF, Tab 8 at 1-2; HR1 (opening remarks). At the hearing, and over the appellant’s objection, the administrative judge also admitted documentation of an agency policy that had been referenced throughout the record but not yet provided in full. HR1 (opening remarks); I-2 AF, Tab 14. The Board’s regulations give the administrative judge wide discretion in these areas. 5 C.F.R. § 1201.41(b)(3), (6), (8), (10); see, e.g., Rodgers v. Department of the Navy , 122 M.S.P.R. 559, ¶ 21 (2015) (finding no abuse of discretion where an administrative judge ruled on discovery motions and allowed an appellant to supplement the record at the start of a hearing); Hooper v. Department of the Interior , 120 M.S.P.R. 658, ¶¶ 19-20 (2014) (finding no abuse of discretion where an administrative judge permitted an agency witness that the appellant characterized as untimely identified). Although the appellant disagrees with the administrative judge’s decision to allow the agency’s untimely submissions, we find that the administrative judge did not abuse his discretion. The administrative judge properly sustained charges 1, 3, 4, 5, and 6. As mentioned above, the administrative judge sustained five of six charges but not all the underlying specifications.2 ID at 3-24. Our discussion will focus 2 The charge that the administrative judge did not sustain was charge 2, unauthorized use of a government-owned-vehicle. IAF, Tab 9 at 36-37; ID at 6-8.4 on the sustained specifications and charges, along with the appellant’s arguments about the same. PFR File, Tab 3 at 7-13. Charge 1 – Inappropriate Conduct The agency’s first charge, inappropriate conduct, included two specifications. IAF, Tab 9 at 36. Generally, one specification alleged that the appellant asked a coworker to sell him her underwear, while the other specification alleged that the appellant propositioned that same coworker for sex during a conference, many months earlier. Id. The administrative judge sustained both specifications. ID at 3-6. He credited a sworn written statement from the coworker regarding the first specification and relied on the appellant’s admission regarding the second specification. Id.; IAF, Tab 9 at 27, Tab 15 at 85-87. On review, the appellant challenges the administrative judge’s findings only regarding specification 1. PFR File, Tab 3 at 8 -9. He argues that the administrative judge erred by crediting the written statement of the individual described in specification 1, who did not testify at the hearing, over the appellant’s hearing testimony. Id. We are not persuaded. The administrative judge made reasoned conclusions, consistent with how the Board considers both hearsay evidence and hearing testimony. ID at 3-6; see Hillen v. Department of the Army, 35 M.S.P.R. 453, 458 (1987) (recognizing factors that may be relevant in determining credibility); Borninkhof v. Department of Justice , 5 M.S.P.R. 77, 87 (1981) (recognizing factors that may be relevant to the weight afforded hearsay evidence). On review, the appellant did not challenge the administrative judge’s findings sustaining the second specification. The agency is required to prove only the essence of its charge and need not prove each factual specification in support of the charge. See Diaz v. Department of the Army , 56 M.S.P.R. 415, 417-420 (1993); Crawford v. Department of the Treasury , 56 M.S.P.R. 224,5 230-32 (1993); McIntire v. Federal Emergency Management Agency , 55 M.S.P.R. 578, 583-84 (1992). Charge 3 – Absent Without Leave (AWOL) The agency’s third charge, AWOL, included 19 specifications. IAF, Tab 9 at 37-39. The administrative judge sustained specifications 1 and 7-10, but not specifications 2-6 or 11-19. ID at 8-12. In doing so, he indicated that the appellant essentially admitted that he was AWOL for the instances described in specifications 1 and 7-10, and the appellant’s statements were further supported by evidence that included parking logs and other documentation. ID at 10-11 (citing IAF, Tab 9 at 29, Tab 11 at 7-8, Tab 16 at 52-53, 67, 69-71, 120; I -2 AF, Tab 11 at 8). On review, the appellant suggests that even if he did not work on the dates and times at issue in the sustained specifications—the dates and times reported on his timesheets—it is possible that he received verbal authorization for the deviation from his regular schedule, and the agency failed to prove otherwise. PFR File, Tab 3 at 9-10. This argument is unavailing. If the appellant had permission to deviate from his usual work schedule, while leaving his time sheet to report that he had worked his usual schedule, it was incumbent upon him to present evidence of the same, but he has not done so. The appellant also argues that although he admitted he may have worked outside the hours scheduled and recorded on his timesheets for the dates at issue in specifications 1 and 7-10, the only other supportive evidence was parking logs, which were unreliable. PFR File, Tab 3 at 10-11. Again, these arguments are unavailing. The administrative judge acknowledged the reasons why the parking logs were not definitive proof of the appellant’s arrival at work. ID at 9-10. However, he found that the parking logs, in concert with the appellant’s statements and at least one other piece of evidence—documentation of the appellant having a personal appointment when his timesheet indicated that he was6 working—sufficed to prove the sustained specifications. ID at 9-11. We discern no basis for concluding otherwise. Charge 4 – Conduct Unbecoming The agency’s fourth charge, conduct unbecoming, included three specifications. IAF, Tab 9 at 39. The administrative judge sustained specification 1, but not specifications 2-3. ID at 12-16. Generally, the sustained specification alleged that the appellant used profanity in the workplace. IAF, Tab 9 at 39. The administrative judge sustained the specification based on the appellant’s admission and a contemporaneous written statement from the Director. ID at 12 (citing IAF, Tab 16 at 46-47, Tab 17 at 44). On review, the appellant does not dispute that he engaged in the conduct described. Instead, he seems to argue that the agency should have charged him with using profanity rather than conduct unbecoming. PFR File, Tab 3 at 11. We disagree. A charge of “conduct unbecoming” has no specific elements of proof; it is established by proving that the employee committed the acts alleged in support of the broad label. Canada v. Department of Homeland Security , 113 M.S.P.R. 509, ¶ 9 (2010). On numerous occasions, the Board has sustained conduct unbecoming charges that were based on language the agency found unacceptable. E.g., Cheng v. Department of Agriculture , 84 M.S.P.R. 144, ¶¶ 1, 4 (1999); Sublette v. Department of the Army , 68 M.S.P.R. 82, 84-85 (1995). Although the agency could have chosen a different label for its charge, it was under no obligation to do so. Charge 5 – Failure to Follow Policy The agency’s fifth charge, failure to follow policy, included two specifications. IAF, Tab 9 at 39-40. The administrative judge sustained specification 1, but not specification 2. ID at 16-21. The sustained specification generally alleged that the appellant allowed an employee to use 64 hours of sick7 leave under the Family Medical Leave Act (FMLA) without maintaining the required documentation for doing so. IAF, Tab 9 at 39. In doing so, he relied on the agency’s policy about documenting FMLA leave, leave records, and the appellant’s admission that he allowed a subordinate to take FMLA leave without maintaining associated documentation. ID at 17-18; compare I-2 AF, Tab 14 at 12-13 (agency’s FMLA policy), with IAF, Tab 9 at 30 (appellant’s admission), Tab 17 at 66-70 (subordinate’s leave records). In his petition, the appellant made no particularized argument about charge 5. Given the appellant’s admission, and the absence of any specific argument, we agree with the administrative judge’s conclusion that the agency proved charge 5, specification 1. Charge 6 – Lack of Candor According to the agency’s sixth and final charge, lack of candor, the appellant gave a sworn statement in which he erroneously stated that members of the agency’s leadership team, such as himself, did not have to request leave for absences of a few hours. IAF, Tab 9 at 40. The administrative judge sustained the charge. ID at 21-24. In doing so, he relied on evidence that included the appellant’s sworn statement, along with agency policy showing that his statement was erroneous. ID at 22 (citing IAF, Tab 16 at 52-53; I-2 AF, Tab 14 at 2). Although the appellant argued that he misunderstood the agency’s policy based on statements made during leadership team meetings, the administrative judge was not persuaded. ID at 22-24. On review, the appellant reasserts that he believed his statement about the agency’s leave policy was accurate. PFR File, Tab 3 at 12-13. The administrative judge did not find the appellant credible in this regard, and we find no reason to conclude otherwise. See Purifoy v. Department of Veterans Affairs , 838 F.3d 1367, 1372-73 (Fed. Cir. 2016) (recognizing that the Board must give special deference to an administrative judge’s credibility findings, whether explicitly or implicitly based on witness demeanor). 8 The appellant failed to prove his affirmative defenses. The administrative judge found that the appellant failed to prove any of his affirmative defenses, which included claims of discrimination based on religion, ID at 24-27, sex, ID at 27-29, and disability, ID at 29-34. Regarding his claims of discrimination based on religion and sex, on review the appellant reasserts the same arguments he made below. PFR File, Tab 3 at 16-21. We find that the appellant has failed to present a sufficient basis for us to disturb the administrative judge’s findings, which were largely based on the credibility of testifying witnesses. See Purifoy, 838 F.3d at 1372-73. Thus, we decline to disturb the administrative judge’s finding that the appellant failed to prove his affirmative defenses of religion and sex discrimination.3 Disability discrimination The appellant’s final affirmative defense was an allegation that the agency’s removal action was tainted by disability discrimination stemming from his depression, schizoaffective disorder, and spinal deformity. IAF, Tab 13 at 2. To analyze this claim, the administrative judge considered whether the appellant could prove that he had a disability and, if so, whether he could then prove that his disability was a motivating factor in the agency’s removal action. ID at 29-32. He found that the appellant failed to meet this burden. ID at 33-34. According to the administrative judge, the appellant described himself as having the aforementioned impairments, but he presented no medical evidence or other supportive documentation. Id. The administrative judge further determined that the appellant presented no evidence that the proposing official, deciding official, or anyone else was motivated by disability discrimination in this removal action. ID at 34. 3 Because we affirm the administrative judge’s finding that the appellant failed to show that any prohibited consideration was a motivating factor in the agency’s action, we need not resolve the issue of whether the appellant proved that discrimination or retaliation was a “but-for” cause of the agency’s decisions. See Pridgen, 2022 MSPB 31, ¶¶ 20-22, 29-33.9 On review, the appellant argues that he proved both that he has a disability and that his disability was a motivating factor in his removal. PFR File, Tab 3 at 19-20. Even if we agreed that the appellant established that he has a disability, we would still find that he did not establish the second prong of the defense that the agency was motivated by disability discrimination. To prove his disability discrimination claim, the appellant’s burden includes establishing that he is an individual with a disability by showing that he: (1) has a physical or mental impairment that substantially limits one or more major life activities; (2) has a record of such impairment; or (3) is regarded as having such an impairment. Pridgen, 2022 MSPB 31, ¶ 37 (citing 42 U.S.C. § 12102(1); 29 C.F.R. § 1630.2(g)(1)). The determination of whether a condition is substantially limiting is made by comparing the ability of the allegedly disabled individual to “most people in the general population.” Id. (citing 29 C.F.R. § 1630.2(j)(1)(ii)). The “substantially limits” standard is not “demanding” and is intended to “be construed broadly in favor of expansive coverage.” Id. (citing 29 C.F.R. § 1630.2(j)(1)(i)). Although the appellant did not present any medical evidence regarding his alleged disabilities, he presented testimony about his alleged impairments, and the resulting limitations—testimony for which the administrative judge did not make explicit credibility findings. Id.; HR2 (testimony of appellant). There are also several references to these impairments in the documentary record. See e.g., IAF, Tab 9, at 18, 26, 42; Tab 17 at 26. Even if we found that the evidence discussed above sufficed to establish that the appellant has a disability, the appellant’s burden does not end there. He is also required to prove, by preponderant evidence, that his disability was a motivating factor in the agency’s removal action. Pridgen, 2022 MSPB 31, ¶ 40. Although the appellant argues that the proposing official made inconsistent statements that show that he was motivated by discriminatory animus, compare10 IAF, Tab 17 at 26, with IAF, Tab 19 at 13, we find that the statements are not inconsistent. The first statement indicates that the proposing official was aware of the appellant’s anti-psychotic medication but unaware of the appellant’s specific medical conditions. IAF, Tab 17 at 26. The second statement indicates also that the proposing official was not aware of appellant’s specific medical conditions. IAF, Tab 19 at 13. More importantly, those statements do not persuade us that the proposing official or anyone else was improperly motivated by the appellant’s disability. Even if the proposing official perceived the appellant as having a disability, the appellant has not presented sufficient evidence to demonstrate that the proposing official was motivated by improper animus. The agency proved the requisite nexus and that removal was a reasonable penalty for the sustained misconduct. In addition to proving the charged misconduct by preponderant evidence, for an agency to prevail in an adverse action, it must also show a nexus between the sustained misconduct and the efficiency of the service, and that the penalty is within the tolerable limits of reasonableness. Shibuya v. Department of Agriculture, 119 M.S.P.R. 537, ¶ 18 (2013). An agency may establish nexus by showing that the employee’s conduct (1) affected the employee’s or his coworkers’ job performance, (2) affected management’s trust and confidence in the employee’s job performance, or (3) interfered with or adversely affected the agency’s mission. Adams v. Department of Labor , 112 M.S.P.R. 288, ¶ 8 (2009). The administrative judge found that the requisite nexus existed for each of the sustained charges, ID at 34-35, and the appellant has not presented any substantive argument to the contrary, PFR File, Tab 3 at 14. Instead, the appellant summarily disagrees, without explanation. Id. We find no reason to disturb the administrative judge’s findings on this point. Therefore, we turn to the penalty.11 When some but not all charges are sustained, the Board will consider carefully whether the sustained charges merited the penalty imposed by the agency. Douglas v. Veterans Administration , 5 M.S.P.R. 280, 308 (1981). The Board may mitigate the agency’s penalty to the maximum reasonable penalty so long as the agency has not indicated either in its final decision or in proceedings before the Board that it desires for a lesser penalty to be imposed if fewer than all of the charges are sustained. Lachance v. Devall , 178 F.3d 1246, 1260 (Fed. Cir. 1999). In Douglas, the Board provided a nonexhaustive list of factors that may be relevant in considering the appropriateness of a penalty. Douglas, 5 M.S.P.R. at 305-06. Some of those factors include the nature and seriousness of the offense, an employee’s job level, his past work record, and any mitigating circumstances, such as unusual job tensions. Id. at 305. The administrative judge relied on this standard and found that removal was both reasonable and consistent with the agency’s table of penalties. ID at 35-36. He acknowledged that the appellant had no prior discipline. ID at 35. However, he found that outweighed by the seriousness of the appellant’s misconduct, particularly charges 1 and 3, and the fact that the appellant held a supervisory position. ID at 36. On review, the appellant suggests that the administrative judge’s penalty analysis was incomplete. PFR File, Tab 3 at 13-16. He argues that the administrative judge should have but failed to consider his 12 years of “fully successful” or better service, the physical and mental health challenges he faced at the time of his misconduct, the health challenges of his spouse, and the difficulties of his coming out as transgender, both personally and professionally. Id. at 14-16. Because the administrative judge did not explicitly address these matters, we supplement the initial decision to do so but find that the result remains the same. The proposing official acknowledged that the appellant had no past discipline and his performance ratings were fully successful throughout his12 12 years of employment with the agency. IAF, Tab 9 at 40-41. The proposing official also recognized that there were mitigating circumstances, including the appellant’s “health issues” and “feelings of chronic pain and emotional stress.” Id. at 42. Then, in the appellant’s response, he elaborated about his own health issues, the stressors surrounding his coming out as transgender, and the stressors surrounding the health issues of his spouse. Id. at 26-27, 29. The deciding official indicated that he considered all these factors. Id. at 20. We have also considered these factors, carefully, but we find that removal remains a reasonable penalty for the sustained misconduct. In assessing the reasonableness of a penalty, the Board places primary importance upon the nature and seriousness of the offense and its relation to the appellant’s duties, position, and responsibilities, including whether the offense was intentional or was frequently repeated. Batara v. Department of the Navy , 123 M.S.P.R. 278, ¶ 8 (2016). Here, the appellant’s individual instances of misconduct vary in terms of severity, but some were quite serious, particularly those described in charges 1 and 3. See Bowman v. Small Business Administration , 122 M.S.P.R. 217, ¶ 12 (2015) (recognizing that AWOL is a serious offense that warrants a severe penalty); Batten v. U.S. Postal Service , 101 M.S.P.R. 222, ¶ 14 (recognizing that removal may be an appropriate penalty for inappropriate sexual comments), aff’d, 208 F. App’x (Fed. Cir. 2006). His misconduct was also somewhat frequent, rather than an isolated incident. In addition, the appellant has accepted responsibility for only some of the sustained misconduct. E.g., IAF, Tab 9 at 26-31. Finally, the appellant occupied a supervisory position and may therefore be held to a higher standard because supervisors occupy positions of trust and responsibility. Edwards v. U.S. Postal Service , 116 M.S.P.R. 173, ¶ 14 (2010); IAF, Tab 9 at 40. Under these circumstances, we find that removal remains appropriate, despite the agency’s failure to prove all its charges and specifications, and despite those Douglas factors that weigh in the appellant’s favor.13 NOTICE OF APPEAL RIGHTS4 The initial decision, as supplemented by this Final Order, constitutes the Board’s final decision in this matter. 5 C.F.R. § 1201.113. You may obtain review of this final decision. 5 U.S.C. § 7703(a)(1). By statute, the nature of your claims determines the time limit for seeking such review and the appropriate forum with which to file. 5 U.S.C. § 7703(b). Although we offer the following summary of available appeal rights, the Merit Systems Protection Board does not provide legal advice on which option is most appropriate for your situation and the rights described below do not represent a statement of how courts will rule regarding which cases fall within their jurisdiction. If you wish to seek review of this final decision, you should immediately review the law applicable to your claims and carefully follow all filing time limits and requirements. Failure to file within the applicable time limit may result in the dismissal of your case by your chosen forum. Please read carefully each of the three main possible choices of review below to decide which one applies to your particular case. If you have questions about whether a particular forum is the appropriate one to review your case, you should contact that forum for more information. (1) Judicial review in general . As a general rule, an appellant seeking judicial review of a final Board order must file a petition for review with the U.S. Court of Appeals for the Federal Circuit, which must be received by the court within 60 calendar days of the date of issuance of this decision. 5 U.S.C. § 7703(b)(1)(A). 4 Since the issuance of the initial decision in this matter, the Board 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.14 If you submit a petition for review to the U.S. Court of Appeals for the Federal Circuit, you must submit your petition to the court at the following address: U.S. Court of Appeals for the Federal Circuit 717 Madison Place, N.W. Washington, D.C. 20439 Additional information about the U.S. Court of Appeals for the Federal Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11. If you are interested in securing pro bono representation for an appeal to the U.S. Court of Appeals for the Federal Circuit, you may visit our website at http://www.mspb.gov/probono for information regarding pro bono representation for Merit Systems Protection Board appellants before the Federal Circuit. The Board neither endorses the services provided by any attorney nor warrants that any attorney will accept representation in a given case. (2) Judicial or EEOC review of cases involving a claim of discrimination . This option applies to you only if you have claimed that you were affected by an action that is appealable to the Board and that such action was based, in whole or in part, on unlawful discrimination. If so, you may obtain judicial review of this decision —including a disposition of your discrimination claims —by filing a civil action with an appropriate U.S. district court ( not the U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems Protection Board , 582 U.S. 420 (2017). If you have a representative in this case, and your representative receives this decision before you do, then you must file with the district court no later than 30 calendar days after your representative receives this decision. If the action involves a claim of discrimination based on15 race, color, religion, sex, national origin, or a disabling condition, you may be entitled to representation by a court -appointed lawyer and to waiver of any requirement of prepayment of fees, costs, or other security. See 42 U.S.C. § 2000e-5(f) and 29 U.S.C. § 794a. Contact information for U.S. district courts can be found at their respective websites, which can be accessed through the link below: http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx . Alternatively, you may request review by the Equal Employment Opportunity Commission (EEOC) of your discrimination claims only, excluding all other issues . 5 U.S.C. § 7702(b)(1). You must file any such request with the EEOC’s Office of Federal Operations within 30 calendar days after you receive this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case, and your representative receives this decision before you do, then you must file with the EEOC no later than 30 calendar days after your representative receives this decision. If you submit a request for review to the EEOC by regular U.S. mail, the address of the EEOC is: Office of Federal Operations Equal Employment Opportunity Commission P.O. Box 77960 Washington, D.C. 20013 If you submit a request for review to the EEOC via commercial delivery or by a method requiring a signature, it must be addressed to: Office of Federal Operations Equal Employment Opportunity Commission 131 M Street, N.E. Suite 5SW12G Washington, D.C. 20507 (3) Judicial review pursuant to the Whistleblower Protection Enhancement Act of 2012 . This option applies to you only if you have raised claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or16 other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D). If so, and your judicial petition for review “raises no challenge to the Board’s disposition of allegations of a prohibited personnel practice described in section 2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i), (B), (C), or (D),” then you may file a petition for judicial review either with the U.S. Court of Appeals for the Federal Circuit or any court of appeals of competent jurisdiction.5 The court of appeals must receive your petition for review within 60 days of the date of issuance of this decision. 5 U.S.C. § 7703(b)(1)(B). If you submit a petition for judicial review to the U.S. Court of Appeals for the Federal Circuit, you must submit your petition to the court at the following address: U.S. Court of Appeals for the Federal Circuit 717 Madison Place, N.W. Washington, D.C. 20439 Additional information about the U.S. Court of Appeals for the Federal Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11. If you are interested in securing pro bono representation for an appeal to the U.S. Court of Appeals for the Federal Circuit, you may visit our website at http://www.mspb.gov/probono for information regarding pro bono representation for Merit Systems Protection Board appellants before the Federal Circuit. The 5 The original statutory provision that provided for judicial review of certain whistleblower claims by any court of appeals of competent jurisdiction expired on December 27, 2017. The All Circuit Review Act, signed into law by the President on July 7, 2018, permanently allows appellants to file petitions for judicial review of MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals for the Federal Circuit or any other circuit court of appeals of competent jurisdiction. The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115-195, 132 Stat. 1510. 17 Board neither endorses the services provided by any attorney nor warrants that any attorney will accept representation in a given case. Contact information for the courts of appeals can be found at their respective websites, which can be accessed through 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	Peel_JasonSF-0752-19-0236-I-2_Final_Order.pdf	2025-02-20	JASON PEEL v. DEPARTMENT OF AGRICULTURE, MSPB Docket No. SF-0752-19-0236-I-2, February 20, 2025	SF-0752-19-0236-I-2	NP
174	https://www.mspb.gov/decisions/nonprecedential/Colis_Jesey_SF-114M-24-0211-Y-1_Final_Order.pdf	UNITED STATES OF AMERICA MERIT SYSTEMS PROTECTION BOARD JESEY COLIS, Appellant, v. DEPARTMENT OF HOMELAND SECURITY, Agency.DOCKET NUMBER SF-114M-24-0211-Y-1 DATE: February 19, 2025 THIS FINAL ORDER IS NONPRECEDENTIAL1 Manny J. Broadbent , Los Angeles, California, for the appellant. Anju Mathew , Esquire, Irving, Texas, 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 of his removal for lack of jurisdiction. On petition for review, the appellant does not challenge the administrative judge’s finding that he does not meet the definition of an “employee” under 5 U.S.C. § 7511(a)(1)(C) 1 A nonprecedential order is one that the Board has determined does not add significantly to the body of MSPB case law. Parties may cite nonprecedential orders, but such orders have no precedential value; the Board and administrative judges are not required to follow or distinguish them in any future decisions. In contrast, a precedential decision issued as an Opinion and Order has been identified by the Board as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c). and instead argues the merits of the agency’s removal action.2 Generally, we grant petitions such as this one only in the following circumstances: the initial decision contains erroneous findings of material fact; the initial decision is based on an erroneous interpretation of statute or regulation or the erroneous application of the law to the facts of the case; the administrative judge’s rulings during either the course of the appeal or the initial decision were not consistent with required procedures or involved an abuse of discretion, and the resulting error affected the outcome of the case; or new and material evidence or legal argument is available that, despite the petitioner’s due diligence, was not available when the record closed. Title 5 of the Code of Federal Regulations, section 1201.115 (5 C.F.R. § 1201.115). After fully considering the filings in this appeal, we conclude that the petitioner has not established any basis under section 1201.115 for granting the petition for review. Therefore, we DENY the petition for review and AFFIRM the initial decision, which is now the Board’s final decision. 5 C.F.R. § 1201.113(b). NOTICE OF APPEAL RIGHTS3 You may obtain review of this final decision. 5 U.S.C. § 7703(a)(1). By statute, the nature of your claims determines the time limit for seeking such review and the appropriate forum with which to file. 5 U.S.C. § 7703(b). Although we offer the following summary of available appeal rights, the Merit 2 The appellant’s purported reply to the agency’s response, which contains a hearing transcript of his October 10, 2023 hearing before the Department of Motor Vehicles, was filed more than 10 days after the date of service of the agency’s response. Petition for Review File, Tab 5. Therefore, his reply is untimely and we need not consider it. In any event, the appellant has not shown that the hearing transcript, which concerns a different matter, was not available when the record closed or that it is material to the outcome of this appeal. See Avansino v. U.S. Postal Service , 3 M.S.P.R. 211, 214 (1980); see also Spivey v. Department of Justice , 2022 MSPB 24, ¶ 15; Russo v. Veterans Administration , 3 M.S.P.R. 345, 349 (1980). 3 Since the issuance of the initial decision in this matter, the Board may have updated the notice 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	Colis_Jesey_SF-114M-24-0211-Y-1_Final_Order.pdf	2025-02-19	JESEY COLIS v. DEPARTMENT OF HOMELAND SECURITY, MSPB Docket No. SF-114M-24-0211-Y-1, February 19, 2025	SF-114M-24-0211-Y-1	NP
175	https://www.mspb.gov/decisions/nonprecedential/Fish_MarkusDC-1221-21-0013-W-1_Remand_Order.pdf	UNITED STATES OF AMERICA MERIT SYSTEMS PROTECTION BOARD MARKUS FISH, Appellant, v. DEPARTMENT OF HOMELAND SECURITY, Agency.DOCKET NUMBER DC-1221-21-0013-W-1 DATE: February 19, 2025 THIS ORDER IS NONPRECEDENTIAL1 Markus Fish , Newburyport, Massachusetts, pro se. John T. Koerner , Esquire, and Kaitlin Bigger , Esquire, 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. 1 A nonprecedential order is one that the Board has determined does not add significantly to the body of MSPB case law. Parties may cite nonprecedential orders, but such orders have no precedential value; the Board and administrative judges are not required to follow or distinguish them in any future decisions. In contrast, a precedential decision issued as an Opinion and 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 dismissed his individual right of action (IRA) appeal for lack of jurisdiction. For the reasons discussed below, we GRANT the appellant’s petition for review, REVERSE the initial decision to find that the appellant established jurisdiction over his claims as set forth below, and REMAND the case to the regional office for further adjudication in accordance with this Remand Order. BACKGROUND Several weeks after joining the agency’s Office of the Chief Security Officer (OCSO) as a GS-13 Security Specialist, the appellant was assigned on January 27, 2020 to serve as the Special Security Officer (SSO), Headquarters Security Support Division (HSSD), for the Countering Weapons of Mass Destruction (CWMD) supporting component. Initial Appeal File (IAF), Tab 9 at 14, Tab 19 at 245. His responsibility was the administration of Sensitive Compartmented Information (SCI) and SCI facilities management operations as it pertained to CWMD. IAF, Tab 9 at 14-15. Shortly after he began his assignment, the appellant began to question the relationship between the OCSO and its underlying units, including CWMD, and the authority of A.W. to serve as CWMD’s Special Security Representative (SSR), claiming that A.W. lacked a proper delegation of authority to so act. IAF, Tab 8 at 22-23, 29. The appellant shared the latter concern with his first-line supervisor, the HSSD Director, and others, and in a March 12, 2020 email, he acknowledged that, while a delegation did exist from 2018, it was unsigned, suggesting that it was therefore invalid and that A.W. was improperly exercising authority without oversight.2 Id. at 22. Several weeks later, the appellant sent emails to CWMD’s members, including 2 The unsigned April 24, 2018 delegation was from the Technical Operations Branch Chief. On January 20, 2020, the Branch Chief of the Office of the Chief Security Officer asked the Technical Operations Branch Chief to sign the unsigned delegation, which he did on that date. IAF, Tab 19 at 243, 246.2 A.W., requesting specific data on a weekly and monthly basis concerning how the staff was accessing or using sensitive or classified information. IAF, Tab 9 at 22-25. A.W. and other agency officials responded by questioning the propriety of the appellant’s data request. Id. at 4-6, 20-21. The situation escalated, and the appellant blamed the tension on A.W. as well as other managers who did not support his view regarding A.W.’s lack of authority. Id. at 18-19. According to the appellant, he communicated to his supervisory chain throughout this time that he would not obey any instruction that was premised on A.W.’s presumed authority. IAF, Tab 5 at 42, Tab 8 at 44. While this was going on, the appellant notified his supervisor, the HSSD Director, on April 28, 2020, that, effective April 30, 2020, he would be teleworking from an alternate location because of childcare issues related to COVID-19. IAF, Tab 19 at 87. The Director advised him that he had not requested or been approved to do so and that his request would not be approved because his duties could require him to appear at the work site on 2 hours’ notice.3 Id. at 96. On May 8, 2020, the Director learned that the appellant had been working from New York since April 30, 2020. Id. at 119. The appellant was notified that he could request leave for the time he had been working at an unapproved location, but, when he declined to do so, the agency coded the appellant’s time as absent without leave (AWOL). Id. at 121, 226-29. On May 11, 2020, the appellant filed a whistleblower retaliation complaint with the Office of Special Counsel (OSC) in which he alleged that, based on his disclosures regarding A.W.’s authority and his refusal to obey instructions requiring him to honor that authority, the agency had changed his duties, established new communication and workflow channels to marginalize and exclude him, imposed policies that caused undue hardship on him and his family, and took actions regarding his pay and benefits. IAF, Tab 6 at 14-19. 3 The appellant was approved to telework from his home in Alexandria, Virginia. The alternate work site he referenced was in New York. IAF, Tab 19 at 56.3 On May 22, 2020, the Director proposed to suspend him for 10 days for failure to follow instructions and disrespectful behavior (working at an unapproved location).4 IAF, Tab 12 at 4-9. On June 30, 2020, the supervisor rescinded the notice and reissued it, deleting certain language from the background section, id. at 43, after which, on July 30, 2020, the deciding official sustained the charges in part, mitigating the penalty to a 3-day suspension, which the appellant served from August 10-12, 2020, id. at 62-65. On July 30, 2020, the appellant notified OSC of his suspension. IAF, Tab 6 at 33. On August 31, 2020, OSC preliminarily determined to close the appellant’s complaint without action. Id. at 38-39. On September 11, 2020, the appellant advised OSC that he planned to resign. Id. at 40. On September 30, 2020, OSC issued its closure letter. IAF, Tab 1 at 12. On October 7, 2020, the appellant filed this IRA appeal. IAF, Tab 1. In addition to repeating the alleged protected disclosures and activity and personnel actions he had raised with OSC, he claimed that the agency had effected those actions to force him to resign, which he did on October 24, 2020. Id. at 5; IAF, Tab 8 at 16. In connection with his appeal, the appellant requested a hearing. IAF, Tab 1 at 2. The administrative judge issued an order setting forth the requirements for proving the Board’s jurisdiction and the merits in an IRA appeal. IAF, Tab 3. The appellant made numerous submissions in response. IAF, Tabs 5-12, 14-16. The agency moved that the appeal be dismissed for lack of jurisdiction on the grounds that the appellant did not exhaust with OSC certain alleged personnel actions and that, as to others that he had exhausted with OSC, he did not nonfrivolously allege that he made protected disclosures that contributed to those personnel actions. IAF, Tab 19. The appellant replied in opposition to the agency’s motion. IAF, Tab 26. 4 At the same time, the agency changed the coding for the time period at issue to paid duty status. IAF, Tab 12 at 4.4 Thereafter, the administrative judge issued an initial decision based on the written record. IAF, Tab 29, Initial Decision (ID). He first found that, because the appellant’s resignation took place after he initiated his appeal, he did not exhaust that matter before OSC, and therefore, it was not before the Board in the context of this IRA appeal. ID at 1-2, 10-11. The administrative judge found that the two remaining alleged personnel actions were (1) the agency’s placement of the appellant on AWOL and the disciplinary action it took against him for working remotely from an unapproved location, and (2) his claim that the agency significantly changed his work duties/conditions during the spring and early summer of 2020 by removing responsibilities from his purview and creating backchannels around him. ID at 11; see 5 U.S.C. § 2302(a)(2)(A)(xii). The administrative judge then found that the appellant’s alleged protected disclosures that preceded these two actions involved the concerns he raised about A.W.’s role and the negative response he (the appellant) received from A.W. and others when he sought to collect certain data. As to these disclosures, the administrative judge found that the appellant did not nonfrivolously allege that he reasonably believed that he was disclosing a violation of any law, rule, or regulation. ID at 11-16. Accordingly, the administrative judge dismissed the appellant’s IRA appeal for lack of jurisdiction. ID at 2, 17. The appellant has filed a petition for review, the agency has responded, and the appellant has replied. Petition for Review (PFR) File, Tabs 1, 3-4. DISCUSSION OF ARGUMENTS ON REVIEW On review, the appellant argues that the administrative judge made three errors: two of fact and one of law. PFR File, Tab 1 at 4-5. Specifically, the appellant argues that the administrative judge erred in finding that he (the appellant) did not identify any specific laws, rules, or regulations that the agency violated and in stating that he did not allege that the individual who appointed A.W. as SSR lacked the authority to do so. Id. at 7-15; ID at 13-14. The5 appellant also argues that the administrative judge erroneously interpreted the law regarding the delegation of authority over Classified National Security Information, including SCI. PFR File, Tab 1 at 7-23. To establish the Board’s jurisdiction over an IRA appeal, an appellant must exhaust his administrative remedies with OSC and nonfrivolously allege that he made a protected disclosure under 5 U.S.C. § 2302(b)(8) or engaged in protected activity under 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D), and that his disclosure or activity was a contributing factor in a personnel action as defined by 5 U.S.C. § 2302(a). Gabel v. Department of Veterans Affairs , 2023 MSPB 4, ¶ 5; Salerno v. Department of the Interior , 123 M.S.P.R. 230, ¶ 5 (2016) ; 5 C.F.R. § 1201.57(a)(1), (b). A nonfrivolous allegation is an assertion that, if proven, could establish the matter asserted. 5 C.F.R. § 1201.4(s); see also Hessami v. Merit Systems Protection Board , 979 F.3d 1362, 1364, 1369 (Fed. Cir. 2020). The administrative judge erred in finding that the appellant did not make a nonfrivolous allegation that the agency violated any law, rule, or regulation when he raised concerns about the propriety of A.W.’s appointment and role. In finding that the appellant did not nonfrivolously allege facts showing that he made a protected whistleblowing disclosure of any violation of a law, rule, or regulation, the administrative judge found that none of the appellant’s written correspondence disclosed or identified any specific violations of a law, rule, or regulation with the required degree of detail needed and, similarly, that his reporting to his supervisor, the HSSD Director, about the absence of a proper delegation memorandum appointing A.W. did not contain a disclosure of a violation of any law, rule, or regulation. ID at 13-14. On review, the appellant maintains that he did, in fact, identify statutes, regulations, and policies that the agency violated by allowing A.W. to serve as SSR. PFR File, Tab 1 at 7-12. Specifically, the appellant references, as he did before OSC and to the administrative judge, Executive Order 13526, 6 C.F.R. § 7.10, DHS Delegation 12000, DHS Directive 121-01, DHS Instructions6 121-01-011, 013, the National Security Act of 1947, and Intelligence Community Directives 700 and 703.5 PFR File, Tab 1 at 7; IAF, Tab 1 at 7. In other submissions, particularly a slide that the appellant entitled Systemic Violations within Classified National Security Information (CNSI) and SCI, which he shared with various management officials, the appellant described how these provisions interact and explained specifically how, in his view, they precluded A.W. from serving as SSR without being delegated proper authority from an appropriate individual. IAF, Tab 10 at 4-5, Tab 26 at 22. Contrary to the administrative judge’s statement, ID at 13-14, the appellant did argue below that the Technical Operations Branch Chief lacked authority to appoint A.W. as SSR. Referencing DHS Instruction 121-01-001 and Intelligence Community Directives (ICD) 700 and 703, the appellant argued that only the Director of HSSD has the authority to appoint an SSR, that he did not do so, and that he did not further delegate that authority to the Technical Operations Branch Chief. IAF, Tab 26 at 29-30. At this jurisdictional stage, an appellant is not required to prove that his disclosure is protected under 5 U.S.C. § 2302(b)(8). Smart v. Department of the Army, 98 M.S.P.R. 566, ¶ 9, aff’d, 157 F. App’x 260 (Fed. Cir. 2005). Rather, the appellant is only burdened with making a nonfrivolous allegation that the matter disclosed was one that a reasonable person in his position would believe evidenced one of the categories of wrongdoing specified in 5 U.S.C. § 2302(b) (8). Salerno, 123 M.S.P.R. 230, ¶ 6. The test for determining whether a belief was reasonable 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 of the Government evidenced such wrongdoing. Id.; Benton-Flores v. Department of Defense , 121 M.S.P.R. 428, ¶ 8 (2014); 5 C.F.R. § 1209.4(f). The U.S. Court of Appeals for the Federal Circuit 5 Although the appellant requested that the administrative judge take official notice of these provisions, IAF, Tab 26, the administrative judge did not address the request. Pursuant to 5 C.F.R. § 1201.64, the Board can take official notice of matters that can be verified.7 has clarified and held that, when evaluating the Board’s jurisdiction over a whistleblower claim, the question of whether the appellant has nonfrivolously alleged protected disclosures that contributed to a personnel action must be determined based on whether the employee alleged sufficient factual matter, accepted as true, to state a claim that is plausible on its face. Hessami, 979 F.3d at 1369. We have considered the appellant’s claims consistent with these principles and conclude that he did raise a nonfrivolous allegation of a protected disclosure regarding the propriety of A.W.’s appointment as CWMD’s SSR. The crux of the appellant’s allegation is that A.W. was not properly appointed to his position by an individual authorized to appoint him and that, therefore, his actions in exercising authority over security management of CNSI, including SCI, with little or no oversight or accountability, were unlawful. As SSO for CWMD, the appellant demonstrated his knowledge about and familiarity with the statutes, regulations, and policies that pertain to how and by whom certain security personnel within the hierarchy of the organization can lawfully be appointed. We can infer from his allegations that, at the time he made his disclosure, he believed, based on documents he had reviewed and agency policy documents he read in the context of directives and delegations, that A.W. was not appointed to his SSR position by an individual who was authorized to appoint him and that A.W. was therefore acting without authority. The appellant made this and related assertions to numerous agency officials through emails, discussions, and the creation of a series of slides. These allegations are nonfrivolous because they describe a facially plausible series of events and set forth specific facts supporting the appellant’s belief of wrongdoing. They are also material because, if accepted as true, they are sufficient to support a reasonable belief of a violation of a law, rule, or regulation. We therefore conclude that the appellant nonfrivolously alleged that he made a protected disclosure based on his reasonable belief that the agency violated a law, rule, or regulation in connection8 with A.W.’s appointment to and functioning as CWMD’s SSR without proper authorization. See Hessami, 979 F.3d at 1369-70. The appellant nonfrivolously alleged that he engaged in protected activity pursuant to 5 U.S.C. § 2302(b)(9)(D) by refusing to obey an order that would require him to violate a law, rule, or regulation. The appellant also alleged that, in addition to making protected disclosures, he also engaged in protected activity pursuant to 5 U.S.C. § 2302(b)(9)(D) when he refused to comply with or obey orders that required him to violate laws, rules, and regulations. IAF, Tab 1 at 5, Tab 5 at 12, Tab 6 at 15-16, 23-24. The administrative judge made no finding concerning whether the appellant nonfrivolously alleged that he engaged in protected activity under section 2302(b) (9)(D). The appellant reraises this claim on review. PFR File, Tab 1 at 4, 9-12. Because the parties were given proper jurisdictional notice and because jurisdictional findings are based solely on the written record, we address this claim here. See Oscar v. Department of Agriculture , 103 M.S.P.R. 591, ¶ 7 (2006) (explaining that a determination of whether allegations are nonfrivolous is based on the written record in an IRA appeal). Generally, the appellant asserted that he refused to obey orders and instructions that would require him to violate the same laws, rules, and regulations concerning appointment and delegated authority of the CWMD’s SSR as referenced above.6 IAF, Tab 6 at 23-24. To support this claim, which was properly exhausted with OSC, see id., he alleges that he “refused in writing to 6 The appellant also asserted that he refused to obey an instruction that would have required him to violate the Fair Labor Standards Act (FLSA) as it relates to his April/May 2020 telework and AWOL designation issue. IAF, Tab 6 at 23-24. Specifically, he alleged that the agency instructed him to retroactively request leave for the time that he worked, which, he claims, is a violation of the FLSA. IAF, Tab 5 at 28, 49. In the initial decision, the administrative judge observed that the appellant held a position that is exempt from the FLSA. ID at 11-12 n.2; IAF, Tab 19 at 39. The appellant has not challenged this categorization of his position on review, and we find it sound on its face. IAF, Tab 19 at 39. Therefore, we conclude that the appellant did not nonfrivolously allege that he engaged in protected activity in this regard.9 comply with instructions to withdraw/limit/degrade oversight activities contrary to regulation and policy,” IAF, Tab 5 at 42. In his appeal, he explicitly references Executive Order 13526, the National Security Act of 1947 as amended, 6 C.F.R. § 7.10; ICD 700 and 703, DHS Delegation 12000; DHR Directive 121-01; DHS Instructions 121-01-011 and 121-01-013. IAF, Tab 1 at 7, IAF, Tab 10 at 4-5, Tab 26 at 13, 17, 22, 29-30; see also PFR File, Tab 1 at 11. As acknowledged above, these authorities broadly concern the relevant grants and delegations of authority as they relate to the agency’s organizational structure. Although some reference oversight, we have not determined if any address in detail what precise oversight is required and how it operates for the agency components at issue here. Further, the appellant’s allegation that he refused to comply with instructions to limit oversight activities lacks relevant detail, such as what specific instruction he was given, how that instruction would have violated specific provisions of any of the above-referenced authorities, when he refused to comply with the instruction, and to whom he communicated that refusal. Nonetheless, the burden at the jurisdictional stage is a low one, and we must resolve any doubt or ambiguity in the appellant’s allegations in favor of finding jurisdiction. See Usharauli v. Department of Health and Human Services , 116 M.S.P.R. 383, ¶ 19 (2011) (stating that any doubt or ambiguity as to whether the appellant made a nonfrivolous jurisdictional allegation should be resolved in favor of finding jurisdiction); Jessup v. Department of Homeland Security , 107 M.S.P.R. 1, ¶ 10 (2007) (observing that the appellant’s burden of making a nonfrivolous allegation is low and requires only a minimal sufficient showing). Accordingly, because the appellant asserted that he was instructed to withdraw, limit, or degrade oversight activities in violation of the laws, rules, and regulations regarding the agency’s granted and delegated authority and relevant oversight related thereto, and he refused to comply with that instruction, we find that he nonfrivolously alleged that he engaged in protected activity pursuant to 5 U.S.C. § 2302(b)(9)(D). 10 The appellant nonfrivolously alleged that his protected disclosure and protected activity were contributing factors in the agency’s decision to take several personnel actions against him. Because the administrative judge found that the appellant did not nonfrivolously allege that he made a protected disclosure or engaged in protected activity, the initial decision did not address whether the appellant nonfrivolously alleged that a protected disclosure or activity was a contributing factor in a personnel action. Because we reverse that finding as set forth above, we now address whether the written record supports a finding that the appellant nonfrivolously alleged the contributing factor element. See Oscar, 103 M.S.P.R. 591, ¶ 7. As noted above, the administrative judge found that the appellant exhausted two personnel actions with OSC: (1) his placement on AWOL and the disciplinary action for working remotely from an unapproved location, and (2) his claim that the agency significantly changed his work duties/conditions during the spring and early summer of 2020.7 ID at 11. Although the appellant does not challenge these findings on review, we find it more appropriate to address separately the AWOL designation and its effects on his pay and benefits and the distinct disciplinary actions, to include the proposal to suspend him for 10 days and the ultimate 3-day suspension. See Redschlag v. Department of the Army , 89 M.S.P.R. 589, ¶ 98 (2001) (finding that a proposed action is a personnel action within the Board’s IRA jurisdiction). The appellant has exhausted these separate claims of personnel actions before OSC, and we address them individually below. IAF, Tab 6 at 12-40, 45-46. 7 The appellant also alleged that his involuntary resignation constituted a personnel action. IAF, Tab 1, Tab 8 at 16. In the initial decision, the administrative judge explained that, because the appellant resigned from employment in October 2020, three weeks after he had already filed the instant appeal, he could not have exhausted his involuntary resignation claim with OSC. ID at 10-11. The appellant has not challenged this finding on review, and we find no reason to disturb it. 11 On their face, the proposal to suspend the appellant for 10 days, the 3-day suspension, and the AWOL designation (which affected his pay and benefits) constitute personnel actions under 5 U.S.C. § 2302(a)(2)(A)(iii), (ix).8 The appellant’s claim that agency officials harassed and marginalized him and changed his duties is one to be analyzed as an allegation of a significant change in duties, responsibilities, or working conditions pursuant to 5 U.S.C. § 2302(a) (2)(A)(xii). See Skarada v. Department of Veterans Affairs , 2022 MSPB 17, ¶¶ 14-18. In Skarada, the Board clarified the legal standard applicable to claims of a “significant change in duties, responsibilities, or working conditions.” In particular, the Board found that, although “significant change” should be interpreted broadly to include harassment and discrimination that could have a chilling effect on whistleblowing or otherwise undermine the merit system, only agency actions that, individually or collectively, have practical and significant 8 As noted by the administrative judge, in the agency’s May 22, 2020 notice of proposed suspension, it explained that it was rescinding the appellant’s placement on AWOL. ID at 11; IAF, Tab 19 at 159. The appellant filed his complaint with OSC on May 11, 2020. Thus, at the time the appellant filed his OSC complaint, the AWOL designation and its effect on the appellant’s pay and benefits was still an active issue. In Lachenmyer v. Federal Election Commission , 92 M.S.P.R. 80, ¶ 7 (2002), the Board explained that when an agency unilaterally cancels a personnel action after the appellant files a request for corrective action with OSC, but prior to the filing of his IRA appeal, his IRA appeal will not be moot unless the appellant consents to such divestiture or the agency completely rescinds the action being appealed. Id. Notwithstanding the agency’s complete rescission, a claim is not moot if the appellant still has outstanding claims for consequential damages and corrective action. Id., ¶ 10. An administrative judge must afford an appellant a specific opportunity to raise a claim for consequential damages and sufficient notice to address the issue before dismissing the claim as moot. See Santos v. Department of Energy , 99 M.S.P.R. 475, ¶ 7 (2005). On remand, the parties should address whether the agency fully rescinded this action and, if so, the administrative judge should provide the appellant with a specific opportunity to raise a claim of consequential damages. In the interest of judicial efficiency, this remand order addresses this claim within the context of the appellant’s jurisdictional burden, presuming it is not moot. If the administrative judge determines, consistent with the principles set forth here, that the claim is moot, he should explain his findings in a new initial decision. 12 consequence for an appellant constitute a personnel action covered by section 2302(a)(2)(A)(xii). Skarada, 2022 MSPB 17, ¶¶ 15-16. Thus, the agency actions must have significant effects on the overall nature and quality of the appellant’s working conditions, duties, or responsibilities. Id. Here, the appellant alleges that agency officials began to withhold certain information from him and that his supervisors established new communication and workflow channels to marginalize and exclude him, effectively transferred his “role, responsibilities, and authorities” to A.W.,” and “ostrasiz[ed]” him from colleagues and stakeholders. IAF, Tab 5 at 27, Tab 6 at 45. We find that these actions could have a significant impact on the overall nature or quality of the appellant’s working conditions, responsibilities, and duties, and that, collectively, they amount to a nonfrivolous allegation of a personnel action pursuant to 5 U.S.C. § 2302(a)(2)(A)(xii). See Holderfield v. Merit Systems Protection Board, 326 F.3d 1207, 1209 (Fed. Cir. 2003) (suggesting that a number of minor agency actions relating to the appellant’s working conditions may amount to a covered personnel action under section 2302(a)(2)(A)(xii) collectively, even if they are not covered personnel actions individually). We now turn to whether the appellant nonfrivolously alleged that his protected disclosures and activity were contributing factors in the referenced personnel actions. To satisfy the contributing factor criterion at the jurisdictional stage of an IRA appeal, the appellant only need raise a nonfrivolous allegation that the fact or the content of the protected disclosure or protected activity was one factor that tended to affect a personnel action in any way. Skarada, 2022 MSPB 17, ¶ 19; 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 or activity was a contributing factor in a personnel action through circumstantial evidence, such as evidence that the official who took the personnel action knew of the disclosure and that the personnel action occurred within a period of time such that a reasonable person13 could conclude that the disclosure was a contributing factor in the personnel action. Skarada, 2022 MSPB 17, ¶ 19; Salerno, 123 M.S.P.R. 230, ¶ 13. The appellant alleges that he disclosed his concerns about A.W. to his first-line supervisor and others on several occasions, beginning in February and March 2020. IAF, Tab 14 at 7, Tab 8 at 22, 25, 47-48. He also alleges that his refusal to obey instructions to withdraw, limit, or degrade oversight activities in violation of law, rule, or regulation was made to his supervisory chain in March and April 2020. IAF, Tab 5 at 42-43, Tab 6 at 15. The appellant alleges that all of the personnel actions listed above occurred in the timespan between April and July 2020. IAF, Tab 5 at 27-29, 31, Tab 6 at 33. Because the appellant has alleged that he made a protected disclosure and engaged in protected activity only a few months prior, we find that he has met the timing prong of the knowledge/timing test for all personnel actions at issue here. See Skarada, 2022 MSPB 17, ¶ 19 (stating that a personnel action taken within 1 to 2 years of the appellant’s disclosure satisfies the knowledge/timing test); Mastrullo v. Department of Labor , 123 M.S.P.R. 110, ¶ 21 (2015) (same). Regarding the knowledge component of the knowledge/timing test, the appellant alleged that the HSSD Director was the primary actor responsible for all of the listed personnel actions and that, from March 2020 onward, he had “complete knowledge of [the a]ppellant’s protected disclosures and activities since he was, in all cases, the primary or secondary audience and recipient of those disclosures.” IAF, Tab 5 at 15, 51. Regarding the 3-day suspension, however, we observe that the Executive Director of OCSO was the deciding official and, therefore, ultimately responsible for that action. IAF, Tab 19 at 40; see Hessami, 979 F.3d at 1369 n.5 (explaining that nonfrivolous allegations of jurisdiction are not assessed “in a vacuum” but rather involve a context-specific assessment involving the Board’s judicial experience and common sense). The appellant has otherwise generally alleged that “management,” “Executive leadership,” and his “supervisory chain” were aware of his protected disclosure14 and activity. IAF, Tab 5 at 11-12, Tab 6 at 15. At this jurisdictional stage, we construe the appellant’s references to those high-level agency officials to include the Executive Director of OCSO. See Usharauli, 116 M.S.P.R. 383, ¶ 19; Jessup, 107 M.S.P.R. 1, ¶ 10. Thus, we find that the appellant’s allegations also meet the knowledge prong of the knowledge/timing test regarding all personnel actions discussed above. Accordingly, we find that the appellant has nonfrivolously alleged that his protected disclosure and protected activity were contributing factors in the proposed 10-day suspension, the 3-day suspension, the AWOL designation and its impact on pay and benefits, and a significant change in working conditions, duties, or responsibilities. Based on the foregoing, we find that the appellant has established the Board’s jurisdiction over his claims as set forth above. See Gabel, 2023 MSPB 4, ¶ 5. ORDER Having found that the appellant has met his jurisdictional burdens, we remand this case to the regional office for a hearing and further adjudication consistent with this Remand Order. FOR THE BOARD: ______________________________ Gina K. Grippando Clerk of the Board Washington, D.C.15	Fish_MarkusDC-1221-21-0013-W-1_Remand_Order.pdf	2025-02-19	MARKUS FISH v. DEPARTMENT OF HOMELAND SECURITY, MSPB Docket No. DC-1221-21-0013-W-1, February 19, 2025	DC-1221-21-0013-W-1	NP
176	https://www.mspb.gov/decisions/nonprecedential/Litton_Matthew_C_DC-0752-14-0353-X-1_and_DC-0752-14-0353-C-1_Final_Order.pdf	UNITED STATES OF AMERICA MERIT SYSTEMS PROTECTION BOARD MATTHEW C. LITTON, Appellant, v. DEPARTMENT OF JUSTICE, Agency.DOCKET NUMBER DC-0752-14-0353-X-1 DC-0752-14-0353-C-1 DATE: February 19, 2025 THIS FINAL ORDER IS NONPRECEDENTIAL1 Christine Kumar , Esquire, and Kristin Alden , Esquire, Washington, D.C., for the appellant. Drew Ambrose , Esquire, Monica Hansen , Esquire, Marisa C. Ridi , Esquire, and Chad Y. Tang , Esquire, Washington, D.C., for the agency. BEFORE Cathy A. Harris, Chairman Henry J. Kerner, Vice Chairman Raymond A. Limon, Member FINAL ORDER The administrative judge issued a compliance initial decision finding the agency in noncompliance with the decision in the underlying appeal and granting the appellant’s petition for enforcement. Litton v. Department of Justice , MSPB 1 A nonprecedential order is one that the Board has determined does not add significantly to the body of MSPB case law. Parties may cite nonprecedential orders, but such orders have no precedential value; the Board and administrative judges are not required to follow or distinguish them in any future decisions. In contrast, a precedential decision issued as an Opinion and Order has been identified by the Board as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c). Docket No. DC-0752-14-0353-C-1, Compliance File, Tab 15, Compliance Initial Decision (CID). Following the appellant’s petition for review, the Board affirmed the compliance initial decision. Litton v. Department of Justice , MSPB Docket No. DC-0752-14-0353-C-1, Order (Sept. 30, 2024) (Order) . For the reasons discussed below, we now find the agency in compliance and DISMISS the appellant’s petition for enforcement and associated petition for review. DISCUSSION OF ARGUMENTS AND EVIDENCE OF COMPLIANCE On March 30, 2023, the administrative judge issued a compliance initial decision finding the agency partly noncompliant with the Board’s final order in the underlying matter. Specifically, the administrative judge found the agency noncompliant with its obligation to pay the appellant back pay, with interest, and benefits, for the time period January 24-31, 2012. CID at 11-12. The appellant filed a petition for review of the compliance initial decision2 and the compliance initial decision in a separate enforcement matter, Litton v. Department of Justice , MSPB Docket No. DC-0752-14-1110-C-1 (0111-C-1). The Board joined these matters and, on September 30, 2024, issued a single order affirming both compliance initial decisions. Order at 13. The Board stated that its order finally resolved the 0111-C-1 matter but referred Litton v. Department of Justice, MSPB Docket No. DC- 0752-14-0353-C-1 ( 0353-C-1), for continued enforcement proceedings in the already-docketed compliance referral matter, Litton v. Department of Justice , MSPB Docket No. DC -0752-14-0353-X-1 (0353-X-1). Id.; Compliance Referral File (CRF), Tab 2. 2 As noted in the compliance initial decision, the Board’s regulations provide that, on 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. §§ 1201.114-1201.115. 5 C.F.R. § 1201.183(a)(6). 2 On May 2, 2023, prior to the issuance of the Order that resolved the 0111-C-1 matter and affirmed the compliance initial decision in the 0353-C-1 matter, the agency filed a notice of compliance in the 0353-X-1 matter. Therein, the agency stated that it had calculated and paid back pay, with interest, and benefits, for the time period ordered by the compliance initial decision (January 24-31, 2012). CRF, Tab 1 at 4. Because the appellant had not responded to this submission, the Board ordered a response. CRF, Tab 4. On December 5, 2024, the appellant filed his response, affirming that the agency had paid the required amount of back pay and that the appellant no longer challenged the agency’s compliance in this matter. CRF, Tab 5 at 3. 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. As explained above, the agency has submitted evidence that it has complied with its single outstanding back pay obligation, and the appellant states that he no longer challenges the agency’s compliance. CRF, Tabs 1, 5. 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).3 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 associated 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. 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 4 Since the issuance of the initial decision in this matter, the Board may have updated the notice of review rights included in final decisions. As indicated in the notice, the Board cannot advise which option is most appropriate in any matter.4 requirements. Failure to file within the applicable time limit may result in the dismissal of your case by your chosen forum. Please read carefully each of the three main possible choices of review below to decide which one applies to your particular case. If you have questions about whether a particular forum is the appropriate one to review your case, you should contact that forum for more information. (1) Judicial review in general . As a general rule, an appellant seeking judicial review of a final Board order must file a petition for review with the U.S. Court of Appeals for the Federal Circuit, which must be received by the court within 60 calendar days of the date of issuance of this decision. 5 U.S.C. § 7703(b)(1)(A). If you submit a petition for review to the U.S. Court of Appeals for the Federal Circuit, you must submit your petition to the court at the following address: U.S. Court of Appeals for the Federal Circuit 717 Madison Place, N.W. Washington, D.C. 20439 Additional information about the U.S. Court of Appeals for the Federal Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11. If you are interested in securing pro bono representation for an appeal to the U.S. Court of Appeals for the Federal Circuit, you may visit our website at http://www.mspb.gov/probono for information regarding pro bono representation for Merit Systems Protection Board appellants before the Federal Circuit. The Board neither endorses the services provided by any attorney nor warrants that any attorney will accept representation in a given case. (2) Judicial or EEOC review of cases involving a claim of discrimination . This option applies to you only if you have claimed that you were affected by an action that is appealable to the Board and that such action was based, in whole or in5 part, on unlawful discrimination. If so, you may obtain judicial review of this decision—including a disposition of your discrimination claims —by filing a civil action with an appropriate U.S. district court ( not the U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems Protection Board , 582 U.S. 420 (2017). If you have a representative in this case, and your representative receives this decision before you do, then you must file with the district court no later than 30 calendar days after your representative receives this decision. If the action involves a claim of discrimination based on race, color, religion, sex, national origin, or a disabling condition, you may be entitled to representation by a court- appointed lawyer and to waiver of any requirement of prepayment of fees, costs, or other security. See 42 U.S.C. § 2000e-5(f) and 29 U.S.C. § 794a. Contact information for U.S. district courts can be found at their respective websites, which can be accessed through the link below: http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx . Alternatively, you may request review by the Equal Employment Opportunity Commission (EEOC) of your discrimination claims only, excluding all other issues . 5 U.S.C. § 7702(b)(1). You must file any such request with the EEOC’s Office of Federal Operations within 30 calendar days after you receive this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case, and your representative receives this decision before you do, then you must file with the EEOC no later than 30 calendar days after your representative receives this decision. If you submit a request for review to the EEOC by regular 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.5 The court of appeals must receive your petition for review within 60 days of the date of issuance of this decision. 5 U.S.C. § 7703(b)(1)(B). If you submit a petition for judicial review to the U.S. Court of Appeals for the Federal Circuit, you must submit your petition to the court at the following address: U.S. Court of Appeals for the Federal Circuit 717 Madison Place, N.W. Washington, D.C. 20439 5 The original statutory provision that provided for judicial review of certain whistleblower claims by any court of appeals of competent jurisdiction expired on December 27, 2017. The All Circuit Review Act, signed into law by the President on July 7, 2018, permanently allows appellants to file petitions for judicial review of MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals for the Federal Circuit or any other circuit court of appeals of competent jurisdiction. The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115-195, 132 Stat. 1510.7 Additional information about the U.S. Court of Appeals for the Federal Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11. If you are interested in securing pro bono representation for an appeal to the U.S. Court of Appeals for the Federal Circuit, you may visit our website at http://www.mspb.gov/probono for information regarding pro bono representation for Merit Systems Protection Board appellants before the Federal Circuit. The Board neither endorses the services provided by any attorney nor warrants that any attorney will accept representation in a given case. Contact information for the courts of appeals can be found at their respective websites, which can be accessed through the link below: http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx . FOR THE BOARD: ______________________________ Gina K. Grippando Clerk of the Board Washington, D.C.8	Litton_Matthew_C_DC-0752-14-0353-X-1_and_DC-0752-14-0353-C-1_Final_Order.pdf	2025-02-19	MATTHEW C. LITTON v. DEPARTMENT OF JUSTICE, MSPB Docket No. DC-0752-14-0353-X-1, February 19, 2025	DC-0752-14-0353-C-1; DC-0752-14-0353-X-1	NP
177	https://www.mspb.gov/decisions/nonprecedential/May_Peter_J_NY-1221-23-0171-W-1_Remand_Order.pdf	UNITED STATES OF AMERICA MERIT SYSTEMS PROTECTION BOARD PETER J. MAY, Appellant, v. DEPARTMENT OF JUSTICE, Agency.DOCKET NUMBER NY-1221-23-0171-W-1 DATE: February 19, 2025 THIS ORDER IS NONPRECEDENTIAL1 Peter J. May , Rockville Centre, New York, pro se. Megan H. Eyes , Esquire, Springfield, 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. REMAND ORDER The appellant has filed a petition for review of the initial decision, which dismissed his individual right of action (IRA) appeal for lack of jurisdiction. For the reasons discussed below, we GRANT the appellant’s petition for review, REVERSE the administrative judge’s findings that the appellant (1) did not 1 A nonprecedential order is one that the Board has determined does not add significantly to the body of MSPB case law. Parties may cite nonprecedential orders, but such orders have no precedential value; the Board and administrative judges are not required to follow or distinguish them in any future decisions. In contrast, a precedential decision issued as an Opinion and Order has been identified by the Board as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c). exhaust administrative remedies for his whistleblower reprisal claims pertaining to allegedly illegal border searches, and (2) did not nonfrivolously allege that he made a protected disclosure, FIND that the appellant established jurisdiction over his appeal, and REMAND the case to the Northeastern Regional Office for further adjudication in accordance with this Remand Order. DISCUSSION OF ARGUMENTS ON REVIEW The appellant is a former Special Agent with the Drug Enforcement Administration (DEA) who retired in 2014. Initial Appeal File (IAF), Tab 5 at 13, Tab 11 at 6. After filing a whistleblower reprisal complaint with the Office of Special Counsel (OSC) and receiving OSC’s July 11, 2023 close-out letter, the appellant timely filed this appeal.2 IAF, Tab 1, Tab 5 at 6-7. After receiving the parties’ jurisdiction -related pleadings, the administrative judge dismissed the appeal for lack of jurisdiction, finding that, notwithstanding OSC’s description of the appellant’s whistleblower reprisal claims in its right -to-file letter, the appellant did not exhaust administrative remedies for those claims. IAF, Tab 13, Initial Decision (ID) at 8-9. She nevertheless also found that the appellant did not nonfrivolously allege that he made a protected disclosure or engaged in protected activity. ID at 8-12. The appellant filed a petition for review arguing, among other things, that the administrative judge erred in finding that he did not nonfrivolously allege whistleblower reprisal. Petition for Review (PFR) File, Tabs 1-2. His petition focuses on his claims that, as a result of his April 22, 2013 disclosure to his Associate Special Agent-in-Charge (ASAC) that “border checkpoint” searches of passengers transiting John F. Kennedy International Airport (JFKIA) by the 2 The U.S. Court of Appeals for the Federal Circuit affirmed the Board’s jurisdictional dismissal of a 2016 appeal in which the appellant asserted the same or similar whistleblower reprisal claims at issue here, finding, in relevant part, that the appellant had not exhausted administrative remedies with OSC before filing that appeal. May v. Merit Systems Protection Board , No. 2023-1709, 2024 WL 4128838 (Fed. Cir. Sept. 10, 2024). The Federal Circuit decision has no direct bearing on the issues in this case.2 Department of Homeland Security (DHS) with DEA assistance violated the Fourth Amendment to the U.S. Constitution, and his refusal to order his agents to participate in one such search on April 11, 2013, he was terminated from his position as Acting Group Supervisor (AGS), not selected for promotion, involuntarily transferred, and issued a letter of counseling. PFR File, Tab 2 at 2-4. He further argues that he exhausted his administrative remedies regarding this claim. Id. at 4-5. The agency filed a response. PFR File, Tab 4. The appellant exhausted administrative remedies for his whistleblower reprisal claims pertaining to border searches. An appellant in an IRA appeal must exhaust administrative remedies by seeking corrective action from OSC before seeking corrective action from the Board. Chambers v. Department of Homeland Security , 2022 MSPB 8, ¶ 10. The substantive requirements of exhaustion are met when an appellant has provided OSC with sufficient basis to pursue an investigation. Id. The Board’s jurisdiction over an IRA appeal is limited to those issues that have been previously raised with OSC. Id. The appellant must prove exhaustion with OSC by preponderant evidence, not just present nonfrivolous allegations of exhaustion. Id., ¶ 11. Though observing that it “appear[ed] that the appellant exhausted his remedies before [] OSC” for claims described in OSC’s right -to-file letter, which included his claim of termination as AGS for refusing to send agents to conduct an April 11, 2013 border search at JFKIA with DHS, the administrative judge nevertheless found that the appellant did not exhaust administrative remedies for this claim because he “failed to provide essential details to support [] OSC’s characterization of his claim.” ID at 8-9. We disagree, find that the administrative judge improperly deviated from the Chambers standard, and find that the appellant proved exhaustion of his whistleblower reprisal claims related to the border searches by preponderant evidence.3 An appellant may demonstrate exhaustion through his initial OSC complaint, evidence that he amended the original complaint, including but not limited to OSC’s determination letter and other letters from OSC referencing any amended allegations, and the appellant’s written responses to OSC referencing the amended allegations. Skarada v. Department of Veterans Affairs , 2022 MSPB 17, ¶ 7. An appellant may also establish exhaustion through other sufficiently reliable evidence, such as an affidavit or declaration attesting that the appellant raised with OSC the substance of the facts in the Board appeal. Id. Although the appellant did not file a copy of his OSC complaint, as discussed, OSC’s right-to-file letter shows that the appellant raised with OSC at least a general claim of termination as AGS for refusing to send agents to an April 11, 2013 border search at JFKIA. IAF, Tab 5 at 6. But there is more. In a sworn declaration he provided in response to the administrative judge’s order on jurisdiction, the appellant listed documents he claimed to have provided to OSC. IAF, Tab 11 at 3, 8-9. The appellant’s whistleblower reprisal claims related to the border searches are detailed at length in those documents. IAF, Tab 5 at 14-16, 20-25, 32, 34, 39 -40. Even if OSC’s right-to-file letter did not describe this allegation in its entirety, nothing in the record refutes the appellant’s sworn assertions about matters he raised with OSC. We thus find that the appellant proved by preponderant evidence that he provided OSC with sufficient basis to pursue an investigation, thereby exhausting administrative remedies regarding these claims. The appellant nonfrivolously alleged that he made a protected disclosure that was a contributing factor in personnel actions. If an appellant has exhausted his administrative remedies before OSC, he can establish Board jurisdiction over an IRA appeal by nonfrivolously alleging that: (1) he made a protected disclosure described under 5 U.S.C. § 2302(b)(8) or engaged in protected activity described under 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D); and (2) the disclosure or protected activity was a contributing factor4 in the agency’s decision to take or fail to take a personnel action as defined by 5 U.S.C. § 2302(a)(2)(A). Chambers, 2022 MSPB 8, ¶ 14. 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). A nonfrivolous allegation of a protected whistleblowing disclosure is an allegation of fact that, if proven, would show that the appellant disclosed a matter that a reasonable person in his position would believe evidenced one of the categories of wrongdoing specified in 5 U.S.C. § 2302(b)(8). Skarada, 2022 MSPB 17, ¶ 12. Although the appellant only vaguely asserted his whistleblower reprisal claims related to border searches in the text of his jurisdictional pleadings, his claims appeared in further detail in exhibits he attached to and pointed to in those pleadings, which we will consider on the question of jurisdiction. IAF, Tab 5 at 14-16, 20-25, 32, 34, 39-40, Tab 11 at 5-6; see Jones v. Merit Systems Protection Board , 103 F.4th 984, 999-1000 (4th Cir. 2024) (stating that an assessment of an employee’s allegations for determining Board jurisdiction should include examination of exhibits and documents incorporated by reference in initial appellant filings and jurisdictional briefings). The appellant asserted in detail in those exhibits that during an April 22, 2013 meeting, he disclosed to the ASAC that he decided, as the AGS responsible for a DEA agent group covering JFKIA, not to assign agents to an April 11, 2013 DHS search of an incoming flight because, for one reason, it constituted a search for evidence of narcotics trafficking without probable cause in violation of the Fourth Amendment. IAF, Tab 5 at 15-16, 23-24. The appellant explained that his belief in the illegality of the search was informed by his knowledge of the Fourth Amendment and various experiences as a DEA agent covering JFKIA. Id. at 40. He also argued that the decision in City of Indianapolis v. Edmond , 531 U.S. 32 (2000), evidences the reasonableness of his belief. IAF, Tab 5 at 40. In that case, the U.S. Supreme Court held that a city’s vehicle checkpoint program for the interdiction of5 unlawful drugs violated the Fourth Amendment because its primary purpose was indistinguishable from the general interest in crime control. Edmond, 531 U.S. at 34, 48. We find that these assertions nonfrivolously allege that the appellant made a disclosure, protected under 5 U.S.C. § 2302(b)(8)(A)(i), of information he reasonably believed evidenced a violation of law. 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 a personnel action in any way. Chambers, 2022 MSPB 8, ¶ 14. One way to establish this criterion is the knowledge/timing test, under which an employee may nonfrivolously allege that the disclosure or activity was a contributing factor in a personnel action through circumstantial evidence, such as evidence that the official taking the personnel action knew of the disclosure or activity, and that the personnel action occurred within a period of time such that a reasonable person could conclude that the disclosure or activity was a contributing factor in the personnel action. Id., ¶ 15. The Board has held that personnel actions occurring within 1 to 2 years after the protected disclosures are sufficient to meet the timing portion of the test. Abernathy v. Department of the Army , 2022 MSPB 37, ¶ 15. We find that the appellant nonfrivolously alleged that his termination from the AGS role, in which, as exemplified by his actions on April 11, 2013, he was authorized to direct the actions of subordinate agents, constituted a “significant change in duties, responsibilities, or working conditions,” and was thus a personnel action under 5 U.S.C. § 2302(a)(2)(A)(xii). See Hawkes v. Department of Agriculture, 103 M.S.P.R. 345, ¶¶ 5, 10 (2006) (finding correct an administrative judge’s determination that the termination of an appellant’s assignment as Acting Manager was a personnel action), aff’d, 253 F. App’x 939 (Fed. Cir. 2007) . The appellant also nonfrivolously alleged that the promotion he was allegedly denied and the transfer were personnel actions under 5 U.S.C. § 2302(a)(2)(A)(ii) and (iv), respectively. We find, however, that the appellant6 did not nonfrivolously allege below that the June 26, 2013 memorandum of counseling issued to him by the ASAC, which was not alleged to be a formal disciplinary action, constituted a personnel action.3 See Johnson v. Department of Health and Human Services , 87 M.S.P.R. 204, ¶ 11 (2000) (“A memorandum of oral counseling is not a formal disciplinary action under 5 U.S.C. § 2302(a)(2), and, thus, it does not constitute a ‘personnel action.’”). Finally, the appellant nonfrivolously alleged that the termination as AGS, nonselection, and transfer were effected due to his whistleblowing either by the ASAC or as a result of the ASAC’s influence, all by the end of June 2013. IAF, Tab 5 at 24, 34, 39-40. We thus find that the appellant nonfrivolously alleged contributing factor through the knowledge/timing test and established jurisdiction over his appeal. The appellant did not nonfrivolously allege that he engaged in activity protected under 5 U.S.C. § 2302(b)(9)(D). As mentioned previously, the appellant also asserts that as a result of his refusal to order his agents to participate in one allegedly illegal border search on April 11, 2013, he was subjected to various personnel actions. PFR File, Tab 2 at 2-5. We interpret this to be a claim under 5 U.S.C. § 2302(b)(9)(D) but conclude that the appellant did not nonfrivolously allege that he engaged in activity protected under that subsection, i.e., that he refused to obey an order that would require him to violate a law. The appellant claimed below that the agency 3 With his petition for review, the appellant submits three documents for the first time. PFR File, Tab 1 at 12-16. Under 5 C.F.R. § 1201.115, the Board generally will not consider evidence submitted for the first time with a petition for review absent a showing that it was unavailable before the record was closed before the administrative judge despite the party’s due diligence. Avansino v. U.S. Postal Service , 3 M.S.P.R. 211, 213-14 (1980). The appellant offers no explanation for not submitting these documents, which predate his appeal, below. Nevertheless, the documents do nothing to establish jurisdiction regarding any matter over which we deny jurisdiction in this order. This is not to say that the appellant may not submit these documents into the record on remand for consideration on the issues to be adjudicated there. Any such filing must be consistent with the Board’s regulations and the administrative judge’s instructions.7 took personnel actions against him because, in addition to his protected disclosure, he refused to obey the ASAC’s order to participate in border searches that would have required his violation of the Fourth Amendment. IAF, Tab 5 at 39. But in the memoranda the appellant specifically identified as detailing the alleged order he refused to follow, id., there is no description of an order related to the searches that he refused to obey. Rather, he asserted that DEA assisted with such searches pursuant to a DEA-DHS agreement, and that in exercising his authority as AGS, he “decided” not to assign any agents to the April 11, 2013 search because the search violated the Fourth Amendment, as well as the terms of the interagency agreement. Id. at 14, 16, 21-22, 24. The appellant also asserted that the ASAC decided to terminate him from his AGS role because he “made a poor decision,” and not because he refused to follow an order. Id. at 16, 24. Finally, the appellant did not repeat his assertion that he refused to follow an order on review, but rather argued that what he refused to do was to order his subordinates to violate the law. PFR File, Tab 2 at 5. We thus find that the appellant’s section 2302(b)(9)(D) claim was conclusory and facially implausible, and thus was not nonfrivolously alleged. See 5 C.F.R. § 1201.4(s) (stating that a nonfrivolous allegation is, among other things, more than conclusory and plausible on its face); see also Jones, 103 F.4th at 1002 (stating that to be “plausible,” a claimant must allege sufficient factual matter to nudge a claim across the line from conceivable to plausible) (citations omitted); Conclusory, Black’s Law Dictionary (12th ed. 2024) (“Expressing a factual inference without stating the underlying facts on which the inference is based[.]”). Conclusion We thus find that the appellant nonfrivolously alleged that his April 22, 2013 disclosure to the ASAC was a contributing factor in his termination as AGS, transfer, and denial of promotion,4 and remand the appeal to the Northeastern 4 We discern no further grounds for remand in the appellant’s petition for review. Regarding the appellant’s Title VII discrimination claims, the Board lacks the authority8 Regional Office for adjudication on the merits. Upon remand, the administrative judge should provide the parties with an opportunity to address whether further discovery is needed to adjudicate this appeal. We observe that the appellant indicated that he did not want a hearing on his appeal form and did not timely request one pursuant to the August 25, 2023 acknowledgement order, which specifically informed him that he had 10 days to submit a written request for a hearing or he would waive his right to one. IAF, Tab 1 at 2, Tab 2 at 4. The acknowledgment order also informed the appellant that extensions of filing dates would only be granted if requested in writing and good cause was shown. IAF, Tab 2 at 6. Failure to timely request a hearing will result in a waiver of that right when the appellant has not shown good cause for his failure. Spradlin v. Office of Personnel Management , 84 M.S.P.R. 279, ¶ 11 (1999). Based on the date of its postmark, the appellant filed his hearing request to decide the merits of an appellant’s allegation of prohibited discrimination in conjunction with an IRA appeal. Maloney v. Executive Office of the President , 2022 MSPB 26, ¶ 40; PFR File, Tab 2 at 4. Next, although the appellant only appears to raise the matter for purposes of background, the 2002 suspension of his security clearance was not a personnel action under 5 U.S.C. § 2302(a)(2)(A) and therefore cannot be reviewed in an IRA appeal. Roach v. Department of the Army, 82 M.S.P.R. 464, ¶¶ 48-54 (1999); PFR File, Tab 2 at 2. Further, although the Board will consider evidence of the conduct of an agency investigation when it is so closely related to a personnel action that it could have been pretext for gathering evidence to use to retaliate for whistleblowing, an investigation itself is not a personnel action under 5 U.S.C. § 2302(a)(2)(A). Spivey v. Department of Justice , 2022 MSPB 24, ¶¶ 10, 12. Because the appellant only claimed on review that the alleged retaliatory investigation resulted in the 2002 suspension of his security clearance, PFR File, Tab 2 at 2, he did not nonfrivolously allege a personnel action in connection with the investigation that would have given the Board jurisdiction over this claim. Finally, the appellant claims that he engaged in protected activity when he disclosed the Fourth Amendment violations to agency Office of Inspector General (OIG) investigators. Id. But the appellant indicates that he did not speak to OIG investigators until 2015, after his retirement in 2014 and the 2013 personnel actions at issue. PFR File, Tab 1 at 15, Tab 2 at 2. Even if we were to consider his claim, the appellant thus would not have nonfrivolously alleged that his communications with OIG were a contributing factor in any of the personnel actions at issue. See El v. Department of Commerce , 123 M.S.P.R. 76, ¶ 10 (2015) (explaining that, because the alleged personnel actions predated an appellant’s protected disclosure, that disclosure could not have contributed to those actions), aff’d, 663 F. App’x 921 (Fed. Cir. 2016).9 6 days late, without any showing of good cause to waive the deadline. IAF, Tab 5 at 3, 104; see 5 C.F.R. § 1201.4(l). On the other hand, the appellant was pro se, statements by the administrative judge below could have created ambiguity regarding whether there had been a decision on the appellant’s hearing request, and the appellant made assertions regarding his difficulties filing his appeal and viewing pleadings on e-Appeal Online. IAF, Tab 6 at 7, 9, Tab 11 at 4; ID at 11-12; PFR File, Tab 2 at 4. Under these circumstances, we find that the appellant should be afforded an opportunity to further show that there was good cause to waive the time limit to request a hearing.5 See Spradlin, 84 M.S.P.R. 279, ¶ 11 (granting an appellant an opportunity to establish good cause to waive the deadline to request a hearing when, inter alia, she acted pro se at times and it was ambiguous whether there had been a decision on the appellant’s hearing request). The administrative judge shall specifically rule on the appellant’s hearing request and, as appropriate depending on that ruling, adjudicate the remanded issues after a hearing, or based on the written record after providing the parties the opportunity to file additional evidence and argument. 5 To determine whether an appellant has shown good cause to waive the deadline for requesting a hearing, the administrative judge will consider the same factors typically considered in connection with waiver of the deadline for filing an appeal. Beaudette v. Department of the Navy, 5 M.S.P.R. 394, 397-98 (1981). The administrative judge should also consider whether any delay in the appellant’s request may have been caused by the transition to the current e-Appeal Online system.10 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.11	May_Peter_J_NY-1221-23-0171-W-1_Remand_Order.pdf	2025-02-19	PETER J. MAY v. DEPARTMENT OF JUSTICE, MSPB Docket No. NY-1221-23-0171-W-1, February 19, 2025	NY-1221-23-0171-W-1	NP
178	https://www.mspb.gov/decisions/nonprecedential/Boggs_Ricky_W_DC-0752-20-0886-I-1_Remand_Order.pdf	UNITED STATES OF AMERICA MERIT SYSTEMS PROTECTION BOARD RICKY WAYNE BOGGS, Appellant, v. DEPARTMENT OF LABOR, Agency.DOCKET NUMBER DC-0752-20-0886-I-1 DATE: February 19, 2025 THIS ORDER IS NONPRECEDENTIAL1 Diana R. Schroeher , Esquire, Beltsville, Maryland, for the appellant. Monica Moukalif , Esquire, Atlanta, Georgia, for the agency. BEFORE Cathy A. Harris, Chairman Henry J. Kerner, Vice Chairman Raymond A. Limon, Member REMAND ORDER The appellant has filed a petition for review of the initial decision, which affirmed the agency’s action removing him. The agency has filed a cross -petition for review arguing that the administrative judge erred in finding jurisdiction over the appeal.2 For the reasons discussed below, we GRANT the appellant’s petition for review, DENY the agency’s cross-petition for review, and REMAND the case 1 A nonprecedential order is one that the Board has determined does not add significantly to the body of MSPB case law. Parties may cite nonprecedential orders, but such orders have no precedential value; the Board and administrative judges are not required to follow or distinguish them in any future decisions. In contrast, a precedential decision issued as an Opinion and Order has been identified by the Board as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c). to the Washington Regional Office for further adjudication in accordance with this Remand Order. BACKGROUND The agency proposed removing the appellant, a GS-12 Mine Safety and Health Specialist with the Mine Safety and Health Administration (MSHA), Educational Field and Small Mine Services, for conduct unbecoming a Federal employee. Initial Appeal File (IAF), Tab 6 at 24-32. Under that charge, the agency listed three specifications alleging that the appellant held or facilitated training sessions regarding regulations issued by the agency and related matters for three different private companies without securing prior agency approval. Id. at 25-28. The agency alleged that the appellant’s conduct violated the ethical standards of conduct set forth in 5 C.F.R. § 2635.101(b)(10) prohibiting Federal employees from engaging in outside employment or activities that conflict with their official duties. Id. The appellant replied to the proposal notice, and the deciding official sustained the agency’s action, effective September 4, 2020. Id. at 13-18, 22-23. However, the appellant retired September 3, 2020, before his removal became effective. IAF, Tab 16 at 7. The appellant filed an appeal in which he claimed that he had involuntarily retired and argued that the agency’s removal action was taken in retaliation for his “disagreements with management in the past.” IAF, Tab 1 at 3, 5. Regarding those disagreements, the appellant explained that he and four other agency employees in his same position had filed a union grievance in April or May of 2016 concerning the agency’s posting of supervisory vacancies. IAF, Tab 31 at 25. According to the appellant, that matter was settled, but in 2 At the time the agency filed its cross petition for review, the Board regulations allowed for such a pleading. 5 C.F.R. § 1201.114(a) (2021). Effective October 7, 2024, the Board revised its regulations to no longer provide for a cross petition for review. 89 Fed. Reg. 72,957, 72,959 (Sept. 9, 2024). Because the regulations allowed for a cross petition for review at the time it was filed, we have considered the arguments raised in that pleading.2 August 2019 the agency failed to honor the settlement, and he and three of the original four coworkers raised the matter with the agency through the union. Id. at 25-26. The appellant also asserted that, following his receipt of a fully successful performance rating and his nonselection for a supervisory vacancy, in November 2019 he filed an equal employment opportunity (EEO) complaint asserting age discrimination and reprisal for prior protected activity.3 Id. at 6, 19, 25. In response to the agency’s jurisdictional arguments during the proceedings below, the administrative judge found jurisdiction over the appeal because the appellant had retired after the agency issued its decision to remove him but before the effective date of his removal. IAF, Tabs 16, 24; id., Tab 25 at 2-4. In the initial decision, the administrative judge affirmed the removal action, finding that the agency established all three specifications under the conduct unbecoming charge and thus proved the charge. IAF, Tab 34, Initial Decision (ID) at 1, 3-7. The administrative judge also found that the agency established a nexus between the sustained misconduct and the efficiency of the service and that the penalty of removal was reasonable. ID at 7-9. Concerning the appellant’s argument that the agency had removed him in retaliation for protected union and EEO activity, the administrative judge found that, because the appellant had not identified retaliation as an affirmative defense in response to a January 15, 2021 Order Closing the Record, he had essentially waived that claim and the administrative judge would not adjudicate it. ID at 9-10; IAF, Tab 15 at 3. In his petition for review, the appellant argues that the administrative judge failed to consider material facts in finding that the agency proved the charge, established nexus, and found that the penalty was reasonable. Petition for Review (PFR) File, Tab 1 at 6-9. The appellant also argues that the administrative judge erred by failing to consider his claim of retaliation for union and EEO activity. 3 The appellant requested a hearing in his initial appeal but subsequently withdrew that request. IAF, Tab 1 at 2, Tab 15 at 2.3 Id. at 9-15. The agency filed a response to the appellant’s petition for review and a cross-petition for review arguing, among other things, that the administrative judge erred in finding jurisdiction over the appeal. PFR File, Tab 6 at 11-14. The appellant filed a response to the agency’s cross -petition for review and a reply to the agency’s response. PFR File, Tab 10. DISCUSSION OF ARGUMENTS ON REVIEW The administrative judge correctly found Board jurisdiction over the appellant’s appeal, and the agency’s cross-petition for review contending to the contrary is denied. As mentioned above, the agency argues in its cross-petition for review that the administrative judge erred in finding jurisdiction over this appeal. Because jurisdiction is a threshold issue to be resolved before addressing other aspects of an appeal, we begin our analysis there. Evans v. Department of Veterans Affairs , 119 M.S.P.R. 257, ¶ 5 (2013) (stating that the Board must first resolve jurisdiction before proceeding to the merits of an appeal); see Schmittling v. Department of the Army , 219 F.3d 1332, 1337 (Fed. Cir. 2000) (finding that before addressing the merits of an appeal, the Board must determine whether all of the jurisdictional requirements have been met). The essence of the agency’s jurisdictional argument is that because the appellant voluntarily retired after the decision to remove him had been made but the day before the effective date of his removal, an appealable removal did not occur. PFR File, Tab 6 at 11-12. The agency’s argument is misplaced. Title 5, United States Code, section 7701(j) provides that in determining whether a removal is appealable to the Board, an individual’s status under any Federal retirement system may not be taken into account. The U.S. Court of Appeals for the Federal Circuit (Federal Circuit) has interpreted this provision to mean that once a decision to remove an employee has been issued, the employee retains the right to appeal the removal to the Board, even if he retires from the Federal service on or before the date the removal would have become effective.4 Mays v. Department of Transportation , 27 F.3d 1577, 1579 -81 (Fed. Cir. 1994). The Board, as it must, has followed the court’s interpretation of the statute on numerous occasions.4 E.g., Blatt v. Department of the Army , 121 M.S.P.R. 473, ¶ 3 n.2 (2014); Norton v. Department of Veterans Affairs , 112 M.S.P.R. 248, ¶ 2 (2009); Richards v. Department of Veterans Affairs , 74 M.S.P.R. 17, 19 (1997). The Board has held that such appeals should be analyzed as removal appeals, and we shall do so here. Norton, 112 M.S.P.R. 248, ¶ 2. In sum, we find Board jurisdiction over the appeal and deny the agency’s cross-petition for review. The appellant has offered no basis to disturb the administrative judge’s findings as it relates to the merits of the agency’s charge. The administrative judge sustained the agency’s charge of conduct unbecoming, finding that the appellant conducted or facilitated three training sessions with private companies for profit without the permission of the agency, and that these trainings gave the appearance of preferential treatment and violated ethical rules such as 5 C.F.R. § 2635.101(b)(10).5 ID at 3-7. On review, the appellant does not deny conducting or facilitating these training courses but instead claims that such activities were condoned by the agency because other employees were allowed to conduct or facilitate trainings for profit in their spare time. PFR File, Tab 1 at 6-7. In support of his argument, the appellant relies on a screenshot of an employee’s Instructor Monitoring History, which indicates that this identified employee conducted two trainings in 2012 and 2013. Id.; IAF, Tab 33 at 22. We are unpersuaded by this piece of evidence for several reasons. 4 In Jenkins v. Merit Systems Protection Board , 911 F.3d 1370, 1371 -74 (Fed. Cir. 2019), the Federal Circuit distinguished the holding in Mays from the situation in that case, in which the agency rescinded the removal decision several days before the effective date of the appellant’s retirement. The court agreed with the Board that, under those facts, the Board lacked jurisdiction over the appeal. In its decision, the court did not question the application of Mays to facts like those present in this appeal. 5 Title 5 C.F.R. § 2635.101(b)(10) provides that “[e]mployees shall not engage in outside employment or activities, including seeking or negotiating for employment, that conflict with official Government duties and responsibilities.”5 First, nothing in this document indicates that the agency did not assign that employee to conduct the trainings, or that the trainings were not performed in the normal course of his duties. IAF, Tab 33 at 22. Next, the document does not prove that this employee entered into an agreement with a private company to conduct the trainings for compensation, and the appellant admits that he does not know if this employee was compensated for his time. Id. at 21-22. Finally, and perhaps most importantly, the agency approved the trainings, as the document includes the notation “approval status: approved” next to both of the training entries. Id. at 22. Thus, contrary to the appellant’s assertions, there is no evidence that the agency condoned or approved of its employees conducting outside trainings for private companies for their own personal gain without agency permission or approval. We similarly reject the appellant’s argument that these training courses did not conflict with his official duties because training was not part of his regular duties.6 PFR File, Tab 1 at 7. His performance plan specifically lists training as a critical element of his job. IAF, Tab 6 at 183, 186. Nevertheless, even if training was not a critical element of his performance plan, we would still find that these outside trainings conflicted with his official job duties. The appellant was teaching MSHA materials to private companies for material gain. PFR File, Tab 1 at 6-9; IAF, Tab 6 at 77-78, 100-01, 117-18, Tab 31 at 7-8, 24. It is a logical assumption that he was afforded these opportunities because he was a 6 The appellant cites to the agency’s close of record submission to support the contention that the agency conceded that training was not part of the appellant’s regular duties. PFR File, Tab 1 at 7. The agency reiterated the language of the specifications in its submission, which states that the appellant did not receive approval or direction from his supervisor to hold the trainings, and the trainings were not provided in the regular course of duties. Compare IAF, Tab 26 at 10, with IAF, Tab 6 at 25, 27. The appellant has misinterpreted the agency’s statement. The statement simply means that the identified training courses were not an agency assignment, i.e., not assigned in the regular course of duties.6 MSHA employee—thus, his conduct most certainly conflicts with the core of his duties as a MSHA employee. The evidence is clear that the appellant entered into agreements with private companies to conduct or facilitate training courses on agency regulations and materials, for his own personal gain, without the agency’s permission or approval. IAF, Tab 6 at 77-78, 100-01, 117-18, Tab 31 at 7-8, 24. Accordingly, we agree with the administrative judge that the appellant’s conduct violated 5 C.F.R. § 2635.101(b)(10), and thus, the charge was properly sustained. ID at 3. The appellant has offered no basis to disturb the administrative judge’s findings that nexus was established or that the penalty of removal was reasonable. In the initial decision, the administrative judge found that there was “clear nexus” between the appellant’s misconduct and the efficiency of the service because his conduct violated ethical rules and gave the impression of preferential treatment to certain private companies. ID at 7. Although the appellant disputes the finding of nexus on review, he fails to articulate a specific argument as to how his conduct did not impact the efficiency of the service. PFR File, Tab 1 at 9. Accordingly, because we agree with the administrative judge’s findings that the appellant’s conduct violated ethical rules and thus necessarily impacts the efficiency of the service, we discern no reason to disturb them. As for the penalty of removal, the administrative judge found that the deciding official considered all relevant Douglas factors and concluded that removal was reasonable in light of the appellant’s egregious conduct. ID at 8. We agree. To the extent that the appellant argues that removal was inconsistent with the penalty imposed on other employees who engaged in the same or similar misconduct, the record does not support such an argument. PFR File, Tab 1 at 9. For the reasons explained above, the individual proffered by the appellant is not a valid comparator because there is no evidence that this employee engaged in any misconduct, let alone similar misconduct. Singh v. U.S. Postal Service,7 2022 MSPB 15, ¶ 13 (explaining that for purposes of evaluating the consistency of the penalty, the universe of potential comparators will vary from case to case, but it should be limited to those employees whose misconduct and/or other circumstances closely resemble those of the appellant) . We also reject the appellant’s argument that he lacked proper notice of the applicable rules and thus did not know his conduct was improper. PFR File, Tab 1 at 7-8. The appellant received ethics training. IAF, Tab 6 at 152, Tab 33 at 20. Furthermore, the agency provided a guidebook summarizing the applicable ethical rules, accessible to all of its employees. IAF, Tab 6 at 151-68. While this guidebook does not address every ethical quandary that may arise, the manual provides enough guidance for an employee to understand the core of the ethical rules, including the prohibition on outside employment or activities that conflict with official duties. Id. Further, the appellant facilitated another training course after being interviewed by the agency Office of Inspector General (OIG) and questioned on the two previous training courses he had already conducted. IAF, Tab 31 at 24-25. At that point, the appellant was clearly on notice that his actions could violate ethical rules.7 Id. at 8, 24-25. Therefore, we are unconvinced that the appellant did not know that his conduct violated ethical rules. This is bolstered by the fact that the appellant appears to have taken steps to conceal his activities, including having one company issue the payment check to his wife instead of him, “because [he] didn’t want the appearance that [he] accepted it.” IAF, Tab 6 at 54-56, 125. Thus, we conclude that the appellant knew that these outside trainings were improper and a violation of rules and/or regulations. Accordingly, as the appellant has presented no persuasive arguments on review as it relates to the merits of the charge, nexus, or reasonableness of the 7 While the appellant’s son was listed as the competent person, i.e., the trainer, for the third training, per witness accounts, the appellant coached his son through the training and essentially conducted it himself. IAF, Tab 6 at 36-37, 53, 148.8 penalty, and the record supports the administrative judge’s findings, we affirm them. ID at 3-9. Nevertheless, we remand this matter because the administrative judge erred in finding that the appellant waived his affirmative defense of retaliation . As noted above, the administrative judge declined to adjudicate the appellant’s affirmative defense that the agency’s removal action was taken in retaliation for protected union and EEO activity. ID at 9-10. He did so because he found that, while the appellant mentioned retaliation in his appeal, he did not assert an affirmative defense during a January 15, 2021 status conference and did not respond to the administrative judge’s instruction in the summary of the status conference that, if he wished to raise an affirmative defense, he had to do so by January 22, 2021. ID at 10; IAF, Tab 15 at 3. The appellant argues on review that the administrative judge erred by declining to adjudicate his retaliation claims. PFR File, Tab 1 at 9-15. The Board has recently addressed the issue of whether a previously raised affirmative defense has been effectively waived by an appellant in Thurman v. U.S. Postal Service , 2022 MSPB 21. After providing a detailed discussion of inconsistent Board precedent on the issue, Thurman set forth a non-exhaustive list of factors relevant to determining whether an appellant waived an affirmative defense. The articulated factors are as follows: (1) the thoroughness and clarity with which the appellant raised his affirmative defense; (2) the degree to which the appellant continued to pursue his affirmative defense in the proceedings below after initially raising it; (3) whether the appellant objected to a summary of the issues to be decided that failed to include the potential affirmative defense when he was specifically afforded an opportunity to object and the consequences of his failure were made clear; (4) whether the appellant raised his affirmative defense or the administrative judge’s processing of the affirmative defense claim in his petition for review;9 (5) whether the appellant was represented during the course of his appeal before the administrative judge and on petition for review, and if he was not, the level of knowledge of Board proceedings possessed by the appellant; and (6) the likelihood that the presumptive abandonment of the affirmative defense was the product of confusion, or misleading or incorrect information provided by the agency or the Board. Id., ¶ 18. Applying those factors to this case, we find that the first two factors, which concern the clarity with which the appellant raised the affirmative defense and degree to which he continued to pursue it thereafter, both support a finding that the appellant did not abandon his affirmative defense. As the appellant correctly asserts in his petition for review, he raised his claim of retaliation “at each and every step of his [a]ppeal,” and he clearly articulated the claim. PFR File, Tab 1 at 11-12; see, e.g., IAF, Tab 1 at 5, Tab 22 at 40, Tab 31 at 15-21, Tab 33 at 14-15. Concerning the third factor, i.e., whether the appellant objected to the exclusion of his retaliation claim from the administrative judge’s status conference summary, IAF, Tab 15 at 3, he did not do so. However, he was pro se at the time of the status conference, and he argues on review that he does not recall the administrative judge explaining that his retaliation claim was an affirmative defense and did not understand that the administrative judge was asking him whether he wanted to withdraw the retaliation claim. PFR File, Tab 1 at 11. Moreover, we observe that despite the appellant consistently arguing after the status conference that the agency’s action was taken in retaliation for his protected activity, the administrative judge did not mention the issue again until finding in the initial decision that he would not consider the claim. IAF, Tab 31 at 15-21, Tab 33 at 14-15; ID at 9-10. So, while the appellant’s failure to object to the status conference summary might usually support a finding that the appellant abandoned the affirmative defense, we find that the appellant’s failure to understand makes this factor closer to neutral.10 Concerning the fourth factor, i.e., whether the appellant raised the issue in his petition for review, he did so. PFR File, Tab 1 at 9-15. Regarding the fifth factor, whether the appellant was represented during the course of his appeal, he was not represented at the time of the January 15, 2021 status conference or in the week following the status conference during which the administrative judge afforded the appellant an opportunity to assert an affirmative defense. IAF, Tab 15 at 3. Thus, these factors also support a finding that the appellant did not abandon his affirmative defense. Lastly, the sixth factor, i.e., the likelihood that the abandonment of the affirmative defense was the product of confusion, or of misleading or incorrect information, also supports a finding that the appellant did not abandon his affirmative defense. As noted above, the appellant states on review that he did not understand that retaliation was an affirmative defense and “never understood that he was being asked [by the administrative judge] whether he wanted to withdraw his claim of retaliation.” PFR File, Tab 1 at 11. We also observe that the administrative judge’s status conference summary on this point could be confusing to a pro se litigant. IAF, Tab 15 at 3. In the order, the administrative judge acknowledged that the appellant claimed that he was the victim of retaliation but also stated that the appellant did not raise any affirmative defenses during the status conference. Id. The order then asserted that, if the appellant wanted to assert an affirmative defense, he needed to do so, and then set forth the elements the appellant must establish to prove a prima facie case of retaliation. Id. At no point does it appear that the administrative judge explained that retaliation is an affirmative defense, and from the language of the order, it is understandable how the appellant could have believed that his retaliation claim would be addressed. Moreover, as noted above, despite the appellant arguing retaliation after the deadline set to raise affirmative defenses in the January 15, 2021 order, it does not appear that the administrative judge ever sought to clarify for the appellant that his claim that he was removed in retaliation for his prior11 challenges of agency actions was an affirmative defense. IAF, Tab 31 at 15-21, Tab 33 at 14-15. Thus, every factor save for the third, i.e., whether the appellant objected to the summary of the status conference in which the administrative judge set forth the issues to be decided, supports a finding that the appellant did not waive his affirmative defense of retaliation, and that factor is close to neutral. Accordingly, we conclude that the administrative judge erred in not considering the appellant’s affirmative defense of retaliation. Thurman, 2022 MSPB 21, ¶ 18. On remand, the administrative judge should develop the record and issue a new initial decision on all the issues, including the appellant’s affirmative defense of retaliation. On remand, the administrative judge is ordered to reinstate the appellant’s affirmative defenses of retaliation for protected union and EEO activity. After accepting evidence and argument on the affirmative defenses, the administrative judge must issue an initial decision that identifies all material issues of fact and law, summarizes the evidence, resolves issues of credibility, and includes the administrative judge’s conclusions of law and his legal reasoning, as well as the authorities on which that reasoning rests . Spithaler v. Office of Personnel Management, 1 M.S.P.R. 587, 589 (1980) (explaining that an initial decision must identify all material issues of fact and law, summarize the evidence, resolve issues of credibility, and include the administrative judge’s conclusions of law and his legal reasoning, as well as the authorities on which that reasoning rests). The administrative judge may adopt his findings on the merits of the charge, nexus, and the reasonableness of the penalty, if appropriate. However, regardless of whether the appellant proves his affirmative defenses, if any argument or evidence on remand affects the administrative judge’s analysis of the merits, nexus, or penalty, he should address such argument or evidence in the remand initial decision. Id.12 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.13	Boggs_Ricky_W_DC-0752-20-0886-I-1_Remand_Order.pdf	2025-02-19	RICKY WAYNE BOGGS v. DEPARTMENT OF LABOR, MSPB Docket No. DC-0752-20-0886-I-1, February 19, 2025	DC-0752-20-0886-I-1	NP
179	https://www.mspb.gov/decisions/nonprecedential/Casciaro_MichaelPH-0752-23-0319-I-1_Remand_Order.pdf	UNITED STATES OF AMERICA MERIT SYSTEMS PROTECTION BOARD MICHAEL CASCIARO, Appellant, v. DEPARTMENT OF THE ARMY, Agency.DOCKET NUMBER PH-0752-23-0319-I-1 DATE: February 19, 2025 THIS ORDER IS NONPRECEDENTIAL1 Michael Casciaro , New Cumberland, Pennsylvania, pro se. Benjamin Clancy , New Cumberland, Pennsylvania, 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 involuntary retirement 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 Northeastern Regional Office for further adjudication in accordance with this Remand Order. BACKGROUND The appellant was employed by the agency’s U.S. Army Security Assistance Command (USASAC) as a GS-15 Supervisory Logistics Management Specialist. Initial Appeal File (IAF), Tab 5 at 11. On April 3, 2023, the agency proposed the appellant’s removal based on a charge of conduct unbecoming a Federal employee (12 specifications). IAF, Tab 1 at 9-14. On June 30, 2023, before the agency took any action on his proposed removal,2 the appellant sent an office-wide email stating that he had decided to retire “to take care of some personal issues and start a new venture that will not take up as much of [his] time.” IAF, Tab 5 at 39. His retirement was effected that same day. Id. at 11. On July 12, 2023, the appellant filed a Board appeal, alleging that his retirement was involuntary. IAF, Tab 1 at 3. He stated that he believed that the agency was seeking to force him out because he was told to “just retire and ride [his] Harley.” Id. at 5. He opined that the notice of proposed removal was legally insufficient, and the people who accused him of wrongdoing were retaliating against him for elevating wrongdoings of others. Id. He indicated that, on April 3, 2023, he filed a whistleblower reprisal complaint with the Office of Special Counsel (OSC), but he had not yet received notification that OSC had made a decision or terminated its investigation. Id. at 4-5. On July 13, 2023, the administrative judge issued an order instructing the appellant how to establish jurisdiction over his involuntary retirement appeal and 2 In their declarations made under penalty of perjury, the deciding official and USASAC Director of Human Resources stated that the agency had not made a decision regarding the appellant’s proposed removal as of the date of the appellant’s retirement. IAF, Tab 5 at 40-43. The deciding official further stated that the appellant had provided him a voluminous written reply to the proposed removal on or around June 23, 2023, one week prior to his retirement, and he had not yet read through all the material by the time the appellant’s retirement took effect. Id. at 42.2 to file evidence and argument sufficient to make a nonfrivolous allegation establishing jurisdiction over his claim. IAF, Tab 2 at 2-3. On July 14, 2023, the administrative judge issued another order directing the agency to file evidence regarding the jurisdictional issue and directing the appellant to meet his jurisdictional burden. IAF, Tab 4 at 1-2. The agency responded with the requested evidence and filed a motion to dismiss for lack of jurisdiction, alleging that the appellant had already elected to proceed before the agency’s equal employment opportunity (EEO) office. IAF, Tab 5 at 11-54, Tab 6 at 4-5. The appellant did not respond to the administrative judge’s orders. Without holding the requested hearing, the administrative judge dismissed the appellant’s appeal for lack of jurisdiction. IAF, Tab 7, Initial Decision (ID) at 1, 8. The administrative judge found that the appellant failed to nonfrivolously allege that he was coerced into retiring or that he retired as a result of agency misinformation or deception. ID at 5-8. The administrative judge acknowledged that the appellant indicated that OSC was investigating the allegations in his complaint and informed him that he could file an individual right of action (IRA) appeal after exhausting his administrative remedy with OSC. ID at 3 n.1. The appellant has filed a petition for review of the initial decision.3 Petition for Review (PFR) File, Tab 1. He alleges that his retirement was involuntary because the agency tricked him into retiring to preserve his retirement benefits and subjected him to intolerable working conditions. Id. at 4. 3 To the extent the appellant is alleging that he did not receive the administrative judge’s orders, he is registered as an e-filer, and, as such, he is deemed to have received the administrative judge’s orders on the date of electronic submission. PFR File, Tab 1 at 4; see 5 C.F.R. § 1201.14(m)(2) (2018). Further, as an e-filer, the appellant was responsible for ensuring that email from @mspb.gov was not blocked by filters and for monitoring case activity at e -Appeal, the Board’s electronic filing system, to ensure that he received all case-related documents. 5 C.F.R. §§ 1201.14(i)(2)-(3) (2018); see Rivera v. Social Security Administration , 111 M.S.P.R. 581, ¶ 5 (2009) (finding that, when a regulation “deems” something to have been done, the event is considered to have occurred whether or not it actually did).3 The agency has responded in opposition to his petition for review. PFR File, Tab 4. DISCUSSION OF ARGUMENTS ON REVIEW The administrative judge did not address the appellant’s filing of an EEO complaint. Below, the agency stated that, prior to filing an appeal of his involuntary retirement with the Board, the appellant filed an EEO complaint alleging that same claim and thus elected to proceed before the agency’s EEO office. IAF, Tab 6 at 4-5. However, the administrative judge did not address the issue. When an employee who has been affected by an action that is appealable to the Board believes that the action was the result of prohibited discrimination, he must elect between filing a mixed-case complaint with the agency or filing a mixed-case appeal directly with the Board, and whichever is filed first is considered an election to proceed in that forum. Shapiro v. Department of Veterans Affairs , 114 M.S.P.R. 585, ¶ 7 (2010); 5 C.F.R. § 1201.154; see 29 C.F.R. § 1614.302(b). The same applies to claims of prohibited discrimination in the context of an alleged constructive action. Shapiro, 114 M.S.P.R. 585, ¶ 7; see Ball v. Department of Veterans Affairs , 68 M.S.P.R. 482, 484 (1995) (observing that an appellant’s election in a constructive resignation appeal was not binding if it was made without knowledge of her options). If an employee elects to file his complaint with the agency, the right to subsequently pursue the matter before the Board vests when the agency issues a final decision on the discrimination complaint or 120 days have passed since the filing of the complaint. Miranne v. Department of the Navy , 121 M.S.P.R. 235, ¶¶ 12-13 (2014). Under the circumstances presented here, the appellant’s EEO complaint encompassed his involuntary retirement, and he made an informed election to4 challenge that action under the agency’s EEO process.4 See Moore v. Department of Justice, 112 M.S.P.R. 382, ¶¶ 14-17 (2009) (finding that the appellant elected to challenge her removal via the agency’s EEO process when she filed her EEO complaint, amended it to include her removal, and the agency accepted her complaint, all before she filed her Board appeal). However, 120 days have passed since the appellant filed his EEO complaint, and he may now proceed before the Board regardless of the status of his EEO complaint. See Stribling v. Department of Education , 107 M.S.P.R. 166, ¶¶ 15-16 (2007) (forwarding a petition for review for docketing as a refiled removal appeal when 120 days had passed since the appellant filed an EEO complaint regarding her removal); see also 5 C.F.R. § 1201.154(c) (providing that an administrative judge will dismiss a premature mixed-case appeal without prejudice to its later refiling, or alternatively, may hold an appeal for a short time to allow it to become timely). The administrative judge must consider whether the appellant is subject to the election of remedies provisions of 5 U.S.C. § 7121(g). Below, the appellant indicated that he filed a whistleblower reprisal complaint with OSC, but he did not provide the complaint or clarify whether he amended that complaint to include his involuntary retirement claim. IAF, Tab 1 at 4. An employee who claims to have suffered whistleblower reprisal regarding an action appealable to the Board may elect to pursue a remedy through one, and 4 The notice of proposed removal that prompted the appellant’s retirement included a notice of his right to elect a remedy. IAF, Tab 1 at 13. The notice stated that the appellant could only choose one forum and the one he chose first was considered his binding election. Id. On June 29, 2023, the appellant filed a formal EEO complaint with the agency alleging that he was discriminated against and harassed based on his age and disability. IAF, Tab 5 at 44. That same day, the agency requested clarification of his allegations and received a July 5, 2023 response from the appellant. Id. The agency issued a July 10, 2023 notice accepting the appellant’s claim that he was forced to retire from his position on June 30, 2023. Id. at 44-49. On July 12, 2023, the appellant appealed that same action to the Board. IAF, Tab 1 at 3. In a July 20, 2023 notice, the agency provided corrected processing information for a mixed-case complaint and applicable timelines. Id. at 50-54. In its response to the petition for review, the agency states that the appellant’s claim of involuntary retirement remains under investigation. PFR File, Tab 4 at 3. 5 only one, of the following remedial processes: (1) an appeal to the Board under 5 U.S.C. § 7701; (2) a grievance filed pursuant to the provisions of a negotiated grievance procedure; or (3) the procedures for seeking corrective action under 5 U.S.C. §§ 1211-1222, i.e., an OSC complaint, potentially to be followed by an IRA appeal. See 5 U.S.C. § 7121(g); Requena v. Department of Homeland Security, 2022 MSPB 39, ¶ 7. Whichever remedy is sought first by an aggrieved employee is deemed to be an election of that procedure and precludes pursuing the matter in either of the other two forums. Requena, 2022 MSPB 39, ¶ 8. However, supervisors and management officials are excepted from the election of remedies provisions of 5 U.S.C. § 7121(g). Requena, 2022 MSPB 39, ¶ 11. In Requena, the Board explained that 5 U.S.C. § 7103(a)(2) defined an “employee” for purposes of chapter 71 of Title 5 as including “an individual employed in an agency” but not “a supervisor or a management official.” Id. Because the election of remedies statute for “an aggrieved employee” falls within chapter 71, it is, therefore, subject to this narrower definition of “employee.” Id. Here, it is undisputed that the appellant held the position of “Supervisory Logistics Management Specialist” at the time of his retirement. IAF, Tab 5 at 11. Throughout the notice of proposed removal, the agency referred to the appellant as a supervisor. IAF, Tab 1 at 12. Thus, it appears that the appellant is a “supervisor” and “management official,” as defined by 5 U.S.C. § 7103(a) (10)-(11), rather than an “employee,” as defined by 5 U.S.C. § 7103(a)(2). If that is so, the appellant is not subject to the election of remedies provisions of 5 U.S.C. § 7121(g). However, the nature of the appellant’s position as it relates to this statutory scheme was not argued below or on review. We therefore find it appropriate to remand this appeal for further proceedings. See Requena, 2022 MSPB 39, ¶ 15. On remand, the administrative judge should provide the parties an opportunity to present argument and evidence about the nature of the appellant’s position. If the administrative judge determines that the appellant is a6 “supervisor or a management official,” and not an “employee” for purposes of chapter 71, subject to the election of remedies provisions at 5 U.S.C. § 7121(g), he must then determine if the Board has jurisdiction over this appeal.5 If he so finds, he should develop the record on and adjudicate the appellant’s claim of whistleblower reprisal. If the appellant wishes to file an IRA appeal, the administrative judge should docket an IRA appeal and notify the appellant of the corresponding jurisdictional and timeliness standards. 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. 5 For the first time on review, the appellant asserts that he asked the USASAC Director of Human Resources if he would lose his retirement benefits if he was removed, and he was told yes. PFR File, Tab 1 at 4. He claims that the USASAC Director of Human Resources advised him to submit his retirement paperwork so that he could quickly execute a retirement before any removal was effected and avoid losing his retirement benefits. Id. The Board will generally not consider an argument raised for the first time on review absent a showing that it is based on new and material evidence that was not previously available despite the party’s due diligence. Clay v. Department of the Army, 123 M.S.P.R. 245, ¶ 6 (2016). The appellant has not made this showing.7	Casciaro_MichaelPH-0752-23-0319-I-1_Remand_Order.pdf	2025-02-19	MICHAEL CASCIARO v. DEPARTMENT OF THE ARMY, MSPB Docket No. PH-0752-23-0319-I-1, February 19, 2025	PH-0752-23-0319-I-1	NP
180	https://www.mspb.gov/decisions/nonprecedential/BULLOCK_MICHAEL_L_SF-1221-23-0255-W-1_Final_Order.pdf	UNITED STATES OF AMERICA MERIT SYSTEMS PROTECTION BOARD MICHAEL LEWIS BULLOCK, Appellant, v. DEPARTMENT OF VETERANS AFFAIRS, Agency.DOCKET NUMBER SF-1221-23-0255-W-1 DATE: February 19, 2025 THIS FINAL ORDER IS NONPRECEDENTIAL1 Michael Lewis Bullock , Ontario, California, pro se. Christian C. Pappas , Esquire, San Diego, 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. 1 A nonprecedential order is one that the Board has determined does not add significantly to the body of MSPB case law. Parties may cite nonprecedential orders, but such orders have no precedential value; the Board and administrative judges are not required to follow or distinguish them in any future decisions. In contrast, a precedential decision issued as an Opinion and 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 (IRA) appeal for failure to prosecute. For the reasons set forth below, the appellant’s petition for review is DISMISSED as untimely filed without good cause shown. 5 C.F.R. § 1201.114(e), (g). BACKGROUND On March 15, 2023, the appellant filed the instant IRA appeal, asserting that he was terminated from two positions while in a probationary period in reprisal for making two protected disclosures. Initial Appeal File (IAF), Tab 16 at 10-13. Throughout the course of adjudication, the appellant stopped responding to orders and participating in the adjudicatory process. IAF, Tab 26. Following a show cause order, the administrative judge issued an initial decision on June 8, 2023, finding that the appellant failed to exercise basic due diligence in prosecuting his appeal. IAF, Tab 27, Initial Decision (ID) at 3-4. Accordingly, he dismissed the appeal for failure to prosecute. ID at 4. He also explained that the initial decision would become final on July 13, 2023, unless a petition for review was filed by that date. Id. On October 19, 2023, the appellant filed a petition for review of the initial decision. Petition for Review (PFR) File, Tab 1. Therein, he again asserts that he was terminated twice for “being a [w]histleblower.” Id. at 3. He also explains that he suffered from back pain for 18 months, takes opiates for pain management, had back surgery on September 19, 2023, and “missed a lot of dates to follow up” because he was “seeking pain management.” Id. He also states that he suffers from dementia, and that because of his physical and mental impairments, he could “not respond to the dates related to this appeal.” Id. He also states that he is homeless. Id. In a letter acknowledging the appellant’s submission, the Clerk of the Board notified the appellant that his petition for review was untimely filed. PFR File, Tab 2 at 2. The letter explained to the2 appellant that the Board’s regulations require a petition for review that appears untimely to be accompanied by a motion to accept the filing as timely and/or to waive the time limit for good cause, and set a deadline for the appellant to file such a motion. Id. It also informed the appellant of what he must show in order to establish that his delay in filing was the result of illness. Id. at 4 n.1. The agency has filed a response. PFR File, Tab 3. DISCUSSION OF ARGUMENTS ON REVIEW The appellant’s petition for review is untimely filed without good cause shown. The Board’s regulations provide that a petition for review must be filed within 35 days after the date of the issuance of the initial decision, or, if the petitioner shows that the initial decision was received more than 5 days after the date of issuance, within 30 days after the date the petitioner received the initial decision. See 5 C.F.R. § 1201.114(e); see also Palermo v. Department of the Navy, 120 M.S.P.R. 694, ¶ 3 (2014). Here, the initial decision was issued on June 8, 2023. ID at 1. Thus, as the administrative judge correctly informed the appellant, he was required to file any petition for review no later than July 13, 2023. ID at 4. The appellant’s petition for review of the initial decision was filed on October 19, 2023. PFR File, Tab 1, Tab 2 at 1. As such, we find that his petition for review is untimely filed by 98 days. The Board may waive its timeliness regulations only upon a showing of good cause for the untimely filing. Palermo, 120 M.S.P.R. 694, ¶ 4; 5 C.F.R. §§ 1201.12, 1201.113(d), 1201.114(g). The party who submits an untimely petition for review has the burden of establishing good cause by showing that he exercised due diligence or ordinary prudence under the particular circumstances of the case. Palermo, 120 M.S.P.R. 694, ¶ 4; Alonzo v. Department of the Air Force, 4 M.S.P.R. 180, 184 (1980). To determine whether an appellant has shown good cause, the Board will consider the length of the delay, the reasonableness of his excuse and his showing of due diligence, whether he is3 proceeding pro se, and whether he has presented evidence of the existence of circumstances beyond his control that affected his ability to comply with the time limits or of unavoidable casualty or misfortune which similarly shows a causal relationship to his inability to timely file his petition. Palermo, 120 M.S.P.R. 694, ¶ 4; Moorman v. Department of the Army , 68 M.S.P.R. 60, 62 -63 (1995), aff’d, 79 F.3d 1167 (Fed. Cir. 1996) (Table). Additionally, as explained above, the appellant asserts on review that his physical and mental health prevented him from complying with the Board’s filing deadlines. PFR File, Tab 1 at 3. To establish good cause for an untimely petition for review based on physical or mental illness, an appellant must (1) identify the time period during which he suffered from the illness; (2) submit corroborating evidence showing that he suffered from the alleged illness during that time period; and (3) explain how the illness prevented him from timely filing his appeal or request for an extension of time. Stribling v. Department of Education , 107 M.S.P.R. 166, ¶ 8 (2007); Lacy v. Department of the Navy , 78 M.S.P.R. 434, 437 (1998). We find that the appellant has not established good cause to waive the filing deadline. Although the appellant is proceeding pro se, his 98 -day delay in filing is not minimal. See Gulley v. Department of the Treasury , 101 M.S.P.R. 48, ¶ 9 (2006) (concluding that an almost 4 month delay is “hardly minimal”); see also Gaines v. U.S. Postal Service , 96 M.S.P.R. 504, ¶ 7 (2004) (concluding that a 37-day delay is not minimal). Further, as noted above, in the Clerk of the Board’s acknowledgment order informing the appellant that his petition for review was untimely filed, it provided him with what he must show in order to establish good cause for an untimely petition for review if he alleges that his health affected his ability to meet the filing deadline, consistent with Board precedent in Lacy. PFR File, Tab 1 at 4 n.1. The appellant filed no subsequent motion to waive or set aside the time limit providing such information.4 Although his petition for review identifies his alleged physical and mental health issues, he has not identified the time period during which he was physically or mentally incapacitated and unable to meet the filing deadlines. Regarding his physical health, we acknowledge that, with his petition for review, he submits evidence from a September 19, 2023 medical procedure. PFR File, Tab 3 at 5-6. However, this evidence includes only a description of the procedure itself and does not state that the appellant was physically incapacitated leading up to or following his procedure such that he was prevented from timely filing a petition for review or requesting an extension. Moreover, the appellant’s petition for review was due on July 13, 2023, and his medical procedure did not occur until September 19, 2023. ID at 4; PFR File, Tab 1 at 3. He has not explained how any physical limitations inhibited his ability to file his petition for review 2 months before that procedure. Similarly, although the appellant also claims to suffer from dementia, and we acknowledge that dementia is a condition generally regarded as one affecting a person’s memory, he has submitted no evidence to support this assertion, nor has he asserted any facts detailing this alleged condition, such as the severity of his condition, how specifically it manifests, or whether it is in early or advanced stages. Ultimately, the appellant has not provided an explanation of how this alleged condition prevented him from filing a timely petition for review. Where, as here, an appellant fails to provide the information called for in Lacy, particularly an explanation of how any physical or mental illness caused the delay in filing, the Board has consistently declined to find good cause for an untimely filing. See Cameron v. Department of the Navy , 112 M.S.P.R. 350, ¶ 13 (2009) (finding no good cause shown when a petition for review does not offer any evidence or explanation as to why an appellant’s health issues resulted in delay in filing); Davis v. U.S. Postal Service , 101 M.S.P.R. 107, ¶ 6 (2006) (finding that an appellant failed to establish good cause for an untimely petition for review when he failed to explain how his mental condition caused his delay in5 filing or to submit any documentation in support of his claim), aff’d, 192 Fed. App’x 966 (Fed. Cir. 2006). Although we are sympathetic to the appellant’s medical conditions, we find that he has not established good cause to waive the filing deadline based on illness. As noted, the appellant also asserts in his petition for review that he was homeless. PFR File, Tab 1 at 3. However, he has not explained how that situation prevented him from filing a timely petition for review. For instance, he has not alleged that he was unaware of the filing deadline or that he was unable to access a computer or facsimile machine, nor has he alleged that he was unable to travel to a U.S. Postal Service location or any commercial delivery service to submit a petition for review. Indeed, his untimely petition for review appears to have been filed from a commercial business. Id. at 1. As such, we find that the appellant failed to establish that he experienced circumstances beyond his control that affected his ability to comply with the time limits. See Palermo, 120 M.S.P.R. 694, ¶ 4; Moorman, 68 M.S.P.R. at 62-63. In sum, although the appellant is acting pro se and we are sympathetic to his alleged medical and living conditions, we find that he failed to establish that he exercised due diligence or ordinary prudence under the circumstances of his case. Accordingly, we dismiss the appellant’s petition for review as untimely filed without good cause shown. This is the final decision of the Merit Systems Protection Board regarding the timeliness of the petition for review. The initial decision remains the final decision of the Board regarding his IRA appeal. NOTICE OF APPEAL RIGHTS2 You may obtain review of this final decision. 5 U.S.C. § 7703(a)(1). By statute, the nature of your claims determines the time limit for seeking such review and the appropriate forum with which to file. 5 U.S.C. § 7703(b). 2 Since the issuance of the initial decision in this matter, the Board may have updated the notice of review rights included in final decisions. As indicated in the notice, the Board cannot advise which option is most appropriate in any matter.6 Although we offer the following summary of available appeal rights, the Merit Systems Protection Board does not provide legal advice on which option is most appropriate for your situation and the rights described below do not represent a statement of how courts will rule regarding which cases fall within their jurisdiction. If you wish to seek review of this final decision, you should immediately review the law applicable to your claims and carefully follow all filing time limits and requirements. Failure to file within the applicable time limit may result in the dismissal of your case by your chosen forum. Please read carefully each of the three main possible choices of review below to decide which one applies to your particular case. If you have questions about whether a particular forum is the appropriate one to review your case, you should contact that forum for more information. (1) Judicial review in general . As a general rule, an appellant seeking judicial review of a final Board order must file a petition for review with the U.S. Court of Appeals for the Federal Circuit, which must be received by the court within 60 calendar days of the date of issuance of this decision. 5 U.S.C. § 7703(b)(1)(A). If you submit a petition for review to the U.S. Court of Appeals for the Federal Circuit, you must submit your petition to the court at the following address: U.S. Court of Appeals for the Federal Circuit 717 Madison Place, N.W. Washington, D.C. 20439 Additional information about the U.S. Court of Appeals for the Federal Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.7 If you are interested in securing pro bono representation for an appeal to the U.S. Court of Appeals for the Federal Circuit, you may visit our website at http://www.mspb.gov/probono for information regarding pro bono representation for Merit Systems Protection Board appellants before the Federal Circuit. The Board neither endorses the services provided by any attorney nor warrants that any attorney will accept representation in a given case. (2) Judicial or EEOC review of cases involving a claim of discrimination . This option applies to you only if you have claimed that you were affected by an action that is appealable to the Board and that such action was based, in whole or in part, on unlawful discrimination. If so, you may obtain judicial review of this decision —including a disposition of your discrimination claims —by filing a civil action with an appropriate U.S. district court ( not the U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems Protection Board , 582 U.S. 420 (2017). If you have a representative in this case, and your representative receives this decision before you do, then you must file with the district court no later than 30 calendar days after your representative receives this decision. If the action involves a claim of discrimination based on race, color, religion, sex, national origin, or a disabling condition, you may be entitled to representation by a court-appointed lawyer and to waiver of any requirement of prepayment of fees, costs, or other security. See 42 U.S.C. § 2000e-5(f) and 29 U.S.C. § 794a. Contact information for U.S. district courts can be found at their respective websites, which can be accessed through the link below: http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx . Alternatively, you may request review by the Equal Employment Opportunity Commission (EEOC) of your discrimination claims only, excluding all other issues . 5 U.S.C. § 7702(b)(1). You must file any such request with the8 EEOC’s Office of Federal Operations within 30 calendar days after you receive this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case, and your representative receives this decision before you do, then you must file with the EEOC no later than 30 calendar days after your representative receives this decision. If you submit a request for review to the EEOC by regular U.S. mail, the address of the EEOC is: Office of Federal Operations Equal Employment Opportunity Commission P.O. Box 77960 Washington, D.C. 20013 If you submit a request for review to the EEOC via commercial delivery or by a method requiring a signature, it must be addressed to: Office of Federal Operations Equal Employment Opportunity Commission 131 M Street, N.E. Suite 5SW12G Washington, D.C. 20507 (3) Judicial review pursuant to the Whistleblower Protection Enhancement Act of 2012 . This option applies to you only if you have raised claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D). If so, and your judicial petition for review “raises no challenge to the Board’s disposition of allegations of a prohibited personnel practice described in section 2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i), (B), (C), or (D),” then you may file a petition for judicial review either with the U.S. Court of Appeals for the Federal Circuit or any court of appeals of competent jurisdiction.3 The court of appeals must receive your petition for 3 The original statutory provision that provided for judicial review of certain whistleblower claims by any court of appeals of competent jurisdiction expired on December 27, 2017. The All Circuit Review Act, signed into law by the President on July 7, 2018, permanently allows appellants to file petitions for judicial review of9 review within 60 days of the date of issuance of this decision. 5 U.S.C. § 7703(b)(1)(B). If you submit a petition for judicial review to the U.S. Court of Appeals for the Federal Circuit, you must submit your petition to the court at the following address: U.S. Court of Appeals for the Federal Circuit 717 Madison Place, N.W. Washington, D.C. 20439 Additional information about the U.S. Court of Appeals for the Federal Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11. If you are interested in securing pro bono representation for an appeal to the U.S. Court of Appeals for the Federal Circuit, you may visit our website at http://www.mspb.gov/probono for information regarding pro bono representation for Merit Systems Protection Board appellants before the Federal Circuit. The Board neither endorses the services provided by any attorney nor warrants that any attorney will accept representation in a given case. MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals for the Federal Circuit or any other circuit court of appeals of competent jurisdiction. The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115-195, 132 Stat. 1510.10 Contact information for the courts of appeals can be found at their respective websites, which can be accessed through the link below: http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx . FOR THE BOARD: ______________________________ Gina K. Grippando Clerk of the Board Washington, D.C.11	BULLOCK_MICHAEL_L_SF-1221-23-0255-W-1_Final_Order.pdf	2025-02-19	MICHAEL LEWIS BULLOCK v. DEPARTMENT OF VETERANS AFFAIRS, MSPB Docket No. SF-1221-23-0255-W-1, February 19, 2025	SF-1221-23-0255-W-1	NP
181	https://www.mspb.gov/decisions/nonprecedential/Donahue_Sean_M_PH-3330-16-0435-B-2_and_PH-3330-16-0342-B-2_Remand_Order.pdf	UNITED STATES OF AMERICA MERIT SYSTEMS PROTECTION BOARD SEAN M. DONAHUE, Appellant, v. DEPARTMENT OF VETERANS AFFAIRS, Agency.DOCKET NUMBERS PH-3330-16-0342-B-2 PH-3330-16-0435-B-2 DATE: February 19, 2025 THIS ORDER IS NONPRECEDENTIAL1 Sean M. Donahue , Hazleton, Pennsylvania, pro se. Christine Beam , Esquire, and Jillian Flatley , Esquire, Pittsburgh, Pennsylvania, for the agency. BEFORE Cathy A. Harris, Chairman Henry J. Kerner, Vice Chairman Raymond A. Limon, Member REMAND ORDER The appellant has filed a petition for review of the remand initial decision, which denied his request for corrective action under the Veterans Employment Opportunities Act of 1998 (VEOA) concerning a nonselection and dismissed for lack of jurisdiction his claims that the agency violated the Uniformed Services 1 A nonprecedential order is one that the Board has determined does not add significantly to the body of MSPB case law. Parties may cite nonprecedential orders, but such orders have no precedential value; the Board and administrative judges are not required to follow or distinguish them in any future decisions. In contrast, a precedential decision issued as an Opinion and Order has been identified by the Board as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c). Employment and Reemployment Rights Act of 1994 (USERRA) as to this same and a second nonselection. For the reasons discussed below, we GRANT the appellant’s petition for review, VACATE the initial decision, and REMAND the appeal to the regional office for further adjudication in accordance with this Remand Order. BACKGROUND The appellant served on active duty in the U.S. Army from 1987 to 1994. Donahue v. Department of Veterans Affairs , MSPB Docket No. PH-3330-16- 0342-I-1 (0342 Appeal), Initial Appeal File (0342 IAF), Tab 11 at 25. He was honorably discharged at the end of his service. Id. He then pursued higher education. Id. at 24, 27-30. According to the appellant, in 2005, he obtained his most recent degree, a Master of Arts in statistics from Columbia University. Id. at 24, 27. In May 2016, the agency posted a vacancy announcement for the position of GS-05/09 Budget Analyst Intern in Wilkes Barre, Pennsylvania. 0342 IAF, Tab 11 at 12. The announcement provided that only those who had received a post-secondary degree in the last 2 years were eligible for appointment. Id. at 12-14. This requirement was consistent with the Recent Graduates Program under which the agency made its announcement. Id. at 12; Exec. Order No. 13,562, § 4, 75 Fed. Reg. 82,585 (Dec. 27, 2010).2 The Recent Graduates Program, in turn, fell under the presidentially created Pathways Programs. Exec. Order No. 13,562, § 2, 75 Fed. Reg. at 82,585. The appellant applied for the position. 0342 IAF, Tab 11 at 19-24. In June 2016, the agency notified the appellant that he did not meet the qualification requirements of the position because he had not graduated within the prior 2 years. 0342 IAF, Tab 4 at 3-6, 2 The 2-year time period was extended for up to 6 years for individuals who had previously been unable to apply for work due to military service. IAF, Tab 11 at 14; Exec. Order No. 13,562, § 4(a), 75 Fed. Reg. 82,585. However, the appellant has not contended that he fell within that category.2 Tab 5 at 3, Tab 11 at 33. The agency also notified the appellant that same month that the vacancy announcement was canceled and the position would be reposted. 0342 IAF, Tab 4 at 3, Tab 5 at 3, Tab 11 at 34. In June 2016, the agency posted a vacancy announcement for the position of GS-07 Budget Analyst Intern in Wilkes Barre. Donahue v. Department of Veterans Affairs , MSPB Docket No. PH-3330-16-0435-I-1 (0435 Appeal), Initial Appeal File (0435 IAF), Tab 4 at 10-11. The agency again posted under the Recent Graduates Program and required a higher-education degree that had been completed within the prior 2 years. Id. at 11, 13. The appellant again applied for the position. Id. at 18-19, 22. Because the appellant had not obtained a degree within the last 2 years, the agency notified the appellant that he did not meet the qualification requirements in July 2016. Id. at 31, 57-58. For this second vacancy announcement, the agency identified a number of eligible candidates, and the selecting official chose a primary and two alternates, all of who were preference-eligible veterans. 0435 IAF, Tab 4 at 33-46, 48. The first two candidates did not accept the position, and the agency hired the third candidate, a 5-point preference eligible. Id. at 42, 48, 50, 52, 54-55. After exhausting his administrative remedies with the Department of Labor (DOL), the appellant filed timely appeals of his nonselections. 0342 IAF, Tab 1; 0435 IAF, Tab 1 . The two appeals were assigned to different administrative judges. 0342 IAF, Tab 1 at 9; 0435 IAF, Tab 2 at 9. Both administrative judges denied the appellant’s requests for corrective action under VEOA. 0342 IAF, Tab 32, Initial Decision; 0435 IAF, Tab 15, Initial Decision. The appellant filed a petition for review in both appeals. Donahue v. Department of Veterans Affairs , MSPB Docket No. PH-3330-16-0342-I-1, Petition for Review File, Tabs 1-2; Donahue v. Department of Veterans Affairs , MSPB Docket No. PH -3330-16- 0435-I-1, Petition for Review File, Tab 1. On review, the Board joined the appeals and issued a single remand order. Donahue v. Department of Veterans Affairs , MSPB Docket No. PH-3330-16-3 0435-I-1, Remand Order (RO), ¶¶ 13-20 (July 21, 2022). The Board affirmed the finding that the appellant was not entitled to corrective action under VEOA concerning his nonselection for the GS-05/09 Budget Analyst Intern vacancy. RO, ¶¶ 7-12. The Board remanded the now-joined appeals for the appellant to receive an opportunity to conduct discovery on his VEOA claim concerning his nonselection for the GS-07 vacancy. RO, ¶¶ 13-17. The Board also instructed the regional office to provide the appellant with notice of the standards applicable to USERRA appeals as to both vacancies and to address any such claims. RO, ¶¶ 18-20. On remand, the cases were assigned to a single administrative judge. He issued a jurisdictional order on the requirements of USERRA in each appeal, to which the parties responded.3 Donahue v. Department of Veterans Affairs , MSPB Docket No. PH-3330-16-0342-B-1, Remand File (0342-B-1 RF), Tabs 2, 6-8; Donahue v. Department of Veterans Affairs , MSPB Docket No. PH-3330-16- 0435-B-1, Remand File (0435-B-1 RF), Tabs 2, 6-8. Subsequently, at the request of the parties, the administrative judge issued identical initial decisions in the two cases dismissing the appeals without prejudice to refiling to allow additional time to “complete discovery preparations.” 0342-B-1 RF, Tab 14, Remand Initial Decision (B-1 RID) at 1-2; 0435-B-1 RF, Tab 14, Remand Initial Decision at 1-2. When the appeals were refiled, the appellant requested that they be stayed for 3 to 6 months so that he could “conduct[] research and investigation” into his claims. Donahue v. Department of Veterans Affairs , MSPB Docket No. PH-3330-16- 0342-B-2, Remand File (0342-B-2 RF), Tab 1 at 7; Donahue v. Department of Veterans Affairs , MSPB Docket No. PH-3330-16-0435-B-2, Remand File 3 Although the administrative judge appears to have separately adjudicated the two appeals on remand, they remained joined, and he ultimately issued the identical remand initial decision in both cases as discussed below. In making our decision, we have considered all of the submissions under the separate docket numbers. To the extent that we continue to refer to the appeals as separate, we do so based on their separate adjudication on remand. We still consider the appeals joined.4 (0435-B-2 RF), Tab 2. He further requested an order that the agency “research and provide copies of the job announcements and [his] job applications to ever[y] ‘Pathways’ job” for which he had applied “at/and around the time of the instant case,” as well as Pathways job announcements for which the agency did not disqualify him based on his failure to meet the 2-year degree requirement but “simply passed [him] up because another veteran . . . came first.” 0342-B-2 RF, Tab 1 at 7; 0435-B-2 RF, Tab 1 at 7. Without addressing the appellant’s requests to stay the appeals and order the production of information, the administrative judge issued the same initial decision in both appeals in which he stated that the appellant had received “ample opportunity for additional discovery.” 0342-B-2 RF, Tab 5, Remand Initial Decision (B-2 RID) at 4; 0435-B-2 RF, Tab 5, Remand Initial Decision at 4. The administrative judge denied the appellant’s request for corrective action under VEOA and dismissed for lack of jurisdiction the appellant’s USERRA claim. B-2 RID at 4. The appellant has filed a petition for review in each appeal. Donahue v. Department of Veterans Affairs , MSPB Docket No. PH-3330-16-0342-B-2, Remand Petition for Review (0342 RPFR) File, Tab 1; Donahue v. Department of Veterans Affairs , MSPB Docket No. PH-3330-16-0435-B-2, Remand Petition for Review (0435 RPFR) File, Tab 1. The agency has filed responses in opposition to which the appellant has replied. 0342 RPFR File, Tabs 3-4; 0435 RPFR File, Tabs 3-4.4 4 The parties have filed the same pleadings in both appeals on petition for review.5 DISCUSSION OF ARGUMENTS ON REVIEW The appellant has established jurisdiction over a USERRA discrimination claim under 38 U.S.C. § 4311(a) and a USERRA retaliation claim under 38 U.S.C. § 4311(b) as to his nonselection for the position of GS-07 Budget Analyst Intern and the cancellation of the vacancy announcement for the GS 05/09 Budget Analyst Intern position. On review, the appellant reasserts that the Pathways Programs are “innately discriminatory against Gulf War veterans” and that the agency selectively implemented the Pathways Programs “as a tool to keep the [a]ppellant from getting hired.”5 0435 RPFR File, Tab 1 at 3. The administrative judge found that the appellant failed to make nonfrivolous allegations of a 4311(a) discrimination or 4311(b) retaliation claim under USERRA because he did not allege that his military service or protected activity of filing his prior USERRA claims was the reason for his nonselections. B-2 RID at 9-12. For the reasons discussed below, we disagree with the administrative judge’s findings and remand this appeal for a hearing on the merits. As relevant to our discussion here, to establish the Board’s jurisdiction over his USERRA discrimination or retaliation claims under 38 U.S.C. § 4311(a) or § 4311(b), the appellant must nonfrivolously allege that the performance of duty or obligation to perform duty in the uniformed service or his protected USERRA activity was “a substantial or motivating factor” in his nonselection.6 See Kitlinski v. Merit Systems Protection Board , 857 F.3d 1374, 1379-80 (Fed. Cir. 2017) (explaining that to establish jurisdiction over a USERRA 5 The appellant is considered a Gulf War veteran based on his years of active-duty service, which included the period between August 2, 1990, and January 2, 1992. 0342 IAF, Tab 11 at 23, 25; see National Defense Authorization Act for Fiscal Year 1998, Pub. L. No. 105-85, § 1102, 111 Stat. 1629, 1922 (1997) (creating “veterans’ preference status for certain veterans who served on active duty during the Persian Gulf War”) (codified at 5 U.S.C. § 2108(1)(C), (3)(B)). 6 The parties have not disputed the administrative judge’s finding that the appellant satisfied the remaining jurisdictional prerequisites of USERRA, B-2 RID at 9, and we discern no basis upon which to disturb that finding.6 discrimination claim, an appellant must nonfrivolously allege “that his military service was ‘a substantial or motivating factor’ in the agency’s action in question”) (citations omitted); Kitlinski v. Department of Justice , 2023 MSPB 13, ¶ 8 (identifying the requirement that, to establish jurisdiction over a USERRA reprisal claim, an appellant must nonfrivolously allege that his protected activity was a motivating factor in the agency’s action). A claim of discrimination under USERRA should be broadly and liberally construed in determining whether it is nonfrivolous, particularly when, as here, the appellant is pro se. Swidecki v. Department of Commerce , 113 M.S.P.R. 168, ¶ 6 (2010); see Yates v. Merit Systems Protection Board , 145 F.3d 1480, 1484-85 (Fed. Cir. 1998) (agreeing with the Board’s “liberal approach in determining whether jurisdiction exists under USERRA”). The weakness of an appellant’s assertions in support of a claim is not a basis to dismiss the USERRA appeal for lack of jurisdiction; rather, if the appellant fails to develop his contentions, his USERRA claim should be denied on the merits. Williams v. Department of the Treasury , 110 M.S.P.R. 191, ¶ 8 (2008). As discussed below, we find that the appellant has nonfrivolously alleged that the agency denied him initial employment based on his performance of duty in the uniformed service and his protected activity. As to the position of GS-07 Budget Analyst Intern, the appellant asserted below, and reasserts on review, that the agency used a Pathways Program to treat him, a Gulf War veteran, less favorably than a non -Gulf War veteran who was selected instead of him for the position. 0342 RPFR File, Tab 1 at 3; 0435 IAF, Tab 7 at 6-7. As to the GS 05/09 vacancy announcement, while the appellant was notified that he was not qualified for the position because he had not graduated within the prior 2 years, the vacancy announcement was then cancelled in June 2016 without a selection being made. 0342 IAF, Tab 4 at 3-6, Tab 5 at 3, Tab 11 at 19-24, 33-34. The agency has represented that it cancelled the initial GS-05/09 vacancy announcement and replaced it with a second GS-07 vacancy7 announcement just days later to correct the advertised grade level. 0342 IAF, Tab 4 at 4, Tab 11 at 4-5, 36-46. The appellant alleged that the agency cancelled the vacancy announcement because it knew he was a veteran and wanted to hire a particular favored individual and that the agency strategically used the Recent Graduates program to discriminate against other candidates including “[a] veteran like [the appellant] who graduated more than 2 years [ago].” 0342 IAF, Tab 4 at 3, Tab 5 at 3. The appellant also submitted a sworn affidavit in which he stated that he had filed multiple DOL VETS complaints in the past, that agency personnel knew that he filed such complaints, and that he was filing complaints around the same timeframe as he applied for the positions in the instant appeal. 0435-B -1 RF, Tab 6 at 164. He also states that the agency’s “management personnel” were aware of his prior activity because they had provided discovery material to the appellant for similar complaints in the past. Id. at 9. We find that the appellant has alleged that the agency deliberately took or failed to take some type of action that denied him initial employment for both the GS-07 and GS 05/09 positions. In a case involving a similar claim, Weed v. Social Security Administration , 112 M.S.P.R. 323, ¶¶ 3, 10-11 (2009), the Board found that the appellant established USERRA jurisdiction based on his allegation that an agency improperly used a particular hiring authority, the Federal Career Intern Program, to avoid public notice of vacancies with the intent to hire nonveterans or veterans in a lower preference category. Here, as in Weed, the appellant has alleged that the agency denied him initial employment based on his performance of duty in the uniformed services by deliberately using a restrictive hiring authority. Specifically, he asserts that the agency used a Pathways Program to avoid hiring Gulf War veterans generally and him in particular as an individual who engaged in protected USERRA activity. Thus, we find that the Board has jurisdiction over the appellant’s USERRA appeal as it relates to the nonselections at issue here. Once an appellant establishes jurisdiction over his8 USERRA appeal, he has an unconditional right to a hearing on the merits of his claim. Gossage v. Department of Labor , 118 M.S.P.R. 455, ¶ 10 (2012); see Kirkendall v. Department of the Army , 479 F.3d 830, 844-46 (Fed. Cir. 2007) (concluding that an appellant who requests a hearing in an USERRA appeal is entitled to one). Thus, we remand this appeal to the regional office for the appellant’s requested hearing on his USERRA discrimination and retaliation claims. 0342 IAF, Tab 1 at 2; 0435 IAF, Tab 1 at 2. The administrative judge prematurely denied the appellant’s request for corrective action under VEOA as to his nonselection for the position of GS-07 Budget Analyst Intern. 7 On petition for review, the appellant argues that the administrative judge failed to allow him sufficient time to complete discovery and submits a July 6, 2023 discovery request that he served to the agency before the initial decision was issued on July 14, 2023. 0435 RPFR File, Tab 1 at 3, 5-9. He requests that the Board “compel the agency to investigate the issues that he has raised and to release all the records he has requested, plus any other records that prove his case.” 0435 RPFR File, Tab 1 at 3. In issuing the initial decision, the administrative judge stated that the appellant had received “ample opportunity” to conduct discovery. B-2 RID at 2. We disagree. Therefore, remand is again appropriate. An administrative judge is required to follow the Board’s remand instructions. Mangano v. Department of Veterans Affairs , 109 M.S.P.R. 658, ¶ 23 (2008). The Board previously remanded the appellant’s VEOA claim as to the GS-07 vacancy because the administrative judge issued the initial decision before the date set for the parties to complete discovery. RO, ¶¶ 14-17. The Board 7 Neither party disputes the administrative judge’s determination that the Board affirmed the prior finding that the appellant did not prove he was entitled to corrective action under VEOA on the merits as to his nonselection for the position of GS-05/09 Budget Analyst Intern. B-2 RID at 2. We discern no basis to disturb that finding. RO, ¶¶ 7-12.9 instructed the administrative judge to “provide the parties with an opportunity to complete discovery and make submissions regarding the merits of [the appellant’s] VEOA appeal.” Id. at ¶ 17. The Board generally expects administrative judges to “send out [an] acknowledgment order . . . to the parties as soon as possible so that they can pace their discovery efforts.” Merit Systems Protection Board, Judges Handbook, ch. 8(4)(b) (Judges Handbook). Here, the record reflects that the administrative judge did not reopen discovery, as instructed, on the appellant’s nonselection for the GS-07 vacancy. He also did not issue an order seeking additional submissions regarding the merits of the nonselection so that he could decide whether to hold a hearing. RO, ¶ 17; see Judges Handbook, ch. 9(2)(b) (“In cases decided without a hearing, the [administrative judge] must send out the appropriate standardized Order Closing the Record”). The administrative judge only issued a jurisdictional order regarding the appellant’s burden under USERRA and indicated that the record on jurisdiction would close on the date that the agency’s response was due. 0435-B-1 RF, Tab 2 at 8. While the administrative judge dismissed the remanded appeal without prejudice to refile based on the parties’ request “for additional time to complete discovery preparations,” there is no evidence in the record that he ever explained to this pro se appellant that he could reinitiate discovery or that the agency must respond to the appellant’s prior discovery request within a particular amount of time. B-1 RID at 1-2. Even if the administrative judge assumed that the parties were pursuing discovery on their own, the appellant’s submissions should have alerted him to the fact that such was not the case. The same day that the remanded appeal was refiled, on June 21, 2023, the appellant requested that the administrative judge “stay” his appeal for an additional 3-6 months because of the press of other litigation and also requested an order that the agency provide specific documents and information related to whether the agency was inconsistent in its application of the recent graduate requirement to the appellant in connection with different10 vacancies. 0435-B-2 RF, Tab 1 at 7-8. The administrative judge did not address this motion prior to issuing the remand initial decision less than 1 month later, on July 14, 2023. B-2 RID. The appellant has filed evidence on review that, in the interim, he requested discovery from the agency. 0435 RPFR File, Tab 1 at 3, 5-12. The agency concedes on review that the appellant initiated discovery. 0435 RPFR File, Tab 3 at 6. On remand, the administrative judge shall expressly reopen the discovery process and grant the parties additional time to conduct discovery regarding the merits of the appellant’s VEOA claim as it concerns his nonselection for the position of GS-07 Budget Analyst Intern. In light of the passage of time since the appellant originally filed his appeals in 2016, the administrative judge should advise the parties that they may initiate new discovery and provide guidance as to the discovery timelines. VEOA appellants do not have an unconditional right to a hearing before the Board. Oram v. Department of the Navy , 2022 MSPB 30, ¶ 9. Instead, the Board has the authority to decide a VEOA appeal on the merits, without a hearing, when there is no genuine dispute of material fact and one party must prevail as a matter of law. Id. Therefore, following the close of discovery, the administrative judge should make a determination as to whether the appellant is entitled to his requested hearing and set a close -of-record date regarding the merits of the appellant’s nonselection claim. RO, ¶ 17.11 ORDER For the reasons discussed above, we again remand this case to the regional office for further adjudication in accordance with this Remand Order. FOR THE BOARD: ______________________________ Gina K. Grippando Clerk of the Board Washington, D.C.12	Donahue_Sean_M_PH-3330-16-0435-B-2_and_PH-3330-16-0342-B-2_Remand_Order.pdf	2025-02-19	SEAN M. DONAHUE v. DEPARTMENT OF VETERANS AFFAIRS, MSPB Docket No. PH-3330-16-0435-I-1, February 19, 2025	PH-3330-16-0342-B-2; PH-3330-16-0435-B-2	NP
182	https://www.mspb.gov/decisions/nonprecedential/Hodge_Audrey_M_AT-1221-19-0040-W-1_Final_Order.pdf	UNITED STATES OF AMERICA MERIT SYSTEMS PROTECTION BOARD AUDREY M. HODGE, Appellant, v. DEPARTMENT OF VETERANS AFFAIRS, Agency.DOCKET NUMBER AT-1221-19-0040-W-1 DATE: February 19, 2025 THIS FINAL ORDER IS NONPRECEDENTIAL1 Sterling Deramus , Esquire, Birmingham, Alabama, for the appellant. Kimberly Kaye Ward , Esquire, Decatur, 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 denied her request for corrective action under the Whistleblower Protection Act. 1 A nonprecedential order is one that the Board has determined does not add significantly to the body of MSPB case law. Parties may cite nonprecedential orders, but such orders have no precedential value; the Board and administrative judges are not required to follow or distinguish them in any future decisions. In contrast, a precedential decision issued as an Opinion and Order has been identified by the Board as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c). For the reasons discussed below, we GRANT the appellant’s petition for review. We REVERSE the initial decision and GRANT the appellant’s request for corrective action as to the detail assignment. We AFFIRM as MODIFIED the initial decision’s denial of corrective action as to the remaining personnel actions. BACKGROUND The appellant is an Associate Physician for the agency’s Central Alabama Veterans Administration Healthcare System. Initial Appeal File (IAF), Tab 1 at 1. During the relevant time period, the appellant’s duties included acting as the Medical Director for the Montgomery Alabama Community Living Center, which is a long-term care facility for geriatric patients. IAF, Tab 24-1, Hearing Audio (HA), Track 1 at 2:00 (testimony of the appellant) . In her position, she supervised nurse practitioners. Id. at 19:40 (testimony of the appellant). Under Alabama licensing regulations, a licensed physician must oversee a nurse practitioner (NP) under a collaborative relationship. IAF, Tab 22 at 9; HA, Track 1 at 7:35 (testimony of the appellant). The collaborating physician is ultimately responsible for the patient care provided by the NP. HA, Track 1 at 14:30 (testimony of the appellant). In 2016 and early 2017, the appellant expressed concerns to her supervisors about the performance of NP M,2 one of the NPs under her supervision. IAF, Tab 22 at 9; HA, Track 1 at 28:40 (testimony of the appellant). On February 15, 2017, NP M formally requested a reassignment; in doing so, NP M accused the appellant of disparate treatment and harassment. IAF, Tab 22 at 17. After consulting with the state medical board, the appellant emailed her supervisors on February 17, 2017, requesting the immediate reassignment of NP M and notifying the agency that she was terminating her collaborative relationship with NP M as of March 3, 2017. IAF, Tab 22 at 19-22. The agency did not immediately grant that request. Id. at 19. 2 We will refer to this NP as “NP M,” as the administrative judge did in the initial decision.2 In a February 24, 2017 meeting, agency managers directed the appellant to rescind her termination of the collaborative relationship with NP M and warned her that her failure to comply with that instruction could result in a reprimand. HA, Track 2 at 5:20 (testimony of the appellant). On March 2, 2017, the appellant reiterated her concerns about NP M to agency management and informed the agency that she was going forward with terminating her collaborative relationship with NP M. IAF, Tab 22 at 26. The appellant’s supervisor responded by informing her that the agency had detailed NP M to a position under another supervisor, but that the appellant was to remain NP M’s permanent supervisor and collaborating physician. Id. at 22. However, the appellant terminated the collaborative relationship the following day. HA, Track 2 at 12:45 (testimony of the appellant). The appellant’s third-level supervisor told the appellant’s immediate supervisor to issue the appellant a formal written reprimand for her failure to follow instructions, but he instead reprimanded the appellant orally. HA, Track 5 at 33:25 (testimony of the appellant’s immediate supervisor). In May 2017, the Secretary of Veterans Affairs received an anonymous complaint regarding alleged misconduct by the appellant and certain other Community Living Center staff. IAF, Tab 22 at 34-35. Among other things, the anonymous complaint alleged that the appellant had created a hostile working environment and that she was working a second job while on agency duty. Id. In July 2017, the agency detailed the appellant to a position in another facility pending the outcome of an investigation. Id. at 60. The agency instructed the appellant not to contact employees at her permanent workstation during her detail. Id. The appellant expressed concerns to management about the no-contact instruction during the detail. Id. at 62. After the agency’s Inspector General investigated the allegations against the appellant and found no wrongdoing, the agency returned the appellant to her permanent position on September 28, 2017. IAF, Tab 21 at 18-19.3 After returning from her detail, the appellant reported a number of patient issues that had not been addressed during her absence. HA, Track 3 at 18:10 (testimony of the appellant). Shortly after returning from her detail, the agency required the appellant to take on additional duties on the departure of another physician. Id. The appellant raised staffing concerns in the months following her return from detail. IAF, Tab 22 at 80-81, 83-88. The appellant filed a complaint with the Office of Special Counsel (OSC) in June 2018, alleging reprisal for protected disclosures and activities. IAF, Tab 5 at 30-51. In August 2018, OSC informed the appellant that it had closed its investigation into her complaint and that she had the right to file an IRA appeal. IAF, Tab 1 at 15. The appellant timely filed this IRA appeal in October 2018. IAF, Tab 1. The appellant alleged that she made protected disclosures regarding the performance of NP M and the no-contact instruction during her detail; she also alleged that she engaged in protected activity by refusing to obey the instruction not to terminate her collaborative relationship with NP M. IAF, Tab 23 at 3. The appellant alleged that the agency retaliated against her by threatening discipline, reprimanding her, detailing her, and increasing her duties after her return from detail. Id. The administrative judge determined that the Board has jurisdiction over this IRA appeal. IAF, Tab 11. After holding a hearing, he issued an initial decision denying the appellant’s request for corrective action. IAF, Tab 28, Initial Decision (ID). He found that the appellant made protected disclosures regarding the performance of NP M and the patient care issues that were unaddressed during her detail. ID at 10-11, 14. However, he determined that the appellant failed to prove that she engaged in protected activity regarding the instruction not to terminate the collaborative agreement. ID at 11-13. The administrative judge found that the appellant’s detail and subsequent change in duties qualified as personnel actions, but that neither the threatened written4 reprimand nor the oral reprimand qualified. ID at 14-16. The administrative judge concluded that the appellant’s disclosures regarding NP M were a contributing factor in her detail and change in duties, but that her reports of patient care deficiencies following her return from detail did not contribute to these actions. ID at 16-17. Finally, he found that the agency proved by clear and convincing evidence that it would have taken those actions in the absence of the appellant’s disclosures. ID at 17-20. The appellant has filed a timely petition for review of the initial decision. Petition for Review (PFR) File, Tab 1. The agency has responded in opposition to the petition for review. PFR File, Tab 3. ANALYSIS The appellant failed to establish that she engaged in protected activity under 5 U.S.C. § 2302(b)(9)(D). The administrative judge found that the appellant made protected disclosures of a substantial and specific danger to public health and safety. ID at 10-11, 14. The agency does not challenge that finding on review, and we see no reason to disturb it. However, for the reasons set forth below, we modify the administrative judge’s finding that the appellant failed to prove that she engaged in protected activity under 5 U.S.C. § 2302(b)(9)(D). The appellant refused to rescind the termination of her collaborative relationship with NP M in February and March 2017. IAF, Tab 22 at 26. At that time, it was a prohibited personnel practice to take an action against an employee for “refusing to obey an order that would require the individual to violate a law.” 5 U.S.C. § 2302(b)(9)(D) (2012). The U.S. Court of Appeals for the Federal Circuit has held that the version of section 2302(b)(9)(D) in effect at that time extended only to orders that would require the individual to take an action barred by statute. Rainey v. Merit Systems Protection Board , 824 F.3d 1359, 1361-62, 1364-65 (Fed. Cir. 2016). Here, the appellant alleges that the instruction to5 rescind the termination was inconsistent with provisions of the Alabama Administrative Code, which are state regulations. PFR File, Tab 1 at 11-12. Thus, under the law in effect at the time the relevant events took place, the appellant’s claim that she disobeyed an order that would have required her to violate the Alabama Administrative Code fell outside the scope of 5 U.S.C. § 2302(b)(9)(D). On June 14, 2017, the President signed into law the Follow the Rules Act (FTRA), which amended section 2302(b)(9)(D) by inserting after “law” the words “rule, or regulation.” Follow the Rules Act, Pub L. No. 115-40, 131 Stat. 861 (2017). Thus, under the FTRA, the appellant’s claim that she disobeyed an order that would require her to violate a state regulation falls within the scope of section 2302(b)(9)(D). However, the Board held in Fisher v. Department of the Interior, 2023 MSPB 11, ¶ 19, that the FTRA does not apply to events that occurred before its enactment. Therefore, any claim that the agency retaliated against the appellant prior to June 14, 2017, for refusing to violate a state regulation was not a prohibited personnel practice under 5 U.S.C. § 2302(b)(9) (D). Nonetheless, the Board has found that the expansion of whistleblower protections to new activities should be applied when the personnel action at issue took place after the expansion went into effect. Pridgen v. Office of Management and Budget, 2022 MSPB 31, ¶¶ 50-51. Accordingly, the Board would have authority to review in this IRA appeal the appellant’s claim that the agency detailed her or assigned her additional duties in retaliation for her refusal to violate the Alabama Administrative Code. Nevertheless, we agree with the administrative judge that the appellant failed to establish that the agency’s instruction not to terminate the collaborative relationship with NP M immediately would have required her to violate the Code. ID at 11-13. On petition for review, the appellant cites a general provision of the Code prohibiting unprofessional conduct. PFR File, Tab 1 at 11-12. She also appears6 to reassert her claim that the instruction not to end her collaborative relationship with NP M required her to violate section 610.X.5-.09, which requires a collaborating physician to be available to communicate and consult with the NP. Id. at 9-11. We recognize that the appellant may have believed she was acting in accordance with state regulations when she terminated the collaborative relationship. However, she has not shown that continuing the collaborative relationship with NP M, even temporarily, would have violated any specific provision of those regulations. The Code provides that “collaboration does not require direct, on-site supervision of the activities of a [NP].” Ala. Admin. Code § 610.X.5-.01(5). It also provides for a covering physician to serve when the collaborating physician is unavailable for up to 60 days. Id. § 610.X.5.09(2)-(3). Thus, the appellant could have complied with the agency’s instruction not to immediately terminate her collaborative relationship with NP M without violating the Code. We therefore find that the appellant failed to prove that she engaged in protected activity under 5 U.S.C. § 2302(b)(9)(D).3 The appellant established a prima facie case of whistleblower reprisal as to the February 2017 threatened reprimand. The agency’s threat to reprimand the appellant is a covered personnel action. We decline to disturb the administrative judge’s findings that the appellant’s detail and subsequent change in duties both constituted personnel actions but her oral reprimand did not. ID at 14-15. The parties do not dispute these findings on review. However, we disagree with the administrative judge’s finding regarding the threatened reprimand. 3 The appellant also argues on petition for review that the agency’s order removing her from her duties pending the Inspector General investigation gives rise to a retaliation claim under 5 U.S.C. § 2302(b)(9)(D). PFR File, Tab 1 at 12. However, we agree with the administrative judge that the appellant did not refuse to comply with that order, and therefore section 2302(b)(9)(D) is not implicated. ID at 13.7 A written reprimand is a personnel action for purposes of an IRA appeal, but an oral counseling is not. Johnson v. Department of Health and Human Services, 87 M.S.P.R. 204, ¶ 11 (2000). The administrative judge found that the appellant failed to specify whether the agency threatened her with a written or oral reprimand and, therefore, she failed to prove that she was threatened with a covered personnel action. ID at 15-16. However, in light of the fairly broad interpretation that is to be given to allegations of threatened personnel actions, see Gergick v. General Services Administration , 43 M.S.P.R. 651, 656 (1990), we find that the threat to the appellant in this case constitutes a threat to take a personnel action. According to the appellant, on February 24, 2017, her first-level supervisor advised her that she would receive a “reprimand” if she did not rescind her termination of her collaborative relationship with NP M. IAF, Tab 5 at 24. Because the nature of the threatened reprimand was not specified in this case, we find that the agency’s threat encompassed a written reprimand. Thus, we find that the agency threatened a covered personnel action in the form of a written reprimand. The appellant’s protected disclosures were a contributing factor in the threatened reprimand. Having found that the threatened reprimand was not a covered personnel action, the administrative judge did not address whether the appellant’s protected disclosures were a contributing factor in that threatened action. We modify the initial decision to find that the appellant established that her 2016 and 2017 disclosures regarding NP M and patient safety issues were a contributing factor in the threatened reprimand. To prove that a disclosure was a contributing factor in a personnel action, the appellant only need demonstrate that the fact of, or the content of, the protected disclosure was one of the factors that tended to affect the personnel action in any way. Mastrullo v. Department of Labor , 123 M.S.P.R. 110, ¶ 18 (2015). The knowledge/timing test allows an employee to demonstrate that the8 disclosure was a contributing factor in a personnel action through circumstantial evidence, such as evidence that the official taking the personnel action knew of the disclosure and that the personnel action occurred within a period of time such that a reasonable person could conclude that the disclosure was a contributing factor in the personnel action. Id. Once this test has been met, an appellant has shown that her whistleblowing was a contributing factor in the personnel action at issue, even if, after a complete analysis of all of the evidence, a reasonable factfinder could not conclude that the appellant’s whistleblowing was a contributing factor in the personnel action. Id. The management official who threatened to reprimand the appellant acknowledged that he was aware of the appellant’s 2016 and 2017 disclosures regarding NP M. HA, Track 5 at 24:10 (testimony of the appellant’s immediate supervisor). We therefore find that the knowledge prong of the knowledge/timing test is satisfied. As to the timing prong, a personnel action taken within approximately 1 to 2 years of an appellant’s disclosure satisfies that prong. Mastrullo, 123 M.S.P.R. 110, ¶ 21. Thus, we find that the appellant has proven that her 2016 and 2017 disclosures regarding NP M were a contributing factor in the February 2017 threatened reprimand. We must therefore determine whether the agency proved by clear and convincing evidence that it would have threatened the appellant with a reprimand in the absence of her protected disclosures. Because the record is fully developed, we will address that issue rather than remand the appeal. See, e.g., Forte v. Department of the Navy , 123 M.S.P.R. 124, ¶ 27 (2016) (finding that the Board may decide an issue on review, rather than remanding, when the administrative judge applied an incorrect standard but the record was fully developed).4 4 To the extent the appellant challenges the administrative judge’s finding that the September 2017 disclosures were not a contributing factor in any of the challenged personnel actions, we see no reason to disturb that finding. By the time the appellant made her disclosures in September 2017, both the threat to reprimand her and the detail had already occurred, and therefore, her September 2017 disclosures could not have9 The agency has proven its affirmative defense in part. If an appellant makes out a prima facie case of retaliation for whistleblowing disclosures, the agency has an opportunity to prove, by clear and convincing evidence, that it would have taken the same personnel action in the absence of the protected disclosures. 5 U.S.C. § 1221(e)(1)-(2); Webb v. Department of the Interior , 122 M.S.P.R. 248, ¶ 6 (2015). In determining whether an agency has met this burden, the Board will consider all of the 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 are not whistleblowers but who are otherwise similarly situated. Carr v. Social Security Administration, 185 F.3d 1318, 1323 (Fed. Cir. 1999). The Board does not view these factors as discrete elements, each of which the agency must prove by clear and convincing evidence, but rather weighs these factors together to determine whether the evidence is clear and convincing as a whole. Lu v. Department of Homeland Security , 122 M.S.P.R. 335, ¶ 7 (2015). The Board considers all the evidence, 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); Soto v. Department of Veterans Affairs , 2022 MSPB 6, ¶ 11. As explained in the initial decision and in this Final Order, the appellant proved her prima facie case with respect to three personnel actions: (1) the threatened contributed to those actions. Although the assignment of additional duties occurred in September 2017, the administrative judge determined that the agency made the decision to assign those duties to the appellant prior to her September 2017 disclosures. ID at 17. We see no reason to disturb that finding, and therefore, we agree that the appellant failed to establish that her September 2017 disclosures were a contributing factor in any of the challenged personnel actions. See Sherman v. Department of Homeland Security , 122 M.S.P.R. 644, ¶ 9 (2015) (explaining that a disclosure cannot be a contributing factor in a personnel action if the decision to take that the action was made prior to the disclosure, even if the action was implemented after the disclosure).10 reprimand; (2) the detail assignment; and (3) the change in duties and responsibilities after her return from the detail. Supra pp. 7-9; ID at 15-16. Threatened Reprimand Although he found that the threatened reprimand was not a covered personnel action, the administrative judge found in the alternative that the agency had proven by clear and convincing evidence that it would have taken the same action in the absence of the appellant’s protected disclosures. He found that the agency’s evidence was strong because it was reasonably concerned that, if the appellant terminated her collaborative relationship with NP M, it might appear that the appellant was retaliating against NP M for filing a harassment complaint against her. ID at 14 n.11. He further found that the appellant’s third-level supervisor had no motive to retaliate for the appellant’s disclosures. Id. We agree with the administrative judge’s conclusion, but we modify his analysis. Regarding the strength of the agency’s evidence, we find that, not only did the agency have legitimate managerial concerns about the appellant terminating her collaborative relationship with NP M, but also the material facts surrounding the matter are undisputed. ID at 4-5. Regarding retaliatory motive, we find that motive of the appellant’s third-level supervisor who ordered the reprimand and the appellant’s immediate supervisor who actually threatened the reprimand are both relevant to the analysis. We cannot agree, however, that neither of these officials had any motive to retaliate. ID at 14 n.11, 19-20. In Whitmore, 680 F.3d at 1370-72, the U.S. Court of Appeals for the Federal Circuit cautioned the Board against taking “an unduly dismissive and restrictive view” of retaliatory motive. The 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 retaliatory motive even if11 he or she is not “directly involved in the work at issue in an employee’s disclosure.” Miller v. Department of Justice , 842 F.3d 1252, 1261-62 (Fed. Cir. 2016). Here, the appellant’s disclosures involved the performance of NP M, an employee under her supervision. The appellant’s supervisors were also in NP M’s supervisory chain, and therefore, disclosures about NP M’s performance could reflect on them as managers. For these reasons, we find that there was some motive to retaliate against the appellant for her protected disclosures regarding the performance of NP M, but that such motive was not particularly strong because it did not involve any allegation of wrongdoing by any of the management officials involved in the challenged personnel actions. As for the agency’s treatment of similarly situated non-whistleblowers, we agree with the administrative judge that the agency did not put on any evidence in this regard. ID at 19-20. However, we do not agree that this factor therefore weighs against the agency as far as this personnel action is concerned. Rather, we find it inherently unlikely that any similarly situated non-whistleblowers exist, i.e., non-whistleblower physicians who terminated their collaborative relationships in contravention of higher management. Therefore, we find that this factor does not weigh significantly in the analysis. See McIntosh v. Department of Defense, 53 F.4th 630, 646 (Fed. Cir. 2022). Considering these factors as a whole, we agree with the administrative judge’s ultimate conclusion that the agency proved by clear and convincing evidence that the appellant’s immediate supervisor would have warned her of the possibility of a reprimand notwithstanding her protected disclosures. Because the appellant notified her managers in advance that she was going to ignore their instruction, the appellant’s immediate supervisor would have been remiss not to warn her of the potential consequences. Detail Assignment Regarding the detail assignment, we find that the agency presented some evidence in support of its decision, but the evidence overall was weak. It is12 undisputed that an anonymous complainant raised several allegations of misconduct against the appellant and certain other staff at the Community Living Center. IAF, Tab 22 at 34-35. Specifically, the complainant accused the appellant of working for outside entities on official Government time, mismanaging her areas of responsibility, and bullying her staff. Id. at 34. It is also undisputed that the agency’s Inspector General launched an investigation into the matter, and that the appellant was detailed to another facility for 2 months, pending the outcome of that investigation. IAF, Tab 21 at 17, 19. However, the reasoning behind the agency’s decision to detail the appellant is less than clear. Three witnesses provided testimony relevant to this issue—an Employee and Labor Relations (ELR) Specialist, the Chief of Human Resources, and the appellant’s immediate supervisor. The ELR Specialist testified that, when the agency receives allegations of harassment or a hostile work environment, it will typically separate the complainant and the management official pending the outcome of its investigation. HA, Track 3 at 58:50 (testimony of the ELR Specialist). In that case, either the complainant or the manager will be detailed, at the complainant’s option. HA, Track 3 at 59:30, Track 4 at 00:30 (testimony of the ELR Specialist). However, when asked whether the appellant should have been detailed in this particular case, he testified that, if it were up to him, he would not have detailed the appellant because the complaint was anonymous: “[T]ypically, on an anonymous complaint, we don’t just start arbitrarily moving people around because again, it’s anonymous, and we’re not 100% sure where the complaint came from.” HA, Track 4 at 01:40 (testimony of the ELR Specialist). The Chief of Human Resources testified that it was “normal” for the agency to detail employees during investigations into their conduct, and that the decision to do so would depend on the nature and seriousness of the allegations, regardless of whether the complaint was anonymous. HA, Track 6 at 18:05, 23:25 (testimony of the Chief of Human Resources) . However, he also testified13 that not every allegation of a hostile work environment will result in an employee being detailed. Id. at 24:20 (testimony of the Chief of Human Resources). The appellant’s immediate supervisor likewise testified that employees are “sometimes” detailed out of a work unit during a hostile work environment investigation, particularly if there is evidence to support the allegation. HA, Track 5 at 37:00 (testimony of the immediate supervisor). He also testified that the more serious allegations of “patient abuse and fraud” in this case further supported the detail. Id. at 37:25 (testimony of the immediate supervisor). He admitted, however, that he was not ultimately the one who decided to detail the appellant. Rather, the decision was made by the appellant’s third-level supervisor. HA, Track 6 at 03:55 (testimony of the immediate supervisor). We must at this point correct the record on one important point: the appellant was not accused of abusing patients, failing to take action on patient abuse, or anything of the kind. Those allegations were leveled at another individual who the complainant stated was “verbally abusing her veterans by talking loud and extremely rude to them.” IAF, Tab 22 at 34-35. Based on the appellant’s response to the complaint, this was her understanding as well. Id. at 91-92. Likewise, the agency’s statement of facts in its prehearing submission characterizes the complaint as raising allegations against the appellant of “mismanagement, hostile work environment, and moonlighting while on duty” but not of patient abuse. IAF, Tab 21 at 4. We therefore cannot agree with the initial decision’s characterization of the complaint in this regard. ID at 6-7, 17. Furthermore, to the extent that the appellant’s immediate supervisor cited allegations of patient abuse as supporting the detail assignment, his explanation lacks credibility. HA, Track 5 at 37:25 (testimony of the immediate supervisor); ID at 18. In any event, although these three witnesses disagreed somewhat about the factors that go into deciding whether to detail an employee under investigation, they all agreed on one thing—that the decision on whether to detail the appellant14 under the facts of this case was a matter of discretion. Yet the official who exercised that discretion, the appellant’s third-level supervisor, was not called to testify. Nor is there any other explanation from her in the record as to why she exercised her discretion the way she did. We find that the agency’s failure to proffer any evidence on this key issue seriously undermines its case. As for retaliatory motive, for the reasons explained above, we find that, although the appellant’s third-level supervisor may have had some institutional retaliatory motive, any such motive was not particularly strong. Supra pp. 11-12. Regarding the third Carr factor, we find that the agency’s failure to present any evidence on its treatment of similarly situated non-whistleblowers also undermines its case. According to two agency witnesses, the agency routinely details employees who are the subject of investigations, particularly investigations that involve allegations of harassment or a hostile work environment. HA, Track 5 at 37:00 (testimony of the immediate supervisor), Track 6 at 18:05 (testimony of the Chief of Human Resources). Yet the agency failed to provide even a single example to support its case. Under these circumstances, we find that the agency’s failure to provide any evidence tends to cut against it. See Miller, 842 F.3d 1252 at 1262. Mindful that the agency bears the burden of proof on this issue, and a heightened burden at that, we find that the agency has not shown by clear and convincing evidence that it would have detailed the appellant to another facility absent her protected whistleblowing. Although the retaliatory motive was weak, we find that the agency’s failure to provide any evidence on either the decision-maker’s rationale or its treatment of similarly situated non-whistleblowers so seriously undermines its case that it has failed to prove its affirmative defense with respect to the detail assignment. Significant Change in Duties and Responsibilities Regarding the third personnel action—the significant change in the appellant’s duties and responsibilities on her return from the detail—we find that15 the agency has presented a much stronger and more complete case. As for the strength of the agency’s evidence, it is undisputed that, while the appellant was on detail, another physician in her service line left for another facility, and on the appellant’s return, the agency assigned the appellant to cover the supervisory and administrative duties formerly assigned to that other physician. HA, Track 3 at 20:25 (testimony of the appellant). It is also undisputed that physicians— especially chiefs and supervisors—are frequently called on to fill multiple roles when there is a staffing shortage in their work unit. HA, Track 5 at 39:40 (testimony of the immediate supervisor), Track 6 at 19:20 (testimony of the Chief of Human Resources). As the departing physician’s supervisor, the appellant would have been the default choice to inherit these duties. In addition, as explained above, any retaliatory motive that may have been present was not particularly strong. Supra pp. 11-12. Regarding the third Carr factor, we again observe that, despite this practice being allegedly common, the agency failed to present a single case in which it treated a non-whistleblower similarly to the appellant. Under these circumstances, we find that failure to provide any evidence on this point cuts slightly against the Government. Supra p. 15. Nevertheless, considering the record as a whole, we agree with the administrative judge that the agency has proven by clear and convincing evidence that it would have assigned these duties to the appellant even absent her protected disclosures. ORDER We ORDER the agency to retroactively cancel the appellant’s detail assignment from July 28, 2017, to September 28, 2017, and return her to status quo ante. 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.16 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, if there is any.5 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.6 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 5 The agency has repeatedly indicated that the appellant’s detail assignment did not result in any loss in pay or benefits. IAF, Tab 21 at 5, Tab 22 at 60. The appellant does not appear to have ever argued otherwise. Instead, the appellant described the detail assignment as detrimental to her existing patients, a risk to her medical license, and requiring a longer commute. IAF, Tab 22 at 8, Tab 27 at 9-10. Thus, we do not yet have any indication that cancellation of the detail assignment requires anything beyond correction or rescission of associated records. 6 If the agency believes that there is no status quo ante relief available for this personnel action, it should so inform the appellant.17 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, reasonable expert witness fees, and costs, 5 U.S.C. § 1214(g)(2), which you may be entitled to receive.18 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 RIGHTS7 The initial decision, as supplemented by this Final Order, constitutes the Boards final decision in this matter. 5 C.F.R. § 1201.113. You may obtain review of this final decision. 5 U.S.C. § 7703(a)(1). By statute, the nature of your claims determines the time limit for seeking such review and the appropriate forum with which to file. 5 U.S.C. § 7703(b). Although we offer the following summary of available appeal rights, the Merit Systems Protection Board does not provide legal advice on which option is most appropriate for your situation and the rights described below do not represent a statement of how courts will rule regarding which cases fall within their jurisdiction. If you wish to seek review of this final decision, you should immediately review the law applicable to your 7 Since the issuance of the initial decision in this matter, the Board may have updated the notice of review rights included in final decisions. As indicated in the notice, the Board cannot advise which option is most appropriate in any matter.19 claims and carefully follow all filing time limits and requirements. Failure to file within the applicable time limit may result in the dismissal of your case by your chosen forum. Please read carefully each of the three main possible choices of review below to decide which one applies to your particular case. If you have questions about whether a particular forum is the appropriate one to review your case, you should contact that forum for more information. (1) Judicial review in general . As a general rule, an appellant seeking judicial review of a final Board order must file a petition for review with the U.S. Court of Appeals for the Federal Circuit, which must be received by the court within 60 calendar days of the date of issuance of this decision. 5 U.S.C. § 7703(b)(1)(A). If you submit a petition for review to the U.S. Court of Appeals for the Federal Circuit, you must submit your petition to the court at the following address: U.S. Court of Appeals for the Federal Circuit 717 Madison Place, N.W. Washington, D.C. 20439 Additional information about the U.S. Court of Appeals for the Federal Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11. If you are interested in securing pro bono representation for an appeal to the U.S. Court of Appeals for the Federal Circuit, you may visit our website at http://www.mspb.gov/probono for information regarding pro bono representation for Merit Systems Protection Board appellants before the Federal Circuit. The Board neither endorses the services provided by any attorney nor warrants that any attorney will accept representation in a given case. 20 (2) Judicial or EEOC review of cases involving a claim of discrimination . This option applies to you only if you have claimed that you were affected by an action that is appealable to the Board and that such action was based, in whole or in part, on unlawful discrimination. If so, you may obtain judicial review of this decision —including a disposition of your discrimination claims —by filing a civil action with an appropriate U.S. district court ( not the U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems Protection Board , 582 U.S. 420 (2017). If you have a representative in this case, and your representative receives this decision before you do, then you must file with the district court no later than 30 calendar days after your representative receives this decision. If the action involves a claim of discrimination based on race, color, religion, sex, national origin, or a disabling condition, you may be entitled to representation by a court-appointed lawyer and to waiver of any requirement of prepayment of fees, costs, or other security. See 42 U.S.C. § 2000e-5(f) and 29 U.S.C. § 794a. Contact information for U.S. district courts can be found at their respective websites, which can be accessed through the link below: http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx . Alternatively, you may request review by the Equal Employment Opportunity Commission (EEOC) of your discrimination claims only, excluding all other issues . 5 U.S.C. § 7702(b)(1). You must file any such request with the EEOC’s Office of Federal Operations within 30 calendar days after you receive this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case, and your representative receives this decision before you do, then you must file with the EEOC no later than 30 calendar days after your representative receives this decision. 21 If you submit a request for review to the EEOC by regular U.S. mail, the address of the EEOC is: Office of Federal Operations Equal Employment Opportunity Commission P.O. Box 77960 Washington, D.C. 20013 If you submit a request for review to the EEOC via commercial delivery or by a method requiring a signature, it must be addressed to: Office of Federal Operations Equal Employment Opportunity Commission 131 M Street, N.E. Suite 5SW12G Washington, D.C. 20507 (3) Judicial review pursuant to the Whistleblower Protection Enhancement Act of 2012 . This option applies to you only if you have raised claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D). If so, and your judicial petition for review “raises no challenge to the Board’s disposition of allegations of a prohibited personnel practice described in section 2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i), (B), (C), or (D),” then you may file a petition for judicial review either with the U.S. Court of Appeals for the Federal Circuit or any court of appeals of competent jurisdiction.8 The court of appeals must receive your petition for review within 60 days of the date of issuance of this decision. 5 U.S.C. § 7703(b)(1)(B). 8 The original statutory provision that provided for judicial review of certain whistleblower claims by any court of appeals of competent jurisdiction expired on December 27, 2017. The All Circuit Review Act, signed into law by the President on July 7, 2018, permanently allows appellants to file petitions for judicial review of MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals for the Federal Circuit or any other circuit court of appeals of competent jurisdiction. The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115-195, 132 Stat. 1510. 22 If you submit a petition for judicial review to the U.S. Court of Appeals for the Federal Circuit, you must submit your petition to the court at the following address: U.S. Court of Appeals for the Federal Circuit 717 Madison Place, N.W. Washington, D.C. 20439 Additional information about the U.S. Court of Appeals for the Federal Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11. If you are interested in securing pro bono representation for an appeal to the U.S. Court of Appeals for the Federal Circuit, you may visit our website at http://www.mspb.gov/probono for information regarding pro bono representation for Merit Systems Protection Board appellants before the Federal Circuit. The Board neither endorses the services provided by any attorney nor warrants that any attorney will accept representation in a given case. Contact information for the courts of appeals can be found at their respective websites, which can be accessed through the link below: http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx . FOR THE BOARD: ______________________________ Gina K. Grippando Clerk of the Board Washington, D.C.23 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).24 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 504-255-4630.25	Hodge_Audrey_M_AT-1221-19-0040-W-1_Final_Order.pdf	2025-02-19	AUDREY M. HODGE v. DEPARTMENT OF VETERANS AFFAIRS, MSPB Docket No. AT-1221-19-0040-W-1, February 19, 2025	AT-1221-19-0040-W-1	NP
183	https://www.mspb.gov/decisions/nonprecedential/Mao_YoudiNY-1221-24-0050-W-1_Remand_Order.pdf	UNITED STATES OF AMERICA MERIT SYSTEMS PROTECTION BOARD YOUDI MAO, Appellant, v. DEPARTMENT OF VETERANS AFFAIRS, Agency.DOCKET NUMBER NY-1221-24-0050-W-1 DATE: February 19, 2025 THIS ORDER IS NONPRECEDENTIAL1 Michael Kane , Esquire, Westfield, New Jersey, for the appellant. Mark Emilio Frassinelli , Esquire, Pittsburgh, Pennsylvania, 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 1 A nonprecedential order is one that the Board has determined does not add significantly to the body of MSPB case law. Parties may cite nonprecedential orders, but such orders have no precedential value; the Board and administrative judges are not required to follow or distinguish them in any future decisions. In contrast, a precedential decision issued as an Opinion and Order has been identified by the Board as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c). the reasons discussed below, we GRANT the appellant’s petition for review, REVERSE the initial decision to find that the appellant established jurisdiction over her claims as set forth below, and REMAND the case to the Northeastern Regional Office2 for further adjudication in accordance with this Remand Order. BACKGROUND At the time relevant to this appeal, the appellant was employed as a staff nurse at the East Orange Veterans Affairs Hospital in East Orange, New Jersey, where she was assigned to work in the Substance Abuse Residential Rehabilitation Treatment Program (SARRTP). Initial Appeal File (IAF), Tab 6 at 141, Tab 8 at 6. Frequently, though, the appellant instead worked at the Opiate Treatment Program (OTP), which is a methadone clinic on the East Orange Campus, when the OTP needed staffing coverage. IAF, Tab 8 at 6. According to the appellant, she had access to all codes and passwords for the narcotics safe and keys to all OTP doors and was trained to count narcotics inventory and distribution delivery with a second person to confirm the narcotics count once during the morning shift before the clinic opened and again after the clinic closed to patients. Id. at 6, 8. It is undisputed that, on November 30, 2020, the appellant was working in the OTP, and she called and emailed the nurse manager, the Director of Clinical Services, and the Associate Director of Patient Care Services, her first -, second-, and third-line supervisors, respectively, to express a staffing concern and inform them that she was the only nurse working that morning and that not having an additional person on duty “to confirm [the inventory] was a problem given the narcotics count issue.” IAF, Tab 8 at 9. According to the appellant, the Associate Director of Patient Care Services responded to her, stating that her supervisors would address her staffing concerns, and her supervisors responded to 2 This appeal was initially adjudicated in the Board’s New York Field Office, which has since closed. 2 her stating that in the future she should follow the chain of command. Id. at 10; IAF, Tab 10 at 5. Thereafter, the appellant filed a complaint with the Office of Special Counsel (OSC) asserting that her communications regarding the staffing issues in the OTP constituted a protected disclosure under 5 U.S.C. § 2302(b)(8) because they implicated patient safety and constituted a violation of applicable rules and that, in retaliation for that disclosure, the agency took various actions against her including not selecting her for a permanent staff position in the OTP, denying her annual leave request, and changing her work schedule. IAF, Tab 1 at 9-22. On September 29, 2023, OSC issued a close-out letter informing the appellant of her right to seek corrective action from the Board. Id. at 7-8. On November 27, 2023, the appellant filed the instant IRA appeal with the Board reiterating the allegations made before OSC. IAF, Tab 1 at 2. Following the agency’s assertion that the Board lacked jurisdiction over the appeal, the administrative judge informed the appellant of her jurisdictional burden and ordered her to “file a statement, accompanied by evidence” demonstrating that her claims were within the Board’s jurisdiction. IAF, Tab 7. The appellant responded to the administrative judge’s order further detailing her allegations of whistleblower reprisal and including evidence to support those allegations. IAF, Tabs 8, 10. On January 31, 2024, the administrative judge issued an initial decision without holding the appellant’s requested hearing. IAF, Tab 11, Initial Decision (ID); IAF, Tab 1 at 1. She found it undisputed that the appellant exhausted her administrative remedy with OSC. ID at 6. However, she was “unpersuaded that a person in the appellant’s position would have reasonably believed that the agency” engaged in any of the wrongdoing set forth in 5 U.S.C. § 2302(b)(8). ID at 8. Thus, the administrative judge found that the appellant failed to nonfrivolously allege that she made a protected disclosure. ID at 8-9. The administrative judge further found that, even if the appellant had nonfrivolously3 alleged that she made a protected disclosure, the appellant also failed to nonfrivolously allege that the disclosure was a contributing factor in the actions at issue. ID at 9-10. Accordingly, the administrative judge dismissed the appeal for lack of jurisdiction. ID at 10. The appellant has filed a petition for review of the initial decision. Petition for Review (PFR) File, Tab 1. She asserts that the administrative judge improperly considered the agency’s evidence at the jurisdictional stage of the proceedings. Id. at 1-4. She reiterates her allegations and asserts that they constitute nonfrivolous allegations of the Board’s jurisdiction. Id. at 4-26. The agency has responded to the appellant’s petition for review, and the appellant has replied to the agency’s response. PFR File, Tabs 3-4. DISCUSSION OF ARGUMENTS ON REVIEW The Board has jurisdiction over an IRA appeal if the appellant exhausts her administrative remedies before OSC and makes nonfrivolous allegations that (1) she made a disclosure that was protected under 5 U.S.C. § 2302(b)(8) or engaged in protected activity described in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D), and (2) the disclosure or activity was a contributing factor in the agency’s decision to take or fail to take a personnel action as defined by 5 U.S.C. § 2302(a) (2)(A). Gabel v. Department of Veterans Affairs , 2023 MSPB 4, ¶ 5; Salerno v. Department of the Interior , 123 M.S.P.R. 230, ¶ 5 (2016). We agree with the administrative judge that the appellant proved by preponderant evidence that she exhausted her administrative remedy with OSC. ID at 6; IAF, Tab 1 at 7-22. We turn to whether the appellant nonfrivolously alleged that she made a protected disclosure or engaged in a protected activity that was a contributing factor in a personnel action. For the reasons set forth below, we find that the appellant has met this jurisdictional burden.4 The appellant nonfrivolously alleged that she made a protected disclosure under 5 U.S.C. § 2302(b)(8). 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); Chambers v. Department of the Interior, 515 F.3d 1362, 1367 (Fed. Cir. 2008); Chavez v. Department of Veterans Affairs , 120 M.S.P.R. 285, ¶ 18 (2013). A nonfrivolous allegation of a protected whistleblowing disclosure is an allegation of facts that, if proven, would show that the appellant disclosed a matter that a reasonable person in her position would believe evidenced one of the categories of wrongdoing specified in 5 U.S.C. § 2302(b)(8)(A). Gabel, 2023 MSPB 4, ¶ 6. The appellant alleged that on November 30, 2023, she reported to the nurse manager, the Director of Clinical Services, and the Associate Director of Patient Care Services a “safety violation” related to inadequate staffing in the OTP. Specifically, she asserted that agency rules for the OTP required that two licensed and trained employees—either two registered nurses or one registered nurse and one pharmacist—work in the clinic in order to conduct a methadone inventory. IAF, Tab 8 at 8. She asserted that this two-person requirement was a “safety mechanism which ensures staff responsibility of narcotic inventory” and that her disclosure of the agency’s failure to meet that requirement evidenced the sort of wrongdoing covered under 5 U.S.C. § 2302(b)(8).3 Id. 3 Although the appellant alternates between asserting that she disclosed a “safety violation” or “safety issue” and a violation of a rule, IAF, Tab 1 at 16-17; PFR File, Tab 1 at 18, and the administrative judge appears to have construed this disclosure as one of a “substantial and specific danger to public health or safety” under 5 U.S.C. § 2302(b)(8), ID at 9, the Board does not require, as a basis for its jurisdiction, that an appellant in an IRA appeal correctly label a category of wrongdoing under section 2302(b)(8), see Rzucidlo v. Department of the Army , 101 M.S.P.R. 616, ¶ 13 (2006). In any event, as further explained below, we construe the appellant’s claim as one disclosing a violation of law, rule, or regulation. 5 In the initial decision, the administrative summarized the “documentary evidence of record” surrounding the appellant’s allegations. ID at 2-5. She considered the appellant’s claim that the alleged staffing failure was in violation of agency policy and the Joint Commission Survey but was “unpersuaded that a person in the appellant’s position would have reasonably believed that the agency” engaged in any of the wrongdoing set forth in section 2302(b)(8). ID at 8. The administrative judge specifically concluded that the appellant did not nonfrivolously allege that she believed that, unless another staff member was present before and after the clinic closed to witness her inventory count, a substantial danger existed. ID at 9. In support of these conclusions, the administrative judge stated that nothing in the appellant’s emails disclosing the staffing deficiency indicated that the appellant believed it constituted a violation of policy or regulation or that it created a substantial or specific danger to public health and safety. ID at 8. The administrative judge also noted that the nurse manager to whom the appellant initially reported the issue “immediately acted to address the appellant’s concerns.” Id. As noted, on review, the appellant asserts that the administrative judge erred in considering the agency’s evidence at the jurisdictional stage. PFR File, Tab 1 at 1-4. She also challenges the administrative judge’s conclusion that the appellant failed to nonfrivolously allege that she reasonably believed her disclosure 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. at 9. To the appellant’s first argument, we agree that the administrative judge impermissibly considered the agency’s evidence in making her jurisdictional findings. The U.S. Court of Appeals for the Federal Circuit has explained that “the question of whether the appellant has nonfrivolously alleged protected disclosures that contributed to a personnel action must be based on whether the employee alleged sufficient factual matter, accepted as true, to state a claim that6 is plausible on its face.” See Hessami v. Merit Systems Protection Board , 979 F.3d 1362, 1367, 1369 (Fed. Cir. 2020); see also 5 C.F.R. § 1201.4(s) (providing that a nonfrivolous allegation is an assertion that, if proven, could establish the matter at issue). While the agency’s documentary submissions may be considered to give context or background to the appellant’s claims, the evidence may not be weighed against the appellant’s evidence, and the agency’s evidence may not be dispositive. Carney v. Department of Veterans Affairs , 121 M.S.P.R. 446, ¶ 11 (2014); see Hessami, 979 F.3d at 1369 n.5. Here, the administrative judge considered evidence outside of the appellant’s allegations, specifically, evidence showing that the nurse manager “immediately acted to address the appellant’s concerns,” when finding that the appellant failed to nonfrivolously allege that she made a protected disclosure. ID at 8. This evidence was apparently dispositive in the administrative judge’s reasoning as it formed the basis of her ultimate conclusion that the appellant failed to make a nonfrivolous allegation of a protected disclosure. At the jurisdictional stage of these proceedings, that was improper. Turning to the question of whether the appellant nonfrivolously alleged that she reasonably believed that she was disclosing a type of wrongdoing set forth in section 2302(b)(8), the test to determine whether a putative whistleblower has a reasonable belief in a 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. See Gabel, 2023 MSPB 4, ¶ 6. Although this test is referenced in the initial decision, the analysis of whether the appellant had a reasonable belief that she was disclosing the type of wrongdoing set forth in section 2302(b)(8) is limited to the fact that the nurse manager quickly acted to address the appellant’s concerns and the administrative judge’s observation that7 “nothing in the appellant’s email’s indicates that [she] believed the alleged staffing deficiency was a violation of policy or regulation . . . or created a substantial or specific danger to public health and safety.” ID at 8. However, we do not believe these considerations are relevant to the question of whether a disinterested observer with knowledge of the essential facts known to and readily ascertainable by the appellant could reasonably conclude that the agency’s actions evidenced the type of wrongdoing set forth in section 2302(b)(8). Indeed, they concern only what actions the agency took after the appellant made her disclosure and the contents of the disclosure itself; they do not concern any contextual background relating to the question of why the appellant believed she was disclosing wrongdoing. More relevant to this question, however, are the appellant’s allegations that she believed the staffing shortage evidenced at least one of the types of wrongdoings set forth in section 2302(b)(8) because she had been trained that a second person was needed for the narcotics inventory count, because management had previously acknowledged that a second person was needed, and because the clinic has a sign-in sheet for the narcotics inventory count that has spaces for two signatures. IAF, Tab 8 at 10-11; PFR File, Tab 1 at 9. The documentary evidence submitted by the appellant at the jurisdictional stage also supports such a belief. See Hessami, 979 F.3d at 1369 n.5 (providing that, while the Board may not weigh the evidence at the jurisdictional stage in an IRA appeal, it need not consider the appellant’s allegations in a vacuum). For example, the record includes the sign-in sheet for the narcotics inventory count, which provides two lines for signatures for each count. IAF, Tab 10 at 14. The record also includes a May 1, 2019 agency directive entitled “Controlled Substances Management,” which explains that “[t]he use of a two-person (facilitator and witness) signature system is used for all balance adjustments.” Id. at 27. The appellant also alleged that she spent as many as four days per week at the OTP and was the only SARRTP nurse who was “fully trained” in this area. IAF, Tab 8 at 7. Such8 allegations, supported in the record, if proven true, would lead us to conclude that a disinterested observer with knowledge of the essential facts known to and readily ascertainable by the appellant could reasonably conclude that the agency’s actions evidenced a violation of law, rule, or regulation.4 As such, we find that the appellant nonfrivolously alleged that she reasonably believed she was disclosing a violation of law, rule, or regulation when she reported the staffing shortage issue. See Hudson v. Department of Veterans Affairs , 104 M.S.P.R. 283, ¶ 11 (2006) (stating that there is no de minimis exception to an allegation that an agency violates a law, rule, or regulation). Accordingly, we find that the appellant nonfrivolously alleged that she made a protected disclosure under 5 U.S.C. § 2302(b)(8). The appellant nonfrivolously alleged that her disclosure was a contributing factor in her nonselection, denial of annual leave request, and change in working conditions. Turning to whether the appellant nonfrivolously alleged that she made a protected disclosure that was a contributing factor in a personnel action, the appellant alleged that, in reprisal for her disclosure, the agency did not select her for a permanent position in the OTP to which she applied, denied an annual leave request, and changed her work schedule. IAF, Tab 1 at 2. A nonselection is a decision concerning an appointment, which constitutes a personnel action under 5 U.S.C. § 2302(a)(2)(A)(i). The denial of leave is a decision concerning a “benefit,” and thus, a personnel action under 5 U.S.C. § 2302(a)(2)(A)(ix). 4 In the initial decision, the administrative judge stated that she was “unpersuaded” that a person in the appellant’s position would have reasonably believed that the agency had violated any law, rule, or regulation, or had committed gross mismanagement, gross waste of funds, abuse of authority, or substantial and specific danger to public health and safety. ID at 8. Such a statement, however, further suggests that the administrative judge improperly weighed the evidence below. At the jurisdictional stage, an appellant is only burdened with making a nonfrivolous allegation that she reasonably believed that her disclosure evidenced one of the circumstances described in 5 U.S.C. § 2302(b) (8). See Bradley v. Department of Homeland Security , 123 M.S.P.R. 547, ¶ 7 (2016).9 Although a change in schedule is not directly contemplated in section 2302(a)(2)(A), it can constitute a personnel action to the extent it amounts to a significant change in duties, responsibilities, or working conditions under 5 U.S.C. § 2302(a)(2)(A)(xii).5 The appellant alleged that, for at least 3 months before she made her disclosure, she was working every Saturday, as she was “entitled to work 16 hours on the weekend per pay period,” but that “within days” of her disclosure, the Director of Clinical Services instructed the nurse manager to change the appellant’s schedule so that she could work only one Saturday every three weeks. IAF, Tab 8 at 11. We find that the appellant’s allegation of a substantial reduction in weekend hours constitutes a nonfrivolous allegation of a significant change in working conditions under section 2302(a)(2)(A)(xii). Thus, we turn to whether the appellant nonfrivolously alleged that her protected disclosure was a contributing factor in the nonselection, leave denial, and change in working conditions. See Gabel, 2023 MSPB 4, ¶ 5. To satisfy the contributing factor criterion at the jurisdictional stage of an IRA appeal, the appellant need only raise a nonfrivolous allegation that the fact of, or content of, the protected disclosure or activity was one factor that tended to affect the personnel action in any way. Skarada v. Department of Veterans Affairs, 2022 MSPB 17, ¶ 19. One way to establish this criterion is the knowledge/timing test, under which an employee may nonfrivolously allege that the disclosure was a contributing factor in a personnel action through circumstantial evidence, such as evidence that the official who took the personnel action knew of the disclosure and that the personnel action occurred within a period of time such that a reasonable person could conclude that the disclosure was a contributing factor in the personnel action. Id. 5 Alternatively, to the extent the schedule change implicates overtime hours, the action could also be covered under section 2302(a)(2)(A)(ix), which contemplates a decision concerning pay, among other things. 10 Regarding the appellant’s nonselection for a permanent staff position in the OTP, the appellant asserted that she applied for this position in February 2021 and that she was informed on May 10, 2021, that she was not selected. IAF, Tab 1 at 18. The appellant alleged that the nurse manager was on the interview panel, and she also appears to allege that the Director of Clinical Services was the selecting official. IAF, Tab 8 at 13-15. The appellant nonfrivolously alleged that these officials had knowledge of the disclosure because she made it to them. Additionally, the appellant alleged that the nonselection occurred within approximately 6 months of her November 2020 disclosure, which satisfies the timing component of the knowledge/timing test. See Skarada, 2022 MSPB 17, ¶ 19 (stating that a personnel action taken within 1 to 2 years of the appellant’s disclosure satisfies the knowledge/timing test); Mastrullo v. Department of Labor, 123 M.S.P.R. 110, ¶ 21 (2015) (same). Therefore, we find that the appellant nonfrivolously alleged that she made a protected disclosure that was a contributing factor in her nonselection. Regarding the alleged denial of the appellant’s annual leave request, the appellant’s allegations in this regard are vague. IAF, Tab 1 at 2, 19. In her initial appeal, she asserted only that the agency “reject[ed]” her annual leave request; she does not allege when this decision was made or by whom. Id.; IAF, Tab 8. However, the record includes email communications between the nurse manager and the Associate Director of Patient Care Services wherein they discuss an October 2021 decision to deny one week of the appellant’s two-week annual leave request for November 2021. IAF, Tab 6 at 111 -12. These email communications give context to the appellant’s allegations, and we have, thus, considered them. See Carney, 121 M.S.P.R. 446, ¶ 11. Reading the appellant’s allegations together with these emails, we construe the appellant’s claim as one alleging that the nurse manager partially denied her annual leave request in October 2021. Because the nurse manager had knowledge of the appellant’s disclosure, and we construe the appellant’s allegations so as to assert that her annual leave request was partially11 denied within one year of making her disclosure, we find that the appellant has met the knowledge/timing test with respect to this claim, and that she, therefore, nonfrivolously alleged that her disclosure was a contributing factor in this action. See Usharauli v. Department of Health and Human Services , 116 M.S.P.R. 383, ¶ 19 (2011) (stating that any doubt or ambiguity as to whether the appellant made a nonfrivolous jurisdictional allegation should be resolved in favor of finding jurisdiction); Jessup v. Department of Homeland Security , 107 M.S.P.R. 1, ¶ 10 (2007) (observing that the appellant’s burden of making a nonfrivolous allegation is low and requires only a minimal sufficient showing). Regarding the appellant’s allegation of a change in working conditions (i.e., the change in the work schedule), she alleges that, in or around December 2020 and January 2021, the Director of Clinical Services directed the nurse manager to change the appellant’s schedule so that she could only work one Saturday every three weeks instead of her usual schedule of working every Saturday. IAF, Tab 8 at 11, Tab 10 at 8-9. These allegations meet both prongs of the knowledge/timing test because the agency officials alleged to be responsible for the action are the ones to whom the disclosure was made and the action occurred within only months of the disclosure. See Skarada, 2022 MSPB 17, ¶ 19. Therefore, we find that the appellant nonfrivolously alleged that she made a protected disclosure that was a contributing factor in her change in working conditions. In sum, we find that the appellant nonfrivolously alleged that she made a protected disclosure under 5 U.S.C. § 2302(b)(8) when she alleged that she disclosed a violation of law, rule, or regulation relating to a staffing issue at the OTP and that her disclosure was a contributing factor in her nonselection, denial of annual leave, and change in working conditions. Accordingly, we find that she has established the Board’s jurisdiction over her claims as set forth in this order. See Gabel, 2023 MSPB 4, ¶ 5. 12 ORDER Having found that the appellant has met her jurisdictional burdens, we remand this case to the regional office for a hearing and further adjudication consistent with this Remand Order. FOR THE BOARD: ______________________________ Gina K. Grippando Clerk of the Board Washington, D.C.13	Mao_YoudiNY-1221-24-0050-W-1_Remand_Order.pdf	2025-02-19	YOUDI MAO v. DEPARTMENT OF VETERANS AFFAIRS, MSPB Docket No. NY-1221-24-0050-W-1, February 19, 2025	NY-1221-24-0050-W-1	NP
184	https://www.mspb.gov/decisions/nonprecedential/Long_CharleneDC-844E-20-0243-I-1_Final_Order.pdf	UNITED STATES OF AMERICA MERIT SYSTEMS PROTECTION BOARD CHARLENE LONG, Appellant, v. OFFICE OF PERSONNEL MANAGEMENT, Agency.DOCKET NUMBER DC-844E-20-0243-I-1 DATE: February 19, 2025 THIS FINAL ORDER IS NONPRECEDENTIAL1 Charlene Long , Buford, Georgia, pro se. Shawna Wheatley , 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 affirmed the reconsideration decision of the Office of Personnel Management (OPM) that denied her application for disability retirement benefits under the Federal Employees Retirement System (FERS). For the reasons discussed below, 1 A nonprecedential order is one that the Board has determined does not add significantly to the body of MSPB case law. Parties may cite nonprecedential orders, but such orders have no precedential value; the Board and administrative judges are not required to follow or distinguish them in any future decisions. In contrast, a precedential decision issued as an Opinion and Order has been identified by the Board as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c). we GRANT the appellant’s petition for review and REVERSE the initial decision. OPM’s reconsideration decision is NOT SUSTAINED. BACKGROUND The appellant was employed as a GS-12 Program Analyst with the Department of the Navy in Norfolk, Virginia. Initial Appeal File (IAF), Tab 7 at 97. On January 18, 2019, she submitted an application for disability retirement benefits under FERS based on cervical spinal stenosis with myelopathy, arthritis, muscle spasms, and obstructive sleep apnea. Id. at 54-55. In her Statement of Disability supporting her application, she stated that she became disabled from her position following a spinal surgery on July 19, 2018. Id. at 53-54. She explained that the July 19, 2018 surgery was her third spinal surgery to treat her cervical spinal stenosis with myelopathy but that afterwards she continued to experience symptoms such as numbness, tingling, pain, and loss of balance. Id. at 54. She also explained that her arthritis and muscle spasms affected her ability to sit, stand, walk, and bend, and that she was under treatment from pain management and orthopedic doctors. Id. To support her claims, she submitted medical evidence, including two letters from her medical providers, both of whom recommended continued telework as an accommodation following her July 19, 2018 surgery, and a Certification of Health Care Provider for Employee’s Serious Health Condition (Family and Medical Leave Act), in which her physician verified her conditions and treatments and their effects on her ability to work. Id. at 58-59, 71-74. She explained in her Statement of Disability that, although the agency initially permitted her to telework, it revoked her full -time telework accommodation in October 2018 because she was not able to perform the same team lead duties while teleworking that she would perform in an office. Id. at 54. On July 1, 2019, OPM denied the appellant’s application for disability retirement benefits, and the appellant requested reconsideration, asserting that her attendance was unacceptable due to the agency’s revocation of the full -time2 telework accommodation and that, although she had intended to return to work following her July 2018 surgery, her condition had worsened. Id. at 11-50. She also explained that the agency offered to provide her with an ergonomic keyboard to address the pain in her hands but that she declined the offer because it did not address all of her conditions. Id. at 18. She also referenced a new diagnosis of a pituitary tumor. Id. In support of these assertions, the appellant submitted additional evidence from her medical providers, including a June 18, 2019 evaluation report following a fall, wherein the treating physician noted that the appellant “likely has some degree of permanent myelopathy” and that “further surgery will not change this.” Id. at 45. The appellant also submitted a July 25, 2019 write-up from a medical provider regarding her “chronic musculoskeletal pain,” wherein the provider explained that the appellant suffers pain 75% of the time that is “burning,” “throbbing,” “shooting,” and “sharp.” Id. at 20. The appellant also submitted other medical documentation showing pituitary macroadenoma, which caused her to experience balance problems, headaches, and blurred vision. Id. at 34-40. On November 22, 2019, OPM issued a reconsideration decision affirming its initial decision. Id. at 6-9. Specifically, it found that the appellant failed to establish (1) that her attendance deficiency was the result of a disabling medical condition, (2) that she suffered from a disabling medical condition that rendered her unable to provide useful and efficient service or unable to perform the essential duties of her position, and (3) that her employing agency was unable to reasonably accommodate her. Id. As such, OPM concluded that the appellant3 failed to meet the requisite criteria for disability retirement benefits under FERS.2 Id. The appellant appealed OPM’s reconsideration decision to the Board. IAF, Tab 1. After holding a telephonic hearing, the administrative judge issued an initial decision. IAF, Tab 17-1, Hearing Recording (HR), Tab 18, Initial Decision (ID). Following a discussion of the appellant’s medical evidence and the hearing testimony, the administrative judge found that the appellant did not establish that there was a deficiency in her performance, conduct, or attendance caused by her medical conditions or that her medical conditions were incompatible with useful and efficient service or retention in her position. ID at 17-20. The administrative judge further found that the appellant did not show that her medical conditions could not be managed or mitigated with medication or other forms of treatment or that her medical conditions would be disabling for more than a year beyond the date of her disability retirement application. ID at 21. Finally, the administrative judge found that the appellant failed to establish that accommodation of her medical conditions would be unreasonable. ID at 22. Ultimately, she found that the appellant failed to establish the criteria for obtaining disability retirement benefits, and she affirmed OPM’s reconsideration decision. Id. at 22-23. The appellant has filed a petition for review of the initial decision. Petition for Review (PFR) File, Tab 1. She generally requests review of the initial decision and focuses her arguments on her attendance record, her job performance, her leave usage, her former employing agency’s accommodation 2 In its reconsideration decision, OPM also noted that, although “not a factor in deciding the outcome of [the appellant’s] FERS claim,” its records indicate that she was also denied Social Security benefits, which, it asserted, “further supports OPM’s findings that [the appellant is] not disabled.” IAF, Tab 7 at 8. We acknowledge this denial. IAF, Tab 7 at 75. Nonetheless, the Board has found that such determinations are not binding on its decision, and we conclude that the medical evidence supporting a finding that the appellant is entitled to a disability retirement under FERS outweighs the Social Security Administration’s denial of the appellant’s claim. See Doe v. Office of Personnel Management , 109 M.S.P.R. 86, ¶ 22 (2008).4 efforts, her continuing health issues, and problems created by her physician’s statements and actions. Id. at 1-2. The agency has not responded to the appellant’s petition for review, and it is, thus, unopposed. DISCUSSION OF ARGUMENTS ON REVIEW In an appeal from an OPM decision denying a voluntary disability retirement application, the appellant bears the burden of proof by preponderant evidence. Christopherson v. Office of Personnel Management , 119 M.S.P.R. 635, ¶ 6 (2013); 5 C.F.R. § 1201.56(b)(2)(ii) . To be eligible for disability retirement benefits under FERS, an individual must show the following: (1) she completed at least 18 months of creditable civilian service; (2) while employed in a position subject to FERS, she became disabled because of a medical condition resulting in a deficiency in performance, conduct, or attendance, or if there is no such deficiency, the disabling medical condition must be incompatible with either useful and efficient service or retention in the position; (3) the disabling medical condition is expected to continue for at least 1 year from the date the disability retirement benefits application is filed; (4) accommodation of the disabling medical condition in the position held must be unreasonable; and (5) she did not decline a reasonable offer of reassignment to a vacant position. Christopherson, 119 M.S.P.R. 635, ¶ 6 ; see 5 U.S.C. § 8451(a) . In the initial decision, the administrative judge found that the appellant established that she completed at least 18 months of creditable civilian service, but, as noted, agreed with OPM that she failed to establish any of the other criteria. ID at 17-22. Based on our review of the record, we disagree and find that the appellant established all of the criteria necessary to be granted disability retirement benefits. Because this appeal ultimately hinges on whether the appellant’s medical conditions resulted in a deficiency in performance, conduct, or attendance, or if there is no such deficiency, whether the disabling medical conditions are incompatible with either useful and efficient service or retention in the position, we begin our analysis there.5 The appellant established that her medical condition is incompatible with useful and efficient service. An appellant may meet the requirement that she “be unable, because of disease or injury, to render useful and efficient service in the employee’s position” by showing either: (1) that the medical condition caused a deficiency in performance, attendance, or conduct, as evidenced by the effect of her medical condition on her ability to perform specific work requirements, or her medical condition prevented her from being regular in attendance, or caused her to act inappropriately; or (2) that the medical condition is incompatible with useful and efficient service or retention in the position by demonstrating that her medical condition is inconsistent with working in general, in a particular line of work, or in a particular type of work setting. Christopherson, 119 M.S.P.R. 635, ¶ 6; see 5 U.S.C. § 8451(a)(2)(C). In its reconsideration decision, OPM reiterated its initial analysis of the appellant’s disability retirement application. IAF, Tab 7 at 6-7. It also considered several pieces of medical evidence submitted with the appellant’s request for reconsideration, including summaries of appointments on June 18, 2019, July 3, 2019, and July 25, 2019, from the appellant’s physician regarding her spinal condition and related pain. Id. at 7-8. It also considered an MRI and pre-operation evaluation from June 25, 2019 and August 8, 2019, respectively, relating to the appellant’s pituitary macroadenoma. Id. at 8. OPM concluded that none of this medical evidence established that the appellant suffered from a “disabling medical condition that has rendered [her] unable to perform the essential duties of [her] position and that has rendered [her] incompatible with useful and efficient service.” Id. at 7-8. In affirming OPM’s reconsideration decision, the administrative judge acknowledged the appellant’s arguments that her conditions made her unable to work but similarly concluded that the medical documentation “does not reflect an inability to work.” ID at 20.6 Both OPM and the administrative judge’s determinations are based primarily on a conclusion that there was a lack of medical evidence showing that the appellant is unable to work. ID at 17-20; IAF, Tab 7 at 6-8. We disagree with this assessment of the medical evidence. As noted, the appellant included in her disability retirement application to OPM an October 10, 2018 form entitled “Certification of Health Care Provider for Employee’s Serious Health Condition (Family and Medical Leave Act)” (FMLA).3 IAF, Tab 7 at 71-74. In this form, the appellant’s medical provider summarized the appellant’s essential job functions and concluded that the appellant was unable to perform all of the functions of her position due to her medical conditions. Id. at 71-72. However, even if the October 10, 2018 FMLA form is insufficient medical evidence to meet the appellant’s burden in this respect, the Board made clear in Henderson v. Office of Personnel Management , 117 M.S.P.R. 313 (2012), that medical evidence showing how a medical condition affects specific job duties or indicating that an appellant cannot meet the requirements of her position is not required to prove entitlement to retirement benefits. 117 M.S.P.R. 313, ¶¶ 16, 18 (finding that there is no general rule that medical evidence in disability retirement cases must unambiguously and without contradiction show how a medical condition affects specific job duties or indicate that the employee cannot meet the requirements of her position in order to establish entitlement to disability retirement benefits and that any such requirement imposes a higher burden of proof which is not authorized by law or regulation). Rather, the Board will consider all pertinent evidence in determining an appellant’s entitlement to disability retirement: objective clinical findings, diagnoses and medical opinions, subjective evidence of pain and disability, and evidence relating to the effect of the applicant’s condition on her ability to perform the duties of her position. Id., ¶ 19. Nothing in the law mandates that a single provider tie all of this evidence 3 This form appears to have been included in the record due to the appellant’s formal request for additional leave under FMLA. IAF, Tab 7 at 71.7 together. Id. For example, if the medical provider provides clinical findings, a diagnosis, and a description of how the medical condition affects the appellant’s activities in general terms, the Board could consider that evidence, together with the appellant’s subjective account of how the condition has affected her ability to do her job and her daily life, testimony or statements from supervisors, coworkers, family members, and friends, and the appellant’s position description. Id. From that, the Board could conclude that the medical condition caused deficiencies in the employee’s performance, conduct, or attendance, or that the medical condition is incompatible with useful and efficient service in her position, either because the appellant is unable to perform critical elements of her position, or because she cannot work any job in a particular line of work, or in a particular type of work setting. Id. Here, the appellant testified that she became disabled and unable to work following her third spinal surgery on July 19, 2018. HR (testimony of the appellant); IAF, Tab 7 at 18. She further testified that, following that surgery, the preexisting pain in her neck and hands increased, which, she explained, her medical provider informed her could happen as a result of nerve damage due to the surgeries. HR (testimony of the appellant); IAF, Tab 7 at 17. She stated that this pain significantly impacted her ability to sit for long periods of time, which is the nature of the physical demands of her position as described in the position description. HR (testimony of the appellant); IAF, Tab 7 at 54, 70. She also stated that the pain in her hands affected her ability to type and complete data entry, which is a primary component of her job. HR (testimony of the appellant); IAF, Tab 7 at 54, 71. Additionally, in both the appellant’s January 18, 2019 Statement of Disability and during her hearing testimony, she explained that the increased pain from her related medical conditions required her to take several8 medications, which affected her mobility, alertness, reasoning, and concentration.4 IAF, Tab 7 at 54; HR (testimony of the appellant). The record also includes a January 23, 2019 statement from the appellant’s supervisor, wherein the supervisor stated that the appellant “is a Team Lead and due to medical issues could not continue performing Team Lead duties.” IAF, Tab 7 at 57. The supervisor further explained that another analyst was promoted to the appellant’s position. Id. Additionally, the appellant testified at the hearing that it was her supervisor and a human resources official who had suggested that she apply for disability retirement benefits in the first instance. HR (testimony of the appellant). More generally, the appellant also testified that, due to her medical conditions, there were no positions in the Federal Government or elsewhere for which she would be suitable due to her hand pain, back pain, spinal pain, her general issues with sitting and standing, and the side effects experienced as a result of her medication. Id. Although we acknowledge that the medical evidence of record providing a direct connection between the appellant’s medical condition and an inability to perform the duties of her position appears to be limited to the October 10, 2018 FMLA form completed by the appellant’s physician, IAF, Tab 7 at 71-74, the medical evidence of record nonetheless establishes the diagnoses of the conditions the appellant described, generally describes the symptoms associated 4 The appellant further testified that the side effects of the medications she took for pain significantly impacted her ability to commute, which was a mandatory aspect of her job following the agency’s revocation of her full-time telework accommodation. HR (testimony of the appellant). However, the Board has found that an inability to commute to work is irrelevant to a disability retirement determination. See Livengood v. Office of Personnel Management , 41 M.S.P.R. 568, 574 (1989) (finding that an appellant’s difficulties in commuting to work because of her pain was not a relevant consideration in a disability retirement determination under the Civil Service Retirement System); Jolliffe v. Office of Personnel Management , 23 M.S.P.R. 188, 191 (1984) (same), aff’d, 785 F.2d 320 (Fed. Cir. 1985) (Table). Although these cases involve applications under the Civil Service Retirement System, we discern no reason why the principle is not applicable to applications, such as the one in this case, filed under FERS.9 therewith, and supports the need for the medications she was taking and corroborates the effects of those medications, id. at 20-25, 34-37, 40-45, 58-60. We find that her hearing testimony, which is uncontradicted,5 and other record evidence, such as the supervisor’s statement, enable us to deduce that the appellant’s medical conditions are incompatible with useful and efficient service.6 See Henderson, 117 M.S.P.R. 313, ¶ 19; see also Angel v. Office of Personnel Management, 122 M.S.P.R. 424, ¶ 12 (2015) (explaining that testimony or written statements concerning symptoms that are submitted by the appellant may be entitled to great weight on the matter of disability, especially when such evidence is uncontradicted in the record); Cole v. Office of Personnel Management , 88 M.S.P.R. 54, ¶ 4 (2001) (stating that, in determining the ultimate fact of disability, the appellant’s own testimony of subjective pain and inability to work must be seriously considered, particularly where it is supported by competent medical evidence); Easterwood v. Office of Personnel Management , 48 M.S.P.R. 125, 129 (1991) (stating that when an appellant’s subjective reports of pain and disability are supported by competent medical evidence, they cannot be dismissed as solely self-serving), aff’d, 950 F.2d 731 (Fed. Cir. 1991) (Table). 5 As noted in the initial decision, the OPM representative did not appear for the prehearing conference or the telephonic hearing. ID at 1 n.1. As such, the appellant’s testimony is uncontradicted. 6 Although the administrative judge credited the appellant’s testimony regarding the pain she experiences, she found the aspect of the appellant’s testimony regarding her inability to work “less compelling.” ID at 20 (citing Hillen v. Department of the Army , 35 M.S.P.R. 453 (1987)). The administrative judge did not explain this finding. Moreover, credibility findings made in conjunction with a telephonic hearing are generally not entitled to the degree of deference usually afforded to such findings when the hearing is held either in person or by video conference. Rapp v. Office of Personnel Management, 108 M.S.P.R. 674, ¶ 13 n.5 (2008) (finding that the Board need not defer to an administrative judge’s demeanor-based credibility findings when a hearing is conducted by telephone); see Haebe v. Department of Justice , 288 F.3d 1288, 1301 (Fed. Cir. 2002) (stating that the Board must defer to an administrative judge’s credibility determinations when they are based, explicitly or implicitly, on observing the demeanor of witnesses testifying at a hearing).10 Based on the foregoing, we find that the appellant established by preponderant evidence that her medical conditions are incompatible with useful and efficient service. See Christopherson, 119 M.S.P.R. 635, ¶ 6 (2013); 5 C.F.R. §§ 1201.4(q), 1201.56(b)(2)(ii).7 The appellant established that her medical condition was expected to continue for at least 1 year from the date she applied for disability retirement benefits. Although OPM’s reconsideration decision did not explicitly discuss whether the appellant established that her medical condition was expected to continue for at least 1 year from the date she applied for disability retirement benefits, its July 1, 2019 initial decision concluded that “[t]here was insufficient medical evidence submitted to indicate that [her] conditions are disabling and expected to continue to be disabling for at least one [] year from [her] date of application.” IAF, Tab 7 at 6-9, 47. OPM based this finding on the appellant’s medical evidence stating that, following the appellant’s July 19, 2018 spinal surgery, she would be unable to work for 6 months, and subsequent medical evidence estimating that her recovery from surgery would last 6 months. Id. at 47, 58, 72. Similarly, in the initial decision, the administrative judge concluded that the appellant’s medical evidence “does not indicate that [her] conditions created any limitations or restrictions to her ability to work” beyond 6 months. ID at 21. Although the administrative judge considered the appellant’s 7 While we find that the appellant established that her medical conditions are incompatible with useful and efficient service or retention in her position, we would also alternatively find that the appellant established that her medical conditions caused a deficiency in her performance, conduct, or attendance. See Christopherson, 119 M.S.P.R. 635, ¶ 6. Indeed, the record establishes that the appellant’s physician recommended full-time telework, which the agency initially granted and then subsequently revoked, and that, because the appellant was unable to commute to her office due to the side effects of the various prescription medications she was taking to treat her conditions, she no longer reported to work, resulting in a deficiency in attendance. IAF, Tab 7 at 17, 54, 57-58; HR (testimony of the appellant). Additionally, the appellant’s supervisor stated that the appellant’s attendance was unacceptable. IAF, Tab 7 at 57. Thus, we alternatively find that the appellant’s medical conditions caused a deficiency in her attendance.11 “subjective statement” that her physician stated that the appellant would always require medical attention, she found that those claims “standing alone” are insufficient to meet the preponderant evidence standard. ID at 21. We do not agree that the appellant’s statements regarding the duration of her condition stand alone without other evidentiary support. In a June 18, 2019 summary of an appointment with her physician, the physician noted that, nearly a year later, the appellant still experiences “residual symptoms” following her July 19, 2018 spinal surgery and that she has “some degree of permanent myelopathy” that “further surgery will not change.” IAF, Tab 7 at 45. This medical evidence, in conjunction with the appellant’s testimony that she would always require medical attention for her cervical spinal stenosis with myelopathy, establishes by preponderant evidence that her medical conditions would continue for more than 1 year after the date of her disability retirement application. The appellant established that accommodation of her medical condition was unreasonable. As noted, to be entitled to disability retirement benefits, an appellant must also prove that accommodation of the disabling medical condition must be unreasonable. See Christopherson , 119 M.S.P.R. 635, ¶ 6. In its reconsideration decision, OPM discussed the appellant’s initial telework accommodation and considered that her medical providers requested a “sit to stand” desk, which the agency provided. IAF, Tab 7 at 7. The agency also provided an ergonomic chair as an accommodation. Id. OPM ultimately concluded that there was no evidence showing that these were not reasonable accommodations, that the agency was unable to accommodate the appellant, or that the accommodations were not successful in allowing her to continue to successfully perform the essential duties of her position. Id. In the initial decision, the administrative judge noted that the agency had also offered an ergonomic keyboard in January 2019, but that the appellant declined it. ID at 22; HR (testimony of the appellant); IAF, Tab 7 at 18. Regarding the agency’s revocation of the full -time telework accommodation, the12 administrative judge reasoned that the appellant did not establish “how working from home would effectively accommodate her conditions.” ID at 22. Accordingly, the administrative judge agreed with OPM and found that the appellant failed to establish that the agency failed to accommodate her or that accommodation of her conditions would be unreasonable. Id. Regarding the ergonomic chair and “sit to stand” desk, the appellant clarified that those accommodations were provided before her July 19, 2018 surgery and that, following that surgery, her pain increased such that the equipment was no longer effective. IAF, Tab 15 at 10; HR (testimony of the appellant). The appellant explained that the ineffectiveness of the ergonomic equipment is what led her physician to recommend full -time telework. HR (testimony of the appellant). It is undisputed that, although the agency initially accommodated the appellant’s full-time telework request, it revoked that accommodation after it determined that the appellant was unable to perform her team lead duties from an alternative location away from her office. IAF, Tab 15 at 9; HR (testimony of the appellant). In essence then, the telework accommodation was a temporary one, and the Board has held that temporary accommodation is not sufficient accommodation of a disability. See Gometz v. Office of Personnel Management , 69 M.S.P.R. 115, 123 (1995). Regarding the ergonomic keyboard discussed by the administrative judge, the appellant testified at the hearing that her physicians did not recommend such equipment as an accommodation, and she never requested it from the agency because it would not have been helpful in addressing her conditions. HR (testimony of the appellant). The appellant’s employing agency acknowledged that the appellant declined this accommodation “due to her medical complications.” IAF, Tab 7 at 61-62. The appellant’s testimony regarding the feasibility and reasonableness of these accommodations is uncontradicted in the record. Based on the foregoing, we find that the appellant established by preponderant evidence that accommodation of her medical condition would have been unreasonable.13 The appellant proved that she did not decline a reasonable offer of reassignment to a vacant position. Finally, the appellant is also required to show that she must not have declined an offer of reassignment to a vacant position. See Christopherson, 119 M.S.P.R. 635, ¶ 6. The agency confirmed in its certification of reassignment and accommodation efforts that the appellant was not reassigned to a vacant position, and the appellant testified at the hearing that she was never offered a possible reassignment. IAF, Tab 7 at 61-62; HR (testimony of the appellant). The appellant’s testimony that she was never offered a reassignment is uncontradicted in the record. Accordingly, we find that the appellant met her burden in this regard. In sum, we find that the appellant proved by preponderant evidence that she completed at least 18 months of creditable civilian service; that she suffered from a disabling medical condition that is incompatible with useful and efficient service or retention in the position; that the disabling medical condition was expected to last at least 1 year from the date of her disability retirement application; that accommodation of her medical condition is unreasonable; and that she did not decline a reasonable offer of reassignment to a vacant position. See Christopherson, 119 M.S.P.R. 635, ¶ 6. Based on this showing, we find that the appellant was entitled to disability retirement benefits from the date of her application on December 19, 2018 through November 30, 2019, the date before which her regular FERS retirement annuity commenced. IAF, Tab 7 at 87. ORDER We ORDER OPM to grant the appellant’s application for disability retirement for the period of December 19, 2018, to November 30, 2019. OPM must complete this action no later than 20 days after the date of this decision. We also ORDER OPM to tell the appellant promptly in writing when it believes it has fully carried out the Board’s Order and of the actions it has taken to carry out the Board’s Order. We ORDER the appellant to provide all necessary14 information OPM requests to help it carry out the Board’s Order. The appellant, if not notified, should ask OPM about its progress. See 5 C.F.R. § 1201.181(b). No later than 30 days after OPM tells the appellant 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 OPM did not fully carry out the Board’s Order. The petition should contain specific reasons why the appellant believes OPM has not fully carried out the Board’s Order, and should include the dates and results of any communications with OPM. See 5 C.F.R. § 1201.182(a). This is the final decision of the Merit Systems Protection Board in this appeal. Title 5 of the Code of Federal Regulations, section 1201.113(c) (5 C.F.R. § 1201.113(c)). NOTICE 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 and costs WITHIN 60 CALENDAR DAYS OF THE DATE OF THIS DECISION. You must file your motion for attorney fees and costs with the office that issued the initial decision on your appeal. NOTICE OF APPEAL RIGHTS8 You may obtain review of 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.15 review and the appropriate forum with which to file. 5 U.S.C. § 7703(b). Although we offer the following summary of available appeal rights, the Merit Systems Protection Board does not provide legal advice on which option is most appropriate for your situation and the rights described below do not represent a statement of how courts will rule regarding which cases fall within their jurisdiction. If you wish to seek review of this final decision, you should immediately review the law applicable to your claims and carefully follow all filing time limits and requirements. Failure to file within the applicable time limit may result in the dismissal of your case by your chosen forum. Please read carefully each of the three main possible choices of review below to decide which one applies to your particular case. If you have questions about whether a particular forum is the appropriate one to review your case, you should contact that forum for more information. (1) Judicial review in general . As a general rule, an appellant seeking judicial review of a final Board order must file a petition for review with the U.S. Court of Appeals for the Federal Circuit, which must be received by the court within 60 calendar days of the date of issuance of this decision. 5 U.S.C. § 7703(b)(1)(A). If you submit a petition for review to the U.S. Court of Appeals for the Federal Circuit, you must submit your petition to the court at the following address: U.S. Court of Appeals for the Federal Circuit 717 Madison Place, N.W. Washington, D.C. 20439 Additional information about the U.S. Court of Appeals for the Federal Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.16 If you are interested in securing pro bono representation for an appeal to the U.S. Court of Appeals for the Federal Circuit, you may visit our website at http://www.mspb.gov/probono for information regarding pro bono representation for Merit Systems Protection Board appellants before the Federal Circuit. The Board neither endorses the services provided by any attorney nor warrants that any attorney will accept representation in a given case. (2) Judicial or EEOC review of cases involving a claim of discrimination . This option applies to you only if you have claimed that you were affected by an action that is appealable to the Board and that such action was based, in whole or in part, on unlawful discrimination. If so, you may obtain judicial review of this decision —including a disposition of your discrimination claims —by filing a civil action with an appropriate U.S. district court ( not the U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems Protection Board , 582 U.S. 420 (2017). If you have a representative in this case, and your representative receives this decision before you do, then you must file with the district court no later than 30 calendar days after your representative receives this decision. If the action involves a claim of discrimination based on race, color, religion, sex, national origin, or a disabling condition, you may be entitled to representation by a court-appointed lawyer and to waiver of any requirement of prepayment of fees, costs, or other security. See 42 U.S.C. § 2000e-5(f) and 29 U.S.C. § 794a. Contact information for U.S. district courts can be found at their respective websites, which can be accessed through the link below: http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx . Alternatively, you may request review by the Equal Employment Opportunity Commission (EEOC) of your discrimination claims only, excluding all other issues . 5 U.S.C. § 7702(b)(1). You must file any such request with the17 EEOC’s Office of Federal Operations within 30 calendar days after you receive this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case, and your representative receives this decision before you do, then you must file with the EEOC no later than 30 calendar days after your representative receives this decision. If you submit a request for review to the EEOC by regular U.S. mail, the address of the EEOC is: Office of Federal Operations Equal Employment Opportunity Commission P.O. Box 77960 Washington, D.C. 20013 If you submit a request for review to the EEOC via commercial delivery or by a method requiring a signature, it must be addressed to: Office of Federal Operations Equal Employment Opportunity Commission 131 M Street, N.E. Suite 5SW12G Washington, D.C. 20507 (3) Judicial review pursuant to the Whistleblower Protection Enhancement Act of 2012 . This option applies to you only if you have raised claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D). If so, and your judicial petition for review “raises no challenge to the Board’s disposition of allegations of a prohibited personnel practice described in section 2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i), (B), (C), or (D),” then you may file a petition for judicial review either with the U.S. Court of Appeals for the Federal Circuit or any court of appeals of competent jurisdiction.9 The court of appeals must receive your petition for 9 The original statutory provision that provided for judicial review of certain whistleblower claims by any court of appeals of competent jurisdiction expired on December 27, 2017. The All Circuit Review Act, signed into law by the President on July 7, 2018, permanently allows appellants to file petitions for judicial review of18 review within 60 days of the date of issuance of this decision. 5 U.S.C. § 7703(b)(1)(B). If you submit a petition for judicial review to the U.S. Court of Appeals for the Federal Circuit, you must submit your petition to the court at the following address: U.S. Court of Appeals for the Federal Circuit 717 Madison Place, N.W. Washington, D.C. 20439 Additional information about the U.S. Court of Appeals for the Federal Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11. If you are interested in securing pro bono representation for an appeal to the U.S. Court of Appeals for the Federal Circuit, you may visit our website at http://www.mspb.gov/probono for information regarding pro bono representation for Merit Systems Protection Board appellants before the Federal Circuit. The Board neither endorses the services provided by any attorney nor warrants that any attorney will accept representation in a given case. MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals for the Federal Circuit or any other circuit court of appeals of competent jurisdiction. The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115-195, 132 Stat. 1510.19 Contact information for the courts of appeals can be found at their respective websites, which can be accessed through the link below: http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx . FOR THE BOARD: ______________________________ Gina K. Grippando Clerk of the Board Washington, D.C.20	Long_CharleneDC-844E-20-0243-I-1_Final_Order.pdf	2025-02-19	CHARLENE LONG v. OFFICE OF PERSONNEL MANAGEMENT, MSPB Docket No. DC-844E-20-0243-I-1, February 19, 2025	DC-844E-20-0243-I-1	NP
185	https://www.mspb.gov/decisions/nonprecedential/Tomas_BernadetteDE-831M-24-0104-I-1_Final_Order.pdf	UNITED STATES OF AMERICA MERIT SYSTEMS PROTECTION BOARD BERNADETTE TOMAS, Appellant, v. OFFICE OF PERSONNEL MANAGEMENT, Agency.DOCKET NUMBER DE-831M-24-0104-I-1 DATE: February 19, 2025 THIS FINAL ORDER IS NONPRECEDENTIAL1 Bernadette Tomas , Pagosa Springs, Colorado, pro se. Eva Ukkola , Kevin D. Alexander Sr. , and Alison Pastor , 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 reversed a reconsideration decision of the Office of Personnel Management (OPM) finding that the appellant had received an overpayment in annuity benefits 1 A nonprecedential order is one that the Board has determined does not add significantly to the body of MSPB case law. Parties may cite nonprecedential orders, but such orders have no precedential value; the Board and administrative judges are not required to follow or distinguish them in any future decisions. In contrast, a precedential decision issued as an Opinion and Order has been identified by the Board as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c). under the Civil Service Retirement System (CSRS) on the basis that OPM had failed to meet its burden of proving the existence of the overpayment. For the reasons discussed below, we GRANT the appellant’s petition for review and MODIFY the initial decision to find that OPM failed to prove the existence of the entirety of the $66,438 overpayment debt. The initial decision remains otherwise AFFIRMED. BACKGROUND The following facts have been derived from the notices the appellant provided in response to the administrative judge’s acknowledgment order. The appellant was married to a former Federal employee who retired from Federal service effective November 2, 1997, and who elected to receive a reduced annuity to provide the appellant with a maximum survivor annuity benefit equal to 55% of his basic annuity. Initial Appeal File (IAF), Tab 6 at 15, 40, 177. They divorced, and, by letter dated June 25, 2004, OPM informed the appellant that it would honor a Domestic Relations Order providing her with a survivor annuity award computed based on 55% of her former spouse’s annuity payment as of the date of his retirement. Id. at 37. The appellant began receiving former spouse annuity benefits effective September 1, 2002. Id. at 21. Then, when the appellant’s former spouse passed away on September 7, 2020, the appellant began to receive survivor annuity payments. Id. at 55, 95. Sometime thereafter, the appellant challenged the amount and the calculation of her survivor annuity award with OPM. Id. at 73. In a September 20, 2021 reconsideration decision, OPM denied the appellant’s request for recomputation of her survivor annuity award. Id. at 77-79. Then, by letter dated July 21, 2022, OPM rescinded its June 25, 2004 decision awarding the appellant a survivor annuity award equal to 55% of her former spouse’s annuity payment, and instead determined that the appellant was only entitled to a survivor annuity award computed at 50% of the maximum survivor annuity benefit. Id.2 at 94-97. Subsequently, on February 27, 2023, OPM advised the appellant that because her former spouse’s annuity had not been reduced for the maximum survivor annuity benefit, an overpayment of $6,275.81 had resulted, and OPM intended to seek repayment of the debt in 16 monthly installments. Id. at 121-23. The appellant sought reconsideration of that decision, id. at 127-34, and on June 21, 2023, OPM concluded that it would terminate collection of the $6,275.81 debt. Id. at 145. Then, in a letter dated August 3, 2023, OPM explained its calculation of the overpayment debt for the first time, stating that the appellant’s former spouse’s annuity had not been reduced for survivor benefits, resulting in an overpayment of $66,438. Id. at 154. The letter further noted that the appellant had not received the full amount of her survivor annuity award for the period from September 8, 2020 through January 31, 2023, resulting in an underpayment of $60,162.19 in accrued survivor annuity benefits. Id. OPM stated that it was applying the accrued survivor annuity amount to the overpayment, resulting in a remaining debt of $6,275.81. Id. Nevertheless, OPM informed the appellant that it had “reconsidered and is closing out the remaining claim for $6,275.81 based on [the appellant’s] request.” Id. On November 2, 2023, OPM informed the appellant that it was affirming its initial decision finding that she had been overpaid $6,275.81 in annuity benefits. Id. at 177-80. OPM did not identify the date of the initial decision that it was affirming in that letter. However, the letter identified the $66,438 overpayment amount and the $60,162.19 in “accrued survivor annuity benefits due,” and stated that it had “applied the accrued due to the overpayment leaving a balance of $6,275.81,” but that it was “waiving the uncollected portion of the $6,275.81 which was not collected for the survivor annuity.” Id. at 177-78. The letter also provided the appellant with notice of her right to appeal OPM’s final decision to the Board. Id. at 179.3 The appellant timely filed the instant Board appeal challenging OPM’s November 2, 2023 reconsideration decision. IAF, Tab 1 at 4. She acknowledged that OPM had waived $6,275.81 of the overpayment amount but requested that the Board order OPM to waive the remaining overpayment amount and reimburse the entire $60,162.19 in accrued survivor annuity benefits for the period that she received the reduced survivor annuity award. Id. at 9. After OPM failed to file an agency file, and failed to respond to two show cause orders instructing it to respond to the appeal, IAF, Tabs 5, 7, the administrative judge issued an initial decision reversing OPM’s November 2, 2023 reconsideration decision, IAF, Tab 8, Initial Decision (ID) at 1, 5. The administrative judge identified the issue the appellant was challenging in her appeal as OPM’s November 2, 2023 reconsideration decision affirming its initial decision dated February 27, 2023, assessing an overpayment debt of $6,275.81. ID at 1-2. The administrative judge determined that because OPM had not complied with his orders instructing it to provide evidence concerning the existence of the overpayment, OPM had failed to meet its burden of proving that the overpayment existed. ID at 4. Consequently, the administrative judge reversed OPM’s reconsideration decision and canceled the overpayment debt. ID at 4-5. The appellant has filed a petition for review of the initial decision, arguing that the administrative judge erred by determining that the matter being challenged was the $6,275.81 overpayment debt, and not the entirety of $66,438 overpayment debt identified by OPM, $60,162.19 of which was remaining. Petition for Review (PFR) File, Tab 1 at 4-5, Tab 4 at 4. Specifically, the appellant requests that the Board modify the initial decision to cancel the remaining $60,162.19 overpayment amount and to order OPM to reimburse her the $60,162.19 in accrued survivor annuity benefits that was used to satisfy a portion of the overpayment debt. PFR File, Tab 1 at 5-6, Tab 5 at 6. OPM responded to the appellant’s petition for review, agreeing with the appellant that4 the initial decision failed to address the full extent of the overpayment amount on which the appeal was based and acknowledging that the $6,275.81 overpayment figure that the initial decision reversed had already been waived. PFR File, Tab 4 at 4-5. However, OPM requests that the Board vacate the initial decision reversing OPM’s reconsideration decision and remand the appeal to the regional office to address the appellant’s request to waive the remaining $60,162.19 overpayment debt. PFR File, Tab 4 at 4-5. DISCUSSION OF ARGUMENTS ON REVIEW OPM bears the burden of proving by a preponderance of the evidence that an overpayment has occurred. 5 C.F.R. § 831.1407(a). If the agency is able to show by a preponderance of the evidence that an overpayment has occurred, the burden shifts to the appellant to establish by substantial evidence her entitlement to a waiver or adjustment of the overpayment. 5 C.F.R. § 831.1407(a). Nevertheless, the burden of proof does not shift to the appellant until OPM has proven the existence and amount of an overpayment by a preponderance of the evidence. Id. If OPM does not present evidence that establishes all elements necessary to prove that an overpayment has occurred, “it is not the responsibility of the administrative judge to continue to prod OPM into disgorging sufficient evidence.” Sansom v. Office of Personnel Management , 62 M.S.P.R. 560, 564 (1994); see Owens v. Office of Personnel Management , 45 M.S.P.R. 86, 90 (1990) (finding that OPM had not presented evidence sufficient to prove that the appellant was eligible for Old Age and Survivor Insurance benefits and, given conflicting evidence in the record, the reconsideration decision finding the existence of an overpayment could not be affirmed). In the instant case, OPM did not submit a single filing before the administrative judge. In fact, not only did OPM fail to produce an agency file, but it also failed to respond to any of the administrative judge’s repeated orders to present evidence and argument establishing the existence of an overpayment.5 Because OPM presented no evidence, we discern no basis to disturb the administrative judge’s finding that OPM failed to prove the existence of the overpayment. ID at 4. However, to the extent that the administrative judge indicated that the overpayment debt is $6,275.81, ID at 1-2, the amount of overpayment claimed by OPM is $66,438, IAF, Tab 6 at 154, 177. Accordingly, we modify the initial decision only to clarify that OPM did not prove the existence of an overpayment debt of $66,438. To the extent that the appellant seeks to recover the $60,162.19 in accrued survivor annuity benefits that was used to satisfy a portion of the overpayment debt, PFR File, Tab 1 at 5-6, Tab 5 at 6, the appellant can file a separate Board appeal once she receives a final decision from OPM denying her the accrued survivor annuity benefits, Ramirez v. Office of Personnel Management , 114 M.S.P.R. 511, ¶ 7 (2010) (stating that the Board generally lacks jurisdiction to hear an appeal of a retirement matter before OPM has issued a final or reconsideration decision on the matter). ORDER We ORDER OPM to reverse its November 2, 2023 reconsideration decision finding an overpayment debt of $66,438. OPM must complete this action no later than 20 days after the date of this decision. We also ORDER OPM to tell the appellant promptly in writing when it believes it has fully carried out the Board’s Order and of the actions it has taken to carry out the Board’s Order. We ORDER the appellant to provide all necessary information OPM requests to help it carry out the Board’s Order. The appellant, if not notified, should ask OPM about its progress. See 5 C.F.R. § 1201.181(b). No later than 30 days after OPM tells the appellant 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 OPM did not fully carry out the Board’s Order. The petition should contain specific reasons why the appellant believes OPM has not fully carried out the6 Board’s Order, and should include the dates and results of any communications with OPM. See 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. 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.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. 9 If you submit a request for review to the EEOC by regular U.S. mail, the address of the EEOC is: Office of Federal Operations Equal Employment Opportunity Commission P.O. Box 77960 Washington, D.C. 20013 If you submit a request for review to the EEOC via commercial delivery or by a method requiring a signature, it must be addressed to: Office of Federal Operations Equal Employment Opportunity Commission 131 M Street, N.E. Suite 5SW12G Washington, D.C. 20507 (3) Judicial review pursuant to the Whistleblower Protection Enhancement Act of 2012 . This option applies to you only if you have raised claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D). If so, and your judicial petition for review “raises no challenge to the Board’s disposition of allegations of a prohibited personnel practice described in section 2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i), (B), (C), or (D),” then you may file a petition for judicial review either with the U.S. Court of Appeals for the Federal Circuit or any court of appeals of competent jurisdiction.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	Tomas_BernadetteDE-831M-24-0104-I-1_Final_Order.pdf	2025-02-19	BERNADETTE TOMAS v. OFFICE OF PERSONNEL MANAGEMENT, MSPB Docket No. DE-831M-24-0104-I-1, February 19, 2025	DE-831M-24-0104-I-1	NP
186	https://www.mspb.gov/decisions/nonprecedential/Watzin_James_G_AT-831M-23-0425-I-1_Final_Order.pdf	UNITED STATES OF AMERICA MERIT SYSTEMS PROTECTION BOARD JAMES G. WATZIN, Appellant, v. OFFICE OF PERSONNEL MANAGEMENT, Agency.DOCKET NUMBER AT-831M-23-0425-I-1 DATE: February 19, 2025 THIS FINAL ORDER IS NONPRECEDENTIAL1 James G. Watzin , Queenstown, Maryland, pro se. Jo Bell and Michael Shipley , 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 affirmed the reconsideration decision of the Office of Personnel Management (OPM) finding that he had been overpaid in his retirement annuity and was not entitled to waiver of that overpayment. Both below and on review, the appellant has asserted that OPM has engaged in various missteps and delays. E.g., 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). Appeal File (IAF), Tab 1 at 4, 13, 34. The appellant argues that he planned his retirement around a misunderstanding of how his annuity would be apportioned to account for his divorce from a former spouse, i.e., a misunderstanding for which he faults OPM. Id. In particular, the appellant suggests that he was aware of the final court judgment regarding his divorce and apportionment, from 2010, but a clerical error by OPM prevented him from receiving notice that OPM accepted that 2010 court order as controlling until he received the 2022 notice of his overpayment. Id. at 14, 34. The appellant seems to suggest that he mistakenly assumed that OPM had rejected the 2010 court order, that an earlier court order from 2004 was still controlling, and that the 2004 court order did not provide for apportionment. Id. The appellant further suggests that he would have appealed the 2010 court order if he had known that OPM had accepted it as controlling. IAF, Tab 10 at 6. Generally, we grant petitions such as this one only in the following circumstances: the initial decision contains erroneous findings of material fact; the initial decision is based on an erroneous interpretation of statute or regulation or the erroneous application of the law to the facts of the case; the administrative judge’s rulings during either the course of the appeal or the initial decision were not consistent with required procedures or involved an abuse of discretion, and the resulting error affected the outcome of the case; or new and material evidence or legal argument is available that, despite the petitioner’s due diligence, was not available when the record closed. Title 5 of the Code of Federal Regulations, section 1201.115 (5 C.F.R. § 1201.115). After fully considering the filings in this appeal, we conclude that the petitioner has not established any basis under section 1201.115 for granting the petition for review. Therefore, we DENY the petition for review and AFFIRM the initial decision, which is now the Board’s final decision. 5 C.F.R. § 1201.113(b).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	Watzin_James_G_AT-831M-23-0425-I-1_Final_Order.pdf	2025-02-19	JAMES G. WATZIN v. OFFICE OF PERSONNEL MANAGEMENT, MSPB Docket No. AT-831M-23-0425-I-1, February 19, 2025	AT-831M-23-0425-I-1	NP
187	https://www.mspb.gov/decisions/nonprecedential/Wilson_RochelleDC-0752-21-0025-I-2_Final_Order.pdf	UNITED STATES OF AMERICA MERIT SYSTEMS PROTECTION BOARD ROCHELLE WILSON, Appellant, v. OFFICE OF PERSONNEL MANAGEMENT, Agency.DOCKET NUMBER DC-0752-21-0025-I-2 DATE: February 19, 2025 THIS FINAL ORDER IS NONPRECEDENTIAL1 Rochelle Wilson , Washington, D.C., pro se. Nadia Pluta , Esquire, 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 sustained her removal. On petition for review, the appellant disputes 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). misconduct that the administrative judge found the agency proved, contends that the administrative judge erred in her analysis of whistleblower reprisal and reprisal for engaging in union activity claims, and disagrees with the administrative judge’s finding of a nexus and that the penalty of removal was reasonable. Petition for Review (PFR) File, Tab 7 at 15-29. Generally, we grant petitions such as this one only in the following circumstances: the initial decision contains erroneous findings of material fact; the initial decision is based on an erroneous interpretation of statute or regulation or the erroneous application of the law to the facts of the case; the administrative judge’s rulings during either the course of the appeal or the initial decision were not consistent with required procedures or involved an abuse of discretion, and the resulting error affected the outcome of the case; or new and material evidence or legal argument is available that, despite the petitioner’s due diligence, was not available when the record closed. Title 5 of the Code of Federal Regulations, section 1201.115 (5 C.F.R. § 1201.115). After fully considering the filings in this appeal, we conclude that the petitioner has not established any basis under section 1201.115 for granting the petition for review. Therefore, we DENY the petition for review and AFFIRM the initial decision, which is now the Board’s final decision. 5 C.F.R. § 1201.113(b).2 The appellant attaches evidence to her petition for review, consisting of a 1999 collective bargaining agreement and a 2015 email from the appellant to several other agency officials, describing the history of the “Data Management 2 The appellant requested and was granted permission to amend her petition. PFR File, Tabs 1, 4-5. After the designated deadline for that amendment, she moved to amend her petition two additional times. PFR File, Tabs 8, 10. Those requests are denied. See 5 C.F.R. § 1201.114(a)(5) (2024) (limiting the pleadings parties may submit in connection to a petition for review, and providing that additional pleadings will not be accepted absent leave from the Clerk of the Board, based on a motion describing the nature and need for the pleading). The record in this appeal is sufficiently developed and the appellant has not adequately explained the need for additional pleadings or amendments. 2 Group.” PFR File, Tab 1 at 20-155. To the extent that this evidence is not included in the extensive record below, the appellant has not shown that it was previously unavailable. See Avansino v. U.S. Postal Service , 3 M.S.P.R. 211, 214 (1980) (stating that the Board generally will not consider evidence submitted for the first time with the petition for review absent a showing that it was unavailable before the record was closed despite the party’s due diligence). In any event, its relevance is not apparent to us. The appellant also argued that the agency engaged in harmful procedural errors regarding her placement on administrative leave in 2015, and its choice of proposing and deciding officials. PFR File, Tab 7 at 4-5. However, this was not among the affirmative defenses raised below. See Banks v. Department of the Air Force , 4 M.S.P.R. 268, 271 (1980) (holding that the Board will not consider an argument raised for the first time in a petition for review absent a showing that it is based on new and material evidence not previously available despite the party’s due diligence). Additionally, the appellant has not explained how these alleged errors were harmful.3 See Chin v. Department of Defense , 2022 MSPB 34, ¶ 18 (recognizing that it is an appellant’s burden to prove that a procedural error occurred and that the error substantially prejudiced his rights such that the outcome was probably affected). In sum, we have considered the appellant’s petition, and all arguments contained within, but we find the petition unavailing. 3 The appellant also argues on review that the administrative judge abused her discretion in disallowing certain witnesses. PFR File, Tab 7 at 7-10. However, she did not object to these rulings below, despite having the opportunity to do so, so she is precluded from raising the objection on review. See Tarpley v. U.S. Postal Service , 37 M.S.P.R. 579, 581 (1988) (finding that an appellant’s failure to timely object to the administrative judge’s rulings on witnesses precluded her from doing so on petition for review). Even if she had preserved the argument, the appellant has not shown that the administrative judge’s rulings on these witnesses constituted an abuse of discretion. See Vaughn v. Department of the Treasury , 119 M.S.P.R. 605, ¶ 13 (2013) (declining to find that an administrative judge abused his discretion in denying witnesses in the absence of a showing that their testimony would have been relevant, material, and nonrepetitious).3 NOTICE OF APPEAL RIGHTS4 You may obtain review of this final decision. 5 U.S.C. § 7703(a)(1). By statute, the nature of your claims determines the time limit for seeking such review and the appropriate forum with which to file. 5 U.S.C. § 7703(b). Although we offer the following summary of available appeal rights, the Merit Systems Protection Board does not provide legal advice on which option is most appropriate for your situation and the rights described below do not represent a statement of how courts will rule regarding which cases fall within their jurisdiction. If you wish to seek review of this final decision, you should immediately review the law applicable to your claims and carefully follow all filing time limits and requirements. Failure to file within the applicable time limit may result in the dismissal of your case by your chosen forum. Please read carefully each of the three main possible choices of review below to decide which one applies to your particular case. If you have questions about whether a particular forum is the appropriate one to review your case, you should contact that forum for more information. (1) Judicial review in general . As a general rule, an appellant seeking judicial review of a final Board order must file a petition for review with the U.S. Court of Appeals for the Federal Circuit, which must be received by the court within 60 calendar days of the date of issuance of this decision. 5 U.S.C. § 7703(b)(1)(A). If you submit a petition for review to the U.S. Court of Appeals for the Federal Circuit, you must submit your petition to the court at the following address: 4 Since the issuance of the initial decision in this matter, the Board may have updated the notice of review rights included in final decisions. As indicated in the notice, the Board cannot advise which option is most appropriate in any matter.4 U.S. Court of Appeals for the Federal Circuit 717 Madison Place, N.W. Washington, D.C. 20439 Additional information about the U.S. Court of Appeals for the Federal Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11. If you are interested in securing pro bono representation for an appeal to the U.S. Court of Appeals for the Federal Circuit, you may visit our website at http://www.mspb.gov/probono for information regarding pro bono representation for Merit Systems Protection Board appellants before the Federal Circuit. The Board neither endorses the services provided by any attorney nor warrants that any attorney will accept representation in a given case. (2) Judicial or EEOC review of cases involving a claim of discrimination . This option applies to you only if you have claimed that you were affected by an action that is appealable to the Board and that such action was based, in whole or in part, on unlawful discrimination. If so, you may obtain judicial review of this decision —including a disposition of your discrimination claims —by filing a civil action with an appropriate U.S. district court ( not the U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems Protection Board , 582 U.S. 420 (2017). If you have a representative in this case, and your representative receives this decision before you do, then you must file with the district court no later than 30 calendar days after your representative receives this decision. If the action involves a claim of discrimination based on race, color, religion, sex, national origin, or a disabling condition, you may be entitled to representation by a court-appointed lawyer and to waiver of any5 requirement of prepayment of fees, costs, or other security. See 42 U.S.C. § 2000e-5(f) and 29 U.S.C. § 794a. Contact information for U.S. district courts can be found at their respective websites, which can be accessed through the link below: http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx . Alternatively, you may request review by the Equal Employment Opportunity Commission (EEOC) of your discrimination claims only, excluding all other issues . 5 U.S.C. § 7702(b)(1). You must file any such request with the EEOC’s Office of Federal Operations within 30 calendar days after you receive this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case, and your representative receives this decision before you do, then you must file with the EEOC no later than 30 calendar days after your representative receives this decision. If you submit a request for review to the EEOC by regular U.S. mail, the address of the EEOC is: Office of Federal Operations Equal Employment Opportunity Commission P.O. Box 77960 Washington, D.C. 20013 If you submit a request for review to the EEOC via commercial delivery or by a method requiring a signature, it must be addressed to: Office of Federal Operations Equal Employment Opportunity Commission 131 M Street, N.E. Suite 5SW12G Washington, D.C. 20507 (3) Judicial review pursuant to the Whistleblower Protection Enhancement Act of 2012 . This option applies to you only if you have raised claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D). If so, and your judicial petition for review “raises no challenge to the Board’s6 disposition of allegations of a prohibited personnel practice described in section 2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i), (B), (C), or (D),” then you may file a petition for judicial review either with the U.S. Court of Appeals for the Federal Circuit or any court of appeals of competent jurisdiction.5 The court of appeals must receive your petition for review within 60 days of the date of issuance of this decision. 5 U.S.C. § 7703(b)(1)(B). If you submit a petition for judicial review to the U.S. Court of Appeals for the Federal Circuit, you must submit your petition to the court at the following address: U.S. Court of Appeals for the Federal Circuit 717 Madison Place, N.W. Washington, D.C. 20439 Additional information about the U.S. Court of Appeals for the Federal Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11. If you are interested in securing pro bono representation for an appeal to the U.S. Court of Appeals for the Federal Circuit, you may visit our website at http://www.mspb.gov/probono for information regarding pro bono representation for Merit Systems Protection Board appellants before the Federal Circuit. The Board neither endorses the services provided by any attorney nor warrants that any attorney will accept representation in a given case. 5 The original statutory provision that provided for judicial review of certain whistleblower claims by any court of appeals of competent jurisdiction expired on December 27, 2017. The All Circuit Review Act, signed into law by the President on July 7, 2018, permanently allows appellants to file petitions for judicial review of MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals for the Federal Circuit or any other circuit court of appeals of competent jurisdiction. The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115-195, 132 Stat. 1510. 7 Contact information for the courts of appeals can be found at their respective websites, which can be accessed through the link below: http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx . FOR THE BOARD: ______________________________ Gina K. Grippando Clerk of the Board Washington, D.C.8	Wilson_RochelleDC-0752-21-0025-I-2_Final_Order.pdf	2025-02-19	ROCHELLE WILSON v. OFFICE OF PERSONNEL MANAGEMENT, MSPB Docket No. DC-0752-21-0025-I-2, February 19, 2025	DC-0752-21-0025-I-2	NP
188	https://www.mspb.gov/decisions/nonprecedential/Alston-Emerson_LavitaDC-0752-20-0346-P-2_Final_Order.pdf	UNITED STATES OF AMERICA MERIT SYSTEMS PROTECTION BOARD LAVITA ALSTON-EMERSON, Appellant, v. DEPARTMENT OF DEFENSE, Agency.DOCKET NUMBER DC-0752-20-0346-P-2 DATE: February 10, 2025 THIS FINAL ORDER IS NONPRECEDENTIAL1 Bradley R. Marshall , Mt. Pleasant, South Carolina, for the appellant. Jonathan A. Beyer , APO, AE, for the agency. BEFORE Cathy A. Harris, Chairman* Raymond A. Limon, Vice Chairman Henry J. Kerner, Member The Board members voted on this decision before January 20, 2025. FINAL ORDER The agency has filed a petition for review and the appellant has filed a cross petition for review of the addendum initial decision, which awarded the appellant $106,390.72 in total compensatory damages ($1,390.72 in pecuniary 1 A nonprecedential order is one that the Board has determined does not add significantly to the body of MSPB case law. Parties may cite nonprecedential orders, but such orders have no precedential value; the Board and administrative judges are not required to follow or distinguish them in any future decisions. In contrast, a precedential decision issued as an Opinion and 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 compensatory damages and $105,000 in nonpecuniary compensatory damages). On petition for review, the agency argues that the administrative judge should have reduced the award of pecuniary compensatory damages to exclude medical costs that were incurred after the agency rescinded the removal action, and he should have substantially reduced the award of nonpecuniary compensatory damages. Petition for Review (PFR) File, Tab 1. In her cross petition for review, the appellant argues that the administrative judge should have awarded her deposition costs, front pay, and/or compensation for Defense Finance and Accounting Service (DFAS)-related issues as pecuniary compensatory damages, increased her award of nonpecuniary compensatory damages to $300,000, and awarded her injunctive and declaratory relief, including public posting of discrimination, removal of any adverse materials in her Official Personnel File, and sensitivity training. PFR File, Tab 2. Generally, we grant petitions such as these only in the following circumstances: the initial decision contains erroneous findings of material fact; the initial decision is based on an erroneous interpretation of statute or regulation or the erroneous application of the law to the facts of the case; the administrative judge’s rulings during either the course of the appeal or the initial decision were not consistent with required procedures or involved an abuse of discretion, and the resulting error affected the outcome of the case; or new and material evidence or legal argument is available that, despite the petitioner’s due diligence, was not available when the record closed. Title 5 of the Code of Federal Regulations, section 1201.115 (5 C.F.R. § 1201.115). After fully considering the filings in this appeal, we conclude that neither party has established any basis under section 1201.115 for granting the petition for review or cross petition for review. Therefore, we DENY the petition for review and the cross petition for review and AFFIRM the addendum initial decision, which is now the Board’s final decision. 5 C.F.R. § 1201.113(b). We have considered the parties’ arguments in their petition for review submissions regarding pecuniary compensatory damages, but none warrants a 3 different outcome. For example, we discern no error with the administrative judge’s decision to award pecuniary compensatory damages for treatment dates in 2021 and 2022, particularly where, as here, the administrative judge found that the injuries that led to these treatment dates were connected to the agency’s retaliation. Alston-Emerson v. Department of Defense , MSPB Docket No. DC-0752-20-0346-P-2, Appeal File (P-2 AF), Tab 20, Addendum Initial Decision (AID) at 12-13. Conversely, the appellant has not persuaded us that the administrative judge erred when he determined that she was not entitled to recover deposition costs, front pay, and/or compensation for DFAS-related issues as pecuniary compensatory damages. AID at 13-15. We further find that the administrative judge’s findings regarding the award of nonpecuniary compensatory damages were thoughtful, detailed, and supported by the record, and we are not persuaded by the parties’ assertions on review in this regard. For example, we disagree with the agency’s assertion that an award of $10,000 or $15,000 in nonpecuniary compensatory damages is appropriate. Rather, for the reasons set forth in the AID, the nature and severity of harm suffered by the appellant due to the agency’s retaliation warrants a much higher award. We are not persuaded by the agency’s assertion that the administrative judge improperly exceeded the relevant time frame for evaluating such damages, i.e., after the removal was rescinded. PFR File, Tab 1 at 8 (citing AID at 17). Notably, the medical records cited therein by the administrative judge were dated June 22, 2020 and therefore predated the rescission of the removal action. AID at 17-18 (citing P-2 AF, Tab 13 at 7-8). We are also not persuaded that the administrative judge erred by discussing language from the now-rescinded decision letter in evaluating the appellant’s emotional distress damages. We acknowledge that the administrative judge considered the agency’s “disingenuous” settlement discussions in his evaluation of nonpecuniary compensatory damages; however, we are not persuaded that it was error for him to do so because he found that they directly related to the emotional distress 4 suffered by the appellant during the relevant time period. See AID at 18 (finding that the appellant’s “credible hearing testimony focused on these settlement discussions and the negative impact they had on her”). Finally, we agree with the administrative judge that the harm suffered by the appellant, although long-term, is not permanent or catastrophic and does not warrant an increase to $300,000 in nonpecuniary compensatory damages. AID at 8, 24-25. We have considered the parties’ remaining arguments on review, but none warrants a different outcome. ORDER We ORDER the agency to pay the appellant $106,390.72 in compensatory damages ($1,390.72 in pecuniary compensatory damages and $105,000 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). This is the final decision of the Merit Systems Protection Board on the appellant’s request for compensatory damages. Title 5 of the Code of Federal Regulations, section 1201.113(c) (5 C.F.R. § 1201.113(c)). 5 NOTICE TO THE APPELLANT REGARDING YOUR RIGHT TO REQUEST ATTORNEY FEES AND COSTS You may be entitled to be paid by the agency for your reasonable attorney fees and costs. To be paid, you must meet the requirements set forth at Title 5 of the United States Code (5 U.S.C.), sections 7701(g), 1221(g), or 1214(g). The regulations may be found at 5 C.F.R. §§ 1201.201, 1201.202, and 1201.203. If you believe you meet these requirements, you must file a motion for attorney fees and costs WITHIN 60 CALENDAR DAYS OF THE DATE OF THIS DECISION. You must file your motion for attorney fees and costs with the office that issued the initial decision on your appeal. NOTICE OF APPEAL RIGHTS2 You may obtain review of this final decision. 5 U.S.C. § 7703(a)(1). By statute, the nature of your claims determines the time limit for seeking such review and the appropriate forum with which to file. 5 U.S.C. § 7703(b). Although we offer the following summary of available appeal rights, the Merit Systems Protection Board does not provide legal advice on which option is most appropriate for your situation and the rights described below do not represent a statement of how courts will rule regarding which cases fall within their jurisdiction. If you wish to seek review of this final decision, you should immediately review the law applicable to your claims and carefully follow all filing time limits and requirements. Failure to file within the applicable time limit may result in the dismissal of your case by your chosen forum. Please read 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. 6 about whether a particular forum is the appropriate one to review your case, you should contact that forum for more information. (1) Judicial review in general . As a general rule, an appellant seeking judicial review of a final Board order must file a petition for review with the U.S. Court of Appeals for the Federal Circuit, which must be received by the court within 60 calendar days of the date of issuance of this decision. 5 U.S.C. § 7703(b)(1)(A). If you submit a petition for review to the U.S. Court of Appeals for the Federal Circuit, you must submit your petition to the court at the following address: U.S. Court of Appeals for the Federal Circuit 717 Madison Place, N.W. Washington, D.C. 20439 Additional information about the U.S. Court of Appeals for the Federal Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11. If you are interested in securing pro bono representation for an appeal to the U.S. Court of Appeals for the Federal Circuit, you may visit our website at http://www.mspb.gov/probono for information regarding pro bono representation for Merit Systems Protection Board appellants before the Federal Circuit. The Board neither endorses the services provided by any attorney nor warrants that any attorney will accept representation in a given case. (2) Judicial or EEOC review of cases involving a claim of discrimination . This option applies to you only if you have claimed that you were affected by an action that is appealable to the Board and that such action was based, in whole or in part, on unlawful discrimination. If so, you may obtain 7 judicial review of this decision —including a disposition of your discrimination claims —by filing a civil action with an appropriate U.S. district court ( not the U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems Protection Board , 582 U.S. 420 (2017). If you have a representative in this case, and your representative receives this decision before you do, then you must file with the district court no later than 30 calendar days after your representative receives this decision. If the action involves a claim of discrimination based on race, color, religion, sex, national origin, or a disabling condition, you may be entitled to representation by a court-appointed lawyer and to waiver of any requirement of prepayment of fees, costs, or other security. See 42 U.S.C. § 2000e-5(f) and 29 U.S.C. § 794a. Contact information for U.S. district courts can be found at their respective websites, which can be accessed through the link below: http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx . Alternatively, you may request review by the Equal Employment Opportunity Commission (EEOC) of your discrimination claims only, excluding all other issues . 5 U.S.C. § 7702(b)(1). You must file any such request with the EEOC’s Office of Federal Operations within 30 calendar days after you receive this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case, and your representative receives this decision before you do, then you must file with the EEOC no later than 30 calendar days after your representative receives this decision. 8 If you submit a request for review to the EEOC by regular U.S. mail, the address of the EEOC is: Office of Federal Operations Equal Employment Opportunity Commission P.O. Box 77960 Washington, D.C. 20013 If you submit a request for review to the EEOC via commercial delivery or by a method requiring a signature, it must be addressed to: Office of Federal Operations Equal Employment Opportunity Commission 131 M Street, N.E. Suite 5SW12G Washington, D.C. 20507 (3) Judicial review pursuant to the Whistleblower Protection Enhancement Act of 2012 . This option applies to you only if you have raised claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D). If so, and your judicial petition for review “raises no challenge to the Board’s disposition of allegations of a prohibited personnel practice described in section 2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i), (B), (C), or (D),” then you may file a petition for judicial review either with the U.S. Court of Appeals for the Federal Circuit or any court of appeals of competent jurisdiction.3 The court of appeals must receive your petition for review within 60 days of the date of issuance of this decision. 5 U.S.C. § 7703(b)(1)(B). 3 The original statutory provision that provided for judicial review of certain whistleblower claims by any court of appeals of competent jurisdiction expired on December 27, 2017. The All Circuit Review Act, signed into law by the President on July 7, 2018, permanently allows appellants to file petitions for judicial review of MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals for the Federal Circuit or any other circuit court of appeals of competent jurisdiction. The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115-195, 132 Stat. 1510. 9 If you submit a petition for judicial review to the U.S. Court of Appeals for the Federal Circuit, you must submit your petition to the court at the following address: U.S. Court of Appeals for the Federal Circuit 717 Madison Place, N.W. Washington, D.C. 20439 Additional information about the U.S. Court of Appeals for the Federal Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11. If you are interested in securing pro bono representation for an appeal to the U.S. Court of Appeals for the Federal Circuit, you may visit our website at http://www.mspb.gov/probono for information regarding pro bono representation for Merit Systems Protection Board appellants before the Federal Circuit. The Board neither endorses the services provided by any attorney nor warrants that any attorney will accept representation in a given case. Contact information for the courts of appeals can be found at their respective websites, which can be accessed through the link below: http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx . FOR THE BOARD: ______________________________ Gina K. Grippando Clerk of the Board Washington, D.C. 10 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). 11 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.	Alston-Emerson_LavitaDC-0752-20-0346-P-2_Final_Order.pdf	2025-02-10	null	DC-0752-20-0346-P-2	NP
189	https://www.mspb.gov/decisions/nonprecedential/Booth_David__R_PH-0752-20-0413-I-1_Final_Order.pdf	UNITED STATES OF AMERICA MERIT SYSTEMS PROTECTION BOARD DAVID R. BOOTH JR., Appellant, v. DEPARTMENT OF JUSTICE, Agency.DOCKET NUMBER PH-0752-20-0413-I-1 DATE: February 10, 2025 THIS FINAL ORDER IS NONPRECEDENTIAL1 David R. Booth Jr. , Westminster, Maryland, pro se. Margo Chan , Washington, D.C., for the agency. BEFORE Cathy A. Harris , Chairman* Raymond A. Limon , Vice Chairman Henry J. Kerner, Member *The Board members voted on this decision before January 20, 2025. FINAL ORDER The appellant has filed a petition for review of the initial decision, which sustained his removal. On petition for review, the appellant claims, among other things, that the administrative judge erroneously referenced “incorrect facts” 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). her initial decision and excluded two witnesses who would have offered “different perspectives.” Generally, we grant petitions such as this one only in the following circumstances: the initial decision contains erroneous findings of material fact; the initial decision is based on an erroneous interpretation of statute or regulation or the erroneous application of the law to the facts of the case; the administrative judge’s rulings during either the course of the appeal or the initial decision were not consistent with required procedures or involved an abuse of discretion, and the resulting error affected the outcome of the case; or new and material evidence or legal argument is available that, despite the petitioner’s due diligence, was not available when the record closed. Title 5 of the Code of Federal Regulations, section 1201.115 (5 C.F.R. § 1201.115). After fully considering the filings in this appeal, we conclude that the petitioner has not established any basis under section 1201.115 for granting the petition for review. Therefore, we DENY the petition for review and AFFIRM the initial decision, which is now the Board’s final decision.2 5 C.F.R. § 1201.113(b). 2 The administrative judge found “no merit to the appellant’s claim that his removal was a result of [disability] discrimination.” Initial Appeal File, Tab 26, Initial Decision (ID) at 40-42. We discern no basis in the petition for review to disturb this finding. We interpret this finding as tantamount to one that the appellant did not prove that disability discrimination was a but-for cause of his removal. See Burrage v. U.S. , 571 U.S. 204, 214 (2014) (“[C]ourts regularly read phrases like ‘results from’ to require but-for causality.”). The administrative judge’s application of the but-for causation standard, as the level of proof required for the appellant’s claim of entitlement to full relief, was correct. See Pridgen v. Office of Management and Budget , 2022 MSPB 31, ¶¶ 22, 42. Further, from the administrative judge’s determinations regarding the appellant’s disability discrimination claim, which the appellant does not challenge on review, we find no grounds for concluding that the appellant established disability discrimination based on the motivating factor standard. ID at 40-42; Petition for Review File, Tab 1; see Pridgen, 2022 MSPB 31, ¶¶ 20-22, 42. Finally, we discern no basis for disturbing the administrative judge’s finding that the appellant did not show that religious discrimination was a motivating factor in his removal. ID at 43-45. Accordingly, we need not determine whether religious discrimination constituted a but-for cause of his removal. See Haas v. Department of Homeland Security , 2022 MSPB 36, ¶ 32 (“Because we agree with the administrative judge that the appellant failed to meet the lesser burden of proving his protected activity was a motivating factor in his removal, he necessarily failed to meet the more stringent2 NOTICE OF APPEAL RIGHTS3 You may obtain review of this final decision. 5 U.S.C. § 7703(a)(1). By statute, the nature of your claims determines the time limit for seeking such review and the appropriate forum with which to file. 5 U.S.C. § 7703(b). Although we offer the following summary of available appeal rights, the Merit Systems Protection Board does not provide legal advice on which option is most appropriate for your situation and the rights described below do not represent a statement of how courts will rule regarding which cases fall within their jurisdiction. If you wish to seek review of this final decision, you should immediately review the law applicable to your claims and carefully follow all filing time limits and requirements. Failure to file within the applicable time limit may result in the dismissal of your case by your chosen forum. Please read carefully each of the three main possible choices of review below to decide which one applies to your particular case. If you have questions about whether a particular forum is the appropriate one to review your case, you should contact that forum for more information. (1) Judicial review in general . As a general rule, an appellant seeking judicial review of a final Board order must file a petition for review with the U.S. Court of Appeals for the Federal Circuit, which must be received by the court within 60 calendar days of the date of issuance of this decision. 5 U.S.C. § 7703(b)(1)(A). If you submit a petition for review to the U.S. Court of Appeals for the Federal Circuit, you must submit your petition to the court at the following address: ‘but-for’ standard that applies to the appellant’s retaliation claim.”). 3 Since the issuance of the initial decision in this matter, the Board may have updated the notice of review rights included in final decisions. As indicated in the notice, the Board cannot advise which option is most appropriate in any matter.3 U.S. Court of Appeals for the Federal Circuit 717 Madison Place, N.W. Washington, D.C. 20439 Additional information about the U.S. Court of Appeals for the Federal Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11. If you are interested in securing pro bono representation for an appeal to the U.S. Court of Appeals for the Federal Circuit, you may visit our website at http://www.mspb.gov/probono for information regarding pro bono representation for Merit Systems Protection Board appellants before the Federal Circuit. The Board neither endorses the services provided by any attorney nor warrants that any attorney will accept representation in a given case. (2) Judicial or EEOC review of cases involving a claim of discrimination . This option applies to you only if you have claimed that you were affected by an action that is appealable to the Board and that such action was based, in whole or in part, on unlawful discrimination. If so, you may obtain judicial review of this decision —including a disposition of your discrimination claims —by filing a civil action with an appropriate U.S. district court ( not the U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems Protection Board , 582 U.S. 420 (2017). If you have a representative in this case, and your representative receives this decision before you do, then you must file with the district court no later than 30 calendar days after your representative receives this decision. If the action involves a claim of discrimination based on race, color, religion, sex, national origin, or a disabling condition, you may be entitled to representation by a court-appointed lawyer and to waiver of any4 requirement of prepayment of fees, costs, or other security. See 42 U.S.C. § 2000e-5(f) and 29 U.S.C. § 794a. Contact information for U.S. district courts can be found at their respective websites, which can be accessed through the link below: http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx . Alternatively, you may request review by the Equal Employment Opportunity Commission (EEOC) of your discrimination claims only, excluding all other issues . 5 U.S.C. § 7702(b)(1). You must file any such request with the EEOC’s Office of Federal Operations within 30 calendar days after you receive this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case, and your representative receives this decision before you do, then you must file with the EEOC no later than 30 calendar days after your representative receives this decision. If you submit a request for review to the EEOC by regular U.S. mail, the address of the EEOC is: Office of Federal Operations Equal Employment Opportunity Commission P.O. Box 77960 Washington, D.C. 20013 If you submit a request for review to the EEOC via commercial delivery or by a method requiring a signature, it must be addressed to: Office of Federal Operations Equal Employment Opportunity Commission 131 M Street, N.E. Suite 5SW12G Washington, D.C. 20507 (3) Judicial review pursuant to the Whistleblower Protection Enhancement Act of 2012 . This option applies to you only if you have raised claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D). If so, and your judicial petition for review “raises no challenge to the Board’s5 disposition of allegations of a prohibited personnel practice described in section 2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i), (B), (C), or (D),” then you may file a petition for judicial review either with the U.S. Court of Appeals for the Federal Circuit or any court of appeals of competent jurisdiction.4 The court of appeals must receive your petition for review within 60 days of the date of issuance of this decision. 5 U.S.C. § 7703(b)(1)(B). If you submit a petition for judicial review to the U.S. Court of Appeals for the Federal Circuit, you must submit your petition to the court at the following address: U.S. Court of Appeals for the Federal Circuit 717 Madison Place, N.W. Washington, D.C. 20439 Additional information about the U.S. Court of Appeals for the Federal Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11. If you are interested in securing pro bono representation for an appeal to the U.S. Court of Appeals for the Federal Circuit, you may visit our website at http://www.mspb.gov/probono for information regarding pro bono representation for Merit Systems Protection Board appellants before the Federal Circuit. The Board neither endorses the services provided by any attorney nor warrants that any attorney will accept representation in a given case. 4 The original statutory provision that provided for judicial review of certain whistleblower claims by any court of appeals of competent jurisdiction expired on December 27, 2017. The All Circuit Review Act, signed into law by the President on July 7, 2018, permanently allows appellants to file petitions for judicial review of MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals for the Federal Circuit or any other circuit court of appeals of competent jurisdiction. The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115-195, 132 Stat. 1510. 6 Contact information for the courts of appeals can be found at their respective websites, which can be accessed through the link below: http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx . FOR THE BOARD: ______________________________ Gina K. Grippando Clerk of the Board Washington, D.C.7	Booth_David__R_PH-0752-20-0413-I-1_Final_Order.pdf	2025-02-10	DAVID R. BOOTH JR. v. DEPARTMENT OF JUSTICE, MSPB Docket No. PH-0752-20-0413-I-1, February 10, 2025	PH-0752-20-0413-I-1	NP
190	https://www.mspb.gov/decisions/nonprecedential/Gray_ThomasDE-0752-21-0214-I-1_Remand_Order.pdf	UNITED STATES OF AMERICA MERIT SYSTEMS PROTECTION BOARD THOMAS GRAY, Appellant, v. DEPARTMENT OF THE AIR FORCE, Agency.DOCKET NUMBER DE-0752-21-0214-I-1 DATE: February 10, 2025 THIS ORDER IS NONPRECEDENTIAL1 Thomas Gray , Colorado Springs, Colorado, pro se. Benjamin Signer , Joint Base Andrews, Maryland, for the agency. BEFORE Cathy A. Harris , Chairman* Raymond A. Limon , Vice Chairman Henry J. Kerner , Member *The Board members voted on this decision before January 20, 2025. REMAND ORDER The appellant has filed a petition for review of the initial decision, which dismissed the appeal for lack of jurisdiction. For the reasons discussed below, 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 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. BACKGROUND On June 3, 2020, the parties entered into a “Last Chance Agreement” (LCA) to resolve a February 2020 proposed removal of the appellant, a Cook at the U.S. Air Force Academy, based on his absence without leave (AWOL). Initial Appeal File (IAF), Tab 11 at 10, 57-61. In the LCA, the agency agreed to issue a 15-day suspension in lieu of the removal and to hold the removal in abeyance during a 1-year “probationary period.” Id. at 57. In exchange, the appellant agreed to, inter alia, “comply with all policies and directives as a Federal employee” and waive his Board appeal rights for adverse actions brought against him due to his violation of the LCA. Id. at 57-58. On March 10, 2021, the agency proposed the appellant’s removal, charging him with conduct unbecoming a Federal employee. Id. at 20-21. The specifications alleged that the appellant mocked a coworker on several instances and threatened her when she requested that he stop. Id. at 20. After receiving the appellant’s reply, the deciding official found the charge and specifications supported by a preponderance of the evidence and removed the appellant in a May 10, 2021 decision. Id. at 13-15. The appellant filed an appeal contesting his removal. IAF, Tab 1. After affording the appellant his requested hearing, the administrative judge dismissed the appeal for lack of jurisdiction, finding that the appellant engaged in the charged misconduct and thereby breached the LCA, and that he waived his Board appeal rights. IAF, Tab 24, Initial Decision (ID) at 12. The appellant filed a petition for review, in which he argues that the administrative judge misinterpreted a written statement he submitted and contests the administrative judge’s credibility-related determinations regarding his bias and2 demeanor. Petition for Review (PFR) File, Tab 1. The agency filed a response. PFR File, Tab 3. ANALYSIS When a removal is held in abeyance pursuant to an LCA, and the employee then breaches the agreement and the prior removal is “reinstated,” the penalty of removal is a product of the former misconduct. Tackett v. Department of the Air Force, 80 M.S.P.R. 624, ¶ 8 (1999). In this scenario, once it is determined that a breach occurred, a waiver of the right to appeal the reinstated removal in the LCA will operate to remove the issue of the removal’s reasonableness from the Board’s jurisdiction. See id. The March 10, 2021 notice stated that the agency proposed to remove the appellant for “non-compliance with the [LCA],” but, rather than reinstate the February 2020 removal, it set forth a new charge of conduct unbecoming a Federal employee for his post-LCA misconduct. IAF, Tab 11 at 20. The proposal listed the LCA as an “aggravating factor.” Id. The agency then afforded the appellant due process and procedural protections applicable to adverse actions under 5 U.S.C. chapter 75, including 30 days advance notice, a reply opportunity, and analyses of the penalty under Douglas v. Veterans Administration , 5 M.S.P.R. 280, 305-06 (1981), at both the proposal and decision stages .2 Id. at 13-33. Although the May 10, 2021 decision referenced the LCA and informed the appellant that his Board appeal rights were limited to the issue of whether he violated the LCA, it also informed him he was being removed specifically for conduct unbecoming a Federal employee and was accompanied by an analysis of the Douglas factors explaining that the LCA was only one reason among several justifying the removal. Id. at 13, 15-19. Under these facts, we find that the agency removed the appellant not by reinstating his February 2020 removal for 2 In Douglas, the Board set forth a non-exhaustive list of factors relevant for determining the appropriateness of penalties for misconduct. 5 M.S.P.R. at 305-06.3 AWOL, which was held in abeyance pursuant to the LCA, but through a new personnel action. Jackson v. Department of Justice , 96 M.S.P.R. 498, ¶ 13 (2004) (finding an agency did not reinstate a prior removal held in abeyance under a LCA when it proposed the appellant’s removal on a new charge and afforded him due process and procedural protections applicable to adverse actions taken under 5 U.S.C. chapter 75, including a Douglas factor analysis). The question of whether the appellant waived his right to appeal his removal to the Board in the LCA remains. It is well settled that a waiver of the statutory right of appeal to the Board must be clear, unequivocal, and decisive. E.g., Cason v. Department of the Army, 118 M.S.P.R. 58, ¶ 5 (2012). The waiver in the LCA, paragraph 3.c., states in relevant part: “ . . . [the appellant] waives the following as regards to any disciplinary/adverse or administrative action, up to and including removal, brought against [him] for any of the reasons identified in paragraph 3.b., above : (1) All appeal rights to the [Board].” IAF, Tab 11 at 57 (emphasis added).3 The relevant portion of paragraph 3.b. is the appellant’s commitment to “comply with all policies and directives as a Federal employee.” Id. 3 Although waiver language is also contained in another provision, paragraph 4, IAF, Tab 11 at 58, it does not add anything of substance to the waiver in paragraph 3.c. for purposes of this case.4 Aside from the question of whether the appellant breached the LCA,4 the critical issue is thus whether the May 10, 2021 removal was based on the appellant’s failure to “comply with all policies and directives as a Federal employee.” Id. Based on the text of the proposal and decision, we find that it was not. Even if the appellant’s violation of some policy was implied by reference to the LCA in the removal documentation, nowhere in the proposal or decision was any policy or directive which the appellant was said to have violated identified. Id. at 13-15, 20-22. The appellant’s removal was, rather, for the misconduct described under the charge of conduct unbecoming a Federal employee, a narrative charge with no specific elements of proof. Canada v. Department of Homeland Security , 113 M.S.P.R. 509, ¶ 9 (2010). We recognize that, in her hearing testimony, the deciding official testified as to the significant role a policy violation played in the removal action, but the language of the proposal and decision notices are dispositive. See Licausi v. Office of Personnel Management, 350 F.3d 1359, 1363 n.1 (Fed. Cir. 2003) (noting the due process principle that a person must be given notice of the charge on which the action against him is based). Accordingly, because the appellant did not waive his right to appeal the removal at issue, we remand his appeal for adjudication on the merits. On 4 The administrative judge found that the appellant breached the LCA because he committed the charged misconduct and thereby violated agency policy and directives. ID at 6, 12. However, the only policy the agency claimed that the appellant breached by his offense of “bullying” was Air Force Instruction 36-2710, paragraph 2.5, which prohibits bullying “as defined by [Department of Defense (DOD) Instruction] 1020.03.” IAF, Tab 11 at 6, 38. DOD Instruction 1020.03 defines bullying as “acts of aggression” with the intent of harming an active duty service member. DOD Instruction, 1020.03, Harassment Prevention and Response in the Armed Forces, para. G.2. (2018), https://www.esd.whs.mil/Portals/54/Documents/DD/issuances/dodi/102003p.PDF? ver=DAAzonEUeFb8kUWRb T9Epw%3d%3d. Though the record is not clear on this issue, there is no evidence to suggest that the victim of the appellant’s purported actions was an active duty service member. See, e.g., IAF, Tab 11 at 23 (stating that the appellant’s job interactions are with civilians and occasionally cadets). The relevance of these policies to the current removal action is therefore unclear.5 remand, the administrative judge shall afford the parties the opportunity to submit additional testimony or evidence relevant to any remaining issues. The administrative judge should apply the burden of proof applicable to adverse action appeals, which is generally that the 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); see 5 U.S.C. §§ 7513(a), 7701(c)(1)(B); Douglas, 5 M.S.P.R. at 306-07. Lastly, we note that the administrative judge erred in his assessment of the credibility of the appellant’s hearing testimony in two respects. First, he improperly considered the appellant’s prior discipline as character evidence to establish that he committed the charged misconduct.5 ID at 11. The basic rule is that character evidence may not be introduced to prove or disprove a particular act. Carrick v. U.S. Postal Service , 67 M.S.P.R. 280, 283 (1995) (finding reliance on the appellant’s previous discipline for sleeping on the job as proof of an agency’s new charge of sleeping on the job was error); Fed. R. Evid. 404(a) (1), (b)(1).6 Such character evidence is distinguished from evidence related to a witness’ character for truthfulness, which may be considered in assessing the credibility of testimony. Carrick, 67 M.S.P.R. at 283; Hillen v. Department of the Army, 35 M.S.P.R. 453, 459 (1987). Second, the administrative judge improperly considered the appellant’s bias “to the extent that [the appellant] had 5 The administrative judge cited Bolling v. Department of the Air Force , 9 M.S.P.R. 335, 338-39 (1981), to justify his consideration of the appellant’s prior discipline as character evidence, but his reliance is misplaced, as Bolling only pertained to the level of scrutiny the Board may give to prior discipline considered in selecting an appropriate penalty, and not to the consideration of prior discipline as character evidence probative on a given charge. ID at 11. It is well established that there is nothing improper in considering prior misconduct in determining appropriateness of a penalty. See Douglas, 5 M.S.P.R. at 305. 6 The Federal Rules of Evidence are used as nonbinding guidance by the Board. Social Security Administration v. Long , 113 M.S.P.R. 190, ¶ 35 (2010).6 a clear bias to testify in the manner he did . . . .” ID at 11. Most testimony that an appellant is likely to give, other than admissions, can be characterized as self- serving, and the Board has found that an appellant’s testimony should not be discredited solely on that basis. Thompson v. Department of the Army , 122 M.S.P.R. 372, ¶ 25 (2015); Gamble v. U.S. Postal Service, 6 M.S.P.R. 578, 580- 81 (1981). ORDER For the reasons discussed above, we remand this case to the Denver Field Office for further adjudication in accordance with this Remand Order.7 FOR THE BOARD: ______________________________ Gina K. Grippando Clerk of the Board Washington, D.C. 7 In view of this disposition, it is unnecessary to address the merits of the appellant’s remaining arguments on review.7	Gray_ThomasDE-0752-21-0214-I-1_Remand_Order.pdf	2025-02-10	THOMAS GRAY v. DEPARTMENT OF THE AIR FORCE, MSPB Docket No. DE-0752-21-0214-I-1, February 10, 2025	DE-0752-21-0214-I-1	NP
191	https://www.mspb.gov/decisions/nonprecedential/Ali_CapriceDC-0752-23-0321-I-1_Final_Order.pdf	UNITED STATES OF AMERICA MERIT SYSTEMS PROTECTION BOARD CAPRICE ALI, Appellant, v. DEPARTMENT OF THE AIR FORCE, Agency.DOCKET NUMBER DC-0752-23-0321-I-1 DATE: February 10, 2025 THIS FINAL ORDER IS NONPRECEDENTIAL1 Jay Kyler , Esquire, Williamsburg, Virginia, for the appellant. Chief Labor Law , Joint Base Andrews, Maryland, for the agency. BEFORE Cathy A. Harris, Chairman* Raymond A. Limon, Vice Chairman Henry J. Kerner, Member *The Board members voted on this decision before January 20, 2025. FINAL ORDER The appellant has filed a petition for review of the initial decision, which dismissed her involuntary resignation appeal for lack of jurisdiction. Generally, we grant petitions such as this one only in the following circumstances: the initial decision contains erroneous findings of material fact; the initial decision is 1 A nonprecedential order is one that the Board has determined does not add significantly to the body of MSPB case law. Parties may cite nonprecedential orders, but such orders have no precedential value; the Board and administrative judges are not required to follow or distinguish them in any future decisions. In contrast, a precedential decision issued as an Opinion and Order has been identified by the Board as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c). based on an erroneous interpretation of statute or regulation or the erroneous application of the law to the facts of the case; the administrative judge’s rulings during either the course of the appeal or the initial decision were not consistent with required procedures or involved an abuse of discretion, and the resulting error affected the outcome of the case; or new and material evidence or legal argument is available that, despite the petitioner’s due diligence, was not available when the record closed. Title 5 of the Code of Federal Regulations, section 1201.115 (5 C.F.R. § 1201.115). After fully considering the filings in this appeal, we conclude that the petitioner has not established any basis under section 1201.115 for granting the petition for review. Therefore, we DENY the petition for review and AFFIRM the initial decision, which is now the Board’s final decision. 5 C.F.R. § 1201.113(b). On petition for review, the appellant alleges that she raised a nonfrivolous allegation of Board jurisdiction and that the administrative judge erred by weighing the evidence and resolving the parties’ conflicting assertions to find otherwise. Petition for Review (PFR) File, Tab 1 . Specifically, she contends that the administrative judge accepted the agency’s assertions as true even though “[she] alleged, with supporting evidence, that she was transferred into a position for which she was not qualified and could not become qualified, thus, the [a]gency would have to terminate her.” Id. at 6. We find the appellant’s arguments unavailing. 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 shows that a reasonable person would have been misled by the agency. Searcy v. Department of Commerce , 114 M.S.P.R. 281, ¶ 12 (2010). An appellant claiming that her resignation is involuntary is entitled to a hearing on jurisdiction only if she makes nonfrivolous allegations casting doubt on the presumption of voluntariness. Id., ¶ 10. The appellant ultimately bears the burden of establishing jurisdiction over her appeal2 by a preponderance of the evidence. Vitale v. Department of Veterans Affairs , 107 M.S.P.R. 501, ¶ 17 (2007); 5 C.F.R. § 1201.56(b)(2)(i)(A). To meet the nonfrivolous standard, an appellant need only plead allegations of fact that, if proven, could show jurisdiction. Pariseau v. Department of the Air Force, 113 M.S.P.R. 370, ¶ 14 (2010). Mere pro forma allegations are insufficient to meet the standard. Id. The Board has found that, in determining whether an appellant has made a nonfrivolous allegation of Board jurisdiction, an administrative judge may consider an agency’s documentary submissions; however, to the extent 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. Ferdon v. U.S. Postal Service , 60 M.S.P.R. 325, 329 (1994). Here, the administrative judge analyzed the appellant’s allegations and considered the totality of the circumstances in finding that the appellant did not make a nonfrivolous allegation of Board jurisdiction.2 Initial Appeal File (IAF), Tab 15, Initial Decision (ID) at 4-7. We agree with the administrative judge. Other than her bare assertions that the agency subjected her to discrimination based on race and reassigned her to a position to which she was unqualified, the appellant did not allege facts or offer evidence that would show that her work conditions were so intolerable that she had no choice but to resign. PFR File, Tab 1 at 5-9. Even if we accept as true the appellant’s allegations that the agency improperly reassigned her to a lateral position that she did not qualify for, her unsupported and vague arguments do not constitute nonfrivolous allegations of 2 In the initial decision, the administrative judge discussed the agency’s evidence and argument concerning the appellant’s lateral transfer to the Program Analyst position. ID at 4-5. Although the Board may not deny jurisdiction by crediting the agency’s interpretation of the evidence, Ferdon, 60 M.S.P.R. 325, 329, we find that the administrative judge did not rely on the agency’s interpretation of the evidence, or otherwise weigh evidence, in finding that the appellant failed to nonfrivolously allege that she involuntarily resigned.3 Board jurisdiction. See Briscoe v. Department of Veterans Affairs , 55 F.3d 1571, 1573-74 (Fed. Cir. 1995) (finding that bald allegations standing alone do not meet the nonfrivolous allegation standard); see also Coleman v. Department of the Army, 106 M.S.P.R. 436, ¶ 9 (2007) (stating that pro forma allegations are insufficient to satisfy the nonfrivolous standard). For the reasons stated in the initial decision, we agree that the appellant failed to raise a nonfrivolous allegation of Board jurisdiction over this appeal, and we find that the appellant’s mere disagreement on review with the administrative judge’s findings does not provide a basis for disturbing the initial decision. See Crosby v. U.S. Postal Service , 74 M.S.P.R. 98, 105 -06 (1997); Broughton v. Department of Health & Human Services , 33 M.S.P.R. 357, 359 (1987). NOTICE OF APPEAL RIGHTS3 You may obtain review of this final decision. 5 U.S.C. § 7703(a)(1). By statute, the nature of your claims determines the time limit for seeking such review and the appropriate forum with which to file. 5 U.S.C. § 7703(b). Although we offer the following summary of available appeal rights, the Merit Systems Protection Board does not provide legal advice on which option is most appropriate for your situation and the rights described below do not represent a statement of how courts will rule regarding which cases fall within their jurisdiction. If you wish to seek review of this final decision, you should immediately review the law applicable to your claims and carefully follow all filing time limits and requirements. Failure to file within the applicable time limit may result in the dismissal of your case by your chosen forum. Please read carefully each of the three main possible choices of review below to decide which one applies to your particular case. If you have questions 3 Since the issuance of the initial decision in this matter, the Board may have updated the notice of review rights included in final decisions. As indicated in the notice, the Board cannot advise which option is most appropriate in any matter.4 about whether a particular forum is the appropriate one to review your case, you should contact that forum for more information. (1) Judicial review in general . As a general rule, an appellant seeking judicial review of a final Board order must file a petition for review with the U.S. Court of Appeals for the Federal Circuit, which must be received by the court within 60 calendar days of the date of issuance of this decision. 5 U.S.C. § 7703(b)(1)(A). If you submit a petition for review to the U.S. Court of Appeals for the Federal Circuit, you must submit your petition to the court at the following address: U.S. Court of Appeals for the Federal Circuit 717 Madison Place, N.W. Washington, D.C. 20439 Additional information about the U.S. Court of Appeals for the Federal Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11. If you are interested in securing pro bono representation for an appeal to the U.S. Court of Appeals for the Federal Circuit, you may visit our website at http://www.mspb.gov/probono for information regarding pro bono representation for Merit Systems Protection Board appellants before the Federal Circuit. The Board neither endorses the services provided by any attorney nor warrants that any attorney will accept representation in a given case. (2) Judicial or EEOC review of cases involving a claim of discrimination . This option applies to you only if you have claimed that you were affected by an action that is appealable to the Board and that such action was based, in whole or in part, on unlawful discrimination. If so, you may obtain5 judicial review of this decision —including a disposition of your discrimination claims —by filing a civil action with an appropriate U.S. district court ( not the U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems Protection Board , 582 U.S. 420 (2017). If you have a representative in this case, and your representative receives this decision before you do, then you must file with the district court no later than 30 calendar days after your representative receives this decision. If the action involves a claim of discrimination based on race, color, religion, sex, national origin, or a disabling condition, you may be entitled to representation by a court-appointed lawyer and to waiver of any requirement of prepayment of fees, costs, or other security. See 42 U.S.C. § 2000e-5(f) and 29 U.S.C. § 794a. Contact information for U.S. district courts can be found at their respective websites, which can be accessed through the link below: http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx . Alternatively, you may request review by the Equal Employment Opportunity Commission (EEOC) of your discrimination claims only, excluding all other issues . 5 U.S.C. § 7702(b)(1). You must file any such request with the EEOC’s Office of Federal Operations within 30 calendar days after you receive this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case, and your representative receives this decision before you do, then you must file with the EEOC no later than 30 calendar days after your representative receives this decision. 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.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	Ali_CapriceDC-0752-23-0321-I-1_Final_Order.pdf	2025-02-10	CAPRICE ALI v. DEPARTMENT OF THE AIR FORCE, MSPB Docket No. DC-0752-23-0321-I-1, February 10, 2025	DC-0752-23-0321-I-1	NP
192	https://www.mspb.gov/decisions/nonprecedential/Farquhar_IrinaDC-0432-23-0635-I-1_and_DC-17-0296-B-1_Final_Order.pdf	UNITED STATES OF AMERICA MERIT SYSTEMS PROTECTION BOARD IRINA FARQUHAR, Appellant, v. DEPARTMENT OF THE ARMY, Agency.DOCKET NUMBERS DC-1221-17-0296-B-1 DC-0432-23-0635-I-1 DATE: February 10, 2025 THIS FINAL ORDER IS NONPRECEDENTIAL1 Irina Farquhar , Burke, Virginia, pro se. Jonathan A. Heller and Andrea Saglimbene , Fort Belvoir, Virginia, for the agency. BEFORE Cathy A. Harris, Chairman* Raymond A. Limon, Vice Chairman Henry J. Kerner, Member *The Board members voted on this decision before January 20, 2025. FINAL ORDER The appellant has filed petitions for review of the two initial decisions, which dismissed her appeals for failure to prosecute. Generally, we grant petitions such as this one only in the following circumstances: the initial decision 1 A nonprecedential order is one that the Board has determined does not add significantly to the body of MSPB case law. Parties may cite nonprecedential orders, but such orders have no precedential value; the Board and administrative judges are not required to follow or distinguish them in any future decisions. In contrast, a precedential decision issued as an Opinion and Order has been identified by the Board as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c). contains erroneous findings of material fact; the initial decision is based on an erroneous interpretation of statute or regulation or the erroneous application of the law to the facts of the case; the administrative judge’s rulings during either the course of the appeal or the initial decision were not consistent with required procedures or involved an abuse of discretion, and the resulting error affected the outcome of the case; or new and material evidence or legal argument is available that, despite the petitioner’s due diligence, was not available when the record closed. Title 5 of the Code of Federal Regulations, section 1201.115 (5 C.F.R. § 1201.115). After fully considering the filings in these appeals, we JOIN these appeals,2 and conclude that the petitioner has not established any basis under section 1201.115 for granting the petitions for review. An administrative judge may impose the sanction of dismissal with prejudice if a party fails to prosecute or defend an appeal. Leseman v. Department of the Army , 122 M.S.P.R. 139, ¶ 6 (2015); 5 C.F.R. § 1201.43(b). Absent a showing of abuse of discretion, the Board will not reverse an administrative judge’s determination regarding sanctions. Leseman, 122 M.S.P.R. 139, ¶ 6. Such a sanction should be imposed only when necessary to serve the ends of justice, such as when a party has failed to exercise basic due diligence in complying with Board orders or has exhibited negligence or bad faith in her efforts to comply. Leseman, 122 M.S.P.R. 139, ¶ 6. Although the failure to obey a single order does not ordinarily justify dismissal for failure to prosecute, when an appellant’s repeated failure to respond to multiple Board orders reflects a failure to exercise basic due diligence, the imposition of the sanction of dismissal for failure to prosecute has been found appropriate. Turner v. U.S. Postal Service , 123 M.S.P.R. 640, ¶¶ 14-16 (2016), aff’d, 2 Joinder of two or more appeals filed by the same appellant may be appropriate when joinder would expedite processing of the appeals and would not adversely affect the interests of the parties. Boechler v. Department of the Interior , 109 M.S.P.R. 542, ¶ 14 (2008), aff’d, 328 F. App’x 660 (Fed. Cir. 2009); 5 C.F.R. § 1201.36(a)(2), (b). We find that these appeals meet the regulatory criteria, and therefore, we join them.2 681 F. App’x 934 (Fed. Cir. 2017); Williams v. U.S. Postal Service , 116 M.S.P.R. 377, ¶ 9 (2011); see Heckman v. Department of the Interior , 106 M.S.P.R. 210, ¶ 16 (2007). In a case such as this one, when an appellant’s repeated failure to comply with Board orders reflects a lack of due diligence, and the appellant has been warned of the consequences of such conduct, the sanction of dismissal for failure to prosecute is appropriate. Turner, 123 M.S.P.R. 640, ¶ 16, Leseman, 122 M.S.P.R. 139, ¶ 7. With her petition for review, the appellant has provided a letter from one of her treating physicians discussing her various medical conditions and treatments. Farquhar v. Department of the Army , MSPB Docket No. DC-0432-23-0635-I-1, Petition for Review (0635 PFR) File, Tab 2 at 7-14. To the extent that the appellant is asserting that her failure to comply with the administrative judge’s orders should be excused based on her medical conditions, we conclude that her claim is unsupported. In the physician’s letter, he identifies that he has treated the appellant for a number of psychological and physiological conditions since 2019. Id. at 7-11. The Board has found good cause to reverse the dismissal of an appeal for failure to prosecute when the appellant has proven that her failure to respond to multiple Board orders was due to a health condition. Monley v. U.S. Postal Service, 74 M.S.P.R. 27, 29-30 (1997). However, the appellant has not asserted, and the record does not show, that her various conditions prevented her from complying with the administrative judge’s orders. See Murdock v. Government Printing Office , 38 M.S.P.R. 297, 299 (1988) (declining to excuse an appellant’s failure to respond to an administrative judge’s orders when he claimed on review that he suffered from a medical condition but failed to allege or show that his condition prevented him from complying with those orders). For example, she has not asserted that she was hospitalized, incapacitated, or otherwise physically or mentally unable to understand or to respond to the Board’s orders during the relevant time period. See Malfitano v. Department of the Navy, 63 M.S.P.R. 260, 262 (1994) (finding that general claims of mental and3 emotional impairment, unsupported by medical documentation, did not establish good cause for the untimely filing of a petition for review), aff’d, 45 F.3d 444 (Fed. Cir. 1995) (Table). The appellant also states that she was receiving outpatient therapy out of state for her injuries at the time the show cause orders were issued and the status conferences occurred. 0635 PFR File, Tab 1 at 2-3; Tab 6 at 12-13. To the extent she is alleging that her outpatient therapy treatment prevented her from timely responding to the administrative judge’s orders, she also has provided insufficient evidence to support this claim. See Smith v. Office of Personnel Management , 57 M.S.P.R. 663, 666 (1993) (concluding that the fact that the appellant was out of town during the entire period for filing a petition for review did not constitute good cause for waiver of the filing deadline); cf. Monley, 74 M.S.P.R. at 29-30 & n.2 (1997) (finding that the appellant showed good cause for his failure to comply with the administrative judge’s orders when he submitted a sworn statement and a doctor’s letter detailing how he had been in and out of the hospital for stress -related illnesses and because of medications he had been taking, and had undergone inpatient and outpatient medical treatment during the relevant time period); Reynolds v. Department of Transportation , 17 M.S.P.R. 564, 565-56 (1983) (reversing a dismissal for failure to prosecute when the appellant missed the hearing due to medical reasons related to her third -trimester pregnancy). The appellant has not asserted that she was incapacitated or otherwise unable to participate in the Board proceedings due to her outpatient treatment, and in fact, acknowledged that if she had received the administrative judge’s attempts to contact her by phone, she would have been capable of participating in the scheduled status conference calls. 0635 PFR File, Tab 6 at 11-12. Accordingly, we discern no abuse of discretion in the administrative judge’s decision to dismiss the appeal for failure to prosecute. Therefore, we4 DENY the petitions for review and AFFIRM the initial decisions, which are now the Board’s final decision.3 5 C.F.R. § 1201.113(b). NOTICE OF APPEAL RIGHTS4 You may obtain review of this final decision. 5 U.S.C. § 7703(a)(1). By statute, the nature of your claims determines the time limit for seeking such review and the appropriate forum with which to file. 5 U.S.C. § 7703(b). Although we offer the following summary of available appeal rights, the Merit Systems Protection Board does not provide legal advice on which option is most appropriate for your situation and the rights described below do not represent a statement of how courts will rule regarding which cases fall within their jurisdiction. If you wish to seek review of this final decision, you should immediately review the law applicable to your claims and carefully follow all filing time limits and requirements. Failure to file within the applicable time limit may result in the dismissal of your case by your chosen forum. Please read carefully each of the three main possible choices of review below to decide which one applies to your particular case. If you have questions 3 The appellant also argues on review that her failure to attend the status conference calls or to respond to the administrative judge’s orders should be excused because she lost access to the email address linked to her e-Appeal account. 0635 PFR File, Tab 1 at 3. As a registered e-filer during all relevant times in these appeals, the appellant agreed to accept documents through electronic service, and, further, she was required to monitor her case activity at the Repository in e-Appeal to ensure that she received all case-related documents. Mills v. U.S. Postal Service , 119 M.S.P.R. 482, ¶ 6 (2013); 5 C.F.R. § 1201.14(e), (j)(3) (2021). Additionally, pursuant to 5 C.F.R. § 1201.26, a party is required to notify the appropriate Board office and other parties, in writing, of any changes to their address, telephone number, or email address. The appellant has not alleged that the contact information that she provided when she registered as an e -filer was somehow incorrect, or that she attempted to withdraw as an e-filer or to update her contact method of service, in writing, prior to the issuance of the initial decisions in these 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.5 about whether a particular forum is the appropriate one to review your case, you should contact that forum for more information. (1) Judicial review in general . As a general rule, an appellant seeking judicial review of a final Board order must file a petition for review with the U.S. Court of Appeals for the Federal Circuit, which must be received by the court within 60 calendar days of the date of issuance of this decision. 5 U.S.C. § 7703(b)(1)(A). If you submit a petition for review to the U.S. Court of Appeals for the Federal Circuit, you must submit your petition to the court at the following address: U.S. Court of Appeals for the Federal Circuit 717 Madison Place, N.W. Washington, D.C. 20439 Additional information about the U.S. Court of Appeals for the Federal Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11. If you are interested in securing pro bono representation for an appeal to the U.S. Court of Appeals for the Federal Circuit, you may visit our website at http://www.mspb.gov/probono for information regarding pro bono representation for Merit Systems Protection Board appellants before the Federal Circuit. The Board neither endorses the services provided by any attorney nor warrants that any attorney will accept representation in a given case. (2) Judicial or EEOC review of cases involving a claim of discrimination . This option applies to you only if you have claimed that you were affected by an action that is appealable to the Board and that such action was based, in whole or in part, on unlawful discrimination. If so, you may obtain6 judicial review of this decision —including a disposition of your discrimination claims —by filing a civil action with an appropriate U.S. district court ( not the U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems Protection Board , 582 U.S. 420 (2017). If you have a representative in this case, and your representative receives this decision before you do, then you must file with the district court no later than 30 calendar days after your representative receives this decision. If the action involves a claim of discrimination based on race, color, religion, sex, national origin, or a disabling condition, you may be entitled to representation by a court-appointed lawyer and to waiver of any requirement of prepayment of fees, costs, or other security. See 42 U.S.C. § 2000e-5(f) and 29 U.S.C. § 794a. Contact information for U.S. district courts can be found at their respective websites, which can be accessed through the link below: http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx . Alternatively, you may request review by the Equal Employment Opportunity Commission (EEOC) of your discrimination claims only, excluding all other issues . 5 U.S.C. § 7702(b)(1). You must file any such request with the EEOC’s Office of Federal Operations within 30 calendar days after you receive this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case, and your representative receives this decision before you do, then you must file with the EEOC no later than 30 calendar days after your representative receives this decision. If you submit a request for review to the EEOC by regular U.S. mail, the address of the EEOC is: Office of Federal Operations Equal Employment Opportunity Commission P.O. Box 77960 Washington, D.C. 200137 If you submit a request for review to the EEOC via commercial delivery or by a method requiring a signature, it must be addressed to: Office of Federal Operations Equal Employment Opportunity Commission 131 M Street, N.E. Suite 5SW12G Washington, D.C. 20507 (3) Judicial review pursuant to the Whistleblower Protection Enhancement Act of 2012 . This option applies to you only if you have raised claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D). If so, and your judicial petition for review “raises no challenge to the Board’s disposition of allegations of a prohibited personnel practice described in section 2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i), (B), (C), or (D),” then you may file a 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	Farquhar_IrinaDC-0432-23-0635-I-1_and_DC-17-0296-B-1_Final_Order.pdf	2025-02-10	IRINA FARQUHAR v. DEPARTMENT OF THE ARMY, MSPB Docket No. DC-0432-23-0635-I-1, February 10, 2025	DC-1221-17-0296-B-1; DC-0432-23-0635-I-1	NP
193	https://www.mspb.gov/decisions/nonprecedential/Roehrdanz_ErikSF-0714-20-0216-I-1_Remand_Order.pdf	UNITED STATES OF AMERICA MERIT SYSTEMS PROTECTION BOARD ERIK ROEHRDANZ, Appellant, v. DEPARTMENT OF VETERANS AFFAIRS, Agency.DOCKET NUMBER SF-0714-20-0216-I-1 DATE: February 10, 2025 THIS ORDER IS NONPRECEDENTIAL1 Erik Roehrdanz , Miami, Florida, pro se. Camille D. Stroughter , Esquire, Oakland, California, for the agency. BEFORE Cathy A. Harris, Chairman* Raymond A. Limon, Vice Chairman Henry J. Kerner, Member *The Board members voted on this decision before January 20, 2025. REMAND ORDER The agency has filed a petition for review of the initial decision, which reversed the appellant’s performance-based reduction in grade and pay under 1 A nonprecedential order is one that the Board has determined does not add significantly to the body of MSPB case law. Parties may cite nonprecedential orders, but such orders have no precedential value; the Board and administrative judges are not required to follow or distinguish them in any future decisions. In contrast, a precedential decision issued as an Opinion and Order has been identified by the Board as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c). 38 U.S.C. § 714. For the reasons discussed below, we GRANT the agency’s petition for review, VACATE the initial decision , and REMAND the case to the regional office for further adjudication in accordance with this Remand Order. BACKGROUND The appellant was a GS-12 Supervisory Veterans Service Representative for the agency. Initial Appeal File (IAF), Tab 1 at 1, Tab 7 at 15. According to the appellant’s position description, “The supervisor plans and assigns work priorities for his/her subordinates – usually a work team of approximately 6-15 administrative employees ranging from GS-5 to GS-12--and has final technical authority over the final work product.” IAF, Tab 7 at 29 (punctuation as in original). The appellant’s performance plan contained four critical elements and one non-critical element. IAF, Tab 4 at 4-6. Each element was rated on a 3-tier scale: unacceptable, fully successful, or exceptional. Id. at 7. The summary rating was on a 5-tier scale and was derived according to the ratings on the individual elements. Id. at 8. However, a rating of unacceptable in even one critical element would result in a rating of unacceptable overall. Id. One critical element in the appellant’s performance plan was “Supervision.” Id. at 15. Among other things, the Supervision element requires that supervisors accurately manage and certify their subordinates’ timecards by 10:00 a.m. the Friday they are due, complete monthly performance reviews with each subordinate by the 15th of every month, and complete other tasks within designated timeframes. Id. On or about September 20, 2019, the appellant received a summary rating of unacceptable for the 2019 performance year due to a rating of unacceptable in the Supervision element. Id. at 4-8. In support of this rating, the agency cited six instances during the performance year in which the appellant failed to meet the criteria set forth therein. IAF, Tab 4 at 7, Tab 7 at 19-20. Specifically, the agency stated that the appellant once certified a timecard incorrectly, once failed2 to certify timecards on time, twice failed to complete monthly performance reviews on time, and twice failed to complete other designated tasks on time. IAF, Tab 7 at 19-20. On December 12, 2019, the agency proposed the appellant’s reduction in grade and pay under 38 U.S.C. § 714 based on a charge of failure to demonstrate acceptable performance in the Supervision element during the 2019 performance year. Id. at 19-22. After the appellant responded, the agency issued a decision reducing the appellant in grade and pay to the nonsupervisory position of GS-11 Veterans Service Representative, effective January 19, 2020. Id. at 15-18. The appellant filed a Board appeal, challenging the merits of the agency’s action and raising an affirmative defense of whistleblower reprisal. IAF, Tab 1 at 3, Tab 19 at 4. After a hearing, the administrative judge issued an initial decision reversing the reduction in grade and pay. IAF, Tab 56, Initial Decision (ID). She found that the agency proved its charge and that the appellant failed to prove his affirmative defense. ID at 13-15, 18-22. Nevertheless, the administrative judge found that the agency failed to support its choice of penalty by substantial evidence. ID at 15-17. Specifically, she found that, after the fifth time the appellant failed to meet the requirements of the Supervision element, his second-level supervisor warned him that any additional failures in this regard would result in a performance improvement plan (PIP). ID at 5, 16. The administrative judge found that, under these circumstances, the appellant was not on clear notice that he might face disciplinary action, without an opportunity to improve, for failing to meet his performance standards. ID at 16. Finding no indication that the deciding official considered this strongly mitigating penalty factor, and lacking the authority to mitigate the penalty, the administrative judge reversed the action in its entirety. ID at 16-17.3 The agency has filed a petition for review, disputing the administrative judge’s penalty analysis.2 Petition for Review (PFR) File, Tab 1. The appellant has filed a response. PFR File, Tab 3. ANALYSIS In an appeal of an adverse action taken under 38 U.S.C. § 714(a), the agency bears the burden of proving its charges by substantial evidence. 38 U.S.C. § 714(d)(2)(a). If the agency meets this standard, the Board may not mitigate the agency’s chosen penalty, but it is nevertheless required to review the penalty as part of the agency’s overall decision. 38 U.S.C. § 714(d)(2)(B), (3)(C); Sayers v. Department of Veterans Affairs , 954 F.3d 1370, 1375-79 (Fed. Cir. 2020). On review, neither party disputes that the agency proved its charge by substantial evidence. ID at 13-15. Nor does either party dispute the administrative judge’s findings on the whistleblower defense. ID at 18-22. The agency does, however, dispute the administrative judge’s penalty analysis. PFR File, Tab 1. In her initial decision, the administrative judge found that the deciding official conscientiously considered several of the factors listed in Douglas v. Veterans Administration , 5 M.S.P.R. 280, 305-06 (1981). ID at 15-16. Nevertheless, she found that the inaccurate indication to the appellant that he would be placed on a PIP after any further performance problems was of such overriding concern that the deciding official’s failure to consider this matter rendered his penalty determination unworthy of deference. ID at 16. The administrative judge further found that the appellant could not have reasonably 2 The agency also argues that the administrative judge erred by requiring it to prove a nexus between the appellant’s performance deficiency and the efficiency of the service. Petition for Review File, Tab 1 at 16-17. Unless the agency is attempting to reserve the right to discipline employees for conduct that does not affect the efficiency of the service, we do not understand its reason for making this argument. In any event, the issue is immaterial to this appeal because a demonstrated performance deficiency obviously satisfies the nexus requirement. 4 expected to face disciplinary action without first being provided the promised opportunity to improve his performance and that this factor weighed so strongly against the chosen penalty that the agency failed to carry its burden on this matter. ID at 17. On petition for review, the agency argues that the administrative judge applied the wrong standard of review to its penalty determination. PFR File, Tab 1 at 9-13. We are not convinced that the administrative judge applied anything other than substantial evidence review, as required by Sayers. ID at 11, 15-17. Nevertheless, regardless of the standard of review applied, we disagree with the administrative judge’s analysis. Although the agency should not have warned the appellant of one course of action and then taken another, we do not see why this error should affect the propriety of its penalty selection.3 First, we disagree with the administrative judge’s characterization of this penalty factor. Under Douglas, 5 M.S.P.R. at 305, the Board will consider “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,” not “the clarity with which the appellant was on notice that he might face disciplinary action” for violating those rules. ID at 16. In this case, it is undisputed that the appellant was aware of his performance standards and that the agency reminded him of those standards after each instance cited in the proposal notice. ID at 3-5; IAF, Tab 4 at 4, Tab 7 at 19-20. Second, the administrative judge referred to the appellant’s “reliance” on the agency’s inaccurate statement that he would be 3 Arguably, the administrative judge’s assessment of this penalty factor was tantamount to a finding of harmful procedural error. ID at 16-17. However, we find no basis in law to conclude that the agency’s warning to the appellant that he would be placed on a PIP created any sort of rule or was otherwise binding on the agency. See Scott v. Department of Justice , 69 M.S.P.R. 211, 242 (1995) (finding that the appellant did not prove his claim of harmful error because he failed to identify any rule or regulation that the agency violated in the application of its procedures), aff’d, 99 F.3d 1160 (Fed. Cir. 1996) (Table). The Board’s jurisdiction does not cover all matters involving a Federal employee that may be unfair or incorrect. Johnson v. U.S. Postal Service , 67 M.S.P.R. 573, 577 (1995).5 placed on a PIP. ID at 17 n.8. However, our review of the record reveals no evidence to show that the appellant made any reliance on that statement or changed his position for the worse because of it. In fact, it is difficult to envision what such reliance would look like short of complacency in the face of an impending PIP. There is nothing in the record to suggest that the appellant engaged in such an irresponsible course of action, and even if he had, this would hardly amount to a mitigating circumstance. Third, even if this penalty factor had weighed in the appellant’s favor, it is just one of many relevant factors to be considered in determining an appropriate penalty. See Singh v. U.S. Postal Service, 2022 MSPB 15, ¶ 18. For these reasons, we find that the agency’s misrepresentation to the appellant was not a mitigating factor, much less a factor so strongly mitigating that the agency’s penalty determination could not survive substantial evidence review. We further find that the current record contains substantial evidence to support the agency’s penalty selection. The deciding official explained that he considered the appellant’s performance deficiencies and their actual effect on the agency’s mission and the morale of his subordinates. Hearing Recording (HR), Track 7 at 38:50 (testimony of the deciding official). He considered the particular circumstances of the appellant’s case, including his belief that the appellant could still provide useful and efficient service in a nonsupervisory position, and he made efforts to ensure that the appellant would incur as little loss of pay as possible as a result of his demotion. Id. at 43:30 (testimony of the deciding official). Because the deciding official considered the appropriate penalty factors and because a reduction in grade generally is seen as a reasonable penalty for unsatisfactory performance, see, e.g., Madison v. Defense Logistics Agency, 48 M.S.P.R. 234, 239 (1991); O’Reilly v. Community Services Administration, 16 M.S.P.R. 44, 48 (1983); see also 5 U.S.C. § 4303(a) (prescribing reduction in grade and removal as penalties for unacceptable6 performance under 5 U.S.C. chapter 43), we find substantial evidence to support the agency’s penalty determination.4 Nevertheless, this appeal must be remanded for a different reason. Specifically, the record shows that the deciding official found the charge proven by substantial evidence. IAF, Tab 7 at 16; HR, Track 7 at 33:20 (testimony of the deciding official). However, after the initial decision in this appeal was issued, the U.S. Court of Appeals for the Federal Circuit (Federal Circuit) issued a precedential decision in Rodriguez v. Department of Veterans Affairs , 8 F.4th 1290, 1296-1301 (Fed. Cir. 2021), holding that substantial evidence is the standard of review to be applied by the Board during its review of an agency action, not by the agency in taking the action. Id. at 1298-1300. The court reasoned that, because 38 U.S.C. § 714 requires an agency’s deciding official to “determine” whether “the performance or misconduct . . . warrants” the action at issue, the deciding official must use a preponderance of the evidence standard of proof. Id. at 1298-1301. The court’s decision in Rodriguez applies to all pending cases, regardless of when the events at issue took place. See Lee v. Department of Veterans Affairs, 2022 MSPB 11, ¶ 16 (recognizing that a new precedential Federal Circuit decision applied to all cases pending with the Board). Because the administrative judge and the parties did not have the benefit of Rodriguez, they were unable to address its impact. We therefore remand this case for adjudication of whether the agency’s apparent error in applying the substantial evidence standard of proof was 4 Even if the agency fails to prove by substantial evidence that its chosen penalty was reasonable, the remedy is not to reverse the action completely. Rather, “if the Board determines that the [agency] failed to consider the Douglas factors or that the chosen penalty is unreasonable, the Board must remand to the [agency] for a redetermination of the penalty.” Connor v. Department of Veterans Affairs , 8 F.4th 1319, 1326-27 (Fed. Cir. 2021) (citing Brenner v. Department of Veterans Affairs , 990 F.3d 1313, 1325 (Fed. Cir. 2021)).7 harmful.5 On remand, the administrative judge should provide the parties with an opportunity to present evidence and argument addressing whether the agency’s use of the substantial evidence standard constituted harmful error. See 5 U.S.C. § 7701(a)(1). The administrative judge should then address this affirmative defense in a new initial decision. 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 allow the parties to submit evidence and argument, including a supplemental hearing, if appropriate, on the harmful error issue discussed above. See supra ¶¶ 11-13. The administrative judge shall then issue a new initial decision consistent with this Order. 5 In Semenov v. Department of Veterans Affairs , 2023 MSPB 16, ¶ 23, the Board found it appropriate to apply the harmful error standard from 5 U.S.C. § 7701(c)(2) to actions taken under 38 U.S.C. § 714. A harmful error is an error by the agency in the application of its procedures that is likely to have caused the agency to reach a different conclusion from the one it would have reached in the absence or cure of the error. Id.; Ronso v. Department of the Navy , 122 M.S.P.R. 391, ¶ 14 (2015); 5 C.F.R. § 1201.4(r). The appellant bears the burden of proving harmful error by preponderant evidence. 5 C.F.R. § 1201.56(b)(2)(i)(C).8 The administrative judge may incorporate findings from the previous initial decision to the extent that they are not inconsistent with this Order or with any additional evidence submitted on remand. Regardless of whether the appellant proves harmful error in the agency’s application of the substantial evidence burden of proof in the removal decision, if any argument or evidence on remand affects the administrative judge’s analysis of the appellant’s affirmative defenses or the agency’s penalty, she should address such argument or evidence in the remand initial decision. See Semenov v. Department of Veterans Affairs , 2023 MSPB 16, ¶ 25. FOR THE BOARD: ______________________________ Gina K. Grippando Clerk of the Board Washington, D.C.9	Roehrdanz_ErikSF-0714-20-0216-I-1_Remand_Order.pdf	2025-02-10	ERIK ROEHRDANZ v. DEPARTMENT OF VETERANS AFFAIRS, MSPB Docket No. SF-0714-20-0216-I-1, February 10, 2025	SF-0714-20-0216-I-1	NP

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