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194 | https://www.mspb.gov/decisions/nonprecedential/Martin_Janet_M_DE-0831-23-0256-I-1_Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
JANET M. MARTIN,
Appellant,
v.
OFFICE OF PERSONNEL
MANAGEMENT,
Agency.DOCKET NUMBER
DE-0831-23-0256-I-1
DATE: February 10, 2025
THIS FINAL ORDER IS NONPRECEDENTIAL1
Janet M. Martin , Loveland, Colorado, pro se.
Angerlia D. Johnson and Alison Pastor , 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
dismissed her appeal regarding Federal retirement benefits for lack of
jurisdiction. On petition for review, the appellant renews her argument that she
has been wrongfully deprived of a survivor annuity and other retirement 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1 A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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 Federal Employees’ Retirement System and the Civil Service
Retirement System. Generally, we grant petitions such as this one only in the
following circumstances: the initial decision contains erroneous findings of
material fact; the initial decision is based on an erroneous interpretation of statute
or regulation or the erroneous application of the law to the facts of the case; the
administrative judge’s rulings during either the course of the appeal or the initial
decision were not consistent with required procedures or involved an abuse of
discretion, and the resulting error affected the outcome of the case; or new and
material evidence or legal argument is available that, despite the petitioner’s due
diligence, was not available when the record closed. Title 5 of the Code of
Federal Regulations, section 1201.115 (5 C.F.R. § 1201.115). After fully
considering the filings in this appeal, we conclude that the petitioner has not
established any basis under section 1201.115 for granting the petition for review.
Therefore, we DENY the petition for review and AFFIRM the initial decision,
which is now the Board’s final decision.2 5 C.F.R. § 1201.113(b).
NOTICE OF APPEAL RIGHTS3
You may obtain review of this final decision. 5 U.S.C. § 7703(a)(1). By
statute, the nature of your claims determines the time limit for seeking such
review and the appropriate forum with which to file. 5 U.S.C. § 7703(b).
2 As explained in the initial decision, the Board lacks jurisdiction over this appeal
because the Office of Personnel Management (OPM) has not issued a reconsideration or
other final decision. Initial Appeal File (IAF), Tab 16, Initial Decision (ID) at 2; see
5 U.S.C. § 8461(e)(1); 5 U.S.C. § 8347(d)(1); Okello v. Office of Personnel
Management, 120 M.S.P.R. 498, ¶ 14 (2014); Reid v. Office of Personnel Management ,
120 M.S.P.R. 83, ¶ 6 (2013); 5 C.F.R. § 831.110; 5 C.F.R. § 841.308. Below OPM
indicated its intent to issue an initial decision with reconsideration rights when the
initial decision became final. IAF, Tab 13. In the initial decision, the administrative
judge expressed his expectation that OPM would promptly issue a decision. ID at 2.
We share the administrative judge’s expectation that OPM will promptly issue a
decision now that the initial decision is final.
3 Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise which option is most appropriate in any matter.2
Although we offer the following summary of available appeal rights, the Merit
Systems Protection Board does not provide legal advice on which option is most
appropriate for your situation and the rights described below do not represent a
statement of how courts will rule regarding which cases fall within their
jurisdiction. If you wish to seek review of this final decision, you should
immediately review the law applicable to your claims and carefully follow all
filing time limits and requirements. Failure to file within the applicable time
limit may result in the dismissal of your case by your chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the following
address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.3
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. 420 (2017). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the district court no later than 30 calendar days after your representative
receives this decision. If the action involves a claim of discrimination based on
race, color, religion, sex, national origin, or a disabling condition, you may be
entitled to representation by a court-appointed lawyer and to waiver of any
requirement of prepayment of fees, costs, or other security. See 42 U.S.C.
§ 2000e-5(f) and 29 U.S.C. § 794a.
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702(b)(1). You must file any such request with the4
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or
other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
disposition of allegations of a prohibited personnel practice described in section
2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i),
(B), (C), or (D),” then you may file a petition for judicial review either with the
U.S. Court of Appeals for the Federal Circuit or any court of appeals of
competent jurisdiction.4 The court of appeals must receive your petition for
4 The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of5
review within 60 days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(B).
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the following
address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115-195,
132 Stat. 1510. 6
Contact information for the courts of appeals can be found at their
respective websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
FOR THE BOARD: ______________________________
Gina K. Grippando
Clerk of the Board
Washington, D.C.7 | Martin_Janet_M_DE-0831-23-0256-I-1_Final_Order.pdf | 2025-02-10 | JANET M. MARTIN v. OFFICE OF PERSONNEL MANAGEMENT, MSPB Docket No. DE-0831-23-0256-I-1, February 10, 2025 | DE-0831-23-0256-I-1 | NP |
195 | https://www.mspb.gov/decisions/nonprecedential/Lawson_Wayne_A_PH-0752-21-0147-I-1_Remand_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
WAYNE A. LAWSON,
Appellant,
v.
SOCIAL SECURITY
ADMINISTRATION,
Agency.DOCKET NUMBER
PH-0752-21-0147-I-1
DATE: February 7, 2025
THIS ORDER IS NONPRECEDENTIAL1
Michael Fallings , Esquire, Austin, Texas, for the appellant.
Jaymin Parekh , Esquire, and Julie Tong , Esquire, Baltimore, 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 his appeal as res judicata. 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 regional office for further adjudication in accordance
with this Remand Order.
BACKGROUND
The appellant formerly held the position of Supervisory Management
Analyst, GS-14, in the agency’s Office of Realty Management. Lawson v. Social
Security Administration , MSPB Docket No. PH-0752-21-0147-I-1, Initial Appeal
File (0147 IAF), Tab 6 at 12. On July 13, 2020, the agency proposed to demote
him to the position of Management Analyst, GS-13, in the Office of Media and
Logistics Management, based on alleged misconduct. Id. at 13. That same day,
the appellant filed an equal employment opportunity (EEO) complaint, in which
he alleged that he had suffered harassment based on race and disability when,
among other things, the agency proposed his demotion. Id. at 24-26. The agency
partially accepted the complaint but dismissed the claim involving the proposed
demotion, as the proposal was only a preliminary step. Id. at 27-28.
Effective August 30, 2020, the agency demoted the appellant to the GS-13
Management Analyst position. Id. at 43-52. On September 24, 2020, the
appellant emailed the agency’s EEO office, asking to amend his pending
complaint to include the effected demotion. Id. at 53-54. Shortly thereafter, on
September 29, 2020, the appellant filed a Board appeal contesting his demotion.
Id. at 55-65; Lawson v. Social Security Administration , MSPB Docket No.
PH-0752-20-0483-I-1, Initial Appeal File (0483 IAF), Tab 1. On October 9,
2020, the agency informed the appellant that it had accepted his request to amend
his EEO complaint. 0147 IAF, Tab 6 at 66-67.
On October 19, 2020, the agency moved to dismiss the Board appeal,
arguing that the Board lacked jurisdiction because the appellant had elected to
challenge his demotion by filing an EEO complaint. 0483 IAF, Tab 4. The
administrative judge issued an order explaining that the appeal appeared to be2
premature, as the agency had not issued a final agency decision (FAD) and
120 days had not yet passed since the appellant’s EEO complaint was amended to
include the demotion.2 0483 IAF, Tab 6 at 1-2; see 5 C.F.R. § 1201.154(b). The
administrative judge directed the parties to submit evidence and argument on the
jurisdictional issue. Id. at 2. The appellant did not provide a substantive
response to the order but instead filed a pleading consisting of the following
sentence: “The Appellant, Wayne Lawson, by and through his undersigned
counsel, hereby moves that his above-captioned MSPB appeal be withdrawn with
prejudice.” 0483 IAF, Tab 8 at 4.
On November 2, 2020, the administrative judge issued an initial decision
dismissing the appeal. 0483 IAF, Tab 9, Initial Decision (0483 ID). She
explained that the appellant, through counsel, had indicated that he wished to
withdraw his appeal with prejudice and found that that his withdrawal was
voluntary and unequivocal. Id. at 1. She further noted that the withdrawal of an
appeal is final and serves to remove the case from the Board’s jurisdiction.
Id. at 2 (citing Lincoln v. U.S. Postal Service , 113 M.S.P.R. 486, ¶ 7 (2010)).
Given the appellant’s decision to withdraw his appeal, the administrative judge
did not make a finding as to whether the appeal would have otherwise been ripe
2 To challenge an adverse action an employee believes resulted from prohibited
discrimination, the employee may file an EEO complaint with the employing agency or
a mixed case appeal with the Board, but not both. 29 C.F.R. § 1614.302(b). Whichever
is filed first is deemed to be an election to proceed in that forum. Id. When, as in this
case, an appellant first has timely filed a formal complaint of discrimination with the
agency, an appeal to the Board must be filed within 30 days after the appellant receives
a FAD on the discrimination issue. 29 C.F.R. § 1201.154(b)(1). Alternatively, if the
agency has not resolved the matter or issued its final decision within 120 days, an
appellant may appeal the matter directly to the Board. 29 C.F.R. § 1201.154(b)(2).3
for adjudication.3 The initial decision became final when neither party filed a
petition for review.
On February 9, 2021, the agency issued a FAD on the mixed-case portion
of the appellant’s complaint, finding that he did not establish disparate treatment
or retaliation in connection with his demotion. 0147 IAF, Tab 6 at 85-106. On
March 10, 2021, the appellant filed the instant Board appeal. 0147 IAF, Tab 1.
The administrative judge assigned to the new appeal issued a show-cause
order, explaining that the appeal appeared to be barred under the doctrine of
res judicata, given the result of the prior appeal. 0147 IAF, Tab 7. He ordered
the appellant to submit evidence and argument as to why his new appeal should
not be dismissed under the doctrine of res judicata. Id. In response, the
appellant argued that res judicata did not apply because the prior appeal was
dismissed to allow the appellant to obtain a FAD and refile with the Board.
0147 IAF, Tab 8 at 6-8. The administrative judge determined that the doctrine of
res judicata was applicable and issued an initial decision dismissing the appeal.
0147 IAF, Tab 9, Initial Decision.
On petition for review, the appellant argues that the administrative judge
erred in applying the doctrine of res judicata. Petition for Review (PFR) File,
Tab 1 at 7-9. Citing Peartree v. U.S. Postal Service , 66 M.S.P.R. 332 (1995), he
argues that the initial decision in the prior appeal was not a final judgment on the
merits because the administrative judge dismissed that appeal to allow the agency
to investigate and issue a FAD on the pending EEO complaint. Id. In response,
the agency argues that the dismissal of the appellant’s first appeal was a final
judgment on the merits for purposes of res judicata. PFR File, Tab 3 at 7-9. The
3 Had the administrative judge determined that the appeal was prematurely filed under
5 C.F.R. § 1201.154(b), it would have been appropriate to either dismiss the appeal
without prejudice to refiling or hold the appeal until it became timely. 5 C.F.R.
§ 1201.154(c). 4
agency contends that Peartree is distinguishable because the appellant in this
case explicitly requested that his first appeal be dismissed “with prejudice.” Id.
DISCUSSION OF ARGUMENTS ON REVIEW
Under the doctrine of res judicata, a valid, final judgment on the merits of
an action bars a second action involving the same parties or their privies based on
the same cause of action. Peartree, 66 M.S.P.R. at 337. Res judicata applies
when (1) the prior judgment was rendered by a forum with competent
jurisdiction, (2) the prior judgment was a final judgment on the merits, and
(3) the same cause of action and the same parties or their privies were involved in
both cases. Id.
It is well established that the Board must have jurisdiction over an appeal
for its decision to have res judicata effect. See Noble v. U.S. Postal Service ,
93 M.S.P.R. 693, ¶ 6 (2003). Regardless of whether the appellant’s prior appeal
was ripe for adjudication, his decision to withdraw the appeal sufficed to remove
it from the Board’s jurisdiction. See Lincoln, 113 M.S.P.R. 486, ¶ 7.
Consequently, the dismissal of that appeal does not act as a bar to the present
action. See Cavanagh v. U.S. Postal Service , 44 M.S.P.R. 485, 488-89 (“[A]
voluntary dismissal of an action at the request of the party bringing that action
generally is not regarded as barring a new action on the same subject matter.”);4
see also Krafsur v. Social Security Administration , 122 M.S.P.R. 679, ¶ 13 (2015)
(citing Fed. R. Civ. P. 41(a)(2)) ( “[T]he voluntary withdrawal of a complaint is
4 The Board recognized an exception to this rule where the party requesting voluntary
dismissal “affirmatively appears [to have] intended to abandon the action.” Cavanagh,
44 M.S.P.R. at 489 (quoting 50 C.J.S. Judgments § 633 (1947)). However, as in
Cavanagh, we are not persuaded that the appellant in this case had any such intention.
Rather, we find that the withdrawal of his first appeal was consistent with 5 C.F.R.
§ 1201.154(a), which provides that an appellant may pursue a discrimination complaint
in his agency and later pursue a Board appeal arising from the same action. See
Cavanagh, 44 M.S.P.R. at 489.5
not equivalent to a dismissal with prejudice.”); contra Brown v. Department of
the Navy, 102 M.S.P.R. 377, ¶ 10 (2006).
To the contrary, when an appellant who has already filed a formal
discrimination complaint with his agency later files an appeal of the action that is
the subject of the complaint and then chooses to withdraw his appeal in order to
pursue his complaint first, the Board’s practice is generally to dismiss the appeal
without prejudice to its later refiling. Cavanagh, 44 M.S.P.R. at 489. The
dismissal of the appellant’s prior appeal was consistent with this practice, and
there is nothing in the decision to indicate that the dismissal was with prejudice.
Accordingly, we vacate the initial decision and remand the case for further
adjudication.
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 | Lawson_Wayne_A_PH-0752-21-0147-I-1_Remand_Order.pdf | 2025-02-07 | WAYNE A. LAWSON v. SOCIAL SECURITY ADMINISTRATION, MSPB Docket No. PH-0752-21-0147-I-1, February 7, 2025 | PH-0752-21-0147-I-1 | NP |
196 | https://www.mspb.gov/decisions/nonprecedential/Salazar_AnthonySF-1221-16-0649-W-7_Remand_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
ANTHONY SALAZAR,
Appellant,
v.
DEPARTMENT OF VETERANS
AFFAIRS,
Agency.DOCKET NUMBER
SF-1221-16-0649-W-7
DATE: February 7, 2025
THIS ORDER IS NONPRECEDENTIAL1
Anthony Salazar , Pico Rivera, California, pro se.
Steven Snortland , Esquire, Los Angeles, California, for the agency.
Timothy D. Cheng , Esquire, Washington, D.C., for amicus curiae, the
Office of Special Counsel.
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.
**Member 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
denied his request for corrective action in this individual right of action (IRA)
appeal. For the reasons discussed below, we GRANT the appellant’s petition for
review, VACATE the initial decision, and REMAND the case to the Western
Regional Office for further adjudication in accordance with this Remand Order.
BACKGROUND
Effective February 4, 2015, the agency removed the appellant from his
Motor Vehicle Operations Supervisor position based on a charge of unacceptable
performance. Salazar v. Department of Veterans Affairs , MSPB Docket No.
SF-1221-15-0660-W-1, Initial Appeal File (0660 IAF ), Tab 1 at 9-23. On or
about February 13, 2015, the appellant filed a complaint with the Office of
Special Counsel (OSC) alleging that the removal and other personnel actions
predating the removal, including his placement on a performance improvement
plan (PIP), were based on reprisal for making protected disclosures. Id. at 5, 24;
0660 IAF, Tab 3 at 4-12. On April 27, 2015, OSC informed the agency that it
had reasonable grounds to believe that the agency removed the appellant because
he made protected disclosures and requested that the agency stay the removal
pending its investigation of his complaint. 0660 IAF, Tab 5 at 11. The agency
complied with OSC’s request by cancelling the appellant’s removal and placing
him on the rolls. Salazar v. Department of Veterans Affairs , MSPB Docket
No. SF-1221-16-0649-W-1, Initial Appeal File (IAF), Tab 9 at 79; Salazar v.
Department of Veterans Affairs , MSPB Docket No. SF-1221-16-0649-W-7 (W-7
AF), Tab 15 at 48. OSC ended its inquiry into the appellant’s complaint on
June 23, 2015, and informed him of his right to seek corrective action from the
Board. 0660 IAF, Tab 1 at 24, Tab 5 at 10.
The appellant filed a June 29, 2015 Board appeal challenging his removal,
which the agency appears to have reimposed on July 26, 2015, and other2
personnel actions predating the removal (the 0660 appeal). 0660 IAF, Tab 1
at 1, 4, 6, Tab 5 at 10, Tab 17 at 5-6. The appellant alleged that a denial of
training, a change to his performance standards, his receipt of a notice of
unacceptable conduct and placement on a PIP, and his removal were based on two
disclosures he made in October 2013 involving claims of misuse or
mismanagement of Government fleet credit cards and vehicles. 0660 IAF, Tab 17
at 3-4, 5-6.
After a hearing, the administrative judge issued a May 4, 2016 initial
decision denying the appellant’s request for corrective action. 0660 IAF, Tab 28,
Initial Decision at 2. He found that the appellant’s burden included proving that
his October 2013 disclosures were protected under the heightened standards of
5 U.S.C. § 2302(f)(2), rather than the generally applicable standard set forth at
5 U.S.C. § 2302(b)(8), but he did not meet that burden. Id. at 16-52.
The appellant filed a June 6, 2016 petition for review of that initial
decision. Salazar v. Department of Veterans Affairs , MSPB Docket No. SF-1221-
15-0660-W-1, Petition for Review File, Tab 1. The Board issued an Opinion and
Order granting the petition for review, vacating portions of the initial decision
and affirming others, while remanding the appeal for further adjudication.
Salazar v. Department of Veterans Affairs , 2022 MSPB 42. Contrary to the
administrative judge’s finding, the Board held that section 2302(f)(2) did not
apply to the circumstances at hand because the appellant’s principal job function
was not to regularly investigate and disclose wrongdoing. Id., ¶¶ 9-22. Instead,
the Board found that the appellant’s disclosures fell under the generally
applicable section 2302(b)(8). The Board further found that the appellant proved
that he made October 2013 disclosures about disarray and lax security involving
dozens of vehicles and credit cards and that these disclosures were protected by
section 2302(b)(8). Id., ¶¶ 24-26. The Board also found that the appellant proved
that the agency took a number of personnel actions against him, id., ¶¶ 27-31, and
proved that his protected disclosures were a contributing factor to the same, id.,3
¶¶ 32-33. Consequently, the Board remanded the appeal for the administrative
judge to determine whether the agency could meet its burden of proving that it
would have taken the same personnel actions in the absence of the protected
disclosures. Id., ¶¶ 34-36.
In the meantime, the appellant filed a second OSC complaint, on
February 3, 2016. Then, on July 23, 2016, the appellant filed this second IRA
appeal alleging that the agency caused him to be liable for a debt relating to his
Federal Employee Health Benefits (FEHB) and withheld pay for annual leave to
which he was entitled after his removal. The appellant alleged that these actions
were reprisal for (1) his October 2013 disclosures, (2) his first OSC complaint,
filed in February 2015, and (3) his first Board appeal, i.e., the 0660 appeal, filed
in June 2015. IAF, Tab 1 at 3, 5.
The administrative judge ordered the appellant to prove that the Board had
jurisdiction over this, his second IRA appeal. IAF, Tab 3. After the appellant
filed a response to the order, the agency moved to dismiss the appeal for lack of
jurisdiction. IAF, Tabs 8-9. Because the appellant’s petition for review in the
0660 case was pending before the Board, the administrative judge dismissed this
appeal without prejudice subject to automatic refiling. IAF, Tab 11. The
administrative judge noted that some of the same alleged whistleblowing that the
appellant raised in this appeal was also at issue in his prior appeal pending before
the full Board. Id. at 5. Several times thereafter, the administrative judge
automatically refiled and dismissed this appeal without prejudice to refiling.
Salazar v. Department of Veterans Affairs , MSPB Docket Nos. SF-1221-16-0649-
W-2, SF-1221-16-0649-W-3, SF-1221-16-0649-W-4, SF-1221-16-0649-W-5,
SF-1221-16-0649-W-6, SF-1221-16-0649-W-7. In the most recent refiling, the
appellant informed the administrative judge that he wished to proceed with
adjudication of the case. W-7 AF, Tab 4 at 4.
The administrative judge found that the appellant exhausted his OSC
remedy and that the Board has jurisdiction over the appeal. W-7 AF, Tab 8,4
Tab 24, Initial Decision (ID) at 8-9 & n.6; IAF, Tab 8 at 57-73. However, after a
hearing, the administrative judge denied the appellant’s request for corrective
action in this case. ID at 1, 16.
The administrative judge found that the appellant proved by preponderant
evidence that he made protected disclosures, namely, the same two October 2013
disclosures raised in the 0660 appeal, and that he engaged in protected activity by
filing a whistleblower reprisal complaint with OSC followed by the 0660 appeal.2
ID at 10-12. The administrative judge also determined that the appellant proved
he was subjected to a personnel action when the agency reenrolled him in the
FEHB program following receipt of the April 27, 2015 letter from OSC
requesting that the agency stay its removal action for 90 days, and “then imposed
a collection for those benefits, [and] . . . negatively impacted his pay and benefits
by imposing a deduction for a benefit he did not know he had and did not use.”
ID at 14; IAF, Tab 9 at 79; 0660 AF, Tab 5 at 11. But she concluded that the
agency’s refusal to allow the appellant to use his annual leave or receive a payout
of that leave as part of his final lump sum payment, between August 2015 and
January 2016, was not a personnel action. ID at 6-7, 9 & n.6, 13-14.
Finally, the administrative judge found that the appellant did not prove by
preponderant evidence that his disclosures and protected activity were
contributing factors in his FEHB debt because he did not show that the officials
who were aware of those activities had any role in the actions taken by the
Defense Finance and Accounting Service (DFAS) to reenroll the appellant in the
FEHB program and create a debt for that benefit. ID at 14-15. The
administrative judge also found that there was no evidence that anyone in DFAS
knew of the appellant’s protected activities. ID at 16.
The appellant has filed a petition for review, the agency has filed a
response to the petition for review, the appellant has filed a reply to the response,
2 Consistent with the Board’s decision in the 0660 appeal, the administrative judge
found that the disclosures were protected under section 2302(b)(8). ID at 10-12.5
and OSC has filed an amicus curiae brief.3 Petition for Review (PFR) File,
Tabs 1, 3-5.
DISCUSSION OF ARGUMENTS ON REVIEW
The appellant proved that he made protected disclosures and engaged in protected
activity.
As set forth above, the appellant made disclosures in October 2013 about
disarray and lax security involving dozens of vehicles and credit cards. The
administrative judge correctly found that these were the same disclosures
underlying the 0660 appeal and correctly found that they were protected. ID
at 10-12; see 5 U.S.C. § 2302(b)(8); Salazar, 2022 MSPB 42, ¶¶ 24-26.
The appellant also filed a February 2015 OSC complaint and the June 2015
Board appeal, i.e., the 0660 appeal. The administrative judge correctly found
these to be protected activities. ID at 12; see 5 U.S.C. § 2302(b)(9)(A)(i);
Elder v. Department of the Air Force , 124 M.S.P.R. 12, ¶ 40 (2016). Because
these findings of protected disclosures and activities are not disputed on review,
we can turn our attention to the alleged personnel actions.
The appellant proved that the agency took personnel actions against him.
In the instant IRA appeal, the appellant alleges that the agency took two
retaliatory personnel actions. Put most simply, he argues that the agency caused
him to be liable for a debt for FEHB premiums and withheld pay for annual leave
to which the appellant was entitled after his removal. We find that the appellant
proved that both are covered personnel actions by the agency.
FEHB debt
The appellant challenged the agency’s action of withholding funds from his
final payout to account for a debt incurred due to healthcare insurance coverage
that terminated after his removal but had been reinstated by the agency without
3 The parties have not disputed the administrative judge’s well-reasoned jurisdictional
findings on review, and we discern no basis to revisit them here.6
his knowledge as part of its compliance with OSC’s stay request. IAF, Tab 1
at 5; W-7 AF, Tab 14 at 5-7, 9, Tab 17 at 3. The administrative judge found that
this constituted an appealable personnel action because it negatively impacted the
appellant’s pay and benefits. ID at 14. The agency does not dispute this finding,
and we agree with this determination by the administrative judge.
Annual leave
The administrative judge determined, however, that the appellant did not
suffer a personnel action when the agency refused his request to take annual leave
or receive a payout for that leave. ID at 12-13. She reasoned that as of February
2016, when the appellant was separated from the agency’s rolls and received his
final leave and earnings statement, the value of his accrued leave was withheld to
pay for various overpayments he had received. ID at 7, 12-13; IAF, Tab 8 at 55;
W-7 AF, Tab 15 at 48, 52, Tab 22, Hearing Recording (testimony of an agency
Payroll Supervisor), Tab 20 at 4, 10. The appellant challenges on review the
administrative judge’s determination that the agency’s denial of his request for
annual leave was not a personnel action because he was not entitled to such leave
given the debts he had accrued. PFR File, Tab 1 at 12-13. We agree with the
appellant and find that the agency’s denial of his request to use annual leave or
receive a payment for that annual leave is a personnel action.
For purposes of this appeal, a personnel action means “a decision
concerning pay . . . [or] benefits.” 5 U.S.C. § 2302(a)(2)(A)(ix). The Board has
found that an agency’s denial of a request for annual leave constitutes the taking
of a personnel action under 5 U.S.C. § 2302(a)(2)(A)(ix). Brown v. Department
of the Navy, 102 M.S.P.R. 377, ¶ 15 (2006); see Mc Corcle v. Department of
Agriculture, 98 M.S.P.R. 363, ¶ 16 (2005) (finding the denial of sick leave was a
personnel action), overruled on other grounds by Collier v. Small Business
Administration, 2024 MSPB 13, ¶¶ 1, 7. In determining that the agency’s denial
of the appellant’s requests regarding his annual leave was not a personnel action,
the administrative judge cited to Marren v. Department of Justice , 50 M.S.P.R.7
369, 372-73 (1991), and Arauz v. Department of Justice , 89 M.S.P.R. 529,
¶¶ 17-19 (2001), in which the Board found that the denial of official time and
administrative leave generally were not personnel actions. However, the Board
distinguished the denial of these categories of leave from the denial of annual and
sick leave on the basis that these latter benefits accrue automatically. Arauz,
89 M.S.P.R. 529, ¶ 20 & n.6; Marren, 50 M.S.P.R. at 373; see 5 U.S.C.
§ 6303(a), (f) (setting forth the rates of accrual of annual leave). Here, the
appellant’s leave and earnings statement as of the cancellation of his removal in
May 2015, and his final leave and earnings statement in February 2016, show an
annual leave balance of 131.5 hours. IAF, Tab 8 at 55; W-7 AF, Tab 15 at 52.
Therefore, we find that the agency’s denial of the use of this annual leave was a
personnel action.
This principle applies whether the annual leave was denied in the form of a
paid absence from duty time while employed or denied as an end-of-service
payout representing the value of that annual leave. See 5 U.S.C. § 5551(a)
(providing that “[a]n employee . . . who is separated from service . . . is entitled
to receive a lump-sum payment for accumulated and current accrued annual or
vacation leave to which he is entitled by statute”); see 5 C.F.R. §§ 550.1201,
550.1203(a) (stating in the Office of Personnel Management’s regulations
implementing 5 U.S.C. § 5551(a), that “[a]n agency must make a lump-sum
payment for accumulated and accrued annual leave when an employee . . .
[s]eparates.”). In the latter case, the denial of such a payout may also be
considered a personnel action as a denial of pay. See Roach v. Department of the
Army, 82 M.S.P.R. 464, ¶¶ 4, 13-14 (1999) (finding that an agency’s garnishment
of an appellant’s salary for recovery of an erroneous award was a personnel
action because it concerned both pay and an award).
The agency contends that it properly denied the appellant the use or payout
of his leave because it was offsetting a corresponding debt. PFR File, Tab 3 at 6.
This argument improperly conflates the appellant’s burden to prove his prima8
facie case with the agency’s burden to prove its affirmative defense, which is
discussed below. The Board may not proceed to this defense unless it has first
determined that an appellant established his prima facie case. 5 U.S.C. § 1221(e)
(2); see Clarke v. Department of Veterans Affairs , 121 M.S.P.R. 154, ¶ 19 n.10
(2014), aff’d per curiam , 623 F. App’x 1016 (Fed. Cir. 2015).4 The reasons for
the agency’s actions are relevant to the issue of whether it proved by clear and
convincing evidence that it would have taken the same action absent the
appellant’s protected activity, and not whether the appellant suffered a personnel
action. See Scoggins v. Department of the Army , 123 M.S.P.R. 592, ¶¶ 27-28
(2016) (concluding that it was improper in an IRA appeal for an administrative
judge to consider whether the agency proved its affirmative defense despite
determining that an alleged action was not a personnel action).
In sum, the appellant’s proven and protected whistleblowing for purposes
of this appeal includes (1) his October 2013 disclosures, (2) his first OSC
complaint, filed in February 2015, and (3) his first Board appeal, filed in June
2015. The appellant’s proven personnel actions for the purposes of this appeal
include the agency (1) causing him to be liable for FEHB debt, and
(2) withholding pay for annual leave to which the appellant was entitled after his
removal.
The appellant has shown that his protected disclosures and activities were a
contributing factor in the contested personnel actions.
An appellant may be entitled to corrective action in an IRA appeal if he
shows that a protected disclosure or activity was a contributing factor in a
personnel action. 5 U.S.C. § 1221(e)(1)-(2). An employee may meet this burden
through circumstantial evidence, such as evidence that the official taking the
4 Although the U.S. Court of Appeals for the Seventh Circuit has disagreed with the
Board’s decision in Clarke, it has done so on different grounds. Delgado v. Merit
Systems Protection Board , 880 F.3d 913, 923-25 (7th Cir. 2018), as amended on denial
of rehearing and rehearing en banc (June 19, 2018). Thus, its disagreement does not
implicate the basis for which we cite Clarke here. 9
personnel action knew of the protected disclosure or activity and the personnel
action occurred within a period of time such that a reasonable person could
conclude that the protected disclosure or activity was a contributing factor in the
personnel action. 5 U.S.C. § 1221(e)(1). The Board has found that personnel
actions alleged to have begun within 1 to 2 years of the appellant’s protected
whistleblowing disclosure or activity satisfies the timing prong of this
knowledge/timing test. Cooper v. Department of Veterans Affairs , 2023 MSPB
24, ¶ 20. Relevant to the circumstances of this appeal, the Board has also
recognized that an appellant can satisfy the timing prong by showing that a
personnel action was part of a continuum of related personnel actions, the first of
which occurred within 2 years of the appellant’s protected disclosure or activity.
Id., ¶ 21; Agoranos v. Department of Justice , 119 M.S.P.R. 498, ¶¶ 22-23 (2013).
FEHB debt
The administrative judge found that, although relevant officials were
clearly aware of the appellant’s protected actions before the agency implemented
the OSC stay request, which in turn led to the appellant owing a debt for health
insurance benefits that he had not requested, the appellant did not prove that his
protected disclosures and activities were a contributing factor in the FEHB
reenrollment and resulting debt. ID at 15. The administrative judge reached this
conclusion on finding that the appellant did not prove that these officials “had
any role in DFAS’[s] actions to re-enroll [him] in FEHB and to create debts for
that benefit,” and that there was no evidence that anyone in DFAS knew of the
appellant’s protected disclosures and activities. ID at 15-16. We disagree with
this analysis.
As set forth above, the agency removed the appellant effective February 4,
2015. 0660 IAF, Tab 1 at 9-23. The proposing and deciding officials to that
removal action had actual knowledge of the appellant’s October 2013 disclosures
because the proposing official was the recipient of the disclosures and the
appellant raised them in his response to the proposed removal, which the deciding10
official considered. E.g., Salazar, 2022 MSPB 42, ¶¶ 32-33. In pursuing the
removal action, the proposing and deciding officials relied on the help of the
agency’s Chief of its Employee/Labor Relations Section (Chief). E.g., IAF,
Tab 1 at 5, 19-20, 23; ID at 2-3. While we have not found evidence directly
answering whether the Chief reviewed the appellant’s response to gain actual
knowledge of the appellant’s October 2013 disclosures at that time, she surely
had constructive knowledge of them. See Abernathy v. Department of the Army ,
2022 MSPB 37, ¶ 15 (recognizing that an appellant may establish an official’s
constructive knowledge of a protected disclosure by demonstrating that an
individual with actual knowledge of the disclosure influenced the official accused
of taking the retaliatory action). She also gained actual knowledge of the
appellant’s first OSC complaint and first Board appeal in the months that
followed the appellant’s removal.5 E.g., W-7 AF, Tab 9 at 24-26, 78-79.
On March 9, 2015, at the appellant’s request, the Chief “issued [to the
appellant] a memorandum confirming that his Federal Employee Health
Benefits . . . had been terminated effective March 4, 2015” because she believed
he had not signed up for continuation of such coverage before it lapsed. ID
at 2-3, 15; IAF, Tab 9 at 78-79. Thereafter, in an April 27, 2015 letter to the
agency, OSC summarized the appellant’s whistleblowing activity and noted that,
“[i]n order to maintain the status quo ante while OSC investigates and determines
whether further action is warranted, we request that the [agency] stay [the
appellant’s] removal, which became effective on February 4, 2015, pending
OSC’s investigation of the reprisal complaint.” IAF, Tab 8 at 76. OSC indicated
that the Board has the authority to stay a removal after its effective date. Id. at 76
n.1. Thus, OSC’s letter placed the responsibility of staying the appellant’s
5 As previously stated, the Chief had at least constructive knowledge of the appellant’s
October 2013 disclosures by virtue of her assisting the proposing and deciding officials
with the removal action. But the record suggests that her subsequent handling of OSC’s
stay gave her actual knowledge of the disclosures, as well, since OSC’s stay request
explicitly described them. E.g., IAF, Tab 8 at 76, Tab 9 at 79.11
removal and maintaining the status quo ante on the agency, not on some other
entity such as DFAS.
The Chief indicated that, at OSC’s request, on or about May 15, 2015, the
appellant’s removal “was to be cancelled pending the outcome of his appeal.”
IAF, Tab 9 at 79. She stated that, following OSC’s instructions, the appellant’s
“record was restored,” and he was placed on leave without pay (LWOP) from
February 15 until April 26, 2015, and then paid for a 90-day period from April 27
through July 25, 2015. Id. She further averred that she prepared the paperwork
to cancel the appellant’s removal, and the paper timecards required to pay him for
the periods in question, as well as a “Remedy Request” to submit with the
appellant’s timecards. Id. The Chief explained as follows:
Because of my belief his FEHB coverage lapsed, I was not aware a
Standard Form 2810 would be required to “cancel” benefits that
would have otherwise lapsed because I believed there should have
been nothing to cancel. However, [the appellant’s] FEHB deductions
were automatically restored by DFAS apparently through the OSC
restoration actions and not as a result of [the appellant] enrolling in
health coverage.
Id. She asserted that, when the appellant’s record was restored, DFAS, which
handles the agency’s pay, “automatically restored his FEHB and deductions for
this were apparently taken from his pay.” Id. at 80. She noted that the appellant
had acquired non-FEHB health insurance coverage during the time he was no
longer employed by the agency. Id. The Chief reiterated that she was “initially
unaware that a Standard Form 2810 (SF-2810) was required to prevent the health
benefit deductions” and that she was attempting to have those FEHB deductions
restored, but there was no documentation of a cancellation of the health benefits,
which was required to allow the system to provide a refund to the appellant. Id.
She indicated that, on August 2, 2016, she first learned that the agency needed to
complete the SF-2810 to seek reimbursement for the overpaid health insurance
premium amounts, and she immediately did so. Id. at 80, 83-84. The Chief noted
that “[a]ny complications with rectifying [the appellant’s] pay are related to my12
confusion over the steps to affect [sic] accurate disbursement of his final
pay . . . .” Id. at 80-81.
The “Remedy Request” mentioned above by the Chief explained that OSC
had requested a stay of the appellant’s removal, noted that the removal “was
cancelled,” set forth the dates the appellant was to be placed on LWOP and then
paid per OSC’s request, indicated that a “payment of debt for lump sum leave
should be made from back pay,” and specified that leave should be fully restored
to his account with leave credited to him that would have been accrued. IAF,
Tab 9 at 88. However, the “Remedy Request” did not discuss how to handle the
appellant’s FEHB coverage, nor did the Chief provide DFAS with an SF-2810 at
that time. Id. Thus, contrary to the administrative judge’s finding that the Chief
had no role in the actions that led to the creation of the appellant’s FEHB debt
and his resulting loss of pay, the Chief’s action instructing DFAS to reinstate him
in accordance with OSC’s stay request, along with her failure to address the issue
of health benefits or provide DFAS with an SF-2810, resulted in the restoration of
the appellant’s FEHB coverage, which in turn created the FEHB debt at issue in
this case.
Under these circumstances, we find that the Chief had knowledge of the
appellant’s whistleblowing when she effectively withheld funds from his final
payout to account for the FEHB debt incurred due to healthcare insurance
coverage that was reinstated by the agency as part of its compliance with OSC’s
stay request. The Chief took or failed to take this action during the period
spanning May 2015 and February 2016, a period after the February 2015 OSC
complaint and June 2015 Board appeal such that a reasonable person could
conclude that the protected activities were a contributing factor in the personnel
action. IAF, Tab 9 at 79, W-7 AF, Tab 20 at 4-6; see Cooper, 2023 MSPB 24,
¶ 20. While the appellant’s October 2013 disclosures are outside the window for
which the Board will ordinarily find the knowledge/timing test satisfied as it
relates to at least a portion of this personnel action, we find the test satisfied13
because the FEHB reenrollment and debt is part of a continuum of related
personnel actions, the first of which occurred within 2 years of the protected
whistleblowing. Cooper, 2023 MSPB 24, ¶ 21; Agoranos, 119 M.S.P.R. 498,
¶¶ 22-23.
We recognize that DFAS “handles [the agency’s] pay.” IAF, Tab 9
at 80, 108; see 55 Fed. Reg. 50,179 (Dec. 5, 1990). But it is responsible for
calculating and paying an appellant based on information provided to it by the
agency. Walker v. Department of the Army , 90 M.S.P.R. 136, ¶ 15 (2001). In the
context of determining whether an agency complied with a Board back pay order,
the Board has observed that an agency must show that it provided DFAS with the
information it needed to process the award. Id., ¶¶ 13, 15. By analogy, here, the
agency will now have the burden of proving by clear and convincing evidence
that absent the appellant’s protected disclosures and activities it still would have
failed to complete the SF-2810, and taken any other steps required by DFAS that
it failed to take, resulting in DFAS’s reenrollment of the appellant in FEHB.
Annual leave
The record reflects that the Chief was also responsible for authorizing
payment for the appellant’s accrued annual leave by way of correcting the
applicable timecards and that “payroll” was unable to address the matter until that
occurred. IAF, Tab 9 at 24-28. That authorization from the Chief did not occur.
The Chief averred that any delayed return of funds, such as a lump sum payment
for accrued leave that might have been due the appellant, was the result of an
“oversight” on her part in timely processing the matter. Id. at 80. Thus, the
Chief failed to take a personnel action, i.e., a decision concerning pay or benefits.
There is no indication that any action denying the appellant leave or
a payment representing such leave was taken by DFAS; instead, DFAS suggested
that the appellant request a pay audit through his agency and informed him that he
should be able to request pay for annual leave because it appeared that, as of
January 21, 2016, he was still a current employee. Id. at 26. A series of emails14
addressing the leave issue included information from the appellant notifying all
recipients, including the Chief, that he had a reprisal case pending before the
Board. Id. at 25-28, 48-49, 85. In January 2016, an agency payroll employee
advised the appellant that the reason he was not paid out for his leave was that the
Chief or others had not “authorized it by way of doing the corrected timecards”
and that the appellant first needed “to settle” his Board “case” for an annual leave
payout. Id. at 33, 37-38.
Given the Chief’s failure to grant the appellant leave or authorize a
payment for such leave beginning in January 2016, IAF, Tab 9 at 21-41, along
with the appellant’s February 2015 OSC complaint and June 2015 Board appeal,
we find that she failed to take such action within a period of time such that a
reasonable person could conclude that the activity was a contributing factor in the
personnel action. See 5 U.S.C. § 1221(e)(1); Cooper, 2023 MSPB 24, ¶ 20. Once
again, we also find that the appellant’s October 2013 disclosures were a
contributing factor because this leave-related personnel action is part of a
continuum of personnel actions, the first of which occurred within 2 years of the
protected whistleblowing. Cooper, 2023 MSPB 24, ¶ 21; Agoranos,
119 M.S.P.R. 498, ¶¶ 22-23.
OSC asserts in its amicus brief that the knowledge/timing test is not the
only way to prove that a disclosure or protected activity is a contributing factor in
a personnel action, active or constructive knowledge by the acting official is not
required, and all record evidence linking an employee’s protected activity to the
personnel action at issue should be considered. PFR File, Tab 5 at 3, 5. OSC
contends that after the appellant filed a complaint with OSC and OSC requested a
stay of the appellant’s removal, to which the agency agreed, the erroneous FEHB
withholding ensued, for which the appellant now seeks a refund. Id. at 5. OSC
claims that “[t]hese facts plainly demonstrate a causal link between [the
appellant’s] OSC complaint and the FEHB [w]ithholding,” and “[n]othing more is
required to shift the burden to the [agency].” Id. at 6. Having found, however,15
that the appellant met the contributing factor element based on the
knowledge/timing test, we need not address the arguments raised by OSC in this
case.
Accordingly, we find that the appellant has proven by preponderant
evidence that his protected disclosures and activity was a contributing factor in
the two personnel actions discussed above.
This appeal is remanded for further adjudication.
When protected disclosures or activity are found to have been a
contributing factor in a personnel action appealed to the Board, the Board will not
sustain the action unless the agency presents clear and convincing evidence that it
would have taken the action in the absence of the protected disclosures or
activity. 5 U.S.C. § 1221(e)(2); Arauz, 89 M.S.P.R. 529, ¶ 12. Resolution of this
issue is likely to require an assessment of the credibility of witnesses, which is a
matter best left to the administrative judge. Arauz, 89 M.S.P.R. 529, ¶ 12.
Accordingly, the appeal must be remanded so that the administrative judge may
issue a remand initial decision determining whether the agency has met the
burden to prove its affirmative defense.
On remand, the administrative judge may incorporate into her remand
initial decision her prior jurisdictional findings. She may also incorporate her
prior determination that the appellant engaged in protected whistleblowing by
virtue of his (1) October 2013 disclosures, (2) February 2015 OSC complaint, and
(3) June 2015 Board appeal. She may further incorporate her finding that the
reenrollment under the FEHB program and associated debt was a personnel
action. But her remand initial decision should recognize our findings above that
the appellant also proved that the denial of the use or payout of his annual leave
was a personnel action and that he proved the contributing factor criterion as to
both personnel actions. The administrative judge should then determine whether
the agency showed by clear and convincing evidence that it would have taken the
same actions absent the appellant’s protected disclosures and activity. Making16
this finding requires additional factual findings and may also require credibility
determinations. Gonzalez v. Department of Transportation , 109 M.S.P.R. 250,
¶ 22 (2008).
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.17 | Salazar_AnthonySF-1221-16-0649-W-7_Remand_Order.pdf | 2025-02-07 | ANTHONY SALAZAR v. DEPARTMENT OF VETERANS AFFAIRS, MSPB Docket No. SF-1221-16-0649-W-7, February 7, 2025 | SF-1221-16-0649-W-7 | NP |
197 | https://www.mspb.gov/decisions/nonprecedential/Stephens_DianaDA-0714-21-0093-I-1_Remand_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
DIANA STEPHENS,
Appellant,
v.
DEPARTMENT OF VETERANS
AFFAIRS,
Agency.DOCKET NUMBER
DA-0714-21-0093-I-1
DATE: February 7, 2025
THIS FINAL ORDER IS NONPRECEDENTIAL1
George J. Wankmueller , Killeen, Texas, for the appellant.
Daniel Morvant and Delany Steele , Denver, Colorado, 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.
**Member Kerner recused himself and
did not participate in the adjudication of this appeal.
REMAND ORDER
The appellant has filed a petition for review of the initial decision, which
dismissed her appeal of her removal for lack of Board jurisdiction. For the
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).
reasons discussed below, we GRANT the appellant’s petition for review,
VACATE the initial decision, and REMAND the case to the regional office for
adjudication on the merits as a timely filed mixed-case appeal.
BACKGROUND
On September 18, 2019, the agency proposed to remove the appellant,
pursuant to the Department of Veterans Affairs Accountability and Whistleblower
Protection Act of 2017 (DVAAWPA), codified at 38 U.S.C. § 714, from her
Medical Technologist, GS-0644-09, position based on charges of failure to follow
instructions, misuse of the agency’s duress alarm system, and inappropriate
conduct. Initial Appeal File (IAF), Tab 6 at 16-18. On October 18, 2019, the
appellant filed a complaint with the Office of Special Counsel (OSC) alleging that
the agency proposed her removal in retaliation for making protected disclosures.
IAF, Tab 1 at 10. On October 23, 2019, the agency issued a decision sustaining
the three charges and removing the appellant from her position, effective
immediately. IAF, Tab 7 at 19-23, 26-29. The letter informed the appellant that
she could seek review of the action by appealing to the Board, seeking corrective
action from OSC, filing a grievance under the negotiated grievance procedure, or
pursuing a discrimination complaint with the agency’s Office of Resolution
Management. Id. at 20. The letter also noted that the appellant was not
precluded from concurrently filing a request for corrective action with OSC and a
discrimination complaint. Id. at 22.
On November 29, 2019, the appellant filed a Board appeal challenging her
removal. Stephens v. Department of Veterans Affairs , MSPB Docket No.
DA-0714-20-0067-I-1, Initial Appeal File (0067 IAF), Tab 1. She subsequently
withdrew that appeal on December 4, 2019, and the administrative judge issued
an initial decision dismissing that appeal as withdrawn, which became final on
January 8, 2020, after neither party filed a petition for review of that decision.
0067 IAF, Tab 9, Initial Decision (0067 ID) at 1-2. On a date that cannot be2
determined from the record, the appellant amended her OSC complaint to include
a claim that she was removed in retaliation for her protected disclosures. IAF,
Tab 1 at 10. On February 28, 2020, the appellant filed an individual right of
action (IRA) appeal, alleging that the agency removed her in retaliation for her
protected whistleblowing activity. Stephens v. Department of Veterans Affairs ,
MSPB Docket No. DA-1221-20-0213-W-1, Initial Appeal File (0213 IAF), Tab 1.
The administrative judge subsequently issued a May 26, 2020 initial decision
dismissing the appellant’s IRA appeal, concluding that she had failed to make a
nonfrivolous allegation of Board jurisdiction, and that decision became final on
June 30, 2020, when neither party filed a petition for review of that decision.
0213 IAF, Tab 19 at 1, 6.
On December 2, 2019, after the appellant had filed the initial Board appeal
challenging her removal, but before she filed her IRA appeal, the appellant filed a
formal equal employment opportunity (EEO) complaint with her former
employing agency alleging that the agency violated Federal antidiscrimination
laws by removing her in retaliation for her prior EEO activity. IAF, Tab 1 at 11.
On or around November 12, 2020, the agency issued a Final Agency Decision
(FAD) concluding that the appellant’s removal was not taken in retaliation for her
prior EEO activity. IAF, Tab 1 at 5, 11-18.
On December 9, 2020, the appellant filed the instant appeal, the third such
Board appeal challenging her removal. IAF, Tab 1. The administrative judge
issued an order instructing the appellant to show why her appeal should not be
dismissed because she previously made a binding election to challenge her
removal in her withdrawn Board appeal. IAF, Tab 3 at 1-3. The administrative
judge also noted that the instant appeal appeared to be untimely and ordered the
appellant to file evidence and argument regarding the timeliness of her appeal.
Id. at 3-6. The agency moved to dismiss the appeal for lack of jurisdiction,
asserting that the appellant filed a previous Board appeal challenging her removal
before subsequently withdrawing that appeal, thereby making a binding election3
and precluding a subsequent Board appeal challenging her removal. IAF, Tab 8
at 6-8. Alternatively, the agency argued that the appeal should be dismissed as
untimely filed because the appellant failed to file the instant Board appeal within
10 business days of the removal action. Id. at 8-11; see 38 U.S.C. § 714(c)(4)(B).
The administrative judge then issued a second order instructing the appellant to
show cause as to why her appeal should not be dismissed for lack of jurisdiction
based on the fact that she had made a prior binding election. IAF, Tab 9.
Specifically, the administrative judge noted that under 5 U.S.C. § 7121(g), an
employee who claims to have suffered whistleblowing reprisal regarding an
adverse action may elect no more than one of the following remedies: (1) a direct
appeal to the Board; (2) a negotiated grievance procedure pursuant to 5 U.S.C.
§ 7121; or (3) a request for corrective action from OSC under 5 U.S.C. chapter
12, subchapters II and III, i.e., an OSC complaint, potentially to be followed by
an IRA appeal. Id. at 1 (quoting Savage v. Department of the Army , 122 M.S.P.R.
612, ¶ 17 (2015)). Because the appellant filed an OSC complaint on October 18,
2019, later amended that complaint to include a challenge to the agency’s
removal decision, and subsequently filed an IRA appeal challenging her removal,
the administrative judge reasoned that it appeared the appellant made a binding
election to challenge her removal in that prior appeal, precluding her from filing
the instant Board appeal also challenging her removal. Id. at 2-3. In response,
the appellant argued in pertinent part that, because she filed her formal EEO
complaint before filing her IRA appeal, she first elected to challenge her removal
through the agency’s EEO process, and so the later IRA appeal should have been
precluded instead of the instant Board appeal of her mixed-case complaint. IAF,
Tab 11 at 7-8.
Based on the written record, the administrative judge issued an initial
decision dismissing the appeal for lack of jurisdiction. IAF, Tab 13, Initial
Decision (ID) at 1, 10. The administrative judge first found that, because the
appellant’s first, withdrawn Board appeal challenging her removal was untimely4
filed, it did not constitute an effective election of remedy under 5 U.S.C.
§ 7121(g)(3), and so the appellant had not elected an adverse action appeal under
section 7701 to the exclusion of all other available avenues of redress, such as
through the negotiated grievance procedures2 or through corrective action with
OSC. ID at 4-5. Next, he found that the appellant made a binding election to
challenge her removal when she filed an OSC whistleblowing complaint, OSC
considered her allegation that she was removed in retaliation for whistleblowing
activity, and she subsequently filed an IRA appeal seeking redress with the
Board. ID at 3-7. The administrative judge determined that this election “forever
deprived the appellant of her ability to otherwise appeal her removal to the
Board,” including through the mixed-case complaint procedures set forth under
29 C.F.R. § 1614.302. ID at 7. Regarding the appellant’s argument that she first
sought her EEO remedy before filing her complaint with OSC, the administrative
judge determined that a decision to first file an EEO complaint does not preclude
a later election to challenge an action through an OSC complaint, so that decision
“did not shield her from the consequences of her subsequent OSC complaint.” ID
at 5-6.
2 Although not directly addressed by the administrative judge, the record is unclear
concerning whether the appellant is a bargaining-unit employee subject to the agency’s
collective bargaining agreement (CBA). In its response to this appeal, the agency
identifies that the appellant was not a bargaining-unit employee and was not covered
under the CBA. IAF, Tab 7 at 17. However, the record is replete with references to the
appellant requesting, or being offered or provided, union representation on numerous
occasions, and filing previous union grievances. See IAF, Tab 7 at 46-50 (notes from an
interview of the appellant during a fact-finding investigation indicating that she had a
union representative present); 0213 IAF, Tab 6 at 73-76 (email exchange between the
appellant and her supervisor attempting to schedule a meeting and agreeing that the
appellant could have union representation); see also id. at 65, 71, 100, 104, 109, 120,
128. Further, in a filing in the appellant’s prior IRA appeal, the agency certified that
the appellant was covered by the CBA. 0213 IAF, Tab 6 at 8. On balance, it seems
more likely than not that the appellant was covered under a CBA at the time of the
agency’s action, and there is no indication in the record that she was a supervisor or
manager; accordingly, we find that she meets the definition of “employee” in 5 U.S.C.
§ 7103(a)(2), and the election of remedies provisions in 5 U.S.C. § 7121 apply to her.
See Requena v. Department of Homeland Security , 2022 MSPB 39, ¶¶ 10-14. 5
Turning to the validity of the appellant’s election, the administrative judge
determined that the appellant’s election to challenge her removal through the
OSC complaint process was knowing and informed because the agency’s removal
decision letter identified her potential avenues for redress and also clearly
identified the preclusive effect of her timely election of her OSC remedy. ID
at 7-8. Finally, the administrative judge considered and rejected the appellant’s
argument that her OSC complaint and subsequent IRA appeal did not constitute a
binding election because in her instant appeal she is challenging the removal
action as retaliation for her prior EEO activity, and the appeal contains “nothing
whatsoever regarding any OSC whistleblower complaint,” so it represents a
separate cause of action based on a new and distinct legal theory, determining
that the Board has rejected such arguments. ID at 8; IAF, Tab 11 at 7-8.
The appellant has filed a petition for review of the initial decision, and the
agency has filed a response. Petition for Review (PFR) File, Tabs 1, 3. The
appellant has also filed a reply. PFR File, Tab 4.
DISCUSSION OF ARGUMENTS ON REVIEW
This appeal is timely filed because it is an appeal from a mixed-case complaint,
and therefore the procedures set forth in 5 U.S.C. § 7702 govern.
Although not addressed in the initial decision, when an appellant files a
second appeal after withdrawing her first one, the Board must address the
threshold issue of the timeliness of the appeal. Lincoln v. U.S. Postal Service ,
113 M.S.P.R. 486, ¶ 12 (2010) (explaining that if an appellant withdraws her
initial appeal, then files a request to reopen the initial appeal or a second appeal
with the regional office, it will be treated by the Board as a new appeal, and it
must determine whether the appeal was timely filed or good cause existed for the
delay); see Pradier v. U.S. Postal Service , 113 M.S.P.R. 495, ¶¶ 9-15 (2010).
The appellant alleged both below and on review that her appeal was timely
filed as a Board appeal of a mixed-case complaint, pursuant to the procedures set
forth in 5 U.S.C. § 7702. IAF, Tab 6 at 5-6; PFR File, Tab 1 at 5. We agree. In6
Wilson v. Department of Veterans Affairs , the Board addressed the relationship
between 5 U.S.C. § 7702 and 38 U.S.C. § 714, and found that if an appellant files
an EEO complaint of an adverse action taken pursuant to 38 U.S.C. § 714, and
then files a subsequent Board appeal, then that appeal is subject to the procedures
contained within 5 U.S.C. § 7702. Wilson v. Department of Veterans Affairs ,
2022 MSPB 7, ¶ 19. In reaching this conclusion, the Board reasoned that, while
38 U.S.C. § 714 was silent on the issue of mixed cases, 5 U.S.C. § 7702 expressly
included procedures for handling mixed cases. Id., ¶¶ 12-13. The Board
explained that Congress had specifically delegated to it the authority to decide
both the issue of discrimination and the otherwise appealable action and
concluded that 38 U.S.C. § 714 does not repeal that authority, either explicitly or
implicitly. Id., ¶¶ 15-19. Thus, the Board concluded that 5 U.S.C. § 7702 was
still in effect and should continue to apply to mixed-case complaints, regardless
of whether the appealable action was taken pursuant to 38 U.S.C. § 714. Id.,
¶¶ 19, 25. The appellant filed the instant Board appeal within 30 days of
receiving a FAD on her EEO complaint challenging her removal. IAF, Tab 1
at 11-18; see 5 C.F.R. § 1201.154(b)(1). Accordingly, we conclude that the
appellant’s Board appeal of her mixed-case complaint was timely filed.
We disagree with the administrative judge’s finding that the instant appeal is
barred by the election of remedies provision in 5 U.S.C. § 7121(g).
In reaching his determination that the appellant’s election of her OSC
remedy was a binding election precluding Board jurisdiction over the instant
mixed-case appeal, the administrative judge noted that, pursuant to the elections
of remedies provision in 5 U.S.C. § 7121(g)(3), an employee who has been
subjected to an action appealable to the Board and who alleges that she has been
affected by a prohibited personnel practice other than a claim of discrimination
under § 2302(b)(1), may elect to pursue a remedy through one, and only one, of
the following remedial processes: an appeal to the Board under 5 U.S.C. § 7701;
a negotiated grievance under 5 U.S.C. § 7121(d); or, a complaint following the7
procedures for seeking corrective action from OSC under 5 U.S.C. §§ 1211-1222
[which can then be followed by an IRA appeal with the Board]. ID at 6 (citing
Agoranos v. Department of Justice , 119 M.S.P.R. 498, ¶ 14 (2013); King v.
Department of the Air Force , 116 M.S.P.R. 423, ¶ 8 (2011); 5 C.F.R.
§ 1209.2(d)). Because it was uncontested that the appellant amended her
whistleblower complaint with OSC to challenge her removal prior to filing the
instant Board appeal of her mixed-case complaint, the administrative judge
reasoned, the appellant had first timely elected to challenge the removal action
through her whistleblower complaint with OSC, “forever depriv[ing] the
appellant of her ability to otherwise appeal her removal to the Board, including
through the mixed[-]case complaint procedure set forth under 29 C.F.R.
§ 1614.302.” ID at 6-7.
Under 5 U.S.C. § 7121(d), an employee who alleges that she was subjected
to a prohibited personnel practice under 5 U.S.C.§ 2302(b)(1) must choose
between filing a mixed-case Board appeal, a mixed-case EEO complaint, or a
grievance under negotiated grievance procedures. Kaszowski v. Department of
the Air Force, 2023 MSPB 15, ¶ 5 n.1. Under 5 U.S.C. § 7121(g) an employee
who alleges that she was subjected to a prohibited personnel practice under
5 U.S.C. § 2302(b)(8) or (9) must choose between filing an appeal to the Board
under 5 U.S.C. § 7701, a complaint seeking corrective action from OSC, or a
grievance under the applicable negotiated grievance procedures. Id. The statute
does not directly address the situation presented in this case, i.e., where the
employee alleges that she was subjected to prohibited personnel practices under
both 5 U.S.C. § 2302(b)(1) and 5 U.S.C. § 2302(b)(8) or (9). However, reading
the statute as a whole, we find that it permits an employee to raise the 2302(b)(1)
claim in a mixed-case complaint of discrimination and the 2302(b)(8) claim
separately in an OSC whistleblower complaint. Specifically, the elections for (b)
(1) claims are addressed in a separate subsection from the elections for (b)(8) and
(b)(9) claims. 8
Under the plain language of 5 U.S.C. § 7121(d), the appellant’s election to
contest her removal through a Board appeal would have precluded her from
subsequently contesting the action through a grievance or a mixed-case EEO
complaint. However, the statute states that “[a]n employee shall be deemed to
have exercised his option under this subsection to raise the matter under either a
statutory procedure or the negotiated procedure at such time as the employee
timely initiates an action under the applicable statutory procedure or timely files
a grievance in writing.” 5 U.S.C. § 7121(d) (emphasis added). Because the
appellant’s initial attempted election of a Board appeal right was untimely, it was
not an effective election of remedy under 5 U.S.C. § 7121(d).
Under the plain language of 5 U.S.C. § 7121(g), the appellant’s OSC
complaint precluded her from subsequently contesting her removal through a
grievance or a direct Board appeal filed under 5 U.S.C. § 7701. Nothing in that
subsection, however, limited her right to contest her removal through an EEO
mixed-case complaint and then a mixed-case appeal filed with the Board,
pursuant to 5 C.F.R. § 1201.154(b). In other words, when, as here, an employee
claims prohibited personnel practices under both 2302(b)(1) and 2302(b)(8) or
(9), the statute permits her to pursue those claims separately, through the EEO
process and the OSC process respectively
Accordingly, we conclude that the administrative judge erred in
determining that, pursuant to the election of remedies procedures identified in
5 U.S.C. § 7121(g), the appellant’s decision to challenge her removal through a
whistleblower complaint with OSC followed by an IRA appeal, “forever
deprived” her of the ability to challenge her removal through a subsequent Board
appeal of her mixed-case complaint pursuant to the procedures identified in
5 U.S.C. § 7702(a). ID at 6-7.9
We find that the appellant’s withdrawal of her prior Board appeal does not
preclude her from pursuing this mixed-case appeal.
Generally, an appellant’s withdrawal of an appeal is an act of finality
which removes the appeal from the Board’s jurisdiction. Lincoln, 113 M.S.P.R.
486, ¶ 7. The withdrawal must be clear, decisive, and unequivocal. Id. In the
absence of unusual circumstances, such as when the decision to withdraw was
based on misinformation, or the appellant has submitted new and material
evidence, the Board will not reinstate an appeal once it is withdrawn. Nazario v.
Department of Justice , 108 M.S.P.R. 468, ¶ 4 (2008). Moreover, the voluntary
withdrawal of one appeal generally precludes an appellant from filing a
subsequent appeal based on the same cause of action. See Lapedis v. Department
of Health and Human Services , 47 M.S.P.R. 337, 342, aff’d, 949 F.2d 403 (Fed.
Cir. 1991) (Table).
Here, however, it is clear from the appellant’s recorded withdrawal of her
initial Board appeal that she was withdrawing the appeal in order to pursue an
EEO complaint. 0067 IAF, Tab 8. The Board has consistently held that, when an
appellant requests withdrawal of an appeal in order to file a formal EEO
complaint with the agency, the appeal should be dismissed without prejudice.
See, e.g., Thomas v. U.S. Postal Service , 71 M.S.P.R. 474, 477-78 (1996);
Cavanagh v. U.S. Postal Service , 44 M.S.P.R. 485, 487-90 (1990). Accordingly,
we find that the appellant is not precluded from pursuing this mixed-case appeal
by her withdrawal of her initial Board appeal. 10
ORDER
For the reasons discussed above, we remand this case to the regional office
for adjudication on the merits of the appellant’s mixed-case appeal.
FOR THE BOARD: ______________________________
Gina K. Grippando
Clerk of the Board
Washington, D.C.11 | Stephens_DianaDA-0714-21-0093-I-1_Remand_Order.pdf | 2025-02-07 | DIANA STEPHENS v. DEPARTMENT OF VETERANS AFFAIRS, MSPB Docket No. DA-0714-21-0093-I-1, February 7, 2025 | DA-0714-21-0093-I-1 | NP |
198 | https://www.mspb.gov/decisions/nonprecedential/PURNELL_W.T.AT-1221-24-0161-W-1_Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
W. T. PURNELL JR.,
Appellant,
v.
DEPARTMENT OF THE ARMY,
Agency.DOCKET NUMBER
AT-1221-24-0161-W-1
DATE: February 7, 2025
THIS FINAL ORDER IS NONPRECEDENTIAL1
Vicki S. Fuller , Redstone Arsenal, Alabama, for the appellant.
Francis David Hollifield , Esquire, Redstone Arsenal, Alabama, 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.
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and 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 as untimely filed without a
showing that equitable tolling should apply. On petition for review, the appellant
renews his argument that his appeal was untimely filed by 10 years because he
was deployed on active duty when the Office of Special Counsel issued its
close-out notice, and he suffered from depression after he returned from
deployment. 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.3 5 C.F.R. § 1201.113(b).
2 On February 26, 2024, the appellant filed a reply to the agency’s response to the
petition for review. Petition for Review File, Tab 5. The reply was due no later than
February 8, 2024, and thus was untimely filed. Id., Tab 3; 5 C.F.R. § 1201.114(e). The
appellant has offered no explanation for the untimely filing and thus we need not
consider it. 5 C.F.R. § 1201.114(g). In any event, the pleading largely reiterates the
arguments raised in the petition for review and does not show error in the initial
decision.
3 Although not raised on appeal, or on review, we considered whether the appellant’s
military service tolled the filing deadline consistent with the Servicemembers Civil
Relief Act of 2003 (SCRA), 50 U.S.C. § 3963. Under SCRA, the “period of a
servicemember’s military service may not be included in computing any period limited2
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.
by law, regulation, or order for the bringing of any action or proceeding in a court, or in
any board, bureau, commission, department, or other agency of a State (or political
subdivision of a State) or the United States by or against the servicemember or the
servicemember’s heirs, executors, administrators, or assigns.” 50 U.S.C. § 3936(a); see
Brown v. U.S. Postal Service , 106 M.S.P.R. 12, ¶¶ 12-14 (2007) (applying the SCRA
tolling provision to Board proceedings). The record shows that the appellant was
deployed on active duty from May 28 to December 6, 2011, and from September 28,
2012 to October 10, 2013. Initial Appeal File, Tab 1 at 3 -4; Petition for Review File,
Tab 1 at 5-6. Thus, assuming that SCRA’s tolling provision applies to these periods of
service, the administrative judge properly dismissed this appeal as untimely because the
remaining portion of the appellant’s 10 -year filing delay is not subject to equitable
tolling.
4 Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise which option is most appropriate in any matter.3
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the following
address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. 420 (2017). If you have a representative in this case,4
and your representative receives this decision before you do, then you must file
with the district court no later than 30 calendar days after your representative
receives this decision. If the action involves a claim of discrimination based on
race, color, religion, sex, national origin, or a disabling condition, you may be
entitled to representation by a court-appointed lawyer and to waiver of any
requirement of prepayment of fees, costs, or other security. See 42 U.S.C.
§ 2000e-5(f) and 29 U.S.C. § 794a.
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702(b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 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.
5 The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115-195,
132 Stat. 1510. 6
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
Contact information for the courts of appeals can be found at their
respective websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
FOR THE BOARD: ______________________________
Gina K. Grippando
Clerk of the Board
Washington, D.C.7 | PURNELL_W.T.AT-1221-24-0161-W-1_Final_Order.pdf | 2025-02-07 | W. T. PURNELL JR. v. DEPARTMENT OF THE ARMY, MSPB Docket No. AT-1221-24-0161-W-1, February 7, 2025 | AT-1221-24-0161-W-1 | NP |
199 | https://www.mspb.gov/decisions/nonprecedential/Scott_Gary_W_DA-844E-21-0008-I-1_Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
GARY W. SCOTT,
Appellant,
v.
OFFICE OF PERSONNEL
MANAGEMENT,
Agency.DOCKET NUMBER
DA-844E-21-0008-I-1
DATE: February 6, 2025
THIS FINAL ORDER IS NONPRECEDENTIAL1
Gary W. Scott , Cibolo, Texas, pro se.
Linnette Scott , 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
affirmed the final decision of the Office of Personnel Management (OPM)
denying his application for disability retirement benefits under the Federal
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and 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’ Retirement System (FERS). 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
OPM denied the appellant’s application for disability retirement benefits
under FERS in a reconsideration decision dated September 15, 2020. Initial
Appeal File (IAF), Tab 8 at 4-7. The appellant filed a timely Board appeal of
OPM’s decision. IAF, Tab 1. He registered as an e-filer. Id. at 2. In a June 9,
2021 initial decision, the administrative judge affirmed OPM’s reconsideration
decision. IAF, Tab 20, Initial Decision (ID). The administrative judge informed
the appellant that the initial decision would become final on July 14, 2021, unless
a petition for review was filed by that date . ID at 16.
The appellant filed his petition for review on July 26, 2021. Petition for
Review (PFR) File, Tab 1. The Acting Clerk of the Board issued an
acknowledgment letter informing the appellant that his petition for review was
untimely filed because it had not been postmarked or received by July 14, 2021,
the 35th day following the issuance of the initial decision. PFR File, Tab 2 at 1.
The letter informed the appellant of the requirement that he file a motion for the
Board to accept the filing as timely or waive the time limit for good cause. Id.
at 1-2. The appellant timely filed the required motion. PFR File, Tab 3.
DISCUSSION OF ARGUMENTS ON REVIEW
A petition for review generally must be filed within 35 days after the date
of the issuance of the initial decision or, if the appellant shows that the initial
decision was received more than 5 days after the initial decision was issued,
within 30 days after the date the appellant received the initial decision. 5 C.F.R.
§ 1201.114(e). The Board will waive this time limit only upon a showing of good
cause for the delay in filing. 5 C.F.R. § 1201.114(g). To establish good cause for
the untimely filing of a petition for review, a party must show that he exercised2
due diligence or ordinary prudence under the particular circumstances of the case.
Rivera v. Social Security Administration , 111 M.S.P.R. 581, ¶ 4 (2009) (citing
Alonzo v. Department of the Air Force , 4 M.S.P.R. 180, 184 (1980)). To
determine whether an appellant has shown good cause, the Board will consider
the length of the delay, the reasonableness of his excuse and his showing of due
diligence, whether he is proceeding pro se, and whether he has presented
evidence of the existence of circumstances beyond his control that affected his
ability to comply with the time limits or of unavoidable casualty or misfortune
which similarly shows a causal relationship to his inability to timely file his
petition. Id. (citing Moorman v. Department of the Army , 68 M.S.P.R. 60, 62 -63
(1995), aff’d, 79 F.3d 1167 (Fed. Cir. 1996) (Table)). To establish good cause to
excuse an untimely filed petition for review based on mental or physical
incapacity, the 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 petition or request for an extension of
time. Jordan v. U.S. Postal Service , 83 M.S.P.R. 500, ¶ 12 (1999) (citing Lacy v.
Department of the Navy , 78 M.S.P.R. 434, 437 (1998)).
The certificate of service for the initial decision indicates that the appellant
was served a copy of the initial decision by email on June 9, 2021. IAF, Tab 21.
As noted above, and as the administrative judge informed the appellant in the
initial decision, the deadline for filing a petition for review was July 14, 2021.
ID at 16. The appellant e-filed his petition for review on July 26, 2021. PFR
File, Tab 1. Thus, he filed his petition for review 12 days late.
In the appellant’s motion for the Board to accept his filing as timely or
waive the time limit, he claims that he did not receive an email from the Board
prompting him to check the e-Appeal repository for the initial decision. PFR
File, Tab 3 at 4. He states that he “decided to check the website on the 20th of
[August]” and that he thought from reading the initial decision then that he had3
until 30 days after July 14, 2021, to submit his petition for review. Id. He claims
that his diagnosed deficit in attention and concentration made it difficult to
understand the initial decision and led to him filing his petition for review late.
Id. We are not persuaded.
As noted above, the certificate of service for the initial decision indicates
that the regional office served the initial decision on the appellant by email. IAF,
Tab 21. As also noted above, the appellant registered as an e-filer, and doing so
constitutes consent to accept electronic service of documents issued by the Board.
5 C.F.R. § 1201.14(e)(2).2 When Board documents are issued, e -Appeal—where
all documents issued by the Board are made available for viewing and
downloading—will send an email notification to parties who are e -filers.
5 C.F.R. § 1201.14(e)(4), (i)(1).
Regarding the appellant’s claim that he did not receive an email from the
Board prompting him to check for documents, Board documents served
electronically on registered e-filers are deemed received on the date of electronic
transmission. Lima v. Department of the Air Force , 101 M.S.P.R. 64, ¶ 5 (2006);
5 C.F.R. § 1201.14(l)(2). When a statute or regulation “deems” something to be
done or to have been done, the event is considered to have occurred whether or
not it actually did. Lima, 101 M.S.P.R. 64, ¶ 5. Thus, as a registered e-filer, the
appellant received the initial decision as a matter of law on June 9, 2021, the date
on which the Dallas Regional Office served it on him. IAF, Tab 21.
Although the 12-day filing delay in this case is not all that lengthy, it is not
minimal. See Rothlisberger v. Department of the Army , 113 M.S.P.R. 450, ¶ 7
(2010) (finding that a 14-day filing delay, although not very lengthy, was not
minimal); Gonzalez v. Department of Veterans Affairs , 111 M.S.P.R. 697, ¶ 11
(2009) (finding that an 8-day filing delay, although not especially lengthy, was
2 We have cited current versions of applicable Board regulations, which reflect
non-substantive changes to previous versions of those regulations not affecting the
outcome of this appeal. See 88 Fed. Reg. 67,055, 67,056-57 (Sept. 29, 2023); 77 Fed.
Reg. 62,350, 62,364 (Oct. 12, 2012); 73 Fed. Reg. 10,127, 10,129-30 (Feb. 26, 2008).4
not minimal). Nevertheless, the appellant’s assertion that he decided to check the
Board’s website for documents on August 20, 2021, and his explanation that he
thought that he had 30 days from July 14, 2021, to file his petition for review do
not show that he exercised the due diligence or ordinary prudence required under
the circumstances. PFR File, Tab 3 at 4. Under the appellant’s explanation, he
filed his petition for review on July 26, 2021, even though he asserted that he did
not receive the initial decision until August 20, 2021. PFR File, Tab 1, Tab 3
at 4. The appellant’s assertions on review, in and of themselves, do not provide
good cause for the untimely filing of his petition for review. This is the case
even though we acknowledge the appellant’s pro se status. See Kennedy v.
Department of Defense , 100 M.S.P.R. 308, ¶ 9 (2005) (finding an absence of good
cause for an untimely filed petition for review despite the appellant’s claims that
she was pro se and was not “fully aware of the procedures” for filing a petition
for review or requesting an extension of time). The Board’s regulations provide
that e-filers are responsible for ensuring that Board emails are not blocked by
filters, as well as for monitoring e-Appeal case activity regularly to ensure receipt
of all case-related documents. 5 C.F.R. § 1201.14(i)(2)-(3). The appellant’s
assertions indicate a failure to diligently fulfill one or both responsibilities.
Finally, the medical record that supports the appellant’s attention and
concentration deficit predates the deadline for his petition for review by over
8 months and does not shed any light on the effect his conditions had on him
during the relevant period or otherwise meet the criteria to excuse an untimely
filed petition for review based on mental or physical incapacity. PFR File, Tab 3
at 8-10. The other records the appellant submits predate the filing deadline by an
even longer period and fail to show good cause for the same reason. Id. at 6-7.
Accordingly, we dismiss the petition for review as untimely filed. This is
the final decision of the Merit Systems Protection Board regarding the timeliness
of the petition for review. The initial decision remains the final decision of the5
Board regarding the appellant’s application for disability retirement benefits
under FERS.
NOTICE OF APPEAL RIGHTS3
You may obtain review of this final decision. 5 U.S.C. § 7703(a)(1). By
statute, the nature of your claims determines the time limit for seeking such
review and the appropriate forum with which to file. 5 U.S.C. § 7703(b).
Although we offer the following summary of available appeal rights, the Merit
Systems Protection Board does not provide legal advice on which option is most
appropriate for your situation and the rights described below do not represent a
statement of how courts will rule regarding which cases fall within their
jurisdiction. If you wish to seek review of this final decision, you should
immediately review the law applicable to your claims and carefully follow all
filing time limits and requirements. Failure to file within the applicable time
limit may result in the dismissal of your case by your chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(A).
3 Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise which option is most appropriate in any matter.6
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the following
address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. 420 (2017). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the district court no later than 30 calendar days after your representative
receives this decision. If the action involves a claim of discrimination based on7
race, color, religion, sex, national origin, or a disabling condition, you may be
entitled to representation by a court-appointed lawyer and to waiver of any
requirement of prepayment of fees, costs, or other security. See 42 U.S.C.
§ 2000e-5(f) and 29 U.S.C. § 794a.
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702(b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or8
other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
disposition of allegations of a prohibited personnel practice described in section
2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i),
(B), (C), or (D),” then you may file a petition for judicial review either with the
U.S. Court of Appeals for the Federal Circuit or any court of appeals of
competent jurisdiction.4 The court of appeals must receive your petition for
review within 60 days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(B).
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the following
address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
4 The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115-195,
132 Stat. 1510. 9
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
Contact information for the courts of appeals can be found at their
respective websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
FOR THE BOARD: ______________________________
Gina K. Grippando
Clerk of the Board
Washington, D.C.10 | Scott_Gary_W_DA-844E-21-0008-I-1_Final_Order.pdf | 2025-02-06 | GARY W. SCOTT v. OFFICE OF PERSONNEL MANAGEMENT, MSPB Docket No. DA-844E-21-0008-I-1, February 6, 2025 | DA-844E-21-0008-I-1 | NP |
200 | https://www.mspb.gov/decisions/nonprecedential/Romerio_CarmelaDE-1221-24-0014-W-1_Remand_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
CARMELA ROMERIO,
Appellant,
v.
DEPARTMENT OF THE INTERIOR,
Agency.DOCKET NUMBER
DE-1221-24-0014-W-1
DATE: February 6, 2025
THIS ORDER IS NONPRECEDENTIAL1
Carmela Romerio , Boulder, Montana, pro se.
Jennifer K. Trujillo , 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.
**Member Kerner recused himself and
did not participate in the adjudication of this appeal.
REMAND ORDER
The appellant has filed a petition for review of the initial decision, which
dismissed her individual right of action (IRA) appeal for lack of jurisdiction. For
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).
the reasons discussed below, we GRANT the appellant’s petition for review,
VACATE the initial decision , and REMAND the case to the Denver Field Office
for further adjudication in accordance with this Remand Order.
BACKGROUND
The appellant was employed by the agency’s Bureau of Land Management
(BLM). Initial Appeal File (IAF), Tab 8 at 533. Effective March 31, 2019, BLM
processed her request for a voluntary downgrade from the position of GS-12
Vegetation and Resource Specialist located in Billings, Montana, to the position
of GS-11 Rangeland Management Specialist in BLM’s Butte Field Office in
Butte, Montana. Id. At the time of her transfer to the GS-11 position, the
position was designated as low risk and nonsensitive. Id. On or before May 8,
2020, the agency raised the risk level to moderate risk. Id. at 217-19.
On July 21, 2022, the agency’s Office of Security Operations (OSO) sent
the appellant an email requesting that she complete a Standard Form 85P,
Questionnaire for National Security (SF-85P), in the Electronic Questionnaires
for Investigations Processing Gateway (e-QIP) as part of the process of
conducting her periodic Tier 4 (T4) background investigation. Id. at 87-88. The
appellant’s supervisor followed up via email and telephone with the appellant the
same day, instructing her to complete the form in e-QIP within 5 days. Id. at 87,
163-64. On July 27, 2022, the appellant’s first-level supervisor clarified that only
a Tier 2 (T2) background investigation was required. IAF, Tab 8 at 97-98. From
late July to late September 2022, the appellant told her supervisor and other
agency officials both verbally and via email that the request for her to complete
information in e-QIP was in error because her position only required a Tier 1 (T1)
background investigation, which she had completed in 2018. Id. at 93, 97,
164-68.
The agency responded to the appellant’s concerns and reiterated the
instruction that she complete the T2 background investigation; however, she did2
not complete the required form in e-QIP. Id. at 93, 97-98, 102, 118, 132-35, 155,
161-62, 164-68. As a result, the agency removed her effective April 28, 2023.
IAF, Tab 2 at 7-34. The agency’s letter to the appellant memorializing its
removal decision provided her with, as relevant here, the options of filing an
appeal with the Board or seeking corrective action before the Office of Special
Counsel (OSC). Id. at 31-32.
The appellant filed a complaint with OSC on May 12, 2023, alleging that
the agency removed her in retaliation for disclosing that the requested T2
background investigation was not a requirement for her position and for declining
to participate in the investigation. IAF, Tab 9 at 8-9, 15. By letter dated
August 10, 2023, OSC closed its investigation into the appellant’s complaint and
advised her that she could file an appeal with the Board. Id. at 8-9. She then
filed the instant appeal challenging her removal and alleging that it was taken in
reprisal for protected disclosures and activity. IAF, Tab 1.
The administrative judge dismissed the appeal for lack of jurisdiction.
IAF, Tab 16, Initial Decision (ID) at 1, 6. He found that the appellant exhausted
her claim at OSC that her removal was in reprisal for making a protected
disclosure about the agency’s insistence that she complete the T2 background
investigation. ID at 3-4. However, the administrative judge found that the
appellant did not make a nonfrivolous allegation that her disclosure was
protected. ID at 5-6. He concluded that she did not nonfrivolously allege that
she reasonably believed she was disclosing an actual violation of any law, rule, or
regulation. ID at 5-6 & n.7. He further determined that the appellant’s allegation
that the background investigation was gross mismanagement or a gross waste of
funds was both conclusory and vague. ID at 6.
The appellant has filed a petition for review and submitted a number of
documents. Petition for Review (PFR) File, Tabs 1-4. The agency has filed a
response. PFR File, Tab 7.3
DISCUSSION OF ARGUMENTS ON REVIEW
The appellant has nonfrivolously alleged that she made a protected disclosure.
The Board has jurisdiction over an IRA appeal if the appellant has
exhausted her administrative remedies before OSC and makes nonfrivolous
allegations that (1) she made a protected disclosure described under 5 U.S.C.
§ 2302(b)(8) or engaged in protected activity described under 5 U.S.C. § 2302(b)
(9)(A)(i), (B), (C), or (D), and (2) the disclosure or protected activity was a
contributing factor in the agency’s decision to take or fail to take a personnel
action as defined by 5 U.S.C. § 2302(a). Salerno v. Department of the Interior ,
123 M.S.P.R. 230, ¶ 5 (2016).
We modify the administrative judge’s exhaustion finding.
The administrative judge concluded that the appellant exhausted with OSC
her alleged disclosure that the agency improperly required her to undergo a T2
background investigation. ID at 2-4. The parties do not dispute this finding on
review, and we discern no basis to disturb it. However, the appellant reasserts on
review that the agency also retaliated against her for engaging in activity
protected under 5 U.S.C. § 2302(b)(9)(D). PFR File, Tab 1 at 9; IAF, Tab 1 at 2.
The administrative judge did not address this claim. We modify the initial
decision to find that the appellant exhausted this alleged protected activity.
An appellant must prove by preponderant evidence that she exhausted
administrative remedies with OSC before seeking corrective action from the
Board. Cooper v. Department of Veterans Affairs , 2023 MSPB 24, ¶ 5. The
substantive requirements of exhaustion are met when an appellant has provided
OSC with a sufficient basis to pursue an investigation. Id. Section 2302(b)(9)(D)
of Title 5 prohibits reprisal for “refusing to obey an order that would require the
individual to violate a law, rule, or regulation.” McCray v. Department of the
Army, 2023 MSPB 10, ¶ 15 (quoting the statute). In its letter advising the
appellant that it was closing its investigation into the appellant’s complaint, OSC4
acknowledged that she had claimed that her removal was in reprisal for
“declin[ing] to participate” in the background investigation based on her belief
that it was not “a requirement of [her] position.” IAF, Tab 2 at 38. Because she
provided OSC with sufficient information to investigate this claim, we find that
she exhausted it.
The appellant nonfrivolously alleged that she made a protected
disclosure.
The appellant realleges on review that she made a protected disclosure.
PFR File, Tab 1 at 4-6, 9. We disagree with the administrative judge that her
allegations were not nonfrivolous. ID at 5-6.
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 any
violation of law, rule, or regulation, or gross mismanagement, a gross waste of
funds, an abuse of authority, or a substantial and specific danger to public health
or safety.2 5 U.S.C. § 2302(b)(8); Mudd v. Department of Veterans Affairs ,
120 M.S.P.R. 365, ¶ 8 (2013). The test to determine whether a putative
whistleblower has a reasonable belief in the disclosure is an objective one:
whether a disinterested observer with knowledge of the essential facts known to
and readily ascertainable by the employee could reasonably conclude that the
actions of the agency evidenced such wrongdoing. Salerno, 123 M.S.P.R. 230,
¶ 6 (citing LaChance v. White , 174 F.3d 1378, 1381 (Fed. Cir. 1999)). The
disclosures must be specific and detailed, not vague allegations of wrongdoing.
Id.; see El v. Department of Commerce , 123 M.S.P.R. 76, ¶ 6 (2015) (stating that
vague, conclusory, unsupported, and pro forma allegations of alleged wrongdoing
do not meet the nonfrivolous pleading standard needed to establish the Board’s
2 The appellant argues on review that the administrative judge failed to inform her of
her burden to nonfrivolously allege her claim. PFR File, Tab 1 at 4, 6. We disagree.
The administrative judge issued a jurisdictional order that set forth the applicable
standard. IAF, Tab 4 at 3.5
jurisdiction over an IRA appeal), aff’d per curiam , 663 F. App’x 921 (Fed. Cir.
2016).
The administrative judge found that the appellant did not make a
nonfrivolous allegation that she reasonably believed that the agency’s
determination to conduct a T2 background investigation violated a law, rule, or
regulation.3 ID at 5-6. The appellant continues to argue on review that BLM
violated “the rules of a protected employee’s rights.” PFR File, Tab 1 at 9; IAF,
Tab 9 at 5. For the following reasons, we conclude that the appellant made a
protected disclosure on July 25 and 26, and August 1 and 2, 2022, that the agency
violated a law, rule, or regulation by requiring her to complete a T4 or T2
background investigation because, at that time, she reasonably believed that her
position required only a T1 background investigation. IAF, Tab 8 at 93, 97,
164-66.
In finding that the appellant did not meet her burden, the administrative
judge faulted the appellant for not identifying “what rule or rules the agency
violated.” ID at 6. However, an employee need not identify “a statutory or
regulatory provision by title or number, when the employee’s statements and the
circumstances surrounding the making of those statements clearly implicate an
identifiable law, rule, or regulation.” Langer v. Department of the Treasury ,
265 F.3d 1259, 1266 (Fed. Cir. 2001). In any event, in an email to the agency,
the appellant specifically asserted that the agency violated the reciprocity
requirements of the Office of Personnel Management set forth at 5 C.F.R.
3 According to the appellant, the “security clearance” portion of her T2 background
investigation was what distinguished it from a T1 background investigation. PFR File,
Tab 1 at 5. She clarifies that it was the “security clearance” portion of her T2
background investigation – rather than the investigation as a whole – to which she
objected. Id. at 4-6. To the extent she asserts that the administrative judge erred in
characterizing her claim as an objection to any background investigation, we are not
persuaded. Id. at 6. The administrative judge correctly quoted the appellant’s argument
that she disclosed that “[t]he [background investigation] requiring a security clearance
was erroneous.” ID at 3 (quoting IAF, Tab 9 at 6). 6
§ 731.202(d). IAF, Tab 8 at 97. That provision prohibits an agency from making
a new suitability determination absent certain specified exceptions. 5 C.F.R.
§ 731.202(d).
A “suitability determination” is “a decision . . . that a person is suitable or
is not suitable for employment” in, as applicable here, a competitive service
position like the appellant’s. 5 C.F.R. § 731.101(b); IAF, Tab 8 at 533. To the
extent that the appellant improperly conflated a suitability determination with a
background investigation, we find that the appellant has nonfrivolously alleged
that a reasonable person in her position, without any specialized legal experience,
could have failed to distinguish between the two interrelated processes. See
Mudd, 120 M.S.P.R. 365, ¶ 9 (considering an appellant’s lack of any special
expertise in legal matters or other experience in interpreting agency regulations in
determining that a reasonable person in her position could reasonably conclude
that she disclosed evidence of a violation of a law, rule, or regulation). In
particular, the phrase “background investigation” is not defined in OPM’s
suitability regulations, and thus, its distinction from a suitability determination is
not readily apparent to the non-legal professional. See generally 5 C.F.R. pt. 731;
e.g., 5 C.F.R. § 731.106(c)(1) (“Persons receiving an appointment made subject
to investigation under this part must undergo a background investigation.”).
The appellant asserted to the agency that it could not require a background
investigation under section 731.202(d) unless, per the regulation, “[she] show[ed]
conduct that [was] incompatible with the core duties of the relevant covered
position.” IAF, Tab 8 at 103; see 5 C.F.R. § 731.202(d). However, the same
regulatory provision clearly states that it also permits a new suitability
determination when an investigation is required under 5 C.F.R. § 731.106.
5 C.F.R. § 731.202(d). Section 731.106(e) requires that agencies initiate
reinvestigations within 14 days of a change in an employee’s risk level. The
agency has a similar reciprocity policy that states that “[a] re-investigation is not
required” when an employee already completed a favorable background7
investigation “for the sensitivity or her risk level” of her position. IAF, Tab 8
at 264. However, similar to OPM’s regulations, the agency’s policy also states
that if the risk level of an incumbent’s position has increased, the agency must
initiate a new background investigation within 14 days. IAF, Tab 8 at 252, 254.
The agency raised the risk level of the appellant’s position from low to moderate
risk in or prior to May 2020. IAF, Tab 8 at 102, 217, 219. Thus, contrary to the
appellant’s statements to the agency, it did not err in initiating a background
investigation. If anything, it waited too long to initiate the investigation by
waiting until July 2022, more than 14 days after the risk level increased.
However, in making her initial disclosures, the appellant indicated that she
believed her position remained “low risk,” requiring only a T1 background
investigation. IAF, Tab 9 at 4, Tab 8 at 93, 97. The reasonableness of this
understanding is supported by the SF-50 memorializing her voluntary downgrade,
which reflects that her position was designated as “nonsensitive/low ri[sk].” Id.
at 253, 533. Agency guidance on investigations provides that “[a] Tier 1 remains
valid for 10 years.” IAF, Tab 8 at 185, 187. The appellant indicated in her
disclosures to the agency that she understood her last T1 background
investigation was in 2018. IAF, Tab 8 at 93. We conclude that the appellant has
nonfrivolously alleged that a reasonable person in her position could have read
OPM’s regulations and agency policy and guidance as prohibiting a T2
investigation because it could not reinvestigate her prior to 2028, 10 years after
her last investigation. See Mudd, 120 M.S.P.R. 365, ¶ 9.
The appellant’s belief was reasonable, however, only so long as she was
unaware that the risk level for her position had been upgraded. IAF, Tab 8 at 93,
97, 164-66, 217, 219. On August 2, 2022, an OSO Supervisory Personnel
Security Specialist emailed the appellant advising her that her position had been
reevaluated as moderate risk, requiring a T2 background investigation. Id. at 102.
He provided the appellant with an updated position designation record dated
May 8, 2020, reflecting the increased risk level and T2 investigation requirement.8
Id. at 102, 217-19. Therefore, to the extent she made disclosures after August 2,
2022, she has not identified a reasonable basis for her assertions that the
background investigation request violated a law, rule, or regulation.
The appellant alleges that, between August 2 and September 22, 2022, she
disclosed that “upgrading [her] position description without [a] formal desk
audit” was improper. PFR, Tab 1 at 9; IAF, Tab 9 at 5. The record contains an
agency policy requiring desk audits “when an employee’s assignments and
responsibilities have expanded,” “when requested by management,” “when
requested by an employee as part of a complaint process,” and “for a
classification appeal.” IAF, Tab 8 at 303. The appellant has not identified any of
these criteria that apply here or explained why she believes any of these criteria
could apply. Thus, the appellant has not alleged facts that, if true, could prove
that a reasonable person in her position could believe that her disclosures between
August 2 and September 22, 2022, evidenced a violation of the desk audit policy
or constituted any other potential category of wrongdoing under 5 U.S.C.
§ 2302(b)(8). See Gabel v. Department of Veterans Affairs , 2023 MSPB 4, ¶ 7
(finding that an appellant’s vague and nonspecific allegations of disclosures of
wrongdoing were insufficient to constitute nonfrivolous allegations).
The appellant also reasserts that the requirement that she complete the T2
background investigation was a “gross mismanagement of funds.” PFR File,
Tab 1 at 10; IAF, Tab 9 at 6. The administrative judge was not persuaded, and
neither are we. ID at 6.
A gross waste of funds is an expenditure that is significantly out of
proportion to the benefit reasonably expected to accrue to the Government.
MaGowan v. Environmental Protection Agency , 119 M.S.P.R. 9, ¶ 7 (2012); see
Webb v. Department of the Interior , 122 M.S.P.R. 248, ¶ 9 (2015) (clarifying that
an expenditure that is debatable among reasonable people is not precluded from
qualifying as a protected disclosure of a gross waste of funds) (citing S. Rep.
No. 112-155 at 10 n.37 (2012) (indicating that a requirement that a gross waste of9
funds be more than debatable among reasonable people is inconsistent with the
“reasonable belief” standard for disclosures under 5 U.S.C. § 2302(b)(8)). Gross
mismanagement is 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. Salazar v.
Department of Veterans Affairs , 2022 MSPB 42, ¶ 24.
An appellant’s allegations that she reported to the agency gross
mismanagement and a gross waste of funds without further details is conclusory
and does not satisfy the nonfrivolous allegation standard. Graves v. Department
of Veterans Affairs , 123 M.S.P.R. 434, ¶ 9 (2016). Here, the appellant’s
allegations are conclusory in that she merely recites language from 5 U.S.C.
§ 2302(b)(8). She has not claimed or provided evidence that she told the agency
or OSC that conducting her T2 background investigation required any particular
expenditure, that such an expenditure was not worth the resulting assurance as to
her ability to occupy her position, or that a background investigation was contrary
to, or could impede, the agency’s mission. IAF, Tab 8 at 93, 97, 164-68, Tab 9
at 6, 8-9; PFR File, Tab 1 at 10. Accordingly, we agree with the administrative
judge’s determination that the appellant failed to nonfrivolously allege that her
disclosures evidenced gross mismanagement or a gross waste of funds.
Because the administrative judge did not consider whether the appellant
nonfrivolously alleged that the agency violated a law, rule, or regulation by
instructing her to complete the SF-85P, we do so here. An employee’s refusal to
obey an unlawful order is a protected activity under 5 U.S.C. § 2302(b)(9)(D).
However, as explained here, the agency acted consistent with OPM’s regulations
and its own policy by conducting a background investigation based on the
increased risk level of the appellant’s position. Therefore, the appellant’s
allegations, even if true, could not establish that the agency’s instructions were
unlawful.10
The appellant nonfrivolously alleged that her protected disclosure
was a contributing factor in her removal.
An appellant may meet her jurisdictional burden regarding the contributing
factor element if she nonfrivolously alleges that the official who took or
threatened to take the personnel action at issue knew of the protected
whistleblowing disclosures or activity and that the personnel action occurred
within 1 to 2 years of the disclosures or activity. Cooper v. Department of
Veterans Affairs , 2023 MSPB 24, ¶ 20. The agency’s February 23, 2023 proposed
removal, and April 28, 2023 removal decision, provided a factual background that
described the appellant’s statements to the agency between July 25 and August 2,
2022, that her position did not require a T2 background investigation. IAF, Tab 2
at 7-9, 20, 22-23. Because the agency officials who proposed and issued the
appellant’s removal were aware of her disclosure, and the agency removed her
within 1 year of her disclosure, she has met her jurisdictional burden concerning
the contributing factor element of her claim. Accordingly, she has established
IRA jurisdiction over her appeal.
The appellant did not make a knowing and informed election to file an OSC
complaint followed by an IRA appeal.
On her initial appeal form, the appellant challenged her removal on a
number of bases, including disagreeing with the agency’s charges, claiming
whistleblower reprisal, alleging that the agency violated merit systems principles,
and disputing the penalty. IAF, Tab 1 at 2-3. The administrative judge found
that the appellant made a knowing election to pursue the IRA appeal process and
therefore determined that the Board lacks jurisdiction over her removal under
chapter 75. ID at 2 n.3. On review, the appellant argues that because she is an
employee who was subject to an adverse action, the Board has chapter 75
jurisdiction over her appeal. PFR File, Tab 1 at 6-8; IAF, Tab 8 at 34. We find
that the appellant did not make a knowing and informed election, and therefore,
we remand this appeal so that she may do so.11
An employee subjected to an action appealable to the Board who alleges
that the contested action was taken in reprisal for whistleblowing may elect to
pursue a remedy through only one of the following remedial processes: (1) an
appeal to the Board under 5 U.S.C. § 7701; (2) a grievance filed under an
applicable negotiated grievance procedure; or (3) a complaint seeking corrective
action from OSC under 5 U.S.C. §§ 1211-1222, followed by an IRA appeal.
5 U.S.C. § 7121(g); Requena v. Department of Homeland Security , 2022 MSPB
39, ¶ 7; 5 C.F.R. § 1209.2(d)(1). The remedy first sought by an aggrieved
employee is deemed an election of that procedure and precludes pursuing the
matter in other fora. Requena, 2022 MSPB 39, ¶ 8. For adverse actions
appealable to the Board under 5 U.S.C. §§ 4303 and 7512, an employee’s election
of remedies under 5 U.S.C. § 7121(g) must be knowing and informed, and, if it is
not, it will not be binding upon the employee. Agoranos v. Department of
Justice, 119 M.S.P.R. 498, ¶ 16 (2013).
In the context of a chapter 75 removal appeal, the Board has held that when
an agency did not explicitly inform the appellant in its decision letter that her
election to proceed with a grievance would preclude her subsequent Board appeal,
her election to first file a grievance was not knowing and informed and did not
waive her right to file a Board appeal. Kaszowski v. Department of the Air Force ,
2023 MSPB 15, ¶ 7. Although that case concerned an election of remedies under
5 U.S.C. § 7121(e)(1), the Board has found that the requirement of making a
knowing and informed election is also applicable to elections under section
7121(g). Agoranos, 119 M.S.P.R. 498, ¶ 16. Therefore, as with an election under
section 7121(e)(1), an election under 7121(g) is knowing and informed only if an
agency explicitly advises an appellant of the preclusive effect of first filing, as
applicable here, an IRA appeal or OSC complaint. Agoranos, 119 M.S.P.R. 498,
¶ 16.12
The agency’s April 28, 2023 removal decision advised the appellant of her
right to file a Board appeal or an OSC complaint. IAF, Tab 2 at 31-32. As to the
election between the two options, the decision letter stated:
You may seek corrective action before [OSC] . . . . However, if you
do so, your appeal will be limited to whether the Agency took one or
more covered personnel actions against you in retaliation for making
protected whistleblowing disclosures. You will be forgoing the right
to otherwise challenge this removal.
Id. at 32.
Missing from the agency’s explanation of the appellant’s options was the
crucial information that filing an OSC complaint first was a binding election of
that procedure. Further, although the above language suggested that the
appellant’s decision to proceed before OSC was preclusive of a direct appeal to
the Board, it did not expressly or clearly state as much. The agency advised the
appellant that she could also file an equal employment opportunity (EEO)
complaint and that “w hichever action [i.e., a Board appeal or an EEO complaint]
is filed first shall be considered your election to proceed in that forum”; however,
it did not include this same information regarding her election between an OSC
complaint and a direct appeal to the Board.4 Id.
On remand, the administrative judge should provide the appellant with
information regarding the consequences of electing to proceed with a chapter 75
4 On review, the appellant refers to her appeal as a “mixed case.” PFR File, Tab 1 at 6.
A mixed case arises when an appellant has been subject to an action that is appealable
to the Board and she alleges that the action was effected, in whole or in part, because of
discrimination. Miranne v. Department of the Navy , 121 M.S.P.R. 235, ¶ 8 (2014).
Because the appellant has not alleged discrimination or reprisal under EEO statutes, her
appeal is not a “mixed case.” Similarly, both below and on review, the appellant has
referenced the Uniformed Services Employment and Reemployment Right Act
(USERRA). PFR File, Tab 1 at 9; IAF, Tab 9 at 4. The administrative judge found
that, although the agency’s pleadings advised the appellant of how to establish
jurisdiction over such a claim, she failed to do so. ID at 2 n.1 (citing IAF, Tab 8
at 30-31). The appellant still has not addressed the elements of a USERRA claim on
review. Therefore, we do not consider it further. If the appellant elects to proceed with
a chapter 75 appeal, the administrative judge should provide her with an opportunity to
raise these claims as affirmative defenses.13
appeal versus an IRA appeal of her removal and permit her to make an election.
If the appellant elects to proceed under chapter 75, she may challenge the merits
of her removal and pursue her arguments that her removal was contrary to law;
that the agency committed prohibited personnel practices and violated merit
systems principles and her due process rights; and dispute the removal penalty.
PFR File, Tab 1 at 4-6, 8; see Agoranos, 119 M.S.P.R. 498, ¶ 18 (recognizing
that, while an IRA appeal is limited to a claim of whistleblower reprisal, a direct
appeal to the Board may include the merits of the personnel action, which the
agency bears the burden of proving; denial of due process; discrimination;
harmful procedural error; and other prohibited personnel practices); Hall v.
Department of Defense , 117 M.S.P.R. 687, ¶ 6 (2012) (observing that in an
adverse action appeal, the agency generally must prove its charge, 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).
Because we are remanding this appeal, we do not reach the appellant’s
argument that the administrative judge failed to address additional alleged
personnel actions that preceded her removal. PFR File, Tab 1 at 5-6. However, if
on remand the appellant proceeds to challenge the actions leading up to her
removal, and she can establish IRA jurisdiction over those actions, the
administrative judge should adjudicate those matters. To avoid complicating the
issues raised in the instant appeal and confusing the parties, the administrative
judge should adjudicate all of the appellant’s claims in one appeal, regardless of
whether she elects to challenge her removal as an adverse action under chapter 75
or as an IRA appeal. See Lentz v. Merit Systems Protection Board , 876 F.3d
1380, 1382, 1385-86 (Fed. Cir. 2017) (concluding that the Board’s bifurcation of
an appeal of an alleged constructive removal into two separate appeals, one under
chapter 75 and one under the Uniformed Services Employment and
Reemployment Rights Act, was error because it resulted in a failure to consider
the totality of the evidence).14
We decline to consider the documents that the appellant submits on review.
The appellant submits numerous documents on review. PFR File, Tabs 1-4.
Under 5 C.F.R. § 1201.115(d), the Board may grant review on the basis of new
and material evidence that, despite due diligence, was not available when the
record closed. To the extent that the appellant resubmits documents contained in
the record below, these documents are not new. Compare IAF, Tab 10 at 11-13,
Tab 11 at 5-7, with PFR File, Tab 1 at 17-19, Tab 4; see Fletcher v. Office of
Personnel Management , 118 M.S.P.R. 632, ¶ 11 (2012).
The appellant has also submitted, for the first time on review, copies of a
document reflecting that the agency terminated her access credentials in August
2022 and a copy of an SF-85P with handwritten responses dated September 2022.
PFR File, Tab 1 at 13-16, 20-61, Tab 2. The Board will not grant a petition for
review based on new evidence absent a showing that it is of sufficient weight to
warrant an outcome different from that of the initial decision. Russo v. Veterans
Administration, 3 M.S.P.R. 345, 349 (1980).
The SF-85P does not impact our decision because it is not relevant to the
dispositive jurisdictional and election of forum issues before us here. Rather, it
pertains to the merits of the agency’s actions, i.e., whether it was justified in
removing her for failure to complete the form as instructed. IAF, Tab 7 at 9-10,
Tab 8 at 134. Similarly, the appellant claims on review that the agency
improperly revoked her access credentials and sent notification to her using
outdated contact information, but she does not allege that she made a protected
disclosure concerning these matters. PFR File, Tab 1 at 6. Therefore, her
documentation related to the loss of her access credentials is not material to our
decision here. It may, however, be relevant on remand to a claim that revocation
of her access credentials was reprisal for whistleblowing. IAF, Tab 2 at 38. On
remand, the appellant may submit these documents into the record consistent with
the orders of the administrative judge.15
ORDER
For the reasons discussed above, we remand this case to the field office for
further adjudication in accordance with this Remand Order. On remand, the
administrative judge should hold the appellant’s requested hearing on the merits
of her appeal. IAF, Tab 1 at 1; see Salerno, 123 M.S.P.R. 230, ¶ 5 (stating that
once an appellant establishes jurisdiction over his IRA appeal, he is entitled to a
hearing on the merits of his claim); Sabio v. Department of Veterans Affairs ,
124 M.S.P.R. 161, ¶ 24 (2017) (recognizing an appellant’s right to a hearing in
any appeal brought before the Board under any law, rule, or regulation).
FOR THE BOARD: ______________________________
Gina K. Grippando
Clerk of the Board
Washington, D.C.16 | Romerio_CarmelaDE-1221-24-0014-W-1_Remand_Order.pdf | 2025-02-06 | CARMELA ROMERIO v. DEPARTMENT OF THE INTERIOR, MSPB Docket No. DE-1221-24-0014-W-1, February 6, 2025 | DE-1221-24-0014-W-1 | NP |
201 | https://www.mspb.gov/decisions/nonprecedential/Johnson_Denise_R_AT-1221-24-0118-W-1_Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
DENISE RUCKER JOHNSON,
Appellant,
v.
DEPARTMENT OF THE TREASURY,
Agency.DOCKET NUMBER
AT-1221-24-0118-W-1
DATE: February 6, 2025
THIS FINAL ORDER IS NONPRECEDENTIAL1
Melissa Lolotai , Esquire, Ayodele Olosunde , Esquire, and John P.
Mahoney , Esquire, Washington, D.C., for the appellant.
Andrew Greene , Esquire, and Aryeh Rosenfield , Esquire, Atlanta, Georgia,
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.
**Member Kerner recused himself and
did not participate in the adjudication of this appeal.
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).
FINAL ORDER
The appellant has filed a petition for review of the initial decision, which
dismissed her individual right of action (IRA) appeal for lack of jurisdiction.2
For the first time on petition for review, the appellant argues that the agency
subjected her to a hostile work environment between April 2019 and September
2022, culminating in her proposed removal on September 22, 2022, and forcing
her to retire effective February 25, 2023.3 Generally, we grant petitions such as
this one only in the following circumstances: the initial decision contains
erroneous findings of material fact; the initial decision is based on an erroneous
interpretation of statute or regulation or the erroneous application of the law to
the facts of the case; the administrative judge’s rulings during either the course of
the appeal or the initial decision were not consistent with required procedures or
involved an abuse of discretion, and the resulting error affected the outcome of
the case; or new and material evidence or legal argument is available that, despite
the petitioner’s due diligence, was not available when the record closed. Title 5
of the Code of Federal Regulations, section 1201.115 (5 C.F.R. § 1201.115).
After fully considering the filings in this appeal, we conclude that the petitioner
has not established any basis under section 1201.115 for granting the petition for
2 Because the appellant has not established jurisdiction over her appeal, we need not
reach the agency’s argument that the appellant untimely filed her appeal. Petition for
Review (PFR) File, Tab 3 at 5-6; see e.g., Rosell v. Department of Defense ,
100 M.S.P.R. 594, ¶ 5 (2005) (explaining that the issue of the Board’s jurisdiction
generally should be determined before reaching the issue of timeliness), aff’d
191 F. App’x 954 (Fed. Cir. 2006).
3 If applicable, the appellant may file a separate appeal regarding a claim of an alleged
involuntary retirement. An involuntary retirement is tantamount to a removal and thus
is appealable to the Board. Hosozawa v. Department of Veterans Affairs , 113 M.S.P.R.
110, ¶ 5 (2010). An appellant may overcome the presumption that her retirement is
voluntary by showing that it was the result of agency misrepresentation, coercion, or
duress. Id., ¶ 5. If the employee claims that her retirement was coerced by the
agency’s creating intolerable working conditions, she must show that a reasonable
employee in her position would have found the working conditions so oppressive that
she would have felt compelled to retire. Id. The Board makes no findings here
regarding the timeliness or merits of such an appeal.2
review. Therefore, we DENY the petition for review. Except as expressly
MODIFIED to find that the appellant has not nonfrivolously alleged that
she engaged in protected activity within the scope of the Board’s IRA
jurisdiction, we AFFIRM the initial decision.4
The administrative judge did not address the appellant’s Equal Employment
Opportunity (EEO) activity below. Therefore, we modify the initial decision to
do so. As the administrative judge advised the appellant, the Board’s IRA
jurisdiction includes, as relevant here, pursuing an appeal, complaint, or
grievance seeking to remedy whistleblower reprisal. Initial Appeal File (IAF),
Tab 4 at 3; McCray v. Department of the Army , 2023 MSPB 10, ¶¶ 11-12. On
review, the appellant realleges that she filed an EEO complaint with the agency
alleging discrimination and a hostile work environment, and that the agency
retaliated against her as a result. Petition for Review (PFR) File, Tab 1 at 13-14;
IAF, Tab 7 at 8. For the first time on review, she also identifies a “harassment
claim[]” that she filed alleging that her supervisor threatened to return the
appellant to her former position. PFR File, Tab 1 at 12.
Disclosures of unlawful discrimination are not covered by 5 U.S.C.
§ 2302(b)(8). McCray, 2023 MSPB 10, ¶ 21 (stating that activity and disclosures
protected under Title VII are not protected under 5 U.S.C. § 2302(b)(8));
4 For the first time on review, the appellant alleges that her “calculation for retirement
[has] been based on survivor benefits rather than actual employee calculations.” PFR
File, Tab 1 at 15. She indicates she has been trying to reach the Office of Personnel
Management (OPM) but has been unsuccessful. Id. When OPM has not issued a
reconsideration decision on an appellant’s retirement benefits, the Board generally lacks
jurisdiction to hear the appeal. See Luna v. Office of Personnel Management ,
89 M.S.P.R. 465, ¶ 8 (2001). The Board may assume jurisdiction over a retirement
appeal in the absence of an OPM reconsideration decision only when the appellant has
made repeated requests for such a decision and the evidence indicates that OPM does
not intend to issue a reconsideration decision. Id. There has been no such showing
here. The appellant may file a separate appeal from OPM’s calculation of her annuity.
We make no findings here as to the Board’s jurisdiction over, or the timeliness of, any
such appeal.3
Edwards v. Department of Labor , 2022 MSPB 9, ¶¶ 10-22 (explaining that
5 U.S.C. § 2302(b)(8) does not include disclosures of alleged wrongdoing under
Title VII), aff’d, No. 2022-1967, 2023 WL 4398002 (Fed. Cir. July 7, 2023).
Further, an appellant’s own EEO complaint in which she does not seek to remedy
reprisal for whistleblowing is not protected activity within the Board’s IRA
jurisdiction. Edwards, 2022 MSPB 9, ¶¶ 24-25 (finding that an appellant’s
complaints and disclosures to an agency’s EEO office seeking to remedy
purported Title VII retaliation were not within the purview of sections 5 U.S.C.
§ 2302(b)(9)(A)(i) or (b)(9)(B)); see McCray, 2023 MSPB 10, ¶¶ 26 -30 (finding
that an employee’s pursuit of a grievance was not a protected activity under
5 U.S.C. § 2302(b)(9)(C) because so interpreting that provision would effectively
subsume (b)(9)(A), which prohibits retaliation for the “exercise of any appeal,
complaint, or grievance right granted by any law, rule, or regulation”). The
appellant has not alleged that she sought to remedy whistleblower reprisal in her
EEO complaint. Nor does she provide any details regarding the nature of her
“harassment claim[]” against her supervisor. Therefore, she has not
nonfrivolously alleged that her EEO complaint and harassment claim are
protected activities within the scope of the Board’s IRA jurisdiction.
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
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
the rights described below do not represent a statement of how courts will rule
regarding which cases fall within their jurisdiction. If you wish to seek review of
this final decision, you should immediately review the law applicable to your
claims and carefully follow all filing time limits and requirements. Failure to file
within the applicable time limit may result in the dismissal of your case by your
chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the following
address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation5
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. 420 (2017). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the district court no later than 30 calendar days after your representative
receives this decision. If the action involves a claim of discrimination based on
race, color, religion, sex, national origin, or a disabling condition, you may be
entitled to representation by a court-appointed lawyer and to waiver of any
requirement of prepayment of fees, costs, or other security. See 42 U.S.C.
§ 2000e-5(f) and 29 U.S.C. § 794a.
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702(b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file6
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or
other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
disposition of allegations of a prohibited personnel practice described in section
2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i),
(B), (C), or (D),” then you may file a petition for judicial review either with the
U.S. Court of Appeals for the Federal Circuit or any court of appeals of
competent jurisdiction.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. 1510.7
review within 60 days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(B).
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the following
address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
Contact information for the courts of appeals can be found at their
respective websites, which can be accessed through 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_Denise_R_AT-1221-24-0118-W-1_Final_Order.pdf | 2025-02-06 | DENISE RUCKER JOHNSON v. DEPARTMENT OF THE TREASURY, MSPB Docket No. AT-1221-24-0118-W-1, February 6, 2025 | AT-1221-24-0118-W-1 | NP |
202 | https://www.mspb.gov/decisions/nonprecedential/Flanick_David_J_AT-0752-23-0337-I-1_Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
DAVID FLANICK,
Appellant,
v.
DEPARTMENT OF STATE,
Agency.DOCKET NUMBER
AT-0752-23-0337-I-1
DATE: February 6, 2025
THIS FINAL ORDER IS NONPRECEDENTIAL1
Boyd Hinton , Charleston, South Carolina, for the appellant.
Alexandra Jumper , Esquire, Marianne Perciaccante , Esquire,
and Camille V’Estres , Washington, D.C., for the agency.
Gerard Eugene Riddick , Clarksburg, 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
the effective date of Acting Chairman Kerner’s designation.
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).
FINAL ORDER
The appellant has filed a petition for review of the initial decision, which
affirmed his removal. On petition for review, the appellant argues that the
agency subjected him to double punishment and that the penalty of removal was
unreasonable because of the double punishment . 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 agency’s response to the appellant’s petition for review was filed 1 day late.
Petition for Review (PFR) File, Tabs 2-4. In the sworn declaration of the agency’s
attorney, she states that she tried to file the response on the date that it was due but
encountered technical difficulties with e-Appeal. PFR File, Tab 4. She also showed
that she submitted two technical support request forms on the day and the day after the
response was due. Id. at 9-10. Technical support was able to resolve the technical
issue the day after the response was due. Id. at 17. Because the agency’s declaration
was uncontested, the delay was minimal, and the appellant has not alleged any prejudice
from the delay, we find that the agency exercised due diligence under the circumstances
and that it has shown good cause for its untimely filing. See Alonzo v. Department of
the Air Force, 4 M.S.P.R. 180, 184 (1980). We add that, even if we were not to
consider the agency’s response, the result in this matter would be the same.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 | Flanick_David_J_AT-0752-23-0337-I-1_Final_Order.pdf | 2025-02-06 | DAVID FLANICK v. DEPARTMENT OF STATE, MSPB Docket No. AT-0752-23-0337-I-1, February 6, 2025 | AT-0752-23-0337-I-1 | NP |
203 | https://www.mspb.gov/decisions/nonprecedential/Hill_Kristie_L_DC-0432-23-0076-I-2_Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
KRISTIE L. HILL,
Appellant,
v.
DEPARTMENT OF HEALTH AND
HUMAN SERVICES,
Agency.DOCKET NUMBER
DC-0432-23-0076-I-2
DATE: February 6, 2025
THIS FINAL ORDER IS NONPRECEDENTIAL1
Kristie L. Hill , Waldorf, Maryland, pro se.
Madeha Chaudry Dastgir , Chicago, Illinois, 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 the effective date of
Acting Chairman Kerner’s designation.
FINAL ORDER
The appellant has filed a petition for review of the initial decision, which
affirmed the agency’s removal action based on unacceptable performance. 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 indicates that she disagrees with the testimony
of the agency’s witnesses and raises allegations of discrimination and retaliation.
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 | Hill_Kristie_L_DC-0432-23-0076-I-2_Final_Order.pdf | 2025-02-06 | KRISTIE L. HILL v. DEPARTMENT OF HEALTH AND HUMAN SERVICES, MSPB Docket No. DC-0432-23-0076-I-2, February 6, 2025 | DC-0432-23-0076-I-2 | NP |
204 | https://www.mspb.gov/decisions/nonprecedential/Nye_TammyDC-1221-20-0594-W-1_Remand_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
TAMMY NYE,
Appellant,
v.
DEPARTMENT OF AGRICULTURE,
Agency.DOCKET NUMBER
DC-1221-20-0594-W-1
DATE: February 5, 2025
THIS ORDER IS NONPRECEDENTIAL1
Morris E. Fischer , Esquire, Silver Spring, Maryland, for the appellant.
Patricia McNamee and Lori A. Ittner , Esquire, 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.
** Member 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 her individual right of action (IRA) appeal for lack of jurisdiction. For
the reasons discussed below, we GRANT the appellant’s petition for review,
VACATE the initial decision, and REMAND the case to the Washington Regional
Office for further adjudication in accordance with this Remand Order.
BACKGROUND
The appellant is a GS-07 Administrative Office Assistant for the agency.
Initial Appeal File (IAF), Tab 8 at 38. On May 5, 2020, the appellant filed the
instant IRA appeal, alleging that the agency proposed and effected a 14 -day
suspension against her in reprisal for making the following disclosures: (1) on
July 16, 2019, she informed an agency Special Police Officer that her supervisor
had “screamed at her, acted violently and in a threatening manner and took
actions including throwing a bunch of papers on the ground and swinging a door
open”; (2) on November 12, 2019, in response to the proposed suspension, she
informed the deciding official that her supervisor assaulted her and that the
agency’s processing of whistleblower complaints had a chilling effect on
whistleblowers; and (3) her November 12, 2019 response also notified the
deciding official that she intended to file a complaint with the Office of Special
Counsel (OSC). IAF, Tab 1 at 7.
The administrative judge issued an order informing the appellant of what
she must allege to establish jurisdiction over her IRA appeal. IAF, Tab 4. The
appellant responded that the agency retaliated against her for making a protected
disclosure, that she was a perceived whistleblower, and that she exhausted her
administrative remedies before OSC. IAF, Tab 8 at 5-12. The agency argued that
the appellant should be precluded from litigating the proposed suspension
because the appellant elected to grieve the matter under the negotiated grievance
procedure and she failed to provide evidence of exhaustion before OSC. IAF,2
Tab 9 at 5-6, 8-11. During a telephonic status conference, the appellant conceded
that the only personnel action at issue was the actual suspension and that the
proposed suspension was barred from consideration because she had filed a
grievance of that matter prior to the filing of her IRA appeal. IAF, Tab 15 at 1
After the close of the record on jurisdiction, the administrative judge issued
an initial decision dismissing the appeal for lack of jurisdiction because the
appellant did not prove that she exhausted her administrative remedies with OSC.
IAF, Tab 16, Initial Decision (ID). The administrative judge found that, in
response to his jurisdictional order, the appellant did not “describe the precise
nature of the whistleblower claims raised in her OSC complaint and/or in oral or
written communications” between the OSC attorney and her attorney. ID at 10.
He further found that, even if such information had been included in the
appellant’s response, her post hoc characterization of the statements that she
made in her OSC complaint would do nothing to advance a jurisdictional finding
in the absence of preponderant evidence to support her claims. ID at 10-11. The
administrative judge noted that the appellant failed to provide a copy of the
complaint she filed with OSC or a sworn statement as to the contents of the
complaint. ID at 12. He also noted that the agency identified the jurisdictional
deficiency in its motion to dismiss but that the appellant failed to provide a
response or submit any additional evidence on the issue. ID at 12.
The appellant has filed a petition for review, arguing that she provided
preponderant evidence of exhaustion and that she otherwise established Board
jurisdiction over her appeal. Petition for Review (PFR) File, Tab 1 at 5-8. The
agency has filed a response. PFR File, Tab 3.3
ANALYSIS
To establish Board jurisdiction over an IRA appeal, an appellant must
prove that she exhausted her administrative remedies before OSC and make
nonfrivolous allegations that (1) she made a disclosure described under 5 U.S.C.
§ 2302(b)(8) or engaged in protected activity described under 5 U.S.C. § 2302(b)
(9)(A)(i), (B), (C), or (D); and (2) the disclosure or activity was a contributing
factor in the agency’s decision to take or fail to take a personnel action. Salerno
v. Department of the Interior , 123 M.S.P.R. 230, ¶ 5 (2016).
Exhaustion
In an IRA appeal, the Board may consider only matters that the appellant
first raised before OSC. Mason v. Department of Homeland Security ,
116 M.S.P.R. 135, ¶ 8 (2011). The purpose of the requirement that an appellant
exhaust her remedies with OSC prior to filing an IRA appeal is to give OSC “the
opportunity to take corrective action before involving the Board in the case.”
Ward v. Merit Systems Protection Board , 981 F.2d 521, 526 (Fed. Cir. 1992). If
OSC finds that there is a substantial likelihood that the information it received
discloses a violation of the Whistleblower Protection Act, it “shall transmit the
information to the head of the agency involved for investigation and report.” Id.;
see 5 U.S.C. § 1213(b), (c). These inquiries by OSC and their transmittal to
agencies for remedial action are a major component of OSC’s work. Ward,
981 F.2d at 526.
The Board, in Chambers v. Department of Homeland Security , 2022 MSPB
8, ¶¶ 10-11, clarified the substantive requirements of exhaustion. The
requirements are met when an appellant has provided OSC with a sufficient basis
to pursue an investigation. The Board’s jurisdiction is limited to those issues that
previously have been raised with OSC. However, appellants may give a more
detailed account of their whistleblowing activities before the Board than they did
to OSC. Appellants may demonstrate exhaustion through their initial OSC
complaint, evidence that they amended the original complaint, including but not4
limited to OSC’s determination letter and other letters from OSC referencing any
amended allegations, and their written responses to OSC referencing the amended
allegations. Appellants also may establish exhaustion through other sufficiently
reliable evidence, such as an affidavit or a declaration attesting that they raised
with OSC the substance of the facts in the Board appeal. Id.
In finding that the appellant had not exhausted her remedies with OSC, the
administrative judge noted that the appellant failed to provide a sworn statement
describing the information that she provided to OSC. ID at 12. The appellant
argues on review that the statements in her response to the jurisdictional order
were made under penalty of perjury. PFR File, Tab 1 at 6-8. We agree with the
appellant. The Board’s e-filing form, which the appellant used, specifically asked
the appellant whether she declared “under penalty of perjury, that the facts stated
in this pleading are true and correct.” The appellant replied “Yes.” IAF, Tab 8
at 3. Because the appellant answered in the affirmative, the statements in her
pleading were made “under penalty of perjury.” The issue before the Board is
therefore whether the appellant’s statements made under penalty of perjury are
sufficient to establish exhaustion.
In her response to the jurisdictional order, the appellant asserted that
she raised the following three disclosures with OSC:2 (1) on July 10, 2019,
she informed various management officials that, earlier that day, her
2 The appellant’s assertions regarding her disclosures in her initial appeal form are not
consistent with her description of what she raised with OSC in her response to the
jurisdictional order. Compare IAF, Tab 1 at 7, with IAF, Tab 8 at 4-6. For instance, in
her response, she asserted that she told OSC that she disclosed her supervisor’s alleged
assault to various management officials on July 10, 2019. IAF, Tab 8 at 5. This
information does not appear in her initial appeal form. IAF, Tab 1. In addition, in her
initial appeal form, the appellant asserts that she informed the deciding official that she
was going to file a complaint with OSC. IAF, Tab 1 at 7. This information does not
appear in her response as a matter that she exhausted before OSC. IAF, Tab 8. Because
her response to the jurisdictional order was an assertion made under penalty of perjury
and, unlike her appeal, was specifically an articulation of the matters that she raised
before OSC, we are relying on the appellant’s jurisdictional response to determine
which matters were raised and exhausted before OSC.5
supervisor “acted violently and in a threatening manner and took actions
including throwing a bunch of papers on the ground and swinging a door
open” and spoke to her in a “harsh and demeaning tone” and, on July 16,
2019, she informed an agency Special Police Officer of the same facts; (2) on
November 12, 2019, in her response to the proposed suspension, she informed
the deciding official that her supervisor threw some papers at her in an
intimidating manner, that the conduct could meet the legal definition of an
assault, and that the agency’s processing of whistleblower complaints had a
chilling effect on whistleblowers; and (3) on December 15, 2019, she
informed the OSC investigator that her case was the second within 2 days
in which the agency proposed to discipline a whistleblower for the manner in
which the disclosure was made. IAF, Tab 8 at 4-6, 12, 125, 137.
Although we agree with the administrative judge that the appellant did not
prove exhaustion with respect to disclosure (3),3 ID at 10, we find that her
jurisdictional response was sufficient to establish exhaustion as to disclosures (1)
and (2). The appellant established that she reported to OSC the content of the
disclosures, the individuals to whom they were made, and the personnel action
that was allegedly taken in retaliation.4 This information was sufficient to
provide OSC with a basis for an investigation that might have led to corrective
action. See Ellison v. Merit Systems Protection Board , 7 F.3d 1031, 1037 (1993);
Ward, 981 F.2d at 526.
For the reasons explained above, and because OSC did not notify the
appellant within 120 days of her complaint that it would seek corrective action on
3 Because the appellant’s perceived whistleblower claim stems from disclosure (3),
which she did not raise with OSC, we do not consider this theory of the case any
further. IAF, Tab 8 at 10; PFR File, Tab 1 at 7.
4 As previously noted, in her correspondence with OSC, the appellant referenced the
agency’s decision to sustain the 14-day suspension and asked OSC to include it in her
case. IAF, Tab 8 at 148.6
her behalf, we find that the appellant exhausted her administrative remedies with
respect to disclosures (1) and (2). IAF, Tab 1 at 7; see 5 U.S.C. § 1214(a)(3)(B).
Disclosures
A nonfrivolous allegation of a protected disclosure is an allegation of
facts that, if proven, would show that the appellant disclosed a matter that a
reasonable person in her position would believe evidenced one of the
categories of wrongdoing specified in 5 U.S.C. § 2302(b)(8). Salerno,
123 M.S.P.R. 230, ¶ 6. The test to determine whether a putative
whistleblower has a reasonable belief in the disclosure is an objective one
—whether a disinterested observer with knowledge of the essential facts
known to and readily ascertainable by the employee could reasonably conclude
that the actions of the agency evidenced a violation of law, rule, or
regulation, gross mismanagement, a gross waste of funds, an abuse of
authority, or a substantial and specific danger to public health or safety.
Id.
The question of whether the appellant has nonfrivolously alleged
protected disclosures that contributed in a personnel action must be determined
based on whether she alleged sufficient factual matter, accepted as true, to
state a claim that is plausible on its face. Hessami v. Merit Systems
Protection Board, 979 F.3d 1362, 1369 (Fed. Cir. 2020). The Board may not
deny jurisdiction by crediting the agency’s interpretation of the evidence
as to whether the alleged disclosures fell within the protected categories or
whether the disclosures were a contributing factor in an adverse personnel
action. Id.
In this case, disclosures (1) and (2) contained allegations that the
appellant’s supervisor assaulted her and subjected her to “violent intimidation.”
IAF, Tab 8 at 8. The issue before us is whether a disinterested observer in the
appellant’s position could reasonably conclude that a supervisor’s actions in
screaming or speaking in a harsh and demeaning tone, throwing a bunch of7
papers either on the ground, as the appellant alleged she disclosed in July
2019, or at her, as she alleged she disclosed in November 2019, and
swinging a door open, constituted workplace violence in contravention of the
agency’s policies. IAF, Tab 8 at 4-5. We need not parse whether the actions
described would meet a legal definition of “assault.” “Acting violently” in the
workplace—whether it consisted of a physical touching or not—would violate the
agency’s policies on workplace conduct. We therefore find that the appellant
made a nonfrivolous allegation that she reasonably believed that her disclosure
was protected on the basis that it evidenced a violation of law, rule, or
regulation.5
With respect to contributing factor, the record contains direct evidence that
both disclosures (1) and (2) were a contributing factor in the challenged personnel
action. Disclosure (1) was the agency’s stated reason for the proposed
suspension. IAF, Tab 9 at 47-48. Disclosure (2) was contained in the appellant’s
response to the notice of proposed suspension and was provided to the deciding
official, who considered it in issuing his decision. Id. at 26, 43-46. This
evidence is more than sufficient to constitute a nonfrivolous allegation of
contributing factor.
Because the appellant has made a nonfrivolous allegation that disclosures
(1) and (2) were protected, and that they were a contributing factor in her 14 -day
suspension, and because she exhausted her administrative remedies with respect
to these matters, she is entitled to an adjudication of the merits of her claim,
including her requested hearing.
5 The appellant also argues that disclosures (1) and (2) evidenced gross mismanagement
and an abuse of authority. IAF, Tab 8 at 8-9. Because we have already found that the
appellant made a nonfrivolous allegation that she reasonably believed these disclosures
to evidence a violation of law, rule, or regulation, we decline to address whether they
might also be protected under these other theories. See Linder v. Department of Justice ,
122 M.S.P.R. 14, ¶ 13 (2014).8
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.9 | Nye_TammyDC-1221-20-0594-W-1_Remand_Order.pdf | 2025-02-05 | TAMMY NYE v. DEPARTMENT OF AGRICULTURE, MSPB Docket No. DC-1221-20-0594-W-1, February 5, 2025 | DC-1221-20-0594-W-1 | NP |
205 | https://www.mspb.gov/decisions/nonprecedential/Williams_Eric_DC-3330-18-0427-P-1_DC-3330-18-0427-M-1_and_DC-3330-18-0427-C-1_Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
ERIC WILLIAMS,
Appellant,
v.
DEPARTMENT OF DEFENSE,
Agency.DOCKET NUMBERS
DC-3330-18-0427-M-1
DC-3330-18-0427-C-1
DC-3330-18-0427-P-1
DATE: February 5, 2025
THIS FINAL ORDER IS NONPRECEDENTIAL1
Eric Williams , North Charleston, South Carolina, pro se.
Katherine Yourth , Esquire, and Daniel Moebs , Esquire, Richmond,
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
the effective date of Acting Chairman Kerner’s designation.
FINAL ORDER
The appellant filed petitions for review of the initial decisions, which
ordered the agency to reconstruct the hiring process in his remanded Veterans’
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and 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 Opportunities Act of 1998 (VEOA) nonselection appeal and
dismissed his petition for enforcement and motion for damages as prematurely
filed. Generally, we grant petitions such as this one only in the following
circumstances: the initial decision contains erroneous findings of material fact;
the initial decision is based on an erroneous interpretation of statute or regulation
or the erroneous application of the law to the facts of the case; the administrative
judge’s rulings during either the course of the appeal or the initial decision were
not consistent with required procedures or involved an abuse of discretion, and
the resulting error affected the outcome of the case; or new and material evidence
or legal argument is available that, despite the petitioner’s due diligence, was not
available when the record closed. Title 5 of the Code of Federal Regulations,
section 1201.115 (5 C.F.R. § 1201.115). After fully considering the filings in this
appeal, we conclude that the petitioner has not established any basis under section
1201.115 for granting the petitions for review. Although the administrative judge
adjudicated these appeals separately below, we JOIN them on review because the
claims arise from the same nonselection, the facts are interrelated, and joinder
will expediate processing without adversely affecting the interests of the parties.
See 5 C.F.R. § 1201.36(b). We DENY the petitions for review and AFFIRM the
initial decisions, which are now the Board’s final decisions. 5 C.F.R.
§ 1201.113(b). We FORWARD the appellant’s compliance and damages claims
to the Board’s regional office for docketing as a petition for enforcement and a
motion for damages.
BACKGROUND
In February 2018, the appellant, a preference-eligible veteran, applied for a
contract specialist position, announcement number DLAAVN-18-10138029-DE,
with the agency’s Defense Logistics Agency (DLA). Williams v. Department of
Defense, MSPB Docket No. DC-3330-18-0427-I-1, Initial Appeal File (IAF),
Tab 5 at 19-23, 36-38, 45. As part of an online assessment questionnaire, he2
indicated that he did not possess the specialized experience required to qualify for
the position. Id. at 19, 21. Because he selected that response, the online staffing
system automatically deemed him ineligible for the position, and DLA did not
consider the remainder of his application materials. Id. at 18, 24-38.
The appellant filed a VEOA appeal of his nonselection. IAF, Tab 1 at 5.
After the Board denied his request for corrective action, he sought review before
the U.S. Court of Appeals for the Federal Circuit (Federal Circuit). IAF, Tab 6,
Initial Decision at 2, 6; Williams v. Department of Defense, MSPB Docket No.
DC-3330-18-0427-I-1, Final Order at 2-5 (Aug. 26, 2022); Williams v.
Department of Defense , Case No. 22-2246, Notice of Docketing 5-14 (Fed. Cir.
Sept. 23, 2022), ECF No. 1. The Federal Circuit reversed the Board and found
that DLA violated the appellant’s VEOA rights. Williams v. Department of
Defense, No. 2022-2246, 2023 WL 3575987, at *1-2 (Fed. Cir. May 23, 2023). In
particular, it found that it was improper for the agency to rely exclusively on the
appellant’s responses to its automated staffing system in determining the
appellant was not qualified. Id. at *2. The Federal Circuit reasoned that, under
5 U.S.C. § 3311(2), the agency was required to assess the application materials he
submitted, which reflected that he did, in fact, have the required experience. Id.
It remanded the appeal for the Board “to craft appropriate relief.” Id. The Board,
in turn, remanded the appeal to the regional office. Williams v. Department of
Defense, MSPB Docket No. DC-3330-18-0427-M-1, Remand Appeal File (RF),
Tab 2 at 1.
The administrative judge issued a remand initial decision on January 31,
2024, ordering the agency to reconstruct the selection process for the contract
specialist position. RF, Tab 17, Remand Initial Decision (RID) at 5. The
appellant filed a petition for review of that decision on February 23, 2024.
Williams v. Department of Defense , MSPB Docket No. DC-3330-18-0427-M-1,
Remand Petition for Review (RPFR) File, Tab 1. He also filed a pleading seeking
enforcement of the remand initial decision and liquidated damages. RF, Tab 183
at 4-6. The administrative judge separately docketed the pleading as a petition
for enforcement (MSPB Docket No. DC-3330-18-0427-C-1) and a motion for
damages (MSPB Docket No. DC-3330-18-0427-P-1). The administrative judge
issued separate initial decisions finding that the appellant prematurely filed these
requests because the remand initial decision granting corrective action was not
yet final. See Williams v. Department of Defense , MSPB Docket No. DC-3330-
18-0427-C-1, Compliance File (CF), Tab 11, Compliance Initial Decision (CID)
at 1, 3; Williams v. Department of Defense , MSPB Docket No. DC-3330-18-0427-
P-1, Damages File, Tab 4, Addendum Initial Decision (AID) at 1, 3.
The appellant has filed a petition for review of the remand initial decision.
RPFR File, Tab 1. The agency has responded to the petition for review, and the
appellant has replied. RPFR File, Tabs 3-4. The appellant also filed identical
petitions for review of the initial decisions finding his compliance and damages
requests premature. Williams v. Department of Defense , MSPB Docket No.
DC-3330-18-0427-C-1, Compliance Petition for Review (CPFR), Tab 1;
Williams v. Department of Defense , MSPB Docket No. DC-3330-18-0427-P-1,
Damages Petition for Review (DPFR) File, Tab 1. The agency has filed separate
responses to the petitions for review in the two appeals. CPFR File, Tab 4; DPFR
File, Tab 4.
DISCUSSION OF ARGUMENTS ON REVIEW
On review, the appellant argues that the administrative judge abused her
discretion in denying discovery in his remanded appeal. RPFR File, Tab 1 at 5-6.
He also requests interim relief. Id. at 9-10. The appellant also alleges that he is
entitled to liquated damages because the agency’s original decision not to hire
him was the result of its willful failure to look beyond his responses to the online
questionnaire and because the agency took more than 20 days to reconstruct the
hiring process as required by the remand initial decision. Id. at 7-9; CPFR File,
Tab 1 at 5; DPFR File, Tab 1 at 5. He questions the integrity of the reconstructed4
hiring process. RPFR File, Tab 1 at 4-5, 7; CPFR File, Tab 1 at 4-5; DPFR File,
Tab 1 at 4-5.
The administrative judge did not abuse her discretion when she denied discovery
in MSPB Docket No. DC-3330-18-0427-M-1.
The appellant argues that the administrative judge abused her discretion in
denying his requests to engage in discovery after the Federal Circuit reversed the
Board’s decision in the underlying appeal and remanded the case to the Board.
RPFR File, Tab 1 at 5-6; RID at 4 n.2; RF, Tab 15 at 2-4. An administrative
judge has broad discretion in ruling on discovery matters, and absent an abuse of
discretion, the Board will not find reversible error in such rulings. Pridgen v.
Office of Management and Budget , 2022 MSPB 31, ¶ 71. Here, the appellant
requested discovery “regarding the hiring process for the contract specialist
position . . . to assist [him] in better understanding the hiring process and the
selection process.” RF, Tab 8 at 3. He further reasoned, both below and on
review, that he needed this information to ensure the agency properly
reconstructed the hiring process for the contract specialist vacancy at issue.
RF, Tab 12 at 4-5, Tab 14 at 4-6; RPFR File, Tab 1 at 7.
We discern no abuse of discretion. The Federal Circuit found that the
appellant prevailed in the claim at issue. Williams, 2023 WL 3575987, at *2.
The court remanded the appeal “for the Board to craft the appropriate relief.” Id.
VEOA requires the Board to do more than merely provide a remedy for a past
wrong; it mandates that the Board “shall order the agency to comply with” the
violated provisions and award compensation for any loss of wages or benefits
suffered by the individual by reason of the violation. Walker v. Department of
the Army, 104 M.S.P.R. 96, ¶ 18 (2006) (quoting 5 U.S.C. § 3330c(a)). In
addition, VEOA provides that the Board “shall award an amount equal to backpay
as liquidated damages” if it determines that the “violation was willful.” 5 U.S.C.
§ 3330c(a); Walker, 104 M.S.P.R. 96, ¶ 18. Therefore, the Board must craft a
remedy for a veterans’ preference violation that (1) allows the appellant to5
compete under merit system principles for the position; (2) allows the Board to
determine whether the appellant suffered any loss of wages or benefits by reason
of the violation; and (3) assuming that the Board finds that the violation was
willful, allows the Board to determine whether the appellant might be entitled to
back pay for the purposes of awarding liquidated damages. Lodge v. Department
of the Treasury, 107 M.S.P.R. 22, ¶ 14 (2007). Reconstruction of the selection
process is the appropriate remedy that allows the Board to make the necessary
determinations regarding the scope of relief. Id.
The discovery requested by the appellant concerned the agency’s
compliance with an order to reconstruct the hiring process. RF, Tab 15 at 2-4.
However, no such order had yet been issued. Id. at 3. The administrative judge
properly advised the appellant that once she ordered the reconstruction, he had a
right to file a petition for enforcement, in which he could renew his request for
discovery regarding the agency’s compliance. Id. at 3-4. We find that the
appellant has shown no error by the administrative judge regarding this discovery
ruling.
Additionally, even if the administrative judge abused her discretion with
respect to her rulings below, the appellant must show how that error affected the
result reached in his appeal. Vores v. Department of the Army , 109 M.S.P.R. 191,
¶ 14 (2008), aff’d per curiam , 324 F. App’x 883 (Fed. Cir. 2009).
An adjudicatory error that is not prejudicial to a party’s substantive rights
provides no basis for reversal of an initial decision. Id., ¶¶ 14-15 (determining
that the appellant failed to show that the administrative judge abused his
discretion by not extending the discovery period when the appellant failed to
show how the information he sought would have affected the administrative
judge’s finding that the Board lacked jurisdiction over the appeal). It is
undisputed that the agency has completed the reconstruction process and offered
the appellant the contract specialist position, which he has accepted. RPFR File,6
Tab 3 at 7-8; CF, Tab 8 at 187-89; CPFR, Tab 1 at 5. Accordingly, we conclude
that the appellant has shown no basis upon which to disturb the initial decision.
The appellant was not entitled to interim relief.
The appellant also contends that he is entitled to interim relief. RPFR File,
Tab 1 at 9-10. Here, the administrative judge did not address interim relief in the
initial decision. RID at 5. Generally, when an initial decision is silent on the
issue of interim relief, the appellant becomes entitled to interim relief by
operation of statute. Stewart v. Department of Transportation , 2023 MSPB 18,
¶ 10. However, for the reasons set forth below, we find that interim relief was
not appropriate in this case.
The Board has previously declined to address whether interim relief is
appropriate in a VEOA appeal. See Scharein v. Department of the Army ,
91 M.S.P.R. 329, ¶ 5 n.2 (2002), aff’d per curiam , No. 02-3270, 2008 WL
5753074 (Fed. Cir. Jan. 10, 2008). We need not resolve that issue here because
we find that even if interim relief might be available in some VEOA appeals, it is
not appropriate here. It is a fundamental element of interim relief that the
appellant be reinstated with pay effective as of the date of the initial decision. Id.
However, the Board has found that there are circumstances in which it is
inappropriate to order interim relief. Id. In particular, the Board has found
interim relief inappropriate where it is clearly impractical or is outside the scope
of the Board’s authority to provide the relief ordered. Id. We find such to be the
case here. At the time that the initial decision was issued, neither the Board nor
the agency had determined that the appellant was entitled to the contract
specialist position at issue. Therefore, it was not practical to order the agency to
place him in the position pending its reconstruction of the hiring process.
We agree with the administrative judge’s decision to deny the appellant’s petition
for enforcement and motion for damages as prematurely filed.
The appellant filed a motion of “enforcement,” which the administrative
judge docketed as two separate appeals and dismissed as prematurely filed.7
RF, Tab 18. On review, the appellant does not explicitly address the dismissal of
his petition for enforcement and motion for damages or address the administrative
judge’s finding that the remand initial decision is not yet final. Instead, he
generally expresses confusion over why the administrative judge has ordered the
agency to reconstruct the hiring process without overseeing the agency’s
compliance and repeats that he believes he is entitled to damages for the agency’s
“willful” actions. CPFR File, Tab 1 at 4-5; DPFR File, Tab 1 at 4-5.2
The record reflects that the appellant accepted the contract specialist
position on March 5, 2024, after the hiring process was reconstructed. CF, Tab 8
at 187-89. The agency also determined that the appellant was eligible for back
pay. Id. at 190. Despite these developments, the appellant does not address that
he has accepted the position or that he was deemed eligible for backpay by the
agency. Regardless, as found by the administrative judge, the adjudication of this
compliance issue is premature because there was no final order from which a
petition for enforcement could be filed. CID at 2-3; see Flaherty v. U.S. Postal
Service, 68 M.S.P.R. 637, 638 (1995). It is also premature because the
appellant’s entitlement to back pay could only be known after a determination
was made that he should have been selected for the job. Dean v. Department of
Agriculture, 99 M.S.P.R. 533, ¶ 45 (2005). Thus, we agree with the
administrative judge’s decision to dismiss the petition for enforcement as
prematurely filed. CID at 3; see 5 C.F.R. §§ 1201.182(a) (providing that a party
may petition the Board for enforcement of a final decision or order issued under
the Board’s appellate jurisdiction), 1208.3 (providing that the Board generally
2 The appellant also indicates that he does not “understand[] or trust[] the administrative
judge.” CPFR, Tab 1 at 5. There is a presumption of honesty and integrity on the part
of administrative judges that can only be overcome by a substantial showing of personal
bias, and the Board will not infer bias based on an administrative judge’s case-related
rulings. Vaughn v. Department of the Treasury , 119 M.S.P.R. 605, ¶ 18 (2013). The
appellant has not identified any personal animosity or favoritism towards him or the
agency. CPFR File, Tab 1 at 5. We detect no bias in the initial decisions and infer
none from the administrative judge’s conduct in this case. 8
applies its regulations regarding enforcement in 5 C.F.R. part 1201 to VEOA
appeals).
The appellant also asserts on review that he is owed “willful damages” due
to the agency’s actions. RPFR File, Tab 1 at 7-9. To the extent the appellant is
alleging he is entitled to liquidated damages at this stage, we agree with the
administrative judge’s determination that this claim is premature. AID at 2-3.
A determination on the amount of liquated damages, if any, cannot be determined
until the individual’s entitlement to a position has been decided and the
entitlement to lost wages or benefits established. See Dow v. General Services
Administration, 116 M.S.P.R. 369, ¶ 14 (2011). This is because the remedy for a
willful VEOA violation is liquidated damages equal to the amount of back pay.
5 U.S.C. § 3330c(a); Dow, 116 M.S.P.R. 369, ¶ 14.
Because we are denying the appellant’s petition for review of the remand
initial decision, that decision is now final, and the appellant’s petition for
enforcement and motion for liquated damages are now ripe.
Therefore, we forward the compliance and damages claims to the regional office
for adjudication. See, e.g., As’Salaam v. U.S. Postal Service , 65 M.S.P.R. 417,
422-23 (1994).
NOTICE OF APPEAL RIGHTS3
You may obtain review of this final decision. 5 U.S.C. § 7703(a)(1). By
statute, the nature of your claims determines the time limit for seeking such
review and the appropriate forum with which to file. 5 U.S.C. § 7703(b).
Although we offer the following summary of available appeal rights, the Merit
Systems Protection Board does not provide legal advice on which option is most
appropriate for your situation and the rights described below do not represent a
statement of how courts will rule regarding which cases fall within their
3 Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise which option is most appropriate in any matter.9
jurisdiction. If you wish to seek review of this final decision, you should
immediately review the law applicable to your claims and carefully follow all
filing time limits and requirements. Failure to file within the applicable time
limit may result in the dismissal of your case by your chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the following
address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The10
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. 420 (2017). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the district court no later than 30 calendar days after your representative
receives this decision. If the action involves a claim of discrimination based on
race, color, religion, sex, national origin, or a disabling condition, you may be
entitled to representation by a court-appointed lawyer and to waiver of any
requirement of prepayment of fees, costs, or other security. See 42 U.S.C.
§ 2000e-5(f) and 29 U.S.C. § 794a.
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702(b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file11
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or
other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
disposition of allegations of a prohibited personnel practice described in section
2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i),
(B), (C), or (D),” then you may file a petition for judicial review either with the
U.S. Court of Appeals for the Federal Circuit or any court of appeals of
competent jurisdiction.4 The court of appeals must receive your petition for
4 The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115-195,
132 Stat. 1510. 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 | Williams_Eric_DC-3330-18-0427-P-1_DC-3330-18-0427-M-1_and_DC-3330-18-0427-C-1_Final_Order.pdf | 2025-02-05 | ERIC WILLIAMS v. DEPARTMENT OF DEFENSE, MSPB Docket No. DC-3330-18-0427-I-1, February 5, 2025 | DC-3330-18-0427-M-1; DC-3330-18-0427-C-1; DC-3330-18-0427-P-1 | NP |
206 | https://www.mspb.gov/decisions/nonprecedential/Booker_GwendolynNY-1221-24-0052-W-1_Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
GWENDOLYN BOOKER,
Appellant,
v.
DEPARTMENT OF HEALTH AND
HUMAN SERVICES,
Agency.DOCKET NUMBER
NY-1221-24-0052-W-1
DATE: February 5, 2025
THIS FINAL ORDER IS NONPRECEDENTIAL1
Gwendolyn Booker , Maybrook, New York, pro se.
Jennifer Smith and Douglas Cole Elliott , 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
the effective date of Acting Chairman Kerner’s designation.
**Member Kerner recused himself and
did not participate in the adjudication of this appeal.
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).
FINAL ORDER
The appellant has filed a petition for review of the initial decision, which
dismissed her individual right of action 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).
On petition for review, the appellant disagrees with the administrative
judge’s conclusion that she did not prove the exhaustion element of her
jurisdictional burden regarding an alleged breach of confidentiality. Petition for
Review (PFR) File, Tab 1 at 4; see Initial Appeal File (IAF), Tab 15, Initial
Decision (ID) at 5. In support of this argument, the appellant attached additional
evidence that includes some of her correspondence with the Office of Special
Counsel (OSC) before it closed her complaint in November 2023. PFR File,
Tab 1 at 5-18; see IAF, Tab 7 at 22-23. Although this evidence does show the
appellant complaining of the breach of confidentiality to OSC, generally, her
arguments and evidence do not indicate that she engaged in whistleblowing about
the breach of confidentiality, suffered any retaliatory personnel action because of
such whistleblowing, or exhausted any such claim. PFR File, Tab 1 at 5, 6,2
15-18. Accordingly, we agree with the administrative judge’s conclusion that the
appellant did not establish jurisdiction over this matter.
On review, the appellant next disagrees with the administrative judge’s
conclusion that she did not present the nonfrivolous allegations necessary to
establish jurisdiction over other claims, which generally involved a new
supervisor’s behavior towards the appellant and changes to the appellant’s duties.
PFR File, Tab 1 at 4; see ID at 5-8. However, we agree with the administrative
judge’s conclusion that the appellant did not meet her jurisdictional burden for
these claims. To the extent that these claims were exhausted with OSC,2 the
appellant has not presented the requisite nonfrivolous allegations of protected
disclosures that were a contributing factor to a covered personnel action.3
See, e.g., Gabel v. Department of Veterans Affairs, 2023 MSPB 4, ¶ 6 (discussing
the nonfrivolous standard and the standard for a disclosure to be protected,
2 Some of the appellant’s arguments and evidence involve alleged wrongdoing that was
not exhausted with OSC because it occurred in 2024, after OSC’s close out of her
complaint. See, e.g., IAF, Tab 8 at 18, Tab 9 at 4.
3 While she provided a thorough description of the legal standards regarding an abuse of
authority disclosure, the administrative judge cited Mc Corcle v. Department of
Agriculture, 98 M.S.P.R. 363, ¶ 24 (2005) for the proposition that an appellant’s own
personal complaints and grievances about how she was treated by the agency or mere
debatable disagreements with the agency’s policy decisions do not constitute a
nonfrivolous allegation of a protected disclosure. ID at 6-7. After the initial decision
in this case was issued, the Board issued Collier v. Small Business Administration,
2024 MSPB 13, which overruled that holding from Mc Corcle. The Collier decision
explained that there are no exceptions in the applicable statute for disclosures of abuses
of authority that are personal complaints or grievances about treatment by an agency,
nor does the Board’s definition include such an exception. Id., ¶ 7. Rather, the key
question in determining whether a nonfrivolous allegation of an abuse of authority has
been made is whether there is an allegation of an arbitrary or capricious exercise of
power by a Federal official or employee that adversely affected the rights of “any
person,” including an appellant, or that resulted in personal gain or advantage to the
Federal official, employee, or some other preferred person. Id. Despite citing
Mc Corcle, the administrative judge in this appeal explicitly found that the appellant’s
allegations did not illustrate an arbitrary and capricious exercise of power that
adversely affected the rights of any person or resulted in personal gain or advantage to
herself or preferred other persons, consistent with our holding in Collier. We therefore
find the reference to Mc Corcle inconsequential.3
including the requirement that the disclosure be specific and detailed, rather than
vague allegations of wrongdoing).
NOTICE OF APPEAL RIGHTS4
You may obtain review of this final decision. 5 U.S.C. § 7703(a)(1). By
statute, the nature of your claims determines the time limit for seeking such
review and the appropriate forum with which to file. 5 U.S.C. § 7703(b).
Although we offer the following summary of available appeal rights, the Merit
Systems Protection Board does not provide legal advice on which option is most
appropriate for your situation and the rights described below do not represent a
statement of how courts will rule regarding which cases fall within their
jurisdiction. If you wish to seek review of this final decision, you should
immediately review the law applicable to your claims and carefully follow all
filing time limits and requirements. Failure to file within the applicable time
limit may result in the dismissal of your case by your chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(A).
4 Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise which option is most appropriate in any matter.4
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the following
address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems
Protection Board, 582 U.S. 420 (2017). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the district court no later than 30 calendar days after your representative
receives this decision. If the action involves a claim of discrimination based on5
race, color, religion, sex, national origin, or a disabling condition, you may be
entitled to representation by a court-appointed lawyer and to waiver of any
requirement of prepayment of fees, costs, or other security. See 42 U.S.C.
§ 2000e-5(f) and 29 U.S.C. § 794a.
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702(b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or6
other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
disposition of allegations of a prohibited personnel practice described in
section 2302(b) other than practices described in section 2302(b)(8), or
2302(b)(9)(A)(i), (B), (C), or (D),” then you may file a petition for judicial
review either with the U.S. Court of Appeals for the Federal Circuit or any court
of appeals of competent jurisdiction.5 The court of appeals must receive your
petition for review within 60 days of the date of issuance of this decision.
5 U.S.C. § 7703(b)(1)(B).
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the following
address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
5 The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115-195,
132 Stat. 1510. 7
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
Contact information for the courts of appeals can be found at their
respective websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
FOR THE BOARD: ______________________________
Gina K. Grippando
Clerk of the Board
Washington, D.C.8 | Booker_GwendolynNY-1221-24-0052-W-1_Final_Order.pdf | 2025-02-05 | GWENDOLYN BOOKER v. DEPARTMENT OF HEALTH AND HUMAN SERVICES, MSPB Docket No. NY-1221-24-0052-W-1, February 5, 2025 | NY-1221-24-0052-W-1 | NP |
207 | https://www.mspb.gov/decisions/nonprecedential/Brown_Charles_R_NY-0752-20-0061-I-2_Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
CHARLES R. BROWN,
Appellant,
v.
DEPARTMENT OF JUSTICE,
Agency.DOCKET NUMBER
NY-0752-20-0061-I-2
DATE: February 5, 2025
THIS FINAL ORDER IS NONPRECEDENTIAL1
Raymond R. Granger , Esquire, New York, New York, for the appellant.
Eugene Kim , Esquire, 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
the effective date of Acting Chairman Kerner’s designation.
FINAL ORDER
The appellant has filed a petition for review of the initial decision, which
sustained his removal based on charges of conduct unbecoming a Deputy U.S.
Marshal and failure to follow policy. Generally, we grant petitions such as this
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).
one only in the following circumstances: the initial decision contains erroneous
findings of material fact; the initial decision is based on an erroneous
interpretation of statute or regulation or the erroneous application of the law to
the facts of the case; the administrative judge’s rulings during either the course of
the appeal or the initial decision were not consistent with required procedures or
involved an abuse of discretion, and the resulting error affected the outcome of
the case; or new and material evidence or legal argument is available that, despite
the petitioner’s due diligence, was not available when the record closed. Title 5
of the Code of Federal Regulations, section 1201.115 (5 C.F.R. § 1201.115).
After fully considering the filings in this appeal, we conclude that the petitioner
has not established any basis under section 1201.115 for granting the petition for
review. Therefore, we DENY the petition for review. Except as expressly
MODIFIED to find that the nature and seriousness of the misconduct, the
appellant’s position as a law enforcement officer, and the notoriety of his
misconduct outweighed the mitigating factors and warranted the removal, and to
find that the appellant’s alcoholism was not the but-for cause of his removal, we
AFFIRM the initial decision.
BACKGROUND
The appellant, a GS-13 Deputy U.S. Marshal, does not dispute the facts that
led to his removal. Brown v. Department of Justice , NY-0752-20-0061-I-1,
Initial Appeal File (IAF), Tab 12 at 8; Brown v. Department of Justice , NY-0752-
0061-I-2, Appeal File (I-2 AF), Tab 10 at 4-7; Hearing Recording (HR)
(testimony of the appellant). On December 16, 2016, the appellant, while off
duty, went to a bar and took with him a personally owned handgun. I-2 AF,
Tab 10 at 5; HR (testimony of the appellant). He consumed numerous alcoholic
drinks, to the point where he blacked out. HR (testimony of the appellant). At
some point in the evening, the appellant walked to a local McDonald’s restaurant
and engaged in a verbal altercation with the cashier, during which he placed his2
agency credentials on the counter. IAF, Tab 10; I-2 AF, Tab 10 at 6. His
behavior concerned several other patrons, who escorted the appellant out of the
restaurant. IAF, Tab 14 at 65. At some point after the appellant was escorted out
of the restaurant, he drew the handgun he had brought with him. Id. at 65, 69. A
witness called the police, and the appellant was arrested near the McDonald’s and
charged with reckless endangerment, criminal possession of a firearm, and second
degree menacing with a weapon. Id. at 69. Shortly thereafter, the New York Post
published an article about the appellant’s arrest, identifying him as a Deputy U.S.
Marshal. Id. at 72-73. The appellant eventually entered into a conditional plea of
menacing in the third degree in New York State Court and agreed to complete a
court-ordered alcohol-treatment program and 30 days of community service. Id.
at 12. The appellant completed the conditions of his plea deal, the charges were
dismissed, and all records related to the case were sealed. Id. at 12-13.
On December 18, 2019, the agency removed the appellant for four
specifications of conduct unbecoming a Deputy U.S. Marshal, specifically, for
carrying an agency-authorized weapon while under the influence of alcohol,
displaying his agency credentials for no official purpose, creating a disturbance at
the McDonald’s restaurant requiring intervention by civilians, and brandishing a
handgun that resulted in his arrest, as well as one specification of failure to
follow policy due to his failure to use a gun holster on the night of the incident at
issue in this appeal. IAF, Tab 12 at 8-14. The appellant filed a Board appeal,
challenging the reasonableness of the penalty and arguing that his removal was
the result of disability discrimination on the basis of alcoholism. IAF, Tab 1 at 4,
Tab 17 at 4. After holding a hearing, the administrative judge issued an initial
decision affirming the appellant’s removal. I-2 AF, Tab 14, Initial Decision (ID).
First, the administrative judge found that the agency proved the charges by
preponderant evidence, noting that the appellant did not dispute that he3
committed the misconduct as alleged.2 ID at 5. Also, she found nexus between
the appellant’s misconduct and his job because he displayed his agency
credentials while in the McDonald’s. Id.
As for the penalty, the administrative judge explained that, while the
deciding official considered several mitigating factors, she admitted in her
testimony that she did not consider the appellant’s argument that the misconduct
was caused by his alcoholism. ID at 6. Thus, because the agency did not
consider alcoholism as a mitigating factor, the administrative judge conducted her
own Douglas factors analysis,3 acknowledging that, while she accepted the fact
that the appellant was an alcoholic, it did not warrant a lesser penalty due to the
dangerous nature of the misconduct, his position as a law enforcement officer, the
fact that alcoholism did not explain all of his misconduct, and alcohol
rehabilitation did not entitle him to a federal law enforcement career. ID at 8-12.
Finally, the administrative judge determined that the appellant did not establish
by preponderant evidence his claim of disability discrimination. ID at 13. Thus,
she upheld the agency’s decision to remove the appellant from Federal service.
ID at 14.
The appellant has filed a petition for review, arguing that (1) the deciding
official and the administrative judge erred by considering his alcoholism as an
aggravating factor; (2) the administrative judge improperly excluded comparator
evidence; and (3) his removal was the result of disability discrimination based on
alcoholism. Petition for Review (PFR) File, Tab 4 at 21-35. The agency has filed
2 The appellant stipulated that he was authorized by the agency to carry the gun in
question while on duty. I-2 AF, Tab 10 at 5. Therefore, the gun is an
agency-authorized weapon as described in the first specification of the conduct
unbecoming charge, even though it was his personal handgun. IAF, Tab 12 at 9; HR
(testimony of the appellant).
3 In Douglas v. Veterans Administration , 5 M.S.P.R. 280, 305-06 (1981), the Board
enumerated a nonexhaustive list of factors to consider in determining the
reasonableness of a penalty for acts of misconduct.4
a response in opposition to the appellant’s petition for review, and the appellant
has filed a reply to the agency’s opposition. PFR File, Tabs 6, 9.
DISCUSSION OF ARGUMENTS ON REVIEW
The nature and seriousness of the appellant’s misconduct, his role as a law
enforcement officer, and the notoriety of the misconduct outweigh the mitigating
factors and justify his removal.
On review, the appellant argues that the administrative judge erred in her
penalty analysis because she considered his alcoholism to be an aggravating
factor, claiming that she “incorporated misconceptions and biases regarding
alcoholism into her decision” and “relied on unsupported fear of [the appellant]
relapsing and thus treated [the appellant’s] alcoholism as an aggravating factor.”
PFR File, Tab 4 at 34. While the administrative judge was correct to redo the
penalty analysis, to the extent that she considered the appellant’s alcoholism to be
an aggravating factor in the initial decision, we agree that this was an error. See
Walsh v. U.S. Postal Service , 74 M.S.P.R. 627, 638 -39 (1997) (explaining that
claims of alcoholism, even if raised as part of an affirmative defense, should still
be considered as a mitigating factor). Nevertheless, any such error was not
prejudicial to the appellant because we find that other factors, most importantly
the nature and seriousness of the misconduct, warrant removal. 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 the initial decision).
In evaluating the penalty for sustained misconduct, the Board will consider,
first and foremost, the nature and seriousness of the misconduct and its
relationship to the employee’s duties, position, and responsibilities, including
whether the offense was intentional or was frequently repeated. Arena v. U.S.
Postal Service, 121 M.S.P.R. 125, ¶ 6 (2014), aff’d per curiam , 617 F. App’x 996
(Fed. Cir. 2015) (Table). Here, we agree with the administrative judge’s
conclusion that the nature and severity of the appellant’s misconduct “weighs5
inexorably against mitigation.” ID at 9. The appellant engaged in egregious and
dangerous behavior, placing himself and innocent bystanders at risk. He brought
a gun with him to a bar, consumed excessive amounts of alcohol, and displayed
his agency credentials without official purpose, seemingly in an attempt to abuse
his authority. HR (testimony of the appellant, testimony of the deciding official).
He engaged in a verbal altercation with an employee at McDonald’s to the point
where he was escorted out of the restaurant by concerned citizens and drew his
gun, further scaring those individuals. HR (testimony of the appellant, testimony
of the deciding official); IAF, Tab 12 at 9-11, Tab 14 at 65, 69; I-2 AF, Tab 10
at 5-6.
As the deciding official testified, the very core of a law enforcement
officer’s role is to create safety, promote order, and enforce laws. HR (testimony
of the deciding official). The appellant broke the law, and his actions created
chaos and endangered the safety of himself and others, which is antithetical to his
role as a law enforcement officer. As the Board has held, the nature and
seriousness of the offense is the most important Douglas factor, and we find that
the outrageous nature of the appellant’s misconduct justifies removal. Raco v.
Social Security Administration , 117 M.S.P.R. 1, ¶ 14 (2011); see Arena v. U.S.
Postal Service, 121 M.S.P.R. 125, ¶ 6.
However, there are other factors besides the nature and seriousness of the
offense that weigh against mitigation in this case. L aw enforcement officers have
the general duty and responsibility to uphold and enforce the law, not to break it.
Austin v. Department of Justice , 11 M.S.P.R. 255, 259 (1982). It is well
established that an agency has the right to hold its law enforcement personnel to a
high standard of conduct, higher than that applicable to other Federal employees.
O’Lague v. Department of Veterans Affairs , 123 M.S.P.R. 340, ¶ 20 (2016), aff’d
per curiam, 698 F. App’x 1034 (Fed. Cir. 2017); Reid v. Department of the Navy ,
118 M.S.P.R. 396, ¶ 26 (2012). Here, the appellant attempted to abuse his
authority by displaying his credentials without an official purpose, and placed6
people in danger by behaving in a belligerent manner and brandishing a weapon.
HR (testimony of the deciding official). His misconduct undermines the very
nature of his position, i.e., maintaining order, creating safety, and enforcing the
law, and falls woefully short of the high standard placed on law enforcement
officers. Additionally, the appellant’s misconduct caused substantial public
embarrassment to the agency, as the incident was written about in a major media
outlet that specifically identified him as a Deputy U.S. Marshal. IAF, Tab 14
at 72-73. The notoriety of an act of misconduct is an aggravating factor.
Douglas v. Veterans Administration , 5 M.S.P.R. 280, 305 (1981); see Acree v.
Department of the Treasury , 80 M.S.P.R. 73, ¶ 19 (1998) (noting how the
employee’s misconduct, which was written about in major newspaper articles,
undermined the public’s confidence in the agency), aff’d, 215 F.3d 1347 (Fed.
Cir. 1999) (Table).
We acknowledge that there are several mitigating factors present, most
notably the overwhelming show of support from his colleagues and superiors, his
length of service, excellent performance evaluations, and his substantial efforts at
sobriety. HR (testimony of the appellant, testimony of the appellant’s expert
witness); IAF, Tab 12 at 39-105, Tab 13 at 4-8, 10-16, 21-27, 32-38, 43-49,
54-61. While we commend the appellant on the impressive steps he has taken to
remain sober, we do not find that these steps, or the other mitigating factors,
outweigh the nature and seriousness of the misconduct, particularly because the
appellant’s behavior is antithetical to the very nature of the appellant’s position
as a law enforcement officer. See Lewin v. Department of Justice , 74 M.S.P.R.
294, 301 (1997) (years of service and outstanding performance evaluations do not
outweigh the seriousness of the misconduct); McLaughlin v. U.S. Postal Service ,
55 M.S.P.R. 192, 208 (1992) (the appellant’s 28 years of unblemished service,
cooperation with the agency’s investigation into misconduct, and letters of
recommendation submitted on his behalf did not outweigh the seriousness of his
misconduct); see also Jordan v. Department of the Air Force , 36 M.S.P.R. 409,7
414-15 (1988) (explaining that written statements of support by coworkers and
satisfactory job performance did not outweigh the agency’s legitimate
apprehension as to his continued employment and the effect of his proven
misconduct on the agency), aff’d, 884 F.2d 1398 (Fed. Cir. 1989) (Table).
Accordingly, we do not find that the removal is unreasonable in light of the
factors as described, and we thus uphold the penalty.
The appellant has not established that the agency treated him differently than
others in similar circumstances or that it did so knowingly and unjustifiably.
It is well settled that among the factors an agency should consider in
setting the penalty for misconduct is “consistency of the penalty with those
imposed upon other employees for the same or similar offenses.” Douglas,
5 M.S.P.R. at 305. On review, the appellant argues that the administrative judge
improperly excluded three comparator cases that, he alleges, proves mitigation is
warranted. PFR File, Tab 4 at 31-33. Specifically, the appellant provides three
comparator cases that he contends involve similar or worse offenses with lesser
penalties: (1) a GS-07 Detention Enforcement Officer in the District of Nevada
who received a proposed 60-day suspension, in part, for an off -duty road-rage
incident with a private citizen; (2) a GS-12 Deputy U.S. Marshal in the Southern
District of Florida who received a proposed 21-day suspension for several
charges, including causing a disturbance at a restaurant after consuming alcohol;
and (3) a proposed demotion to a non-supervisory position and a 60-day
suspension for a GS-13 Supervisory Inspector located in an unspecified location
after he was detained by local law enforcement in part for disorderly conduct.
I-2 AF, Tab 9 at 64-74, 76-84, 86-94. As the comparator cases were included in
the appellant’s prehearing submissions, they are part of the record, and we agree
that the administrative judge should have addressed them in her analysis. Id.
However, because we do not believe that the cases are sufficiently similar to the
appellant’s circumstances, nor do we find any evidence that the agency treated8
the appellant in a way not justified by the facts, we find that such error did not
prejudice the appellant’s substantive rights. See Panter, 22 M.S.P.R. 281, 282.
The universe of potential comparators “should be limited to those
employees whose misconduct and/or other circumstances closely resemble those
of the appellant.” Singh v. U.S. Postal Service , 2022 MSPB 15, ¶ 13. Although a
comparator need not always be in the same work unit or under the same
supervisor, it still remains an important factor in determining whether it is
appropriate to compare the penalties they are given. Id., ¶ 13; see Williams v.
Social Security Administration , 586 F.3d 1365, 1368-69 (Fed. Cir. 2009).
Furthermore, there must be some close connection between the misconduct or
some other factor for an employee from another work unit or supervisory chain to
be a proper comparator. Singh, 2022 MSPB 15, ¶ 13. If the appellant establishes
that he received more severe discipline than a comparator, then the proper inquiry
is whether the agency knowingly treated employees differently “in a way not
justified by the facts, and intentionally for reasons other than the efficiency of the
service.” Id., ¶ 14 (quoting Facer v. Department of the Air Force , 836 F.2d 535,
539 (Fed. Cir. 1988)). Thus, in assessing an agency’s penalty determination, the
relevant inquiry is whether the agency knowingly and unjustifiably treated
employees differently. Id.
The disciplinary actions presented by the appellant materially differ in
circumstances such that we do not find that the other employees are appropriate
comparators. Specifically, two of the comparators, the GS-07 Detention
Enforcement Officer and the GS-13 Supervisory Inspector, have different
positions, different grade levels, and thus different duties and responsibilities.
I-2 AF, Tab 9 at 64-74, 86-94. Furthermore, at least two of the cases were in
completely different areas of the country, i.e., Nevada and Florida, and it appears
that all three of the cases are in different work units under different chains of
command. Id. at 64-74, 76-84, 86-94. Also, while the comparator cases have
elements that are similar to the appellant’s misconduct, we see no evidence that9
these incidents received media attention, which occurred in the appellant’s case.
Id. Finally, we note that the appellant has provided the proposal notices, which
only proves that three different proposing officials decided, for reasons unknown,
to propose lesser discipline. Id. Therefore, even if the agency’s deciding
officials believed removal was warranted, the deciding officials were restricted
by the actions of the proposing officials. Although we acknowledge that the
second case, i.e., the other Deputy U.S. Marshal from Florida, designated the
same individual to act as the deciding official as in the appellant’s case, she could
not have imposed a penalty greater than the proposed 21-day suspension on the
comparator.4 Id. at 76-84; IAF, Tab 14 at 40-49. Accordingly, we do not find
that the cases presented by the appellant are sufficiently similar in circumstance
to establish that the agency treated the appellant less favorably than other
employees in similar circumstances.
Nevertheless, even assuming that the appellant established that the cases
were proper comparators, we do not find sufficient evidence that the agency
knowingly treated the appellant differently in a way that was not justified by the
facts. As discussed in great detail above, the appellant’s behavior was egregious,
outrageous, and led to public embarrassment not simply by the involvement of
local law enforcement but by the reporting of the incident in major media outlets.
HR (testimony of the deciding official); IAF, Tab 12 at 9-14. Thus, we conclude
that the appellant’s removal was justified by the facts. Furthermore, the
consistency of a penalty with those imposed on other employees for the same or
similar offenses is only one factor to be considered in determining the
reasonableness of an agency-imposed penalty . See Voss v. U.S. Postal Service ,
4 Due process under the Constitution requires that a tenured Federal employee be
provided “written notice of the charges against him, an explanation of the employer’s
evidence, and an opportunity to present his side of the story.” Cleveland Board of
Education v. Loudermill , 470 U.S. 532, 546 (1985). An appellant does not have proper
notice or a meaningful opportunity to respond if he is not provided proper notice of the
potential penalty. Thus, the deciding official may not impose a penalty harsher than the
penalty proposed.10
119 M.S.P.R. 324, ¶ 6 (2013). Accordingly, even if the appellant did establish
that he was treated differently than other employees in similar circumstances, and
such treatment was done so knowingly in a way that was not justified by the facts,
we still find the nature and seriousness of the misconduct, his role as a law
enforcement officer, and the notoriety of his misconduct justified his removal.
The appellant’s alcoholism was not the but-for cause of his removal, and thus, he
is not entitled to a reversal of the action.
The administrative judge found that the appellant failed to prove by
preponderant evidence that his removal was the result of disability discrimination
due to his alcoholism. ID at 13. The appellant disputes this finding, asserting
that he established that his removal was motivated by his alcoholism, and that the
agency failed to prove by clear and convincing evidence that it would have
removed him absent its discriminatory motive. PFR File, Tab 4 at 24-30.
Although we agree with the administrative judge’s ultimate conclusion, we
modify her analysis to explain that, even if the appellant established that his
alcoholism was the cause of his misconduct and thus a motivating factor in his
removal, he cannot establish that his alcoholism was the “but-for” cause of his
removal, and thus, he is not entitled to a reversal of the action.
The Board adjudicates claims of disability discrimination raised in
connection with an otherwise appealable action under the substantive standards of
section 501 of the Rehabilitation Act. Pridgen v. Office of Management and
Budget, 2022 MSPB 31, ¶ 35. The standards under the Americans with
Disabilities Act (ADA), as amended by the Americans with Disabilities Act
Amendments Act of 2008 (ADAAA), have been incorporated by reference into
the Rehabilitation Act and the Board applies them to determine whether there has
been a Rehabilitation Act violation. Id.; 29 U.S.C. § 791(f). The ADAAA
prohibits discrimination “on the basis of disability.” 42 U.S.C. § 12112(a). The
Board defers to the EEOC’s use of the motivating factor causation standard when
analyzing whether an appellant has established that an agency’s action was taken11
“on the basis of disability.” Pridgen, 2022 MSPB 31, ¶ 40. However, to obtain
full relief, an appellant must show that disability discrimination was a but -for
cause of the personnel action. Id.
Even if the appellant’s misconduct was caused by his alcoholism, we still
do not find that the appellant established his removal constituted disability
discrimination. An agency is never required to excuse a disabled employee’s
violation of a uniformly applied, job-related rule of conduct, even if the
employee’s disability caused the misconduct. Fitzgerald v. Department of
Defense, 85 M.S.P.R. 463, 469 (2000). Here, the appellant has not established
that the agency retained nondisabled employees after those employees committed
similar offenses . In addition, we find that the appellant’s removal was the result
of the nature of his conduct, i.e., that he placed his safety and the public’s safety
in jeopardy, displayed his agency credentials in a possible attempt to abuse his
authority, and brandished a gun at innocent bystanders, all of which was reported
in major media outlets. HR (testimony of the deciding official). While we
acknowledge that such behavior was a result of his alcoholism, we cannot excuse
such misconduct, as the behavior is antithetical to the agency’s mission and to the
role of a law enforcement officer. Accordingly, we affirm the appellant’s
removal.
NOTICE OF APPEAL RIGHTS5
The initial decision, as supplemented by this Final Order, constitutes the
Board’s final decision in this matter. 5 C.F.R. § 1201.113. You may obtain
review of this final decision. 5 U.S.C. § 7703(a)(1). By statute, the nature of
your claims determines the time limit for seeking such review and the appropriate
forum with which to file. 5 U.S.C. § 7703(b). Although we offer the following
summary of available appeal rights, the Merit Systems Protection Board does not
5 Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise which option is most appropriate in any matter.12
provide legal advice on which option is most appropriate for your situation and
the rights described below do not represent a statement of how courts will rule
regarding which cases fall within their jurisdiction. If you wish to seek review of
this final decision, you should immediately review the law applicable to your
claims and carefully follow all filing time limits and requirements. Failure to file
within the applicable time limit may result in the dismissal of your case by your
chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at13
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. 420 (2017). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the district court no later than 30 calendar days after your representative
receives this decision. If the action involves a claim of discrimination based on
race, color, religion, sex, national origin, or a disabling condition, you may be
entitled to representation by a court -appointed lawyer and to waiver of any
requirement of prepayment of fees, costs, or other security. See 42 U.S.C.
§ 2000e-5(f) and 29 U.S.C. § 794a.
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702(b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case,14
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or
other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
disposition of allegations of a prohibited personnel practice described in section
2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i),
(B), (C), or (D),” then you may file a 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. 115-195,15
review within 60 days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(B).
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the 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. 1510.16
Contact information for the courts of appeals can be found at their
respective websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
FOR THE BOARD: ______________________________
Gina K. Grippando
Clerk of the Board
Washington, D.C.17 | Brown_Charles_R_NY-0752-20-0061-I-2_Final_Order.pdf | 2025-02-05 | CHARLES R. BROWN v. DEPARTMENT OF JUSTICE, MSPB Docket No. NY-0752-20-0061-I-2, February 5, 2025 | NY-0752-20-0061-I-2 | NP |
208 | https://www.mspb.gov/decisions/nonprecedential/Escobar_Maria_B_DE-0752-21-0108-X-1_and_DE-0752-21-0108-C-1_Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
MARIA B. ESCOBAR,
Appellant,
v.
DEPARTMENT OF JUSTICE,
Agency.DOCKET NUMBER
DE-0752-21-0108-X-1
DE-0752-21-0108-C-1
DATE: February 5, 2025
THIS FINAL ORDER IS NONPRECEDENTIAL1
Maria B. Escobar , Tucson, Arizona, pro se.
Debbie Stevens , Marie Clarke , and Ted Booth , Esquire, 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.
1 A nonprecedential order is one that the Board has determined does not add significantly
to the body of MSPB case law. Parties may cite nonprecedential orders, but such orders
have no precedential value; the Board and administrative judges are not required to
follow or distinguish them in any future decisions. In contrast, a precedential decision
issued as an Opinion and 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
This case is before the Board pursuant to a May 16, 2024 Board Order, which
denied the agency’s petition for review of the compliance initial decision that
found the agency not in compliance with the Board’s March 14, 2022 final decision
in the underlying appeal. Escobar v. Department of Justice , MSPB Docket No.
DE-0752-21-0108-C-1, Order (May 16, 2024); Escobar v. Department of Justice ,
MSPB Docket No. DE-0752-21-0108-C-1, Compliance File (CF), Tab 6,
Compliance Initial Decision (CID); Escobar v. Department of Justice , MSPB
Docket No. DE-0752-21-0108-I-2, Initial Appeal File, Tab 7, Initial Decision (ID).
For the reasons set forth below, we now find the agency in compliance and
DISMISS the petition for enforcement.
DISCUSSION OF ARGUMENT AND EVIDENCE ON COMPLIANCE
The appellant filed the instant petition for enforcement alleging that the
agency had failed to comply with the Board’s March 14, 2022 final decision in the
underlying appeal, which reversed the appellant’s suspension and ordered the
agency to pay the appellant the appropriate amount of back pay, with interest and
benefits. ID at 4-5. The appellant asserted that the agency had failed to pay her the
appropriate amount of backpay and had not changed her leave status from absent
without leave (AWOL) to an approved leave status. CF, Tab 1. The administrative
judge granted the petition for enforcement in a November 7, 2022 compliance
initial decision, finding that the agency had “failed to submit any relevant,
material, and credible evidence . . . to establish that it was in compliance with the
final Board order in this matter.” CID at 3.
The agency filed a petition for review of the compliance initial decision.
Escobar v. Department of Justice , MSPB Docket No. DE-0752-21-0108-C-1,
Compliance Petition for Review File, Tab 2. On May 16, 2024, the Board denied
the petition for review, holding that there was no evidence in the record to
demonstrate that the appellant’s AWOL had been converted to an approved leave2
status between September 28, 2020, and February 14, 2021. The Board found that
a Standard Form (SF) 52 provided by the agency, which requested to change the
appellant’s leave to “LWOP/OWCP,” was insufficient to prove compliance because
it was unsigned, the approval date was blank, and the nature of the action requested
was vague and did not identify a date range. Order, ¶ 8. The Board affirmed the
compliance initial decision as modified to clarify that the appellant was not entitled
to backpay and benefits during the time that she was receiving wage replacement
benefits from the Office of Workers’ Compensation Programs (OWCP). Id., ¶¶ 1,
9-11. The Board ordered the agency to substitute an approved leave status for the
appellant’s AWOL between September 28, 2020, and February 14, 2021, remove
all references to AWOL from the appellant’s personnel file, and submit satisfactory
evidence of compliance to the Clerk of the Board within 60 days of the date of the
Order. Id. at 7.
On July 9, 2024, the agency submitted its Response to the May 16, 2024
Order. Escobar v. Department of Justice , MSPB Docket No. DE-0752-21-0108-
X-1, Compliance Referral File (CRF), Tab 2. The agency provided signed
documentation that on November 17, 2021, the agency had initiated a personnel
action to place the appellant in “LWOP/OWCP” for the period beginning
September 26, 2020, through September 26, 2022. Id. at 8. The agency also
provided the appellant’s electronic official personnel folder (eOPF), which
contained no reference to AWOL. Id. at 12-166.
On July 29, 2024, the appellant filed a response to the agency’s July 9, 2024
submission. CRF, Tab 4.
ANALYSIS
The agency bears the burden of proving that it has complied with a Board
order. Mercado v. Office of Personnel Management , 115 M.S.P.R. 65, ¶ 4 (2010).
The agency is required to produce relevant, material, and credible evidence of
compliance in the form of documentation or affidavits. Spates v. U.S. Postal3
Service, 70 M.S.P.R. 438, 443 (1996). The appellant may rebut the agency’s
evidence of compliance by making “specific, nonconclusory, and supported
assertions of continued noncompliance.” Brown v. Office of Personnel
Management, 113 M.S.P.R. 325, ¶ 5 (2010).
Here, the agency has submitted a signed SF-52 requesting personnel action
“LWOP/OWCP,” effective September 26, 2020, and not to exceed September 26,
2022. CRF, Tab 2 at 8. Moreover, as noted above, the agency submitted the
appellant’s eOPF, which contained no reference to AWOL. Id. at 12-166. Thus,
the agency has produced detailed, credible evidence that it has complied with the
Board’s May 16, 2024 Order to convert the appellant’s AWOL to an approved
leave status and remove all references to AWOL from the appellant’s personnel
file.
The appellant contends that the agency has not proved that it converted her
AWOL to an approved leave status because the signatures are unclear, the nature of
the action “LWOP/OWCP” is vague, and “the ending date is not typed, but
handwritten in a different ink and handwriting as all other signatures on the page.”2
CRF, Tab 4 at 5-6. However, the agency’s evidence shows that it has complied
with the Order in that the appellant’s eOPF does not contain any mention of
AWOL. Moreover, the SF-52 is signed and dated, and the effective dates of the
action are present, as the Board ordered. CRF, Tab 2 at 8-166. The appellant has
not convincingly demonstrated that the agency is in noncompliance. As a result,
we find the agency in compliance.
Accordingly, in light of the agency’s evidence, the Board finds the agency in
compliance and dismisses the petition for enforcement. This is the final decision of
the Merit Systems Protection Board in these compliance proceedings. Title 5 of the
Code of Federal Regulations, section 1201.183(c)(1) (5 C.F.R. § 1201.183(c)(1)).
2 The appellant also appears to contend that she is still entitled to back pay, CRF, Tab 4
at 6; however, the Board previously denied the appellant’s request for back pay and held
that the appellant is not entitled to back pay and other benefits for the time she was
receiving OWCP benefits, from September 21, 2020 to January 2, 2022, CRF, Tab 1 at 6.4
NOTICE OF APPEAL RIGHTS3
The initial decision, as supplemented by this Final Order, constitutes the
Boards final decision in this matter. 5 C.F.R. § 1201.113. You may obtain review
of this final decision. 5 U.S.C. § 7703(a)(1). By statute, the nature of your claims
determines the time limit for seeking such review and the appropriate forum with
which to file. 5 U.S.C. § 7703(b). Although we offer the following summary of
available appeal rights, the Merit Systems Protection Board does not provide legal
advice on which option is most appropriate for your situation and the rights
described below do not represent a statement of how courts will rule regarding
which cases fall within their jurisdiction. If you wish to seek review of this final
decision, you should immediately review the law applicable to your claims and
carefully follow all filing time limits and requirements. Failure to file within the
applicable time limit may result in the dismissal of your case by your chosen forum.
Please read carefully each of the three main possible choices of review below
to decide which one applies to your particular case. If you have questions about
whether a particular forum is the appropriate one to review your case, you should
contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
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 on race, color, religion, sex, national
origin, or a disabling condition, you may be entitled to representation by a court-6
appointed lawyer and to waiver of any requirement of prepayment of fees, costs, or
other security. See 42 U.S.C. § 2000e-5(f) and 29 U.S.C. § 794a.
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding all
other issues . 5 U.S.C. § 7702(b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case, and
your representative receives this decision before you do, then you must file with the
EEOC no later than 30 calendar days after your representative receives this
decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or
other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D). If
so, and your judicial petition for review “raises no challenge to the Board’s7
disposition of allegations of a prohibited personnel practice described in section
2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i),
(B), (C), or (D),” then you may file a petition for judicial review either with the
U.S. Court of Appeals for the Federal Circuit or any court of appeals of competent
jurisdiction.4 The court of appeals must receive your petition for review within 60
days of the date of issuance of this decision. 5 U.S.C. § 7703(b)(1)(B).
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the following
address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to the
U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that any
attorney will accept representation in a given case.
4 The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on July
7, 2018, permanently allows appellants to file petitions for judicial review of MSPB
decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals for the
Federal Circuit or any other circuit court of appeals of competent jurisdiction. The All
Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115-195, 132 Stat.
1510.8
Contact information for the courts of appeals can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
FOR THE BOARD: ______________________________
Gina K. Grippando
Clerk of the Board
Washington, D.C.9 | Escobar_Maria_B_DE-0752-21-0108-X-1_and_DE-0752-21-0108-C-1_Final_Order.pdf | 2025-02-05 | MARIA B. ESCOBAR v. DEPARTMENT OF JUSTICE, MSPB Docket No. DE-0752-21-0108-X-1, February 5, 2025 | DE-0752-21-0108-C-1; DE-0752-21-0108-I-2; DE-0752-21-0108-X-1 | NP |
209 | https://www.mspb.gov/decisions/nonprecedential/Robinson_AndrePH-0752-23-0361-I-1_Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
ANDRE ROBINSON,
Appellant,
v.
DEPARTMENT OF THE ARMY,
Agency.DOCKET NUMBER
PH-0752-23-0361-I-1
DATE: February 5, 2025
THIS FINAL ORDER IS NONPRECEDENTIAL1
Andre Robinson , Rosedale, Maryland, pro se.
Jeffrey B Miller , Esquire, Fort Detrick, 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 his involuntary resignation appeal for lack of jurisdiction. On petition
for review, the appellant reasserts that his resignation was involuntary because
the agency violated its policy, refused to stop his termination, and subjected him
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).
to “deplorable working conditions.”2 Id. Generally, we grant petitions such as
this one only in the following circumstances: the initial decision contains
erroneous findings of material fact; the initial decision is based on an erroneous
interpretation of statute or regulation or the erroneous application of the law to
the facts of the case; the administrative judge’s rulings during either the course of
the appeal or the initial decision were not consistent with required procedures or
involved an abuse of discretion, and the resulting error affected the outcome of
the case; or new and material evidence or legal argument is available that, despite
the petitioner’s due diligence, was not available when the record closed. Title 5
of the Code of Federal Regulations, section 1201.115 (5 C.F.R. § 1201.115).
After fully considering the filings in this appeal, we conclude that the petitioner
has not established any basis under section 1201.115 for granting the petition for
review. Therefore, we DENY the petition for review and AFFIRM the initial
decision, which is now the Board’s final decision. 5 C.F.R. § 1201.113(b).
NOTICE OF APPEAL RIGHTS3
You may obtain review of this final decision. 5 U.S.C. § 7703(a)(1). By
statute, the nature of your claims determines the time limit for seeking such
2 The appellant appears to argue for the first time on review that his resignation was
based on intolerable working conditions. Petition for Review (PFR) File, Tab 1 at 7.
Because the issue of jurisdiction is always before the Board, we have considered this
assertion on review. See Poole v. Department of the Army , 117 M.S.P.R. 516, ¶ 9
(2012). Here, the appellant identifies the intolerable working conditions as “sit[ting] in
a cold room not required to do nothing, other than be ordered to help clean the supply
closet or help move furniture.” PFR File, Tab 1 at 7. However, even if true, his
allegations do not show that his working conditions were so intolerable as to compel a
reasonable person to resign. See Brown v. U.S. Postal Service , 115 M.S.P.R. 609, ¶ 15
(2011) (stating that an employee is not guaranteed a stress-free work environment),
aff’d per curiam, 469 F. App’x 852 (Fed. Cir. 2012); see also Miller v. Department of
Defense, 85 M.S.P.R. 310, ¶ 32 (2000) (stating that dissatisfaction with work
assignments, a feeling of being unfairly criticized, or difficult or unpleasant working
conditions are generally not so intolerable as to compel a reasonable person to resign).
3 Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise which option is most appropriate in any matter.2
review and the appropriate forum with which to file. 5 U.S.C. § 7703(b).
Although we offer the following summary of available appeal rights, the Merit
Systems Protection Board does not provide legal advice on which option is most
appropriate for your situation and the rights described below do not represent a
statement of how courts will rule regarding which cases fall within their
jurisdiction. If you wish to seek review of this final decision, you should
immediately review the law applicable to your claims and carefully follow all
filing time limits and requirements. Failure to file within the applicable time
limit may result in the dismissal of your case by your chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the following
address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.3
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. 420 (2017). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the district court no later than 30 calendar days after your representative
receives this decision. If the action involves a claim of discrimination based on
race, color, religion, sex, national origin, or a disabling condition, you may be
entitled to representation by a court-appointed lawyer and to waiver of any
requirement of prepayment of fees, costs, or other security. See 42 U.S.C.
§ 2000e-5(f) and 29 U.S.C. § 794a.
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702(b)(1). You must file any such request with the4
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or
other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
disposition of allegations of a prohibited personnel practice described in
section 2302(b) other than practices described in section 2302(b)(8), or
2302(b)(9)(A)(i), (B), (C), or (D),” then you may file a petition for judicial
review either with the U.S. Court of Appeals for the Federal Circuit or any court
of appeals of competent jurisdiction.4 The court of appeals must receive your
4 The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of5
petition for review within 60 days of the date of issuance of this decision.
5 U.S.C. § 7703(b)(1)(B).
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the following
address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115-195,
132 Stat. 1510. 6
Contact information for the courts of appeals can be found at their
respective websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
FOR THE BOARD: ______________________________
Gina K. Grippando
Clerk of the Board
Washington, D.C.7 | Robinson_AndrePH-0752-23-0361-I-1_Final_Order.pdf | 2025-02-05 | ANDRE ROBINSON v. DEPARTMENT OF THE ARMY, MSPB Docket No. PH-0752-23-0361-I-1, February 5, 2025 | PH-0752-23-0361-I-1 | NP |
210 | https://www.mspb.gov/decisions/nonprecedential/Brooks_GregorySF-0752-23-0197-I-1_Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
GREGORY BROOKS,
Appellant,
v.
SMALL BUSINESS
ADMINISTRATION,
Agency.DOCKET NUMBER
SF-0752-23-0197-I-1
DATE: February 5, 2025
THIS FINAL ORDER IS NONPRECEDENTIAL1
Shaun Yancey , Esquire, and Jennifer Isaacs , Esquire, Atlanta, Georgia,
for the appellant.
Jeanne Louise Heiser , Esquire, and Trevonne Walford , Esquire,
Washington, D.C., for the agency.
Krista Madison , Esquire, Atlanta, Georgia, 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.
**Member 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
affirmed his removal. On petition for review, the appellant argues that the
penalty of removal is excessive. 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 | Brooks_GregorySF-0752-23-0197-I-1_Final_Order.pdf | 2025-02-05 | GREGORY BROOKS v. SMALL BUSINESS ADMINISTRATION, MSPB Docket No. SF-0752-23-0197-I-1, February 5, 2025 | SF-0752-23-0197-I-1 | NP |
211 | https://www.mspb.gov/decisions/nonprecedential/Lovejoy_LarryAT-0752-20-0633-I-1_Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
LARRY LOVEJOY, II,
Appellant,
v.
UNITED STATES POSTAL SERVICE,
Agency.DOCKET NUMBER
AT-0752-20-0633-I-1
DATE: February 5, 2025
THIS FINAL ORDER IS NONPRECEDENTIAL1
Jennifer D. Isaacs , Esquire, Atlanta, Georgia, for the appellant.
Jason L. Hardy , Esquire, Clearwater, Florida, for the agency.
Ronald E. Jones , Plano, Texas, 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 the agency’s chapter 75 removal action based on the charge of
unacceptable conduct. On petition for review, the appellant argues the following:
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).
(1) the administrative judge abused his discretion by disallowing certain witness
testimony; (2) the administrative judge made erroneous findings of material fact;
(3) the penalty of removal was unreasonable under the circumstances; and (4) the
administrative judge failed to consider his affirmative defenses. Petition for
Review (PFR) File, Tab 2 at 13-17. Generally, we grant petitions such as this one
only in the following circumstances: the initial decision contains erroneous
findings of material fact; the initial decision is based on an erroneous
interpretation of statute or regulation or the erroneous application of the law to
the facts of the case; the administrative judge’s rulings during either the course of
the appeal or the initial decision were not consistent with required procedures or
involved an abuse of discretion, and the resulting error affected the outcome of
the case; or new and material evidence or legal argument is available that, despite
the petitioner’s due diligence, was not available when the record closed. Title 5
of the Code of Federal Regulations, section 1201.115 (5 C.F.R. § 1201.115).
After fully considering the filings in this appeal, we conclude that the petitioner
has not established any basis under section 1201.115 for granting the petition for
review. Therefore, we DENY the petition for review. Except as expressly
MODIFIED to vacate the administrative judge’s discussion of affirmative
defenses, we AFFIRM the initial decision.
The appellant’s contention regarding his witnesses is unavailing.
The appellant argues that the administrative judge abused his discretion by
“denying [him] the opportunity to present his witnesses.” PFR File, Tab 2 at 13.
To this end, he asserts that the administrative judge approved the testimony of
only 10 of his 14 requested witnesses and “did not list reasons for the denial of
[the 4 disallowed] witnesses, but approved all of the [a]gency’s requested
witnesses.” Id. at 13-14. He also asserts that he unsuccessfully sought
reconsideration of the administrative judge’s ruling regarding one of his four
disallowed witnesses. Id. at 13.2
An administrative judge has broad discretion to regulate the course of the
hearing and to exclude evidence and witnesses that have not been shown to be
relevant, material, and nonrepetitious. Thomas v. U.S. Postal Service ,
116 M.S.P.R. 453, ¶ 4 (2011) ; 5 C.F.R. § 1201.41(b)(8), (10) . To obtain reversal
of an initial decision on the basis of the exclusion of a witness, the appellant must
show that a relevant witness or evidence, which could have affected the outcome,
was disallowed. See Thomas, 116 M.S.P.R. 453, ¶ 4 .
Here, although the appellant apparently disagreed with the administrative
judge’s admissibility rulings regarding all four of his disallowed witnesses, he
admittedly only timely objected to the administrative judge’s ruling regarding one
of these witnesses; thus, we need only consider his arguments regarding this
particular witness. Initial Appeal File (IAF), Tab 13 at 4-5; PFR File, Tab 2
at 13; see Tarpley v. U.S. Postal Service , 37 M.S.P.R. 579, 581 (1988) (stating
that an appellant’s failure to timely object to rulings on witnesses precludes the
appellant from doing so on petition for review).2 Regarding the anticipated
testimony of this particular witness, the appellant proffers only that the individual
had previously represented him and was present during his meeting with the
deciding official and, therefore, would have testified “regarding these processes
as well as to whether there had been any notification regarding some of the
complaints against [the a]ppellant.” PFR File, Tab 2 at 13. Given the vagueness
of this proffer, we find that the appellant has failed to show that the
administrative judge’s disallowance of this witness could have affected the
outcome of his appeal. See Thomas, 116 M.S.P.R. 453, ¶ 4; see also Umshler v.
Department of the Interior , 44 M.S.P.R. 628, 632-33 (1990) (concluding that the
2 We find, however, that even if the appellant had timely objected to the administrative
judge’s rulings regarding the three other disallowed witnesses, a different outcome
would not be warranted. Indeed, the appellant’s vague proffers regarding these three
witnesses fail to identify any anticipated testimony that could be material to the
outcome of his appeal. IAF, Tab 10 at 12, Tab 11 at 3; PFR File, Tab 2 at 13; see
Thomas, 116 M.S.P.R. 453, ¶ 4.3
administrative judge did not err in denying the appellant’s requests for witnesses
when the appellant’s proffer regarding the witnesses was “not sufficiently
specific” to allow the Board to conclude whether the administrative judge had
abused her wide discretion). Thus, the appellant’s assertions regarding his
witnesses do not warrant a different outcome.
The appellant’s contentions regarding the administrative judge’s findings of fact
are unavailing.
The appellant contends that the administrative judge made erroneous
findings of material fact. PFR File, Tab 2 at 14-16. However, the only such
factual finding that he discernably identifies is the administrative judge’s
conclusion that he lacked rehabilitative potential.3 Id. at 15-16. He argues that
this finding was the result of erroneous credibility determinations, i.e., the
administrative judge “choosing to believe the [a]gency’s narrative and ignore [the
a]ppellant’s testimony.” Id. at 15. We find this assertion unavailing. Indeed,
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. Haebe v. Department of
Justice, 288 F.3d 1288, 1301 (Fed. Cir. 2002). Accordingly, the appellant’s
general disagreement with unspecified credibility determinations made by the
administrative judge does not provide a basis to disturb the initial decision.
3 The appellant asserts that he was not allowed to have a representative present during
an investigative interview with his supervisor and that he was only provided with
2 hours of notice for the interview; however, he does not identify what bearing, if any,
these alleged improprieties had on the administrative judge’s factual findings. PFR
File, Tab 2 at 16. In any event, the appellant did not discernably raise these claims
before the administrative judge. See Banks v. Department of the Air Force , 4 M.S.P.R.
268, 271 (1980) (finding that the Board generally will not consider an argument raised
for the first time in a petition for review absent a showing that it is based on new and
material evidence not previously available despite the party’s due diligence).4
We discern no basis to disturb the administrative judge’s conclusion that removal
was reasonable under the circumstances.
The appellant contends that his removal was unwarranted under the
circumstances. PFR File, Tab 2 at 14-16. To this end, he asserts that, in
assessing the reasonableness of the agency’s penalty, the administrative judge
improperly deferred to the deciding official’s determination and neglected to
consider all of the mitigating factors/circumstances, including tension that existed
in the office. Id. at 15-16. We disagree.
When the agency’s charge is sustained, the Board will review an
agency-imposed penalty only to determine if the agency considered all of the
relevant factors and exercised discretion within tolerable limits of reasonableness.
Ellis v. Department of Defense , 114 M.S.P.R. 407, ¶ 11 (2010) ; Douglas v.
Veterans Administration , 5 M.S.P.R. 280, 305-06 (1981) . In making this
determination, the Board must give due weight to the agency’s primary discretion
in maintaining employee discipline and efficiency, recognizing that the Board’s
function is not to displace management’s responsibility, but to ensure that
managerial judgment has been properly exercised. Ellis, 114 M.S.P.R. 407, ¶ 11 ;
Douglas, 5 M.S.P.R. at 306 . The Board will modify an agency -imposed penalty
only when it finds that the agency failed to weigh the relevant factors or the
penalty clearly exceeds the bounds of reasonableness. Ellis, 114 M.S.P.R. 407,
¶ 11.
Here, we find that the administrative judge applied the proper legal
standard and reasonably concluded that the agency’s selected penalty of removal
was not unwarranted under the circumstances and was within the tolerable bounds
of reasonableness. IAF, Tab 17, Initial Decision (ID) at 12-15; see Ellis,
114 M.S.P.R. 407, ¶ 11. To this end, the administrative judge recounted the
deciding official’s testimony that he had taken into consideration the appellant’s
past performance and good performance ratings. ID at 13; see Douglas,
5 M.S.P.R. at 305-06. However, as set forth in the initial decision, the deciding5
official reasonably concluded that removal was appropriate in light of, among
other things, the appellant’s supervisory status and the nature of his misconduct;4
indeed, the deciding official explained that, given the nature of the appellant’s
conduct, which included “suggestions of unwelcomed physical contact,” he had
found “no comparative situations where a lesser penalty was warranted or
provided.” ID at 13-14. Thus, we discern no basis to disturb the administrative
judge’s conclusion that the penalty of removal was reaso nable under the
circumstances. See Luongo v. Department of Justice , 95 M.S.P.R. 643, ¶¶ 2-3, 16
(2004) (finding the appellant’s removal appropriate when he placed his body
against a coworker and made improper sexual remarks and innuendo), aff’d,
123 F. App’x 405 (Fed. Cir. 2005) ; see also Alexander v. U.S. Postal Service ,
67 M.S.P.R. 183, 186-87, 191 (1995) (finding the appellant’s removal appropriate
when he exhibited a pattern of behavior involving both sexual harassment and
exhibitionism).
The appellant’s contention regarding his affirmative defenses does not warrant a
different outcome.
The appellant argues that, although “inartfully pled,” he nonetheless
“clearly identified issues concerning retaliation and violations of due process,”
which the administrative judge failed to address. PFR File, Tab 2 at 16. He
asserts that, although his attorney representative before the administrative judge
never “clearly stated that [he] was raising an affirmative defense,” his pleadings
and testimony nonetheless indicated that he was claiming “retaliation and
violations of due process.” Id. The appellant does not cite to any specific
4 The administrative judge here concluded that the agency proved by preponderant
evidence 6 of its 7 specifications of unacceptable conduct, including a specification
alleging that the appellant had repeatedly asked a female employee to touch him on an
intimate area of his body as he was in a visible state of arousal. ID at 3-10; IAF, Tab 4
at 30-31.6
pleadings wherein he raised such claims; rather, he refers generally to his
“Pre-Hearing Submissions.”5 Id. at 17.
Contrary to the appellant’s assertion, we find that his prehearing
submissions did not raise claims regarding either retaliation or violation(s) of his
due process rights. To this end, prior to the hearing, the appellant submitted four
filings. IAF, Tabs 1, 10-11, 13. On his initial appeal form, the appellant checked
a box indicating that he was challenging the agency’s removal action; he did not
provide any narrative argument or otherwise indicate that he was raising any
affirmative defenses. IAF, Tab 1 at 7. Thereafter, the appellant filed his
prehearing submission.6 IAF, Tab 10 at 6-11. Although the appellant generally
referenced a prior equal employment opportunity (EEO) matter that was resolved
via a settlement agreement in this filing, id. at 7, the reference was not
discernably tethered to a claim of reprisal for prior protected EEO activity.
Similarly, apart from vague references to the appellant being unable to review the
agency’s documentation prior to its issuance of the notice of proposed removal,
id. at 9, and an ambiguous statement regarding the agency’s notice of proposed
removal failing to provide “information about who was the alleged victim, when
and where did alleged misconduct happened,” id. (grammar as in original),7 the
5 In a section of his petition for review entitled “STATEMENT OF MATERIAL
FACTS,” the appellant cites to various documents, including documentation seemingly
pertaining to two prior equal employment opportunity claims. E.g., PFR File, Tab 2
at 6. Although unclear, we speculate that the appellant is citing to documents that the
parties exchanged during discovery; however, these documents are not part of the
record. This section of the appellant’s petition also alludes to discrimination on the
basis of race, color, and sex, as well as workplace harassment. Id. at 5-6. To the extent
the appellant is either raising these additional claims for the first time or arguing that he
raised these claims before the administrative judge, a different outcome is not warranted
because he has not shown that he could not have raised these matters earlier or
identified where in the record he timely raised these matters. See, e.g., 5 C.F.R.
§ 1201.115(a)(2), (d).
6 The appellant attached numerous documents to his prehearing submission, to include
various witness statements. IAF, Tab 10 at 16-109.
7 The basis of this statement was unclear; indeed, the record reflected, and the appellant
conceded at the hearing, that the agency’s notice of proposed removal, which the7
appellant provided no argument conceivably tethered to anything resembling a
due process argument. Indeed, the majority of the appellant’s prehearing
argument was devoted to (1) his contention that an October 2019 altercation that
he had with a customer had impelled the agency’s removal action and (2) the
deciding official’s alleged failure to independently verify and/or investigate the
allegations made against him. Id. at 10-11. The appellant’s remaining two filings
before the administrative judge pertained to his proffered witnesses and did not
discuss anything regarding affirmative defenses. IAF, Tabs 11, 13.
Following the appellant’s submission of all four of these filings, the
administrative judge issued a summary of the parties’ prehearing conference
wherein he summarized the material issues in the matter. IAF, Tab 14 at 2. The
appellant did not object to or otherwise challenge the administrative judge’s
summary, which was devoid of any mention of affirmative defenses. Id. Thus,
we find that the appellant, who was represented by counsel before the
administrative judge, did not timely raise his claims of retaliation or due process
violations. See Nugent v. U.S. Postal Service , 59 M.S.P.R. 444, 447 -48 (1993)
(stating that an appellant may raise a claim or defense at any time before the end
of the conference held to define the issues in the case), review dismissed , 36 F.3d
1107 (Fed. Cir. 1994) (Table); see also 5 C.F.R. § 1201.24(b) (stating that an
appellant may raise a claim or defense not included in the appeal at any time
before the end of the conference(s) held to define the issues in the case and that
thereafter may only raise a new claim or defense for good cause shown); cf. Miles
v. Department of Veterans Affairs , 84 M.S.P.R. 418, ¶ 6 (1999) (explaining that
the Board construes pro se pleadings liberally). Moreover, the appellant did not
discernably identify or address his affirmative defenses during the hearing. IAF,
appellant stipulated to receiving, had provided all of this information. IAF, Tab 4
at 31-34, Tab 14 at 2, Tab 15, Hearing Recording at 01:28:22 to 01:30:01 (testimony of
the appellant, file 4).8
Tab 15, Hearing Recording.8 Thus, we find unavailing the appellant’s assertion
that the administrative judge failed to address his affirmative defenses.9
Accordingly, we affirm the initial decision.
NOTICE OF APPEAL RIGHTS10
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
8 To the extent the appellant argues that the administrative judge precluded him from
presenting his claims of retaliation and due process violations, PFR File, Tab 2 at 17,
we find his assertion unavailing. Indeed, apart from his assertions regarding his
disallowed witnesses discussed above, the appellant does not identify any documentary
evidence or testimony that the administrative judge disallowed. See Sanders v. Social
Security Administration , 114 M.S.P.R. 487, ¶ 10 (2010) (explaining that, to obtain
reversal of an initial decision on the ground that the administrative judge abused his
discretion in excluding evidence, the appellant must show on review that relevant
evidence, which could have affected the outcome, was disallowed).
9 Despite the appellant’s failure to discernably raise any such claims, the administrative
judge nonetheless briefly discussed a series of affirmative defenses in his initial
decision; however, in so doing, he did not clearly explain the applicable legal standards.
ID at 10-12. Because we find that the appellant did not timely raise any affirmative
defenses, we vacate this portion of the initial decision.
10 Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise which option is most appropriate in any matter.9
within the applicable time limit may result in the dismissal of your case by your
chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case. 10
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. 420 (2017). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the district court no later than 30 calendar days after your representative
receives this decision. If the action involves a claim of discrimination based on
race, color, religion, sex, national origin, or a disabling condition, you may be
entitled to representation by a court -appointed lawyer and to waiver of any
requirement of prepayment of fees, costs, or other security. See 42 U.S.C.
§ 2000e-5(f) and 29 U.S.C. § 794a.
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702(b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision. 11
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or
other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
disposition of allegations of a prohibited personnel practice described in section
2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i),
(B), (C), or (D),” then you may file a petition for judicial review either with the
U.S. Court of Appeals for the Federal Circuit or any court of appeals of
competent jurisdiction.11 The court of appeals must receive your petition for
review within 60 days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(B).
11 The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115-195,
132 Stat. 1510.12
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 | Lovejoy_LarryAT-0752-20-0633-I-1_Final_Order.pdf | 2025-02-05 | null | AT-0752-20-0633-I-1 | NP |
212 | https://www.mspb.gov/decisions/nonprecedential/Baumgartner_Joy_AnnNY-0752-20-0071-I-1_Remand_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
JOY ANN BAUMGARTNER,
Appellant,
v.
DEPARTMENT OF VETERANS
AFFAIRS,
Agency.DOCKET NUMBER
NY-0752-20-0071-I-1
DATE: February 5, 2025
THIS ORDER IS NONPRECEDENTIAL1
Brook L. Beesley , Alameda, California, for the appellant.
Kimberly M. Thrun , Cheektowaga, New York, 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 her constructive suspension appeal for lack of jurisdiction. For the
reasons discussed below, we GRANT the appellant’s petition for review, VACATE
1 A nonprecedential order is one that the Board has determined does not add significantly
to the body of MSPB case law. Parties may cite nonprecedential orders, but such orders
have no precedential value; the Board and administrative judges are not required to
follow or distinguish them in any future decisions. In contrast, a precedential decision
issued as an Opinion and 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, and REMAND the case to the regional office for further
adjudication in accordance with this Remand Order.
Certain employee-initiated leaves of absence that appear to be voluntary but
are not may be appealable under 5 U.S.C. chapter 75 as constructive suspensions.
See Bean v. U.S. Postal Service , 120 M.S.P.R. 397, ¶¶ 7-8 (2013). Assuming that
the jurisdictional requirements of chapter 75 are otherwise met, to establish
jurisdiction under these circumstances, the appellant must prove by preponderant
evidence that (1) she lacked a meaningful choice in the matter, and (2) it was the
agency’s wrongful actions that deprived her of that choice. Id., ¶ 8. When an
appellant requests to return to work within certain medical restrictions after
initiating an absence, the Board considers whether the agency was obligated by an
agency policy, a regulation, a collective bargaining agreement, or the
Rehabilitation Act of 1973 to offer available work in determining whether the
agency’s actions were wrongful. See Crutch v. U.S. Postal Service , 119 M.S.P.R.
460, ¶ 11 (2013), overruled on other grounds by Abbott v. U.S. Postal Service ,
121 M.S.P.R. 294, ¶ 10; Baker v. U.S. Postal Service , 71 M.S.P.R. 680, 692 (1996).
If the appellant makes a nonfrivolous allegation of jurisdiction, then she is entitled
to a jurisdictional hearing. Barrand v. Department of Veterans Affairs ,
112 M.S.P.R. 210, ¶ 8. A nonfrivolous allegation of Board jurisdiction is an
allegation of fact that, if proven, could establish that the Board has jurisdiction over
the matter at issue. Ferdon v. U.S. Postal Service , 60 M.S.P.R. 325, 329 (1994);
5 C.F.R. § 1201.4(s). 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).
In the initial decision, the administrative judge found that the appellant made
a nonfrivolous allegation that she lacked a meaningful choice regarding her
absences from work, i.e., that she satisfied the first jurisdictional prong. Initial
Appeal File (IAF), Tab 11, Initial Decision (ID) at 4-5. The administrative judge2
concluded, however, that the appellant failed to make a nonfrivolous allegation that
her absences were precipitated by an improper agency action, i.e., that she failed to
satisfy the second jurisdictional prong; accordingly, the administrative judge
dismissed the matter for lack of jurisdiction. ID at 1, 5-6. In reaching this
conclusion, the administrative judge implicitly found that the appellant had failed
to make a nonfrivolous allegation that the agency had violated the Rehabilitation
Act because (1) the appellant’s claims regarding the same were merely pro forma,
and (2) the appellant “voluntarily chose not to comply with [the Federal
Employees’ Compensation Act (FECA)].” ID at 5-6.
For the following reasons, we disagree with this conclusion, we find that the
appellant made allegations sufficient to satisfy the second jurisdictional prong, and
we remand the matter for further development of the record and a jurisdictional
hearing.
Here, the appellant, a Practical Nurse, submitted a declaration made under
penalty of perjury. IAF, Tab 7 at 3-6. In this declaration, the appellant averred
that, on May 15, 2019, she sustained an on-the-job injury, which had periodically
rendered her unable to work.2 Id. at 4-5. She asserted that, on January 6, 2020, her
doctor cleared her to return to work provided that she did not lift more than
20 pounds. Id. at 5. In her declaration, the appellant alleged that: (1) she provided
agency personnel with a copy of her doctor’s note, and (2) she requested a
reasonable accommodation related thereto; however, the “reasonable
accommodation/HR Official” refused to process her claim, insisting that her lifting
restriction “was a workman’s comp issue,” i.e., that she needed to file a claim under
FECA in lieu of seeking a reasonable accommodation under the Rehabilitation Act.
2 As a result of this injury, the appellant was absent from work May 15-27, 2019. IAF,
Tab 10 at 133. On May 28, 2019, the appellant returned to work; she continued to work
until September 2019, at which point she notified the agency that she was again medically
unable to work due to her prior on-the-job injury, and she began to use her accrued sick
and annual leave. IAF, Tab 7 at 4-5, Tab 10 at 133. The appellant contended that her
constructive suspension began on January 6, 2020, when she again sought to return to
work, but the agency precluded her from doing so. IAF, Tab 1 at 3, Tab 7 at 5.3
Id. The appellant averred in a separate, unsworn statement that “[she] had a right to
[the] reasonable accommodation process and consideration under [F]ederal law”
regardless of the “work-related injury circumstances.” IAF, Tab 8 at 5. She also
implicitly alleged that she was a qualified individual with a disability. Id.; see
Clemens v. Department of the Army , 120 M.S.P.R. 616, ¶ 10 (2014) (setting forth
the circumstances under which the Rehabilitation Act requires an agency to provide
an individual with a reasonable accommodation). On review, the appellant
reiterates that the agency wrongfully refused to provide her with a reasonable
accommodation, and she ostensibly alleges that, had the agency properly processed
her request, it had at its disposal a “lifting assistive” device that would have
enabled her to perform the essential functions of her position. PFR File, Tab 1
at 7-8.
We find that the appellant’s assertions are sufficient to warrant a
jurisdictional hearing. To this end, we find that the appellant has presented
plausible, nonconclusory allegations that her post-January 6, 2020 absences were
precipitated by the agency’s failure to comport with the Rehabilitation Act. See
5 C.F.R. § 1201.4(s). It is unclear from the record whether the appellant was, in
fact, entitled to the reasonable accommodation process. Although “lifting” is
considered a major life activity, 29 C.F.R. § 1630.2(i)(1)(i), factual issues remain,
such as whether her lifting restriction was a short -term or episodic limitation, see
29 C.F.R. § 1630.2(j)(1)(vii), or whether she could perform the essential duties of
her position with or without reasonable accommodation. However, the appellant’s
plausible, nonconclusory allegations are sufficient to proceed to a hearing. To the
extent the administrative judge relied on the agency’s characterization of its
documentary evidence to find that agency personnel “appropriately referred the
appellant to [the Office of Workers’ Compensation Programs],” i.e., that the
appellant’s only avenue of redress was under FECA, her finding was erroneous
given the posture of the appeal and the appellant’s assertions to the contrary. ID
at 5; see Ferdon, 60 M.S.P.R. at 329 (stating that, in determining whether the4
appellant has made a nonfrivolous allegation of jurisdiction, an administrative
judge may not weigh evidence or resolve conflicting assertions).
Thus, we find that the appellant has made a nonfrivolous allegation sufficient
to entitle her to a Board hearing on jurisdiction. See Carey v. Department of Health
and Human Services , 112 M.S.P.R. 106, ¶ 7 (2009) (concluding that the appellant
made a nonfrivolous allegation of Board jurisdiction when she alleged via affidavit
that the agency’s refusal to accommodate her disability by allowing her to
telecommute forced her to retire). Because the jurisdictional prerequisites of
chapter 75 otherwise appear to be satisfied, we remand this appeal for further
development of the record and a jurisdictional hearing.3
Accordingly, we remand this appeal for a jurisdictional hearing to afford the
appellant an opportunity to prove jurisdiction over her involuntary suspension
claim.4
3 Subchapter II of chapter 75, which applies to suspensions of more than 14 days, does not
apply to an employee “who holds a position within the Veterans Health Administration
which has been excluded from the competitive service by or under a provision of title 38,
unless such employee was appointed to such position under section 7401(3) of such title.”
5 U.S.C. § 7511(b)(10); Mfotchou v. Department of Veterans Affairs , 113 M.S.P.R. 317,
¶ 8 (2010). Here, the appellant’s position of “Practical Nurse,” IAF, Tab 10 at 138, is
seemingly enumerated under 38 U.S.C. § 7401(3).
4 Because we find that the appellant made a nonfrivolous allegation sufficient to entitle
her to a hearing on jurisdiction and remand the matter for further development of the
record, we need not address either the appellant’s assertions that the administrative judge
improperly weighed other evidence and precluded her from conducting discovery, PFR
File, Tab 1 at 2-6, or the agency’s motion for leave to file an additional pleading, PFR
File, Tab 7 at 4-5. To the extent that further development of the record shows that the
appellant’s January 2020 medical restrictions stemmed from an injury ruled compensable,
this matter shall be analyzed as a restoration appeal. See Bean, 120 M.S.P.R. 397, ¶ 13
n.7.5
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.6 | Baumgartner_Joy_AnnNY-0752-20-0071-I-1_Remand_Order.pdf | 2025-02-05 | JOY ANN BAUMGARTNER v. DEPARTMENT OF VETERANS AFFAIRS, MSPB Docket No. NY-0752-20-0071-I-1, February 5, 2025 | NY-0752-20-0071-I-1 | NP |
213 | https://www.mspb.gov/decisions/nonprecedential/Islam_RafiqulDA-0752-24-0097-I-1_Dismissed_As_Settled_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
RAFIQUL ISLAM,
Appellant,
v.
DEPARTMENT OF VETERANS
AFFAIRS,
Agency.DOCKET NUMBER
DA-0752-24-0097-I-1
DATE: February 5, 2025
THIS FINAL ORDER IS NONPRECEDENTIAL1
Rafiqul Islam , Houston, Texas, pro se.
Dana Marie Sherman , Esquire, Denver, Colorado, 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
the effective date of Acting Chairman Kerner’s designation.
FINAL ORDER
The appellant has filed a petition for review of the initial decision, which
dismissed his trial-period termination appeal for lack of jurisdiction. On petition
for review, the appellant does not challenge the administrative judge’s finding
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and 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 appellant did not meet the definition of an “employee” under 5 U.S.C.
§ 7511(a)(1)(B) or (C) but challenges the merits of his probationary termination.2
Generally, we grant petitions such as this one only in the following
circumstances: the initial decision contains erroneous findings of material fact;
the initial decision is based on an erroneous interpretation of statute or regulation
or the erroneous application of the law to the facts of the case; the administrative
judge’s rulings during either the course of the appeal or the initial decision were
not consistent with required procedures or involved an abuse of discretion, and
the resulting error affected the outcome of the case; or new and material evidence
or legal argument is available that, despite the petitioner’s due diligence, was not
available when the record closed. Title 5 of the Code of Federal Regulations,
section 1201.115 (5 C.F.R. § 1201.115). After fully considering the filings in this
appeal, we conclude that the petitioner has not established any basis under section
1201.115 for granting the petition for review. Therefore, we DENY the petition
for review and AFFIRM the initial decision, which is now the Board’s final
decision. 5 C.F.R. § 1201.113(b).
NOTICE OF APPEAL RIGHTS3
You may obtain review of this final decision. 5 U.S.C. § 7703(a)(1). By
statute, the nature of your claims determines the time limit for seeking such
review and the appropriate forum with which to file. 5 U.S.C. § 7703(b).
2 The appellant also submits over 200 pages of documents on review. Petition for
Review (PFR) File, Tab 1 at 4-248. Under 5 C.F.R. § 1201.115(d), the Board may grant
review on the basis of new and material evidence that, despite due diligence, was not
available when the record closed. Evidence that is already a part of the record is not
new. Meier v. Department of the Interior , 3 M.S.P.R. 247, 256 (1980). The documents
provided on review are already part of the record below. Compare PFR File, Tab 1
at 4-248, with Initial Appeal File, Tab 5 at 4-303, Tab 9 at 7. Thus, these documents do
not provide a basis for review.
3 Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise which option is most appropriate in any matter.2
Although we offer the following summary of available appeal rights, the Merit
Systems Protection Board does not provide legal advice on which option is most
appropriate for your situation and the rights described below do not represent a
statement of how courts will rule regarding which cases fall within their
jurisdiction. If you wish to seek review of this final decision, you should
immediately review the law applicable to your claims and carefully follow all
filing time limits and requirements. Failure to file within the applicable time
limit may result in the dismissal of your case by your chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the following
address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.3
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. 420 (2017). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the district court no later than 30 calendar days after your representative
receives this decision. If the action involves a claim of discrimination based on
race, color, religion, sex, national origin, or a disabling condition, you may be
entitled to representation by a court-appointed lawyer and to waiver of any
requirement of prepayment of fees, costs, or other security. See 42 U.S.C.
§ 2000e-5(f) and 29 U.S.C. § 794a.
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702(b)(1). You must file any such request with the4
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or
other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
disposition of allegations of a prohibited personnel practice described in section
2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i),
(B), (C), or (D),” then you may file a petition for judicial review either with the
U.S. Court of Appeals for the Federal Circuit or any court of appeals of
competent jurisdiction.4 The court of appeals must receive your petition for
4 The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of5
review within 60 days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(B).
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the following
address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115-195,
132 Stat. 1510. 6
Contact information for the courts of appeals can be found at their
respective websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
FOR THE BOARD: ______________________________
Gina K. Grippando
Clerk of the Board
Washington, D.C.7 | Islam_RafiqulDA-0752-24-0097-I-1_Dismissed_As_Settled_Order.pdf | 2025-02-05 | RAFIQUL ISLAM v. DEPARTMENT OF VETERANS AFFAIRS, MSPB Docket No. DA-0752-24-0097-I-1, February 5, 2025 | DA-0752-24-0097-I-1 | NP |
214 | https://www.mspb.gov/decisions/nonprecedential/McHugh_Ebony_M_AT-0714-20-0833-C-1_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
EBONY M. MCHUGH,
Appellant,
v.
DEPARTMENT OF VETERANS
AFFAIRS,
Agency.DOCKET NUMBER
AT-0714-20-0833-C-1
DATE: February 5, 2025
THIS ORDER IS NONPRECEDENTIAL1
Bradley R. Marshall , Mt. Pleasant, South Carolina, for the appellant.
Luis Ortiz Cruz , Esquire, Orlando, Florida, 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
the effective date of Acting Chairman Kerner’s designation.
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and 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
¶1The appellant has filed a petition for review of the compliance initial
decision, which denied her petition for enforcement. For the reasons discussed
below, we GRANT the appellant’s petition for review and VACATE the
compliance initial decision. We FIND the agency in noncompliance with the
settlement agreement and REFER the petition for enforcement to the Board’s
Office of General Counsel to obtain compliance with the parties’ settlement
agreement and for issuance of a final decision. See 5 C.F.R. § 1201.183(c).
BACKGROUND
¶2On September 21, 2020, the appellant filed a Board appeal
challenging the agency’s decision to demote her from a GS-7 to a GS -5 Security
Assistant under the authority of 38 U.S.C. § 714. McHugh v. Department of
Veterans Affairs , MSPB Docket No. AT-0714-20-0833-I-1, Initial Appeal File
(IAF), Tab 1, Tab 4 at 21, 23-25, 37-39.2 On March 3, 2021, the parties entered
into a settlement agreement whereby the appellant agreed to, among other things,
withdraw her Board appeal, resign from her position with the agency, effective
May 31, 2021, and cooperate with and preserve evidence for “all investigations
pertaining to the [agency’s] Police Service.” IAF, Tab 42 at 5 -6, 8. In exchange,
the agency agreed to, among other things, provide the appellant with a lump sum
payment of $75,000. Id. at 4. The agreement stated that the agency would make
all reasonable efforts to provide the Defense Finance Accounting Service (DFAS)
with any paperwork necessary to process the payment within 30 calendar days of
the execution of the settlement agreement, i.e., no later than April 2, 2021.
Id. at 6. On March 4, 2021, the administrative judge issued an initial decision
2 Insofar as the agency’s demotion action was not effective until September 27, 2020,
the appellant’s Board appeal was premature; however, it became ripe for the Board’s
adjudication shortly thereafter, and it was, therefore, appropriate for the administrative
judge to process the appeal. IAF, Tab 4 at 21, 23; see Barrios v. Department of the
Interior, 100 M.S.P.R. 300, ¶ 6 (2005). 2
dismissing the matter as settled and entering the settlement agreement into the
record for enforcement purposes. IAF, Tab 43, Initial Decision at 1-2.
¶3On June 7, 2021, the appellant filed a petition for enforcement
alleging that the agency had breached the terms of the parties’ settlement
agreement. McHugh v. Department of Veterans Affairs , MSPB Docket No.
AT-0714-20-0833-C-1, Compliance File (CF), Tab 1 at 4-6. In her petition, the
appellant averred that, following the execution of the settlement agreement, the
agency had repeatedly reassigned her and subjected her to harassment, a “bogus
investigation,” and “racial and female related inquiries,” which had impelled her
to involuntarily resign from her position on April 8, 2021, i.e., prior to
May 31, 2021. Id. at 5, 29. She also averred that the agency had “threatened to
not make payment of the settlement proceeds.” Id. at 5. The appellant explained
that she sought both “immediate payment” and sanctions against the agency. Id.
at 4-6. The appellant requested a hearing on the matter. Id. at 6.
¶4The agency filed a response to the appellant’s petition wherein it
acknowledged that it had not paid the appellant the $75,000 lump sum but
contended that it had otherwise complied with the terms of the agreement. CF,
Tab 4 at 8. The agency stated that its “partial compliance” was due to the
appellant’s failure to provide truthful testimony on April 8, 2021, during an
agency investigation. Id. at 9. The agency averred that, because of the
appellant’s purported failure in this regard, “it was determined” by various
agency personnel “in consultation with [a]gency [c]ounsel” that the agency would
not pay the appellant the $75,000 lump sum. Id. at 8-9. With its response, the
agency provided, among other things, an April 7, 2021 email sent from an agency
“HR Senior Strategic Business Partner” to the appellant’s representative stating
that “no funds will be paid per the settlement agreement until Ms. McHugh
complies with her requirements as directed by us as the [a]gency.” Id. at 8, 33.
The agency also argued that the appellant had not, as alleged, been reassigned;
rather, she had been detailed to another section “in support of COVID logistics3
operations.” Id. at 7. The appellant thereafter filed a reply to the agency’s
response, wherein she maintained that she had not breached any of the terms of
the parties’ settlement agreement. CF, Tab 5 at 4-9.
¶5Without holding the appellant’s requested hearing, the administrative
judge issued a compliance initial decision denying the appellant’s petition for
enforcement. CF, Tab 6, Compliance Initial Decision (CID) at 1, 5. The
administrative judge found that the agency had not breached the parties’
settlement agreement; rather, the appellant had breached the agreement by
resigning “prematurely” on April 8, 2021, in lieu of “remaining in the agency’s
employ until [May 31, 2021]” per the terms of the settlement agreement. CID
at 4. In so finding, the administrative judge stated that he “ha[d] raised the issue
of the appellant’s premature resignation on [his] own motion” and indicated that,
to the extent that the appellant maintained that her resignation was involuntary,
she could file a separate appeal with the Board, which would be “independently
adjudicated.”3 CID at 4 n.1. The administrative judge thereafter indicated that,
because he had found that the appellant’s premature resignation constituted a
breach of the parties’ agreement, he “need not address the agency’s argument that
the appellant breached the agreement by failing to cooperate” with an agency
investigation. CID at 5.
¶6The appellant has filed a petition for review, and the agency has filed
a response. Compliance Petition for Review (CPFR) File, Tab 10 at 4-17, Tab 12
at 4.4 In her petition for review, the appellant avers that she did not breach the
3 To date, the appellant has not filed a constructive removal appeal with the Board.
4 The appellant, through her representative, has submitted numerous additional filings
on review; however, the intent of many of these filings is unclear. Prior to filing her
petition for review, on July 9, 2021, the appellant submitted to the Board a pleading
entitled “Reopening an Appeal Dismissed Without Prejudice.” CPFR File, Tab 1. Two
days later, the appellant submitted a supplement to this filing. CPFR File, Tab 2.
Thereafter, the Office of the Clerk of the Board (Clerk’s Office) informed the appellant
via an acknowledgment letter that it would treat her filing(s) as a petition for review.
CPFR File, Tab 3 at 1. The appellant thereafter requested to withdraw the two filings,
explaining that she had intended to file a second petition for enforcement, not a petition4
settlement agreement; rather, the agency breached the agreement by (1) failing to
pay her the lump sum of $75,000 and (2) exhibiting conduct that forced her to
resign early. CPFR File, Tab 10 at 4-17.
ANALYSIS
¶7The Board has the authority to enforce a settlement agreement that
has been entered into the record in the same manner as any final Board decision
or order. Vance v. Department of the Interior , 114 M.S.P.R. 679, ¶ 6 (2010) . The
appellant, as the party alleging noncompliance, bears the burden of proving by
preponderant evidence5 that the agency breached the settlement agreement.
Haefele v. Department of the Air Force , 108 M.S.P.R. 630, ¶ 7 (2008) .
In response to a petition for enforcement claiming breach of a settlement
agreement, the agency should submit evidence of the measures it took to comply,
but this is a burden of production only; the overall burden of persuasion on the
breach issue remains with the appellant. Turner v. Department of Homeland
Security, 102 M.S.P.R. 330, ¶ 5 (2006).
for review. CPFR File, Tab 4 at 4. On July 13, 2021, Clerk’s Office rescinded its
acknowledgment letter and explained that it would take no further action with the
appellant’s filings. CPFR File, Tab 5 at 1. The following day, on July 14, 2021, the
appellant faxed a filing to the regional office, CPFR File, Tab 6, which was thereafter
referred to the Clerk’s Office as a potential petition for review, CPFR File, Tab 7 at 1.
The Clerk’s Office informed the appellant that, if she wished the Board to consider the
July 14, 2021 filing as a petition for review, then she must inform the Board in writing
on or before July 27, 2021. Id. The appellant thereafter indicated that she had not
intended for the filing to be considered a petition for review. CPFR File, Tab 8 at 2.
Accordingly, the Clerk’s Office informed the appellant that it would take no further
action regarding her July 14, 2021 submission. CPFR File, Tab 9 at 1. Thereafter, the
appellant filed her petition for review. CPFR File, Tab 10. On October 29, 2021, the
appellant submitted an additional pleading to the Board, which the Clerk’s Office
rejected for failure to comply with Board regulations. CPFR File, Tab 13 at 1-2. We
have considered only the appellant’s petition for review. CPFR File, Tab 10; see
5 C.F.R. § 1201.114(a) (explaining the types of pleadings permitted on review).
5 A preponderance of the evidence is the degree of relevant evidence that a reasonable
person, considering the record as a whole, would accept as sufficient to find that a
contested fact is more likely to be true than untrue. 5 C.F.R. § 1201.4(q).5
¶8Here, the settlement agreement provided that the agency would make
“all reasonable efforts” to provide DFAS with the paperwork necessary to process
the appellant’s $75,000 payment by April 2, 2021. IAF, Tab 42 at 6, 8. The
agreement explained that DFAS was “a separate entity that administers payments”
over which the agency exercised no control. Id. at 6. As stated above, the agency
argues that it was relieved of its obligation to pay the appellant because she
breached the parties’ agreement by failing to provide truthful testimony on
April 8, 2021. CF, Tab 4 at 9. However, the agency was obligated to initiate the
lump sum payment no later than April 2, 2021, six days prior to the appellant’s
alleged breach. IAF, Tab 42 at 6, 8; CF, Tab 4 at 9. It is well established that a
material breach of a contractual promise by one party discharges the other party
from the contractual duty to perform what was exchanged for the promise.
Caston v. Department of the Interior , 108 M.S.P.R. 190, ¶ 20 (2008).
Accordingly, the appellant’s alleged failure to cooperate with the agency’s
investigation does not excuse the agency’s admitted failure to pay her the
agreed-upon sum.6 For the same reason, we disagree with the administrative
judge’s conclusion that the appellant’s April 8, 2021 resignation excused the
agency from its obligation to pay the appellant. CID at 4-5 & n.1. Accordingly,
we vacate the initial decision and find the agency in noncompliance with the
settlement agreement.7
ORDER
¶9We ORDER the agency to submit to the Clerk of the Board within
60 days of the date of this Order satisfactory evidence of compliance. This
evidence shall adhere to the requirements set forth in 5 C.F.R. § 1201.183(b)(1)
6 To the extent that the agency contends that it was not required to initiate the lump sum
payment until after the appellant had cooperated with its investigation, CF, Tab 4 at 9,
we find that the terms of the settlement agreement do not support the agency’s position,
IAF, Tab 42 at 4, 6.
7 We deny the appellant’s request for sanctions against the agency at this juncture. CF,
Tab 1 at 6.6
(i), including submission of evidence and a narrative statement of compliance.
The agency’s submission shall demonstrate that it has paid the appellant a lump
sum of $75,000. The agency must serve all parties with copies of its submission.
¶10The agency’s submission should be filed under the new docket
number assigned to this compliance referral matter, MSPB Docket No. AT-0714-
20-0833-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 Board’s e-Appeal site
(https://e-appeal.mspb.gov) in accordance with its regulation at 5 C.F.R.
§ 1201.14.
¶11The appellant may respond to the agency’s evidence of compliance
within 20 days of the date of service of the agency’s submission. 5 C.F.R.
§ 1201.183(b)(1)(i). If the appellant does not respond to the agency’s evidence of
compliance, the Board may assume that she is satisfied with the agency’s actions
and dismiss the petition for enforcement.
¶12The 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)(1). The
Board’s authority to impose sanctions includes the authority to order that the
responsible agency official “shall not be entitled to receive payment for service as
an employee during any period that the order has not been complied with.”
5 U.S.C. § 1204(e)(2)(A).7
¶13This Order does not constitute a final order and therefore is not
subject to judicial review under 5 U.S.C. § 7703(a)(1). Upon the Board’s final
resolution of the remaining issues in the petition for enforcement, a final order
shall be issued, which then shall be subject to judicial review.
FOR THE BOARD: ______________________________
Gina K. Grippando
Clerk of the Board
Washington, D.C.8 | McHugh_Ebony_M_AT-0714-20-0833-C-1_Order.pdf | 2025-02-05 | EBONY M. MCHUGH v. DEPARTMENT OF VETERANS AFFAIRS, MSPB Docket No. AT-0714-20-0833-C-1, February 5, 2025 | AT-0714-20-0833-C-1 | NP |
215 | https://www.mspb.gov/decisions/nonprecedential/Blackmon_Robert_C_PH-1221-19-0380-W-2_Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
DR. ROBERT C. BLACKMON, IV,
Appellant,
v.
DEPARTMENT OF VETERANS
AFFAIRS,
Agency.DOCKET NUMBER
PH-1221-19-0380-W-2
DATE: February 4, 2025
THIS FINAL ORDER IS NONPRECEDENTIAL1
Danielle B. Obiorah , Esquire, Jonesboro, Georgia, for the appellant.
Marcus S. Graham , Esquire, Pittsburgh, Pennsylvania, for the agency.
BEFORE
Cathy A. Harris , Chairman*
Raymond A. Limon , Vice Chairman
Henry J. Kerner, Member**
*The Board members voted on this decision before January 20, 2025.
**Member Kerner recused himself and
did not participate in the adjudication of this appeal.
FINAL ORDER
The appellant has filed a petition for review of the initial decision, which
denied corrective action in his individual right of action (IRA) appeal. 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 challenges the administrative judge’s conclusion
that the agency proved by clear and convincing evidence that it would have
placed him on a 60-day performance monitoring program in the absence of his
protected disclosure/activity. Generally, we grant petitions such as this one only
in the following circumstances: the initial decision contains erroneous findings
of material fact; the initial decision is based on an erroneous interpretation of
statute or regulation or the erroneous application of the law to the facts of the
case; the administrative judge’s rulings during either the course of the appeal or
the initial decision were not consistent with required procedures or involved an
abuse of discretion, and the resulting error affected the outcome of the case; or
new and material evidence or legal argument is available that, despite the
petitioner’s due diligence, was not available when the record closed. Title 5 of
the Code of Federal Regulations, section 1201.115 (5 C.F.R. § 1201.115). After
fully considering the filings in this appeal, we conclude that the petitioner has not
established any basis under section 1201.115 for granting the petition for review.
Therefore, we DENY the petition for review. Except as expressly MODIFIED to
clarify the legal standard applicable to the appellant’s claims that the agency
altered his job duties, verbally reprimanded him, and subjected him to increased
scrutiny and a hostile work environment, we AFFIRM the initial decision.
Under the Whistleblower Protection Enhancement Act of 2012 (WPEA), an
appellant may establish a prima facie case of retaliation for whistleblowing
disclosures and/or protected activity by proving by preponderant evidence2 that
(1) he made a disclosure described under 5 U.S.C. § 2302(b)(8) or engaged in
protected activity described under 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D) ,
and (2) the whistleblowing disclosure or protected activity was a contributing
factor in the agency’s decision to take a personnel action against him. 5 U.S.C.
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
§ 1221(e)(1); Webb v. Department of the Interior , 122 M.S.P.R. 248, ¶ 6 (2015).
If the appellant makes a prima facie case, the agency is given an opportunity to
prove, by clear and convincing evidence,3 that it would have taken the same
personnel action in the absence of the protected disclosure or activity. 5 U.S.C.
§ 1221(e)(1)-(2); Webb, 122 M.S.P.R. 248, ¶ 6. In determining whether an
agency has met this burden, the Board will consider the following factors: (1) the
strength of the agency’s evidence in support of its action; (2) the existence and
strength of any motive to retaliate on the part of the agency 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, the Board will weigh the factors together to determine whether the
evidence is clear and convincing as a whole. Phillips v. Department of
Transportation, 113 M.S.P.R. 73, ¶ 11 (2010).
Here, the administrative judge concluded that, although the appellant made
a prima facie case of whistleblower retaliation, he was not entitled to any
corrective action. Blackmon v. Department of Veterans Affairs , MSPB Docket
No. PH-1221-19-0380-W-2, Appeal File (W-2 AF), Tab 16, Initial Decision (ID)
at 16-19. In so concluding, he found that the appellant, a Physician/Hospitalist,
had engaged in protected activity under 5 U.S.C. § 2302(b)(9) insofar as he had
filed a complaint with the agency’s Office of the Inspector General. ID at 15. He
also concluded that the appellant had made a protected disclosure under 5 U.S.C.
§ 2302(b)(8) by disclosing in the death summary of a veteran patient his belief
that opiates prescribed by another agency physician had contributed to the
3 Clear and convincing evidence is that measure or degree of proof that produces in the
mind of the trier of fact a firm belief as to the allegations sought to be established. It is
a higher standard than preponderant evidence. 5 C.F.R. § 1209.4(e).3
patient’s death. ID at 5-6, 15-16. He thereafter concluded that the appellant had
shown via the knowledge/timing test4 that his protected disclosure/activity had
contributed to a threatened personnel action, i.e., the agency placing him on a
60-day performance monitoring program. ID at 16-17. The administrative judge
found, however, that the agency had shown by clear and convincing evidence that
it would have placed the appellant on the 60 -day program even if he had not made
a protected disclosure or engaged in any protected activity. ID at 17-19. The
administrative judge thereafter concluded that the appellant was not entitled to
any corrective action for his claims regarding the agency altering his job duties,
verbally reprimanding him, and subjecting him to increased scrutiny and a hostile
work environment. ID at 19-21.
We modify the initial decision to clarify the legal standard applicable to the
appellant’s claims that the agency altered his job duties, verbally reprimanded
him, and subjected him to increased scrutiny and a hostile work environment.
Although not raised by either party, in analyzing whether the appellant was
entitled to any corrective action for his claims regarding the agency allegedly
altering his job duties, reprimanding him, and subjecting him to increased
scrutiny and a hostile work environment, the administrative judge seemingly
categorized all of the appellant’s allegations as “harassment.” ID at 19. He then
applied “the analysis used for defining harassment” in Title VII cases to the
allegations. ID at 19-21. We disagree with this approach, and, accordingly, we
modify the initial decision to clarify the proper legal standard for such claims.
Here, the appellant’s IRA appeal was brought pursuant to the WPEA,
which provides its own statutory definition of an actionable personnel action,
4 The knowledge/timing test allows an employee to demonstrate that a protected
disclosure/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, 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 . Carey v. Department of Veterans Affairs , 93 M.S.P.R.
676, ¶ 11 (2003).4
codified at 5 U.S.C. § 2302(a)(2)(A). Section 2302(a)(2)(A) defines a “personnel
action” as 11 specific enumerated actions and “any other significant change in
duties, responsibilities, or working conditions[.]” The Board has 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 consequence for an appellant constitute a personnel
action covered by section 2302(a)(2)(A)(xii) . Skarada v. Department of Veterans
Affairs, 2022 MSPB 17, ¶¶ 15-16. To this end, the agency actions must have
significant effects on the overall nature and quality of the appellant’s working
conditions, duties, or responsibilities. Id.
The record is fully developed on the issue, and, applying the above
standard, we find that the appellant failed to show that the agency engaged in
behavior that, individually or collectively, amounted to a significant change in his
working conditions. See 5 U.S.C. § 2302(a)(2)(A)(xii) ; Skarada, 2022 MSPB 17,
¶¶ 15-16. Indeed, as set forth in the initial decision, although the appellant
averred that he had been yelled at and treated poorly, he was only able to identify
two discrete incidents involving such behavior that, while perhaps upsetting, were
nonetheless “isolated and random.” ID at 20. Moreover, the appellant failed
support his allegation that agency management had reduced or changed his job
duties; indeed, he acknowledged at the hearing that no restrictions were ever
placed on his ability to practice medicine at the agency facility to which he was
assigned. Id. Thus, the appellant failed to show how any agency action(s),
individually or collectively, generated a significant change resulting in practical
consequence. See Skarada, 2022 MSPB 17, ¶¶ 15-16; see also Shivaee v.
Department of the Navy , 74 M.S.P.R. 383, 389 (1997) (finding that emotional
stress is not, in and of itself, a covered personnel action). Accordingly, we find
that the appellant failed to show that the agency’s alleged actions constituted a
personnel action under the WPEA. See 5 U.S.C. § 2302(a)(2)(A)(xii). We5
therefore agree with the administrative judge’s conclusion that the appellant is
not entitled to any corrective action for such claims. See 5 U.S.C. § 1221(e)(1).
The appellant’s assertions on review do not warrant a different outcome.
The appellant contends that the agency failed to prove by clear and
convincing evidence that it would have placed him on the 60-day performance
monitoring program in the absence of his protected disclosure/activity. Petition
for Review (PFR) File, Tab 1 at 4-11. To this end, he avers that (1) the agency’s
“only motivation” for placing him on the monitoring program was retaliation,5
and (2) the agency failed to produce any evidence of “similar actions against
non-whistleblowing employees.” Id. at 9-11.
We find unavailing the appellant’s assertion that the agency’s “only
motivation” for placing him on a monitoring program was retaliation. To this
end, as set forth in the initial decision, the agency here provided both testimonial
and documentary evidence showing that agency management had received a
series of complaints from both patients and agency medical personnel regarding
the appellant’s approach to hospice care. ID at 11-14, 17-19; Blackmon v.
Department of Veterans Affairs , MSPB Docket No. PH-1221-19-0380-W-1,
Initial Appeal File (IAF), Tab 5 at 47, 50-51; W -2 AF, Tab 5 at 15-16, 18. In
response to these concerns, the appellant’s supervisor reviewed hospital data,
which corroborated many of these complaints. ID at 18; IAF, Tab 5 at 46.
Indeed, the data evinced that the appellant had been prescribing antibiotics to
hospice patients at a rate that was two to three times higher than other agency
physicians. ID at 12, 18; IAF, Tab 5 at 49; W-2 AF, Tab 5 at 8. The record
5 In so arguing, the appellant asserts that the administrative judge “did not mention”
certain evidence in the record, to include a July 12, 2018 memorandum regarding
complaints levied against him. PFR File, Tab 1 at 9-10; W-2 AF, Tab 6 at 60-61.
However, the administrative judge’s failure to discuss all of the evidence of record does
not mean that he did not consider it in reaching his decision. See Marques v.
Department of Health and Human Services , 22 M.S.P.R. 129, 132 (1984), aff’d,
776 F.2d 1062 (Fed. Cir. 1985) (Table). Moreover, we have reviewed the evidence to
which the appellant refers, and we find that it does not warrant a different outcome.6
therefore supports the administrative judge’s conclusion that it was concerns
associated with the appellant’s treatment methods, and not retaliation, that
precipitated his placement on a 60 -day performance monitoring program.6 ID
at 17-19; 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’s assertion that the agency failed to produce any evidence of
similar actions being taken against similarly situated non-whistleblowers, i.e., the
third Carr factor, is also unavailing. PFR File, Tab 1 at 11; see Carr, 185 F.3d
at 1323. Although there is no affirmative burden on the agency to produce
evidence with respect to each Carr factor, to the extent comparator evidence
exists, the agency is required to come forward with all reasonably pertinent
evidence relating to the third factor. Whitmore v. Department of Labor , 680 F.3d
1353, 1374 (Fed. Cir. 2012). An agency’s failure to do so may be at its own
peril. Id. Here, although the agency failed to produce any comparator evidence,7
we find that the first two Carr factors weigh heavily in the agency’s favor, and,
therefore, we discern no basis to disturb the administrative judge’s conclusion
that the agency showed by clear and convincing evidence that it would have
placed the appellant on the 60-day program absent his protected disclosure and
activity. ID at 17-19; see Scoggins v. Department of the Army , 123 M.S.P.R. 592,
¶ 31 (2016) (concluding that the agency met its clear and convincing burden for
certain personnel actions when there was no evidence of similarly situated
6 Indeed, the appellant acknowledges in his petition for review that he disagreed with
agency medical professionals regarding the scope of the medical care that should be
provided to hospice patients. PFR File, Tab 1 at 9.
7 The agency, however, provided documentary and testimonial evidence indicating that
the appellant was an outlier in terms of his treatment of hospice patients. See, e.g.,
IAF, Tab 5 at 49, 51. 7
non-whistleblowers and the evidence supporting the agency’s actions outweighed
any potential retaliatory motive). Thus, the appellant’s assertion regarding the
third Carr factor does not provide a basis to disturb the initial decision.
Accordingly, we affirm the initial decision as modified.
NOTICE OF APPEAL RIGHTS8
The initial decision, as supplemented by this Final Order, constitutes the
Board’s final decision in this matter. 5 C.F.R. § 1201.113. You may obtain
review of this final decision. 5 U.S.C. § 7703(a)(1). By statute, the nature of
your claims determines the time limit for seeking such review and the appropriate
forum with which to file. 5 U.S.C. § 7703(b). Although we offer the following
summary of available appeal rights, the Merit Systems Protection Board does not
provide legal advice on which option is most appropriate for your situation and
the rights described below do not represent a statement of how courts will rule
regarding which cases fall within their jurisdiction. If you wish to seek review of
this final decision, you should immediately review the law applicable to your
claims and carefully follow all filing time limits and requirements. Failure to file
within the applicable time limit may result in the dismissal of your case by your
chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
8 Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise which option is most appropriate in any matter.8
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems
Protection Board , 582 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.9 The court of appeals must receive your petition for
review within 60 days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(B).
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
9 The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115-195,
132 Stat. 1510. 11
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the 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 | Blackmon_Robert_C_PH-1221-19-0380-W-2_Final_Order.pdf | 2025-02-04 | null | PH-1221-19-0380-W-2 | NP |
216 | https://www.mspb.gov/decisions/nonprecedential/Scott_VanessaAT-0714-20-0460-I-1_Dismissed_As_Settled_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
VANESSA SCOTT,
Appellant,
v.
DEPARTMENT OF VETERANS
AFFAIRS,
Agency.DOCKET NUMBER
AT-0714-20-0460-I-1
DATE: February 4, 2025
THIS FINAL ORDER IS NONPRECEDENTIAL1
Wayne Johnson , Esquire, Winter Park, Florida, for the appellant.
Kristin Ann Langwell , Esquire, Tampa, Florida, for the agency.
Caroline E. Johnson , Esquire, St. Petersburg, Florida, 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
the effective date of Acting Chairman Kerner’s designation.
FINAL ORDER
The appellant has petitioned for review of the initial decision in this
appeal. For the reasons set forth below, we DISMISS the appeal as settled.
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).
After the filing of the petition for review, the agency filed a motion to
dismiss the appeal and attached a document titled “REMEDY ELECTION
FORM” signed and dated by the appellant on December 20, 2023. Petition for
Review (PFR) File, Tab 4. In the motion, the agency explained that it offered the
appellant the option of accepting a lump sum payment in exchange for a waiver of
all pending claims against the agency. Id. at 4-5. The agency provided a copy of
the appellant’s signed election to receive a lump sum payment in exchange for
waiving all outstanding claims against the agency. Id. at 6-7. The agency has
requested the dismissal of this appeal based on the following provision in the
executed remedy election form:
I agree to release and waive any right to continue to pursue any
complaint, claim, lawsuit, grievance, appeal, or proceeding of
whatever nature arising from my adverse action by the Department
pursuant to 38 U.S.C. § 714 predating my election. . . . I hereby
agree [that the agency] can use my Remedy Election Form as
evidence of my express authorization to dismiss any pending
complaint, claim, lawsuit, grievance, appeal, or proceeding of
whatever nature arising from my adverse action by the Department
pursuant to 38 U.S.C. § 714 predating my election.
Id. at 4-5, 7.
The Board can consider a settlement agreement reached outside of a Board
proceeding to determine its effect on a personnel action before the Board and any
waiver of appeal rights. Swidecki v. U.S. Postal Service , 101 M.S.P.R. 110, ¶ 7
(2006). 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 find2
that the parties have entered into a settlement agreement and understand its terms.
PFR File, Tab 4 at 6-7. Accordingly, we find that dismissing the appeal with
prejudice to refiling (i.e., the parties normally may not refile this appeal) is
appropriate under these circumstances.
We note that the waiver form does not address whether the parties intend
for the agreement to be entered into the record for enforcement purposes.
However, the agreement references the arbitration agreement reached between the
parties through the Federal Mediation and Conciliation Service (FMCS). Id. at 6.
Because the waiver is the result of an arbitration agreement reached through the
FMCS, and the agreement does not refer to enforcement by the Board, we find
that the parties do not intend to enter the settlement agreement into the record for
enforcement by the Board. Id. at 6; see Settlement Agreement Between
Department of Veterans Affairs & National Veterans Affairs Council, American
Federation of Government Employees, AFL-CIO , FMCS Case No.
17-0921-55048, available at
https://www.afge.org/globalassets/documents/va/2023-07-28---afge-va-714-
settlement-agreement.pdf (last visited Feb. 3, 2025); see also Swidecki ,
101 M.S.P.R. 21, ¶¶ 24, 26 (determining that a settlement agreement that
referenced enforcement by “any court” and did not provide authority to the Board
to enforce its terms was not enforceable by the Board). As the parties do not
intend for the Board to enforce the terms of the agreement, we do not enter the
settlement agreement into the record for enforcement.
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). 3
NOTICE OF APPEAL RIGHTS2
You may obtain review of this final decision. 5 U.S.C. § 7703(a)(1). By
statute, the nature of your claims determines the time limit for seeking such
review and the appropriate forum with which to file. 5 U.S.C. § 7703(b).
Although we offer the following summary of available appeal rights, the Merit
Systems Protection Board does not provide legal advice on which option is most
appropriate for your situation and the rights described below do not represent a
statement of how courts will rule regarding which cases fall within their
jurisdiction. If you wish to seek review of this final decision, you should
immediately review the law applicable to your claims and carefully follow all
filing time limits and requirements. Failure to file within the applicable time
limit may result in the dismissal of your case by your chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
2 Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise which option is most appropriate in any matter.4
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. 420 (2017). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the district court no later than 30 calendar days after your representative
receives this decision. If the action involves a claim of discrimination based on
race, color, religion, sex, national origin, or a disabling condition, you may be
entitled to representation by a court-appointed lawyer and to waiver of any5
requirement of prepayment of fees, costs, or other security. See 42 U.S.C.
§ 2000e-5(f) and 29 U.S.C. § 794a.
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702(b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or
other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s6
disposition of allegations of a prohibited personnel practice described in section
2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i),
(B), (C), or (D),” then you may file a petition for judicial review either with the
U.S. Court of Appeals for the Federal Circuit or any court of appeals of
competent jurisdiction.3 The court of appeals must receive your petition for
review within 60 days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(B).
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
3 The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115-195,
132 Stat. 1510. 7
Contact information for the courts of appeals can be found at their
respective websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
FOR THE BOARD: ______________________________
Gina K. Grippando
Clerk of the Board
Washington, D.C.8 | Scott_VanessaAT-0714-20-0460-I-1_Dismissed_As_Settled_Order.pdf | 2025-02-04 | VANESSA SCOTT v. DEPARTMENT OF VETERANS AFFAIRS, MSPB Docket No. AT-0714-20-0460-I-1, February 4, 2025 | AT-0714-20-0460-I-1 | NP |
217 | https://www.mspb.gov/decisions/nonprecedential/Navarro_LuisaNY-0845-23-0074-I-1_Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
LUISA NAVARRO,
Appellant,
v.
OFFICE OF PERSONNEL
MANAGEMENT,
Agency.DOCKET NUMBER
NY-0845-23-0074-I-1
DATE: February 4, 2025
THIS FINAL ORDER IS NONPRECEDENTIAL1
Luisa Navarro , Carolina, Puerto Rico, pro se.
Heather Dowie , and Michael Shipley , Washington, District of Columbia,
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
affirmed the reconsideration decision of the Office of Personnel Management
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).
(OPM) finding that the appellant received an overpayment of her disability
retirement benefits under the Federal Employees’ Retirement System and that she
is not eligible for a waiver of the overpayment or an adjustment of the recovery
schedule. On review, the appellant argues, among other things, that OPM erred in
its overpayment determinations, and the administrative judge failed to consider
her evidence and erroneously denied her request for a witness.2 Petition for
Review File, Tab 2 at 2-6. 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 On review, the appellant raises two separate OPM overpayment determinations, in the
amounts of $7,906.66 and $40,749.00, respectively. PFR File, Tab 2 at 2. This appeal
addresses only the $40,749.00 overpayment. IAF, Tab 18 at 1. Regarding the
$7,906.66 overpayment, OPM dismissed the appellant’s request for reconsideration as
untimely in February 2023. IAF, Tab 11 at 27-28. OPM informed the appellant of her
right to file a Board appeal challenging that dismissal, id. at 28, but at the time of this
decision the appellant has not filed a separate appeal regarding the $7,906.66
overpayment.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 | Navarro_LuisaNY-0845-23-0074-I-1_Final_Order.pdf | 2025-02-04 | LUISA NAVARRO v. OFFICE OF PERSONNEL MANAGEMENT, MSPB Docket No. NY-0845-23-0074-I-1, February 4, 2025 | NY-0845-23-0074-I-1 | NP |
218 | https://www.mspb.gov/decisions/nonprecedential/Perry_Stacey_B_NY-0752-20-0249-I-1_Dismissed_As_Settled_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
STACEY B. PERRY,
Appellant,
v.
DEPARTMENT OF THE TREASURY,
Agency.DOCKET NUMBER
NY-0752-20-0249-I-1
DATE: February 4, 2025
THIS FINAL ORDER IS NONPRECEDENTIAL1
Stacey B. Perry , Newark, New Jersey, pro se.
Joseph Blanton and Robert John Steeves Jr. , New York, New York, 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
the effective date of Acting Chairman Kerner’s designation.
FINAL ORDER
The agency has petitioned for review of the initial decision in this appeal.
For the reasons set forth below, we DISMISS the appeal as settled.
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).
After the filing of the petition for review, the parties submitted a document
entitled “SETTLEMENT AGREEMENT” signed by the appellant, the agency
representative, and an agency manager on January 17, 2025. The document
provides, among other things, for the withdrawal of the appeal.
Before dismissing a matter as settled, the Board must decide whether the
parties have entered into a settlement agreement, whether they understand its
terms, and whether they intend to have the agreement entered into the record for
enforcement by the Board. See Mahoney v. U.S. Postal Service , 37 M.S.P.R. 146,
149 (1988). In addition, before accepting a settlement agreement into the 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. Petition for Review (PFR) File, Tab 5.2
Accordingly, we find that dismissing the appeal with prejudice to refiling (i.e.,
the parties normally may not refile this appeal) is appropriate under these
circumstances. In addition, we find that the agreement is lawful on its face and
freely entered into, and we accept the settlement agreement into the record for
enforcement purposes.
This is the final decision of the Merit Systems Protection Board in this
appeal. Title 5 of the Code of Federal Regulations, section 1201.113
(5 C.F.R. § 1201.113).
2 Although the agreement does not specifically state that the parties want it entered into
the record for enforcement by the Board, it does state that the appellant “does not waive
the right to seek enforcement of the terms of this [a]greement.” We interpret this
language to mean that the agreement is to be entered into the Board’s record and that
the parties intend for it to be enforceable by the Board. PFR File, Tab 5 at 4.2
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
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
3 Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise which option is most appropriate in any matter.3
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision.
5 U.S.C. § 7703(b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you4
receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. 420 (2017). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the district court no later than 30 calendar days after your representative
receives this decision. If the action involves a claim of discrimination based on
race, color, religion, sex, national origin, or a disabling condition, you may be
entitled to representation by a courtappointed lawyer and to waiver of any
requirement of prepayment of fees, costs, or other security. See
42 U.S.C. § 2000e-5(f) and 29 U.S.C. § 794a.
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702(b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to: 5
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or
other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
disposition of allegations of a prohibited personnel practice described in section
2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i),
(B), (C), or (D),” then you may file a petition for judicial review either with the
U.S. Court of Appeals for the Federal Circuit or any court of appeals of
competent jurisdiction.4 The court of appeals must receive your petition for
review within 60 days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(B).
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
4 The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115-195,
132 Stat. 1510. 6
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
Contact information for the courts of appeals can be found at their
respective websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
FOR THE BOARD: ______________________________
Gina K. Grippando
Clerk of the Board
Washington, D.C.7 | Perry_Stacey_B_NY-0752-20-0249-I-1_Dismissed_As_Settled_Order.pdf | 2025-02-04 | STACEY B. PERRY v. DEPARTMENT OF THE TREASURY, MSPB Docket No. NY-0752-20-0249-I-1, February 4, 2025 | NY-0752-20-0249-I-1 | NP |
219 | https://www.mspb.gov/decisions/nonprecedential/Jackson_Richard_C_CH-3330-23-0216-I-1_Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
RICHARD CORNELIUS JACKSON,
Appellant,
v.
DEPARTMENT OF HOMELAND
SECURITY,
Agency.DOCKET NUMBER
CH-3330-23-0216-I-1
DATE: February 4, 2025
THIS FINAL ORDER IS NONPRECEDENTIAL1
Richard Cornelius Jackson , Bellwood, Illinois, pro se.
Lynn N. Donley , Esquire, Chicago, Illinois, 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
denied his request for corrective action under the Veterans Employment
Opportunities Act of 1998. On petition for review, the appellant argues that
equitable tolling should apply to this case because the agency engaged in
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).
deception when it did not respond to his Freedom of Information Act (FOIA)
request for documents related to the positions for which he was not selected and
deprived him of his right to compete for those positions by removing documents
from his job applications. 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 review2 and AFFIRM the initial decision,
which is now the Board’s final decision. 5 C.F.R. § 1201.113(b).
NOTICE OF APPEAL RIGHTS3
You may obtain review of this final decision. 5 U.S.C. § 7703(a)(1). By
statute, the nature of your claims determines the time limit for seeking such
review and the appropriate forum with which to file. 5 U.S.C. § 7703(b).
Although we offer the following summary of available appeal rights, the Merit
Systems Protection Board does not provide legal advice on which option is most
appropriate for your situation and the rights described below do not represent a
2 With his petition for review, the appellant provides evidence that he asserts he did not
submit to the administrative judge because the administrative judge noted in the order
on his motion to strike that there should be “no further briefing on [discovery
disputes.]” Petition for Review (PFR) File, Tab 6 at 8-9, 13-45; Initial Appeal File,
Tab 27 at 2. The appellant refers to the agency’s May 25, 2023 discovery responses.
PFR File, Tab 6 at 13-45. However, he has failed to show that the agency’s
May 25, 2023 discovery responses are new or material. See Avansino v. U.S. Postal
Service, 3 M.S.P.R. 211, 214 (1980) (stating that, under 5 C.F.R. § 1201.115, the Board
will not consider evidence submitted for the first time with the petition for review
absent a showing that it was unavailable before the record was closed despite the
party’s due diligence); Russo v. Veterans Administration , 3 M.S.P.R. 345, 349 (1980)
(stating that the Board will not grant a petition for review based on “new” evidence
absent a showing that it is of sufficient weight to warrant an outcome different from
that of the initial decision).
The appellant also filed a November 24, 2023 motion to submit an additional pleading.
PFR File, Tab 9. He notes that he received new evidence from the agency on
November 24, 2023 through a FOIA request, which will show why the administrative
judge made erroneous findings and why the agency removed documents from his job
applications. Id. at 5. Although the evidence that the appellant seeks leave to submit
postdates the initial decision, he has failed to sufficiently explain the nature of these
documents or how the new evidence changes the outcome of his appeal. See 5 C.F.R.
§ 1201.114(a)(5). Specifically, he has not shown that the new evidence supports a
finding that he timely filed his complaint with the Department of Labor or established
that equitable tolling should apply. See Brown v. U.S. Postal Service , 110 M.S.P.R.
381, ¶ 10 (2009) (explaining that the discovery of new evidence does not constitute the
type of extraordinary circumstances that warrants the equitable tolling of a statutory
deadline). Accordingly, we deny the appellant’s motion.
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
statement of how courts will rule regarding which cases fall within their
jurisdiction. If you wish to seek review of this final decision, you should
immediately review the law applicable to your claims and carefully follow all
filing time limits and requirements. Failure to file within the applicable time
limit may result in the dismissal of your case by your chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the following
address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The4
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. 420 (2017). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the district court no later than 30 calendar days after your representative
receives this decision. If the action involves a claim of discrimination based on
race, color, religion, sex, national origin, or a disabling condition, you may be
entitled to representation by a court-appointed lawyer and to waiver of any
requirement of prepayment of fees, costs, or other security. See 42 U.S.C.
§ 2000e-5(f) and 29 U.S.C. § 794a.
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702(b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file5
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or
other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
disposition of allegations of a prohibited personnel practice described in section
2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i),
(B), (C), or (D),” then you may file a petition for judicial review either with the
U.S. Court of Appeals for the Federal Circuit or any court of appeals of
competent jurisdiction.4 The court of appeals must receive your petition for
4 The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115-195,
132 Stat. 1510.6
review within 60 days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(B).
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the following
address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case. 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 | Jackson_Richard_C_CH-3330-23-0216-I-1_Final_Order.pdf | 2025-02-04 | RICHARD CORNELIUS JACKSON v. DEPARTMENT OF HOMELAND SECURITY, MSPB Docket No. CH-3330-23-0216-I-1, February 4, 2025 | CH-3330-23-0216-I-1 | NP |
220 | https://www.mspb.gov/decisions/nonprecedential/Tavares_SabrinaPH-315H-24-0203-I-1_Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
SABRINA TAVARES,
Appellant,
v.
DEPARTMENT OF THE ARMY,
Agency.DOCKET NUMBER
PH-315H-24-0203-I-1
DATE: February 4, 2025
THIS FINAL ORDER IS NONPRECEDENTIAL1
Sabrina Tavares , Newark, Delaware, pro se.
Dawn Harris , Emma Hohner , and Alvera E. Lewis , Aberdeen Proving
Ground, 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
the effective date of Acting Chairman Kerner’s designation.
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and 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 probationary termination appeal for lack of jurisdiction.
On petition for review, the appellant generally disputes the initial decision and
cites the Fourteenth Amendment and various statutory and regulatory definitions
concerning Federal corporations, citizenship issues, and employer tax
withholdings. Petition for Review (PFR) File, Tabs 1, 4. She also asserts for the
first time that her termination was the result of discrimination and harassment.
PFR File, Tab 4 at 8. Generally, we grant petitions such as this one only in the
following circumstances: the initial decision contains erroneous findings of
material fact; the initial decision is based on an erroneous interpretation of statute
or regulation or the erroneous application of the law to the facts of the case; the
administrative judge’s rulings during either the course of the appeal or the initial
decision were not consistent with required procedures or involved an abuse of
discretion, and the resulting error affected the outcome of the case; or new and
material evidence or legal argument is available that, despite the petitioner’s due
diligence, was not available when the record closed. Title 5 of the Code of
Federal Regulations, section 1201.115 (5 C.F.R. § 1201.115). After fully
considering the filings in this appeal, we conclude that the petitioner has not
established any basis under section 1201.115 for granting the petition for review.
Therefore, we DENY the petition for review and AFFIRM the initial decision,
which is now the Board’s final decision. 5 C.F.R. § 1201.113(b).
NOTICE OF APPEAL RIGHTS2
You may obtain review of this final decision. 5 U.S.C. § 7703(a)(1). By
statute, the nature of your claims determines the time limit for seeking such
review and the appropriate forum with which to file. 5 U.S.C. § 7703(b).
2 Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise which option is most appropriate in any matter.2
Although we offer the following summary of available appeal rights, the Merit
Systems Protection Board does not provide legal advice on which option is most
appropriate for your situation and the rights described below do not represent a
statement of how courts will rule regarding which cases fall within their
jurisdiction. If you wish to seek review of this final decision, you should
immediately review the law applicable to your claims and carefully follow all
filing time limits and requirements. Failure to file within the applicable time
limit may result in the dismissal of your case by your chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the following
address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.3
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. 420 (2017). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the district court no later than 30 calendar days after your representative
receives this decision. If the action involves a claim of discrimination based on
race, color, religion, sex, national origin, or a disabling condition, you may be
entitled to representation by a court-appointed lawyer and to waiver of any
requirement of prepayment of fees, costs, or other security. See 42 U.S.C.
§ 2000e-5(f) and 29 U.S.C. § 794a.
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702(b)(1). You must file any such request with the4
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or
other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
disposition of allegations of a prohibited personnel practice described in
section 2302(b) other than practices described in section 2302(b)(8), or
2302(b)(9)(A)(i), (B), (C), or (D),” then you may file a petition for judicial
review either with the U.S. Court of Appeals for the Federal Circuit or any court5
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 | Tavares_SabrinaPH-315H-24-0203-I-1_Final_Order.pdf | 2025-02-04 | SABRINA TAVARES v. DEPARTMENT OF THE ARMY, MSPB Docket No. PH-315H-24-0203-I-1, February 4, 2025 | PH-315H-24-0203-I-1 | NP |
221 | https://www.mspb.gov/decisions/nonprecedential/Arocho_EdwinDC-315H-24-0077-I-1_Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
EDWIN AROCHO JR.,
Appellant,
v.
DEPARTMENT OF THE ARMY,
Agency.DOCKET NUMBER
DC-315H-24-0077-I-1
DATE: February 3, 2025
THIS FINAL ORDER IS NONPRECEDENTIAL1
Neil C. Bonney , Esquire, Virginia Beach, Virginia, for the appellant.
Michael L. Kanabrocki , Esquire, Jessica Ortiz-Sanchez , Esquire, and
Tatiana Carradine , Esquire, Fort Liberty, North Carolina, 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 his probationary termination appeal for lack of jurisdiction.
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).
On petition for review, the appellant reargues that he has a regulatory right to
appeal his termination to the Board because the agency removed him based on a
pre-appointment condition—his alleged membership in a motorcycle club, which
is a criminal organization.2 He also reargues the merits of his termination.
Generally, we grant petitions such as this one only in the following
circumstances: the initial decision contains erroneous findings of material fact;
the initial decision is based on an erroneous interpretation of statute or regulation
or the erroneous application of the law to the facts of the case; the administrative
judge’s rulings during either the course of the appeal or the initial decision were
not consistent with required procedures or involved an abuse of discretion, and
the resulting error affected the outcome of the case; or new and material evidence
2 The appellant argues that, because he was terminated at least in part for a
pre-appointment reason, the agency was required to afford him notice and an
opportunity to respond to the proposed action, under 5 C.F.R. § 315.805. Petition for
Review File, Tab 1 at 4-5. The administrative judge found that agency removed the
appellant based on his current status as a member of the motorcycle club and his
affiliation with the club at the time of his termination. Initial Appeal File (IAF), Tab 8,
Initial Decision (ID) at 5-7. The administrative judge was not persuaded by the
appellant’s claim that, because he was a member of the club prior to his appointment
with the agency, the agency’s action was based at least in part on a pre-appointment
reason (i.e., the continuation of his pre-appointment affiliation with the club). ID
at 7-8. We agree. The removal notice specifically states that the agency removed the
appellant based on the Criminal Investigation Division identifying him as a member of
the club and the National Crime Information Center validating his membership at the
time of the removal, and the notice makes no mention of the appellant’s
pre-appointment membership or affiliation with the club. IAF, Tab 1 at 7. As the
administrative judge correctly found, the Board has long distinguished between a
pre-existing condition and the effect that condition has on an employee’s
post-appointment performance or conduct. See e.g., Rivera v. Department of the Navy ,
114 M.S.P.R. 52, ¶ 8 (2010) (finding that even assuming that the appellant’s failure to
qualify for a credit card was attributable to his pre-appointment credit history, his
termination for failure to secure approval for a government credit card nonetheless
would constitute a post-appointment reason for termination); see also Cunningham v.
Department of the Army , 119 M.S.P.R. 147, ¶ 8 (2013) (finding that poor performance
caused by pre-appointment medical condition is actually a post-appointment reason for
termination). Accordingly, we find that the appellant has not made a nonfrivolous
allegation that the agency was required to follow the procedures in 5 C.F.R. § 315.805
in effecting his termination.2
or legal argument is available that, despite the petitioner’s due diligence, was not
available when the record closed. Title 5 of the Code of Federal Regulations,
section 1201.115 (5 C.F.R. § 1201.115). After fully considering the filings in this
appeal, we conclude that 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.
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
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the following
address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. 420 (2017). If you have a representative in this case,4
and your representative receives this decision before you do, then you must file
with the district court no later than 30 calendar days after your representative
receives this decision. If the action involves a claim of discrimination based on
race, color, religion, sex, national origin, or a disabling condition, you may be
entitled to representation by a court-appointed lawyer and to waiver of any
requirement of prepayment of fees, costs, or other security. See 42 U.S.C.
§ 2000e-5(f) and 29 U.S.C. § 794a.
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702(b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision. 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. 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 | Arocho_EdwinDC-315H-24-0077-I-1_Final_Order.pdf | 2025-02-03 | EDWIN AROCHO JR. v. DEPARTMENT OF THE ARMY, MSPB Docket No. DC-315H-24-0077-I-1, February 3, 2025 | DC-315H-24-0077-I-1 | NP |
222 | https://www.mspb.gov/decisions/nonprecedential/Barrera-Garcia_Vicky_J_DA-0752-23-0291-I-2_Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
VICKY J. BARRERA-GARCIA,
Appellant,
v.
DEPARTMENT OF THE ARMY,
Agency.DOCKET NUMBER
DA-0752-23-0291-I-2
DATE: February 3, 2025
THIS FINAL ORDER IS NONPRECEDENTIAL1
Christopher Vaughn , Decatur, Georgia, for the appellant.
Michelle Kalas , Silver Spring, Maryland, for the agency.
Jeffrey B. Miller , Fort Detrick, Maryland, for the agency.
Mary Bradley , 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.
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and 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 removal appeal as untimely filed without good cause shown for the
delay. On petition for review, the appellant argues that she has established good
cause for her filing delay based on her former representative’s health and conduct
and because the agency misrepresented the effective date of the 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 and AFFIRM the initial decision, which is now the Board’s
final decision. 5 C.F.R. § 1201.113(b).
NOTICE OF APPEAL RIGHTS2
You may obtain review of this final decision. 5 U.S.C. § 7703(a)(1). By
statute, the nature of your claims determines the time limit for seeking such
review and the appropriate forum with which to file. 5 U.S.C. § 7703(b).
Although we offer the following summary of available appeal rights, the Merit
Systems Protection Board does not provide legal advice on which option is most
2 Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise which option is most appropriate in any matter.2
appropriate for your situation and the rights described below do not represent a
statement of how courts will rule regarding which cases fall within their
jurisdiction. If you wish to seek review of this final decision, you should
immediately review the law applicable to your claims and carefully follow all
filing time limits and requirements. Failure to file within the applicable time
limit may result in the dismissal of your case by your chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the following
address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation3
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. 420 (2017). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the district court no later than 30 calendar days after your representative
receives this decision. If the action involves a claim of discrimination based on
race, color, religion, sex, national origin, or a disabling condition, you may be
entitled to representation by a court-appointed lawyer and to waiver of any
requirement of prepayment of fees, costs, or other security. See 42 U.S.C.
§ 2000e-5(f) and 29 U.S.C. § 794a.
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702(b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file4
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or
other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
disposition of allegations of a prohibited personnel practice described in
section 2302(b) other than practices described in section 2302(b)(8), or
2302(b)(9)(A)(i), (B), (C), or (D),” then you may file a petition for judicial
review either with the U.S. Court of Appeals for the Federal Circuit or any court
of appeals of competent jurisdiction.3 The court of appeals must receive your
3 The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115-195,
132 Stat. 1510. 5
petition for review within 60 days of the date of issuance of this decision.
5 U.S.C. § 7703(b)(1)(B).
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the following
address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case. 6
Contact information for the courts of appeals can be found at their
respective websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
FOR THE BOARD: ______________________________
Gina K. Grippando
Clerk of the Board
Washington, D.C.7 | Barrera-Garcia_Vicky_J_DA-0752-23-0291-I-2_Final_Order.pdf | 2025-02-03 | null | DA-0752-23-0291-I-2 | NP |
223 | https://www.mspb.gov/decisions/nonprecedential/Macura_MilanCH-0841-23-0430-I-1_Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
MILAN MACURA,
Appellant,
v.
OFFICE OF PERSONNEL
MANAGEMENT,
Agency.DOCKET NUMBER
CH-0841-23-0430-I-1
DATE: February 3, 2025
THIS FINAL ORDER IS NONPRECEDENTIAL1
Milan Macura , Columbia, Kentucky, pro se.
Sherri McCall , Washington, District of Columbia, 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.
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).
FINAL ORDER
The appellant has filed a petition for review of the initial decision, which
affirmed the reconsideration decision of Office of Personnel Management finding
that he was ineligible for a Federal Employees’ Retirement System annuity. On
petition for review, the appellant disagrees with several statements made in the
initial decision, and he argues that the administrative judge failed to consider
certain claims. Generally, we grant petitions such as this one only in the
following circumstances: the initial decision contains erroneous findings of
material fact; the initial decision is based on an erroneous interpretation of statute
or regulation or the erroneous application of the law to the facts of the case; the
administrative judge’s rulings during either the course of the appeal or the initial
decision were not consistent with required procedures or involved an abuse of
discretion, and the resulting error affected the outcome of the case; or new and
material evidence or legal argument is available that, despite the petitioner’s due
diligence, was not available when the record closed. Title 5 of the Code of
Federal Regulations, section 1201.115 (5 C.F.R. § 1201.115). After fully
considering the filings in this appeal, we conclude that the petitioner has not
established any basis under section 1201.115 for granting the petition for review.
Therefore, we DENY the petition for review and AFFIRM the initial decision,
which is now the Board’s final decision. 5 C.F.R. § 1201.113(b).
NOTICE OF APPEAL RIGHTS2
You may obtain review of this final decision. 5 U.S.C. § 7703(a)(1). By
statute, the nature of your claims determines the time limit for seeking such
review and the appropriate forum with which to file. 5 U.S.C. § 7703(b).
Although we offer the following summary of available appeal rights, the Merit
2 Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise which option is most appropriate in any matter.2
Systems Protection Board does not provide legal advice on which option is most
appropriate for your situation and the rights described below do not represent a
statement of how courts will rule regarding which cases fall within their
jurisdiction. If you wish to seek review of this final decision, you should
immediately review the law applicable to your claims and carefully follow all
filing time limits and requirements. Failure to file within the applicable time
limit may result in the dismissal of your case by your chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision.
5 U.S.C. § 7703(b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the following
address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at3
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. 420 (2017). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the district court no later than 30 calendar days after your representative
receives this decision. If the action involves a claim of discrimination based on
race, color, religion, sex, national origin, or a disabling condition, you may be
entitled to representation by a court-appointed lawyer and to waiver of any
requirement of prepayment of fees, costs, or other security. See
42 U.S.C. § 2000e-5(f) and 29 U.S.C. § 794a.
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702(b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case,4
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or
other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
disposition of allegations of a prohibited personnel practice described in section
2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i),
(B), (C), or (D),” then you may file a petition for judicial review either with the
U.S. Court of Appeals for the Federal Circuit or any court of appeals of
competent jurisdiction.3 The court of appeals must receive your petition for
3 The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115-195,5
review within 60 days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(B).
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the following
address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
132 Stat. 1510.6
Contact information for the courts of appeals can be found at their
respective websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
FOR THE BOARD: ______________________________
Gina K. Grippando
Clerk of the Board
Washington, D.C.7 | Macura_MilanCH-0841-23-0430-I-1_Final_Order.pdf | 2025-02-03 | MILAN MACURA v. OFFICE OF PERSONNEL MANAGEMENT, MSPB Docket No. CH-0841-23-0430-I-1, February 3, 2025 | CH-0841-23-0430-I-1 | NP |
224 | https://www.mspb.gov/decisions/nonprecedential/Ward_MichaelSF-0714-21-0297-I-1_Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
MICHAEL WARD,
Appellant,
v.
DEPARTMENT OF VETERANS
AFFAIRS,
Agency.DOCKET NUMBER
SF-0714-21-0297-I-1
DATE: February 3, 2025
THIS FINAL ORDER IS NONPRECEDENTIAL1
Michael Ward , Long Beach, California, pro se.
Phillip Rangsuebsin , Esquire, Los Angeles, 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.
FINAL ORDER
The appellant has filed a petition for review of the initial decision, which
dismissed his removal action for failure to prosecute. On petition for review, the
appellant argues that he did not intend to miss the initial telephonic status
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).
conference, that he could not afford an attorney, and that he suffers from
“depression and stress.” Petition for Review (PFR) File, Tab 1. Generally, we
grant petitions such as this one only in the following circumstances: the initial
decision contains erroneous findings of material fact; the initial decision is based
on an erroneous interpretation of statute or regulation or the erroneous application
of the law to the facts of the case; the administrative judge’s rulings during either
the course of the appeal or the initial decision were not consistent with required
procedures or involved an abuse of discretion, and the resulting error affected the
outcome of the case; or new and material evidence or legal argument is available
that, despite the petitioner’s due diligence, was not available when the record
closed. Title 5 of the Code of Federal Regulations, section 1201.115
(5 C.F.R. § 1201.115). After fully considering the filings in this appeal, we
conclude that the petitioner has not established any basis under section 1201.115
for granting the petition for review. Therefore, we DENY the petition for review
and AFFIRM the initial decision, which is now the Board’s final decision.
5 C.F.R. § 1201.113(b).
The appellant’s assertions on review do not persuade us that the
administrative judge abused her discretion in dismissing this appeal. It is
undisputed that the appellant failed to follow at least four Board orders, despite at
least two warnings that his failures could result in the imposition of sanctions,
such as the dismissal of his appeal for failure to prosecute. Initial Appeal File
(IAF), Tabs 6, 8-9, 13. Further, the appellant also failed to follow the Board’s
orders and the regulations governing filing requirements. IAF, Tab 3 at 4-6,
Tabs 7, 10, Tab 13 at 1. Thus, the record shows that the appellant did not
exercise due diligence in prosecuting his appeal, and when he did attempt to
further his appeal, he was negligent in his efforts to so do. Therefore, we find
that the administrative judge properly exercised her discretion to impose the
sanction of dismissal with prejudice. See Williams v. U.S. Postal Service ,
116 M.S.P.R. 377, ¶¶ 7-9 (2011) ; 5 C.F.R. § 1201.43(b). The appellant’s2
arguments on review that he did not have an attorney and that he suffered from
depression do not convince us to disturb the initial decision.2 Accordingly, we
affirm the initial decision .
NOTICE OF APPEAL RIGHTS3
You may obtain review of this final decision. 5 U.S.C. § 7703(a)(1). By
statute, the nature of your claims determines the time limit for seeking such
review and the appropriate forum with which to file. 5 U.S.C. § 7703(b).
Although we offer the following summary of available appeal rights, the Merit
Systems Protection Board does not provide legal advice on which option is most
appropriate for your situation and the rights described below do not represent a
statement of how courts will rule regarding which cases fall within their
jurisdiction. If you wish to seek review of this final decision, you should
immediately review the law applicable to your claims and carefully follow all
filing 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 The Board has held that an appellant cannot avoid the consequences of his choice to
represent himself even if he appears pro se because he cannot afford an attorney.
Embry v. Department of Transportation , 13 M.S.P.R. 505, 507 (1982). Further, there is
no statutory or regulatory requirement that an appellant be provided with pro bono
counsel. Sanders v. Social Security Administration , 114 M.S.P.R. 487, ¶ 7 (2010).
Regarding the appellant’s claim that he suffers from depression, he has not submitted
any medical documentation to support a claim that a medical condition prevented him
from participating in the adjudicatory process, and the Board typically will not entertain
a claim of a medical emergency absent corroborating evidence. See, e.g., Martin
v. Office of Personnel Management , 51 M.S.P.R. 360, 361 (1991) (stating that an
appellant’s claim that he was ill is a “mere assertion” when it is unsupported by medical
documentation when analyzing a timeliness issue and whether an appellant’s assertion
of illness without supporting evidence constituted good cause). Furthermore, the
appellant has not explained how his medical condition prevented him from participating
in the adjudicatory process. PFR File, Tab 1. For example, he has not asserted that he
was hospitalized, incapacitated, or otherwise physically or mentally unable to respond
to the Board’s orders. Id.
3 Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise which option is most appropriate in any matter.3
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision.
5 U.S.C. § 7703(b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the following
address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you4
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. 420 (2017). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the district court no later than 30 calendar days after your representative
receives this decision. If the action involves a claim of discrimination based on
race, color, religion, sex, national origin, or a disabling condition, you may be
entitled to representation by a court-appointed lawyer and to waiver of any
requirement of prepayment of fees, costs, or other security. See
42 U.S.C. § 2000e-5(f) and 29 U.S.C. § 794a.
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702(b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision. 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 | Ward_MichaelSF-0714-21-0297-I-1_Final_Order.pdf | 2025-02-03 | MICHAEL WARD v. DEPARTMENT OF VETERANS AFFAIRS, MSPB Docket No. SF-0714-21-0297-I-1, February 3, 2025 | SF-0714-21-0297-I-1 | NP |
225 | https://www.mspb.gov/decisions/nonprecedential/Chappelle_Carmen_P_AT-0752-23-0315-I-1_Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
CARMEN PATRICE CHAPPELLE,
Appellant,
v.
DEPARTMENT OF VETERANS
AFFAIRS,
Agency.DOCKET NUMBER
AT-0752-23-0315-I-1
DATE: January 31, 2025
THIS FINAL ORDER IS NONPRECEDENTIAL1
Carmen Patrice Chappelle , Riviera Beach, Florida, pro se.
Tsopei Robinson , Esquire, West Palm Beach, Florida, 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
affirmed her removal. On petition for review, the appellant alleges that the
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).
agency built a “false removal case” against her and the administrative judge was
biased against her. Generally, we grant petitions such as this one only in the
following circumstances: the initial decision contains erroneous findings of
material fact; the initial decision is based on an erroneous interpretation of statute
or regulation or the erroneous application of the law to the facts of the case; the
administrative judge’s rulings during either the course of the appeal or the initial
decision were not consistent with required procedures or involved an abuse of
discretion, and the resulting error affected the outcome of the case; or new and
material evidence or legal argument is available that, despite the petitioner’s due
diligence, was not available when the record closed. Title 5 of the Code of
Federal Regulations, section 1201.115 (5 C.F.R. § 1201.115). After fully
considering the filings in this appeal, we conclude that the petitioner has not
established any basis under section 1201.115 for granting the petition for review.
Therefore, we DENY the petition for review and AFFIRM the initial decision,
which is now the Board’s final decision. 5 C.F.R. § 1201.113(b).
NOTICE OF APPEAL RIGHTS2
You may obtain review of this final decision. 5 U.S.C. § 7703(a)(1). By
statute, the nature of your claims determines the time limit for seeking such
review and the appropriate forum with which to file. 5 U.S.C. § 7703(b).
Although we offer the following summary of available appeal rights, the Merit
Systems Protection Board does not provide legal advice on which option is most
appropriate for your situation and the rights described below do not represent a
statement of how courts will rule regarding which cases fall within their
jurisdiction. If you wish to seek review of this final decision, you should
immediately review the law applicable to your claims and carefully follow all
2 Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise which option is most appropriate in any matter.2
filing time limits and requirements. Failure to file within the applicable time
limit may result in the dismissal of your case by your chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision.
5 U.S.C. § 7703(b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the following
address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case. 3
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. 420 (2017). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the district court no later than 30 calendar days after your representative
receives this decision. If the action involves a claim of discrimination based on
race, color, religion, sex, national origin, or a disabling condition, you may be
entitled to representation by a court-appointed lawyer and to waiver of any
requirement of prepayment of fees, costs, or other security. See
42 U.S.C. § 2000e-5(f) and 29 U.S.C. § 794a.
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702(b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision. 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 | Chappelle_Carmen_P_AT-0752-23-0315-I-1_Final_Order.pdf | 2025-01-31 | CARMEN PATRICE CHAPPELLE v. DEPARTMENT OF VETERANS AFFAIRS, MSPB Docket No. AT-0752-23-0315-I-1, January 31, 2025 | AT-0752-23-0315-I-1 | NP |
226 | https://www.mspb.gov/decisions/nonprecedential/Harris_Steven_AT-0752-21-0268-I-1_Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
STEVEN HARRIS,
Appellant,
v.
DEPARTMENT OF VETERANS
AFFAIRS,
Agency.DOCKET NUMBER
AT-0752-21-0268-I-1
DATE: January 31, 2025
THIS FINAL ORDER IS NONPRECEDENTIAL1
Justin Schnitzer , Esquire, Pikesville, Maryland, for the appellant.
Kimberly Kaye Ward , Esquire, Decatur, Georgia, for the agency.
Kristin A. Langwell , Esquire, Tampa, Florida, 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.
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and 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 appeal of his removal for violating a last chance agreement (LCA)
for lack of jurisdiction. On petition for review, the appellant repeats the
arguments raised before the administrative judge, including that the LCA was
invalid under contract law principles and that his removal was not in accordance
with the law. Generally, we grant petitions such as this one only in the following
circumstances: the initial decision contains erroneous findings of material fact;
the initial decision is based on an erroneous interpretation of statute or regulation
or the erroneous application of the law to the facts of the case; the administrative
judge’s rulings during either the course of the appeal or the initial decision were
not consistent with required procedures or involved an abuse of discretion, and
the resulting error affected the outcome of the case; or new and material evidence
or legal argument is available that, despite the petitioner’s due diligence, was not
available when the record closed. Title 5 of the Code of Federal Regulations,
section 1201.115 (5 C.F.R. § 1201.115). After fully considering the filings in this
appeal, we conclude that the petitioner has not established any basis under
section 1201.115 for granting the petition for review. Therefore, we DENY the
petition for review and AFFIRM the initial decision, which is now the Board’s
final decision. 5 C.F.R. § 1201.113(b).
NOTICE OF APPEAL RIGHTS2
You may obtain review of this final decision. 5 U.S.C. § 7703(a)(1). By
statute, the nature of your claims determines the time limit for seeking such
review and the appropriate forum with which to file. 5 U.S.C. § 7703(b).
Although we offer the following summary of available appeal rights, the Merit
Systems Protection Board does not provide legal advice on which option is most
2 Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise which option is most appropriate in any matter.2
appropriate for your situation and the rights described below do not represent a
statement of how courts will rule regarding which cases fall within their
jurisdiction. If you wish to seek review of this final decision, you should
immediately review the law applicable to your claims and carefully follow all
filing time limits and requirements. Failure to file within the applicable time
limit may result in the dismissal of your case by your chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the following
address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation3
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. 420 (2017). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the district court no later than 30 calendar days after your representative
receives this decision. If the action involves a claim of discrimination based on
race, color, religion, sex, national origin, or a disabling condition, you may be
entitled to representation by a court-appointed lawyer and to waiver of any
requirement of prepayment of fees, costs, or other security. See 42 U.S.C.
§ 2000e-5(f) and 29 U.S.C. § 794a.
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702(b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file4
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or
other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
disposition of allegations of a prohibited personnel practice described in
section 2302(b) other than practices described in section 2302(b)(8), or
2302(b)(9)(A)(i), (B), (C), or (D),” then you may file a petition for judicial
review either with the U.S. Court of Appeals for the Federal Circuit or any court
of appeals of competent jurisdiction.3 The court of appeals must receive your
3 The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115-195,
132 Stat. 1510. 5
petition for review within 60 days of the date of issuance of this decision.
5 U.S.C. § 7703(b)(1)(B).
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the following
address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case. 6
Contact information for the courts of appeals can be found at their
respective websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
FOR THE BOARD: ______________________________
Gina K. Grippando
Clerk of the Board
Washington, D.C.7 | Harris_Steven_AT-0752-21-0268-I-1_Final_Order.pdf | 2025-01-31 | STEVEN HARRIS v. DEPARTMENT OF VETERANS AFFAIRS, MSPB Docket No. AT-0752-21-0268-I-1, January 31, 2025 | AT-0752-21-0268-I-1 | NP |
227 | https://www.mspb.gov/decisions/nonprecedential/Purohit_Anil_CB-7121-21-0002-V-1_Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
ANIL PUROHIT,
Appellant,
v.
DEPARTMENT OF HEALTH AND
HUMAN SERVICES,
Agency.DOCKET NUMBER
CB-7121-21-0002-V-1
DATE: January 31, 2025
THIS FINAL ORDER IS NONPRECEDENTIAL1
Robyn Mabry , Esquire, and Timothy B. Hannapel , Esquire,
Washington, D.C., for the appellant.
Keian Weld , Esquire, and Susan M. Andorfer , Esquire, 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.
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and 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 request for review under 5 U.S.C. § 7121(d) of an
arbitrator’s decision that sustained his removal. For the reasons discussed below,
we DENY the request for review and AFFIRM the arbitrator’s decision.
BACKGROUND
Prior to the action at issue, the appellant was a GS-13 Public Health
Analyst (Project Officer) who had worked for the agency’s Health Resources and
Services Administration for approximately 3 years. In February 2012, he was
diagnosed with kidney failure, which required that he undergo periodic dialysis.
Request for Review (RFR) File, Tab 1, Hearing Transcript (HT) at 565, 569, 649
(testimony of the appellant). The agency granted the appellant’s request for
reasonable accommodation, allowing him to telework full-time from Boston,
Massachusetts, where he resided, rather than reporting to his duty station in
Rockville, Maryland, and not requiring him to travel, which was part of his
official duties. Id. at 356 (testimony of Acting Branch Director). The agreement
was to be considered for renewal after 6 months, and the agency twice renewed it
at the appellant’s request, through August 2013. He was then notified that the
agreement would not be further extended, but the agency did grant the appellant’s
request for intermittent leave without pay under the Family and Medical Leave
Act through June 11, 2014 (480 hours, his full entitlement for a 12-month period).
Meanwhile, on February 25, 2014, the agency directed the appellant to report for
duty in Rockville, Maryland, on April 14, 2014, and indicated that his failure to
do so would result in his being charged absent without leave (AWOL). The
appellant did not report for duty.
On August 29, 2014, the agency proposed the appellant’s removal based on
three charges: (1) AWOL from June 11 to August 28, 2014 (444 hours);
(2) failing to follow leave-requesting procedures on April 7-8, 14-15, and 17,
2014 (not reporting for duty and failing to receive supervisory approval for the2
absence); and (3) failing to take required Project Officer training (failing to take
or complete any of the training which would have met the requirements of the
Project Officer Certification Program by the April 30, 2014 deadline). RFR File,
Tab 1 at 197. On November 6, 2014, the deciding official found all the charges
sustained, warranting the appellant’s removal, effective November 14, 2014.2 Id.
at 205.
The appellant’s union filed a grievance challenging the agency’s action
under the applicable collective bargaining agreement. The arbitrator identified
the issue as whether the agency violated the Civil Service Reform Act when it
removed the appellant, and, if so, what was the appropriate remedy. RFR File,
Tab 1 at 21. The arbitrator held a 3-day hearing on April 14, August 3, and
August 4, 2017, id. at 211-387, 405-537, 551-745, after which he issued a
decision. Id. at 18. The arbitrator found that the agency proved all three charges,
id. at 31, 35-37, that the removal decision promoted the efficiency of the service,
and that the action fell well within the agency’s exercise of reasonable discretion.
Id. at 38-39. Concluding that the agency did not violate the Civil Service Reform
Act or the Rehabilitation Act when it removed the appellant, the arbitrator denied
the grievance in its entirety. Id. at 40.
The appellant has filed a request for review of “portions” of the arbitrator’s
decision. Id. at 7. Specifically, the appellant argues that the arbitrator erred in
finding that he did not establish his claim of disability discrimination based on
the agency’s failure to provide him with reasonable accommodation. Id. at 8-9,
12-16. The agency has responded in opposition to the appellant’s request.
RFR File, Tab 7 at 4-10.
2 The appellant eventually received a kidney transplant in 2016, two years after his
removal. RFR File, Tab 1; HT at 675 (testimony of the appellant).3
ANALYSIS
The Board has jurisdiction over the appellant’s request for review of the
arbitrator’s decision.
The Board has jurisdiction to review an arbitration decision under 5 U.S.C.
§ 7121(d) when the subject matter of the grievance is one over which the Board
has jurisdiction, the appellant specifically alleged in his grievance that the agency
discriminated against him in violation of 5 U.S.C. § 2302(b)(1) in connection
with the underlying action, and a final decision has been issued.
Brookens v. Department of Labor, 120 M.S.P.R. 678, ¶ 4 (2014); 5 C.F.R.
§ 1201.155(a)(1). Each of these elements has been satisfied in this case. First,
the subject matter of the grievance, a removal under chapter 75, Title 5 of the
United States Code, falls within the scope of the Board’s jurisdiction. 5 U.S.C.
§ 7512. Second, the appellant raised before the arbitrator an allegation of
disability discrimination—that the agency failed to provide him reasonable
accommodation. RFR File, Tab 1 at 7-8. Third, the final decision of the
arbitrator has been issued in this case. Id. at 18-41. We therefore find that we
have jurisdiction to review the arbitrator’s decision.
The record does not establish that the arbitrator erred in interpreting civil service
law, rule, or regulation in his adjudication of the appellant’s removal.
The standard of the Board’s review of an arbitration decision is narrow;
such awards are entitled to a greater degree of deference than initial decisions
issued by the Board’s administrative judges. Keller v. Department of the Army,
113 M.S.P.R. 557, ¶ 6 (2010). The Board will modify or set aside an arbitration
decision only when the arbitrator has erred as a matter of law in interpreting a
civil service law, rule, or regulation. Id.; De Bow v. Department of the Air Force,
97 M.S.P.R. 5, ¶ 5 (2004). Absent legal error, the Board cannot substitute its
conclusions for those of the arbitrator, even if it would disagree with the
arbitrator’s decision. De Bow, 97 M.S.P.R. 5, ¶ 5; see Jones v. Department of the
Treasury, 93 M.S.P.R. 494, ¶ 8 (2003) (finding that an arbitrator’s factual4
determinations are entitled to deference unless the arbitrator erred in his legal
analysis by, for example, misallocating the burdens of proof or employing the
wrong analytical framework).
Here, as noted, in his request for review, the appellant does not challenge
the arbitrator’s findings regarding the merits of the charges, or his findings that a
nexus exists between the sustained charges and the efficiency of the service, and
that removal is a reasonable penalty for those charges. RFR File, Tab 1. In the
absence of any such challenge, we discern no basis on which to disturb these
findings. McCurn v. Department of Defense, 119 M.S.P.R. 226, ¶ 15 n.7 (2013).
We defer to the arbitrator’s conclusion that the appellant failed to establish his
claim of failure to accommodate his disability.
In his request for review, the appellant argues that the arbitrator erred in
finding that he did not establish his allegation of disability discrimination.3
Specifically, the appellant asserts that the arbitrator employed the wrong standard
in analyzing his claim of denial of reasonable accommodation.4 RFR File, Tab 1
at 12-16. According to the appellant, the arbitrator failed to analyze whether the
agency’s continued accommodation of the appellant with full-time telework
would constitute an undue hardship. Id. at 14.
As noted, the arbitrator found, and it is undisputed, that the agency granted
the appellant’s initial request for full-time telework for 6 months and then twice
3 The arbitrator did not specifically find that the appellant was, during the time in
question, disabled by kidney disease, or that he was a qualified individual with a
disability, that is, that he could, with or without reasonable accommodation, perform the
“essential functions” of his position. Paris v. Department of the Treasury,
104 M.S.P.R. 331, ¶ 11 (2006). However, the fact that the arbitrator addressed and
made a finding on the issue of whether the appellant established that he was denied
reasonable accommodation makes it clear that that finding subsumed the others.
4 In this regard, the appellant argues that the arbitrator should have analyzed his claim
consistent with the standard set forth in an initial decision issued by a Board
administrative judge. RFR File, Tab 1 at 12. However, initial decisions lack
precedential value. Gregory v. Department of the Army, 114 M.S.P.R. 607, ¶ 27 (2010).5
extended the accommodation.5 Id. at 38. The arbitrator further found that the
agency’s decision not to allow further full-time telework was due to the fact that
the appellant requested reasonable accommodation because of his inability to
travel, but that travel was an essential duty of his position which, therefore, could
not be restructured without causing undue hardship to the agency’s operations and
that there were no vacant positions to which he could be reassigned because all
Project Officer positions required substantial travel. Id. at 34, 38-39. To the
extent the appellant suggests that, because the agency previously granted him the
reasonable accommodation of full-time telework, it is compelled to continue
doing so, he has provided no support for this contention. Given our narrow scope
of review, we defer to the arbitrator’s finding that the appellant did not show that
the agency failed in its obligation to accommodate him and that he therefore did
not prove his affirmative defense of disability discrimination. See Henry v.
Department of Veterans Affairs, 100 M.S.P.R. 124, ¶ 15 (2005) (stating that the
appellant bears the ultimate burden of proof on claims of unlawful
discrimination).
This is the Board’s final decision regarding the request for review of the
arbitration 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
5 Each time, the agency’s expectation was that the appellant would be able to return to
his normal duties at the end of the 6-month period. HT at 363-68 (testimony of the
appellant’s second-level supervisor and the deciding official).
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
appropriate for your situation and the rights described below do not represent a
statement of how courts will rule regarding which cases fall within their
jurisdiction. If you wish to seek review of this final decision, you should
immediately review the law applicable to your claims and carefully follow all
filing time limits and requirements. Failure to file within the applicable time
limit may result in the dismissal of your case by your chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation7
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems
Protection Board, 582 U.S. 420 (2017). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the district court no later than 30 calendar days after your representative
receives this decision. If the action involves a claim of discrimination based on
race, color, religion, sex, national origin, or a disabling condition, you may be
entitled to representation by a court -appointed lawyer and to waiver of any
requirement of prepayment of fees, costs, or other security. See 42 U.S.C.
§ 2000e-5(f) and 29 U.S.C. § 794a.
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702(b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file8
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or
other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
disposition of allegations of a prohibited personnel practice described in
section 2302(b) other than practices described in section 2302(b)(8), or
2302(b)(9)(A)(i), (B), (C), or (D),” then you may file a petition for judicial
review either with the U.S. Court of Appeals for the Federal Circuit or any court
of appeals of competent jurisdiction.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 of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court 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
petition for review within 60 days of the date of issuance of this decision.
5 U.S.C. § 7703(b)(1)(B).
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the 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 | Purohit_Anil_CB-7121-21-0002-V-1_Final_Order.pdf | 2025-01-31 | ANIL PUROHIT v. DEPARTMENT OF HEALTH AND HUMAN SERVICES, MSPB Docket No. CB-7121-21-0002-V-1, January 31, 2025 | CB-7121-21-0002-V-1 | NP |
228 | https://www.mspb.gov/decisions/nonprecedential/Spencer_Donald_J_PH-0842-23-0226-I-1_Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
DONALD J. SPENCER,
Appellant,
v.
OFFICE OF PERSONNEL
MANAGEMENT,
Agency.DOCKET NUMBER
PH-0842-23-0226-I-1
DATE: January 31, 2025
THIS FINAL ORDER IS NONPRECEDENTIAL1
Donald J. Spencer , Guilford, Vermont, 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*
Raymond A. Limon, Vice Chairman
Henry J. Kerner, Member
*The Board members voted on this decision before January 20, 2025.
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).
FINAL ORDER
The appellant has filed a petition for review of the initial decision, which
affirmed the final decision of the Office of Personnel Management denying him
service credit for post-1956 military service. On petition for review, the
appellant argues that the Board should stay its decision until the pertinent
military department amends his military records.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 U.S. Court of Appeals for the Federal Circuit has noted that military records can
be corrected, even long after the fact, under 10 U.S.C. § 1552(a). See Noguera v. Office
of Personnel Management , 878 F.2d 1422, 1424-1425 (Fed. Cir. 1989). Thus, the
administrative judge properly informed the appellant of his right to seek a correction in
his military records pursuant to 10 U.S.C. § 1552(a). Initial Appeal File, Tab 10, Initial
Decision at 5. Should the appellant be successful in obtaining the correction he seeks,
he would have the right to a new process, including a new Board appeal, concerning his
civilian annuity. 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 | Spencer_Donald_J_PH-0842-23-0226-I-1_Final_Order.pdf | 2025-01-31 | DONALD J. SPENCER v. OFFICE OF PERSONNEL MANAGEMENT, MSPB Docket No. PH-0842-23-0226-I-1, January 31, 2025 | PH-0842-23-0226-I-1 | NP |
229 | https://www.mspb.gov/decisions/nonprecedential/Jones_Courtney_L_PH-315H-21-0050-I-1_Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
COURTNEY L. JONES,
Appellant,
v.
SOCIAL SECURITY
ADMINISTRATION,
Agency.DOCKET NUMBER
PH-315H-21-0050-I-1
DATE: January 30, 2025
THIS FINAL ORDER IS NONPRECEDENTIAL1
Courtney L. Jones , Philadelphia, Pennsylvania, pro se.
Edward Charles Tompsett , Esquire, Philadelphia, Pennsylvania,
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
the effective date of Acting Chairman Kerner’s designation.
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and 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 probationary termination appeal for lack of jurisdiction. For the
reasons discussed below, we GRANT the appellant’s petition for review,
VACATE the initial decision, and REVERSE the agency’s separation action.
BACKGROUND
On September 29, 2019, the appellant was appointed to a career-conditional
appointment as a GS-05 Contact Representative. Initial Appeal File (IAF), Tab 5
at 18. On September 28, 2020, the agency issued the appellant a Notice of
Termination During Probationary Period for unacceptable conduct due to
continued absences and failure to follow leave requesting procedures. Id.
at 11-15. The appellant’s termination was effective at the close of business on
September 28, 2020. Id. at 12.
On November 20, 2020, the appellant filed an appeal using the Board’s
e-Appeal system, alleging, in part, that she suffered from various medical
conditions, she had provided documentation to her supervisor regarding the same,
and her termination was in retaliation for a grievance that she filed against her
supervisor. IAF, Tab 1 at 5. The administrative judge issued an acknowledgment
order, notifying the appellant that the Board may not have jurisdiction over her
appeal, explaining the applicable legal standards for establishing jurisdiction over
a probationary termination, and ordering the appellant to file evidence or
argument that established a nonfrivolous allegation of Board jurisdiction. IAF,
Tab 3 at 2-5. The appellant did not respond to the order.
Without holding a hearing, the administrative judge dismissed the appeal
for lack of jurisdiction, finding that the appellant was a probationary employee
and she had not alleged that her termination was due to pre-appointment reasons
or the result of marital status discrimination or partisan political reasons. IAF,
Tab 6, Initial Decision (ID) at 3-4. The administrative judge also noted that,2
because she found that the Board lacked jurisdiction over the appeal, she need not
address the timeliness of the appeal. ID at 4 n.2.
The appellant filed a petition for review, stating that she did not know that
she had to provide additional documentation to prove her case. Petition for
Review (PFR) File, Tab 1 at 3-4. The agency responded in opposition to the
appellant’s petition for review. PFR File, Tab 3. Because the record on
timeliness was not developed in front of the administrative judge, the Board
issued a show cause order, providing the appellant with the opportunity to present
argument and evidence to establish that her appeal was timely filed or good cause
existed for the filing delay. PFR File, Tab 4. The appellant responded,
explaining that she thought she had timely filed her appeal, but the appeal had
remained in draft form in e-Appeal, which she only learned after calling the
Board. PFR File, Tab 5 at 4.
ANALYSIS
The appellant was an employee under 5 U.S.C. chapter 75 with a statutory right to
appeal her termination to the Board.
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). Only individuals
meeting the definition of an “employee” set forth in 5 U.S.C. § 7511 have a
statutory right to appeal an adverse action to the Board. 5 U.S.C. §§ 7511(a)(1),
7513(d). To qualify as an “employee” with appeal rights under chapter 75, an
individual in the competitive service must show that she either “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.” 5 U.S.C. § 7511(a)(1)(A) ; Walker v. Department of the
Army, 119 M.S.P.R. 391, ¶ 5 (2013) . A probationary employee does not have a3
statutory right to appeal her termination because she is not considered an
“employee” under 5 U.S.C. chapter 75. 5 U.S.C. § 7511(a)(1)(A).
It is well settled that, to terminate a person while that person is still a
probationer, the separation action must be effectuated prior to the end of the
probationer’s tour of duty on the last day of probation, which is the day before
the anniversary date of her appointment. Honea v. Department of Homeland
Security, 118 M.S.P.R. 282, ¶ 6 (2012), aff’d, 524 F. App’x 623 (Fed. Cir. 2013) ;
Burke v. Department of Justice , 53 M.S.P.R. 372, 375 (1992). The appellant’s
1-year anniversary date was September 29, 2020, and the agency terminated the
appellant, effective close of business on September 28, 2020. IAF, Tab 5
at 11-15, 18. Therefore, at the time the action became effective, the appellant had
completed her probationary period, and she was a competitive service employee
with a statutory right to appeal her termination to the Board. 5 U.S.C.
§§ 7511(a)(1)(A)(i), 7513(d). Thus, contrary to the administrative judge’s
finding, the Board has jurisdiction over this appeal. ID at 3-4.
The appellant has established good cause for the untimely filing of her appeal.
Because we find that the Board has jurisdiction over this appeal, we must
address the timeliness issue. Generally, an appellant must file an appeal with the
Board no later than 30 calendar days after the effective date, if any, of the action
being challenged, or 30 calendar days after the date she receives the agency’s
decision, whichever is later. 5 C.F.R. § 1201.22(b)(1). Here, the appellant was
separated, effective September 28, 2020, and therefore, an appeal of the
separation action was due on or before October 28, 2020. IAF, Tab 5 at 11-15.
The appellant did not file her appeal until November 20, 2020. IAF, Tab 1.
Accordingly, we find the appeal to be untimely filed by 23 days.
To establish good cause for the untimely filing of an appeal, a party must
show that she exercised due diligence or ordinary prudence under the particular
circumstances of the case. Alonzo v. Department of the Air Force , 4 M.S.P.R.
180, 184 (1980). To determine whether an appellant has shown good cause, the4
Board will consider the length of the delay, the reasonableness of her excuse and
her showing of due diligence, whether she is proceeding pro se, and whether she
has presented evidence of the existence of circumstances beyond her control that
affected her ability to comply with the time limits or of unavoidable casualty or
misfortune which similarly shows a causal relationship to her inability to timely
file her petition. Moorman v. Department of the Army , 68 M.S.P.R. 60, 62-63
(1995), aff’d, 79 F.3d 1167 (Fed. Cir. 1996) (Table).
Here, the appellant, who is pro se, explained that she thought she had filed
her appeal on October 20, 2020, which would have been a timely filing. PFR
File, Tab 5 at 4. It was not until she contacted the Board on November 19, 2020,
that she learned that she had not executed the final step of submitting the appeal,
and that her appeal was still in draft form in e-Appeal. PFR File, Tab 5 at 4-10.
She then promptly corrected the error, filing her appeal on November 20, 2020.
IAF, Tab 1.
The Board has found good cause for filing delays under circumstances
similar to those presented here. See Salazar v. Department of the Army ,
115 M.S.P.R. 296, ¶¶ 6-8 (2010) (excusing a 2-month delay in filing a petition for
review when the appellant reasonably believed he had timely filed the petition for
review); Livingston v. Office of Personnel Management , 105 M.S.P.R. 314, ¶ 9
(2007) (finding good cause for a 3-week delay in filing a petition for review when
the appellant reasonably believed he had timely filed his petition for review);
Rodgers v. U.S. Postal Service , 105 M.S.P.R. 297, ¶ 7 (2007) (excusing an 11-day
delay in filing a petition for review when the appellant reasonably believed he
had timely filed the petition for review). For instance, in Lamb v. Office of
Personnel Management , 110 M.S.P.R. 415, ¶ 9 (2009), the Board excused a
14-day filing delay when the pro se appellant believed that he had timely filed his
appeal but he had exited e -Appeal without submitting it, and on realizing the
error, he acted with due diligence by contacting the Board and filing his appeal
immediately thereafter. Therefore, because the appellant reasonably believed she5
had timely filed her appeal and acted diligently when she realized the error, we
find that she established good cause for the filing delay.
The agency action must be reversed because it violated the appellant’s right to
minimum due process of the law.
An agency’s failure to provide a tenured public employee with an
opportunity to present a response, either in person or in writing, to an appealable
agency action that deprives her of her property right in her employment
constitutes an abridgement of her constitutional right to minimum due process of
law, i.e., prior notice and opportunity to respond. Cleveland Board of
Education v. Loudermill, 470 U.S. 532, 546 (1985). As explained above, the
agency effectuated the appellant’s separation after she had completed her
probationary period and did not provide the appellant with an opportunity to
respond. IAF, Tab 5 at 11-15. Therefore, the procedures used by the agency did
not comport with a tenured employee’s right to minimum due process of the law.
See Clairborne v. Department of Veterans Affairs , 118 M.S.P.R. 491, ¶ 8 (2012).
Accordingly, the appellant’s separation must be reversed. See Samble v.
Department of Defense , 98 M.S.P.R. 502, ¶ 14 (2005).
ORDER
We ORDER the agency to cancel the appellant’s separation and to restore
the appellant to her GS-05 Contact Representative position, effective close of
business September 28, 2020. See Kerr v. National Endowment for the Arts ,
726 F.2d 730 (Fed. Cir. 1984). The agency must complete this action no later
than 20 days after the date of this decision.
We also ORDER the agency to pay the appellant the correct amount of
back pay, interest on back pay, and other benefits under the Back Pay Act and/or
Postal Service regulations, as appropriate, no later than 60 calendar days after the
date of this decision. We ORDER the appellant to cooperate in good faith in the
agency’s efforts to calculate the amount of back pay, interest, and benefits due,6
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 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). The7
regulations may be found at 5 C.F.R. §§ 1201.201, 1201.202, and 1201.203. If
you believe you meet these requirements, you must file a motion for attorney fees
and costs WITHIN 60 CALENDAR DAYS OF THE DATE OF THIS DECISION.
You must file your motion for attorney fees and costs with the office that issued
the initial decision on your appeal.
NOTICE OF APPEAL RIGHTS2
You may obtain review of this final decision. 5 U.S.C. § 7703(a)(1). By
statute, the nature of your claims determines the time limit for seeking such
review and the appropriate forum with which to file. 5 U.S.C. § 7703(b).
Although we offer the following summary of available appeal rights, the Merit
Systems Protection Board does not provide legal advice on which option is most
appropriate for your situation and the rights described below do not represent a
statement of how courts will rule regarding which cases fall within their
jurisdiction. If you wish to seek review of this final decision, you should
immediately review the law applicable to your claims and carefully follow all
filing time limits and requirements. Failure to file within the applicable time
limit may result in the dismissal of your case by your chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
2 Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise which option is most appropriate in any matter.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.3 The court of appeals must receive your
petition for review within 60 days of the date of issuance of this decision.
5 U.S.C. § 7703(b)(1)(B).
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the following
address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
3 The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115-195,
132 Stat. 1510. 11
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the 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
DEFENSE FINANCE AND ACCOUNTING SERVICE
Civilian Pay Operations
DFAS BACK PAY CHECKLIST
The following documentation is required by DFAS Civilian Pay to compute and pay back pay
pursuant to 5 CFR § 550.805. Human resources/local payroll offices should use the following
checklist to ensure a request for payment of back pay is complete. Missing documentation may
substantially delay the processing of a back pay award. More information may be found at:
https://wss.apan.org/public/DFASPayroll/Back%20Pay%20Process/Forms/AllItems.aspx.
NOTE: Attorneys’ fees or other non-wage payments (such as damages) are paid by
vendor pay, not DFAS Civilian Pay.
☐1) Submit a “SETTLEMENT INQUIRY - Submission” Remedy Ticket. Please identify the
specific dates of the back pay period within the ticket comments.
Attach the following documentation to the Remedy Ticket, or provide a statement in the ticket
comments as to why the documentation is not applicable:
☐2) Settlement agreement, administrative determination, arbitrator award, or order.
☐3) Signed and completed “Employee Statement Relative to Back Pay”.
☐4) All required SF50s (new, corrected, or canceled). ***Do not process online SF50s
until notified to do so by DFAS Civilian Pay.***
☐5) Certified timecards/corrected timecards. ***Do not process online timecards
until notified to do so by DFAS Civilian Pay.***
☐6) All relevant benefit election forms (e.g. TSP, FEHB, etc.).
☐7) Outside earnings documentation. Include record of all amounts earned by the
employee in a job undertaken during the back pay period to replace federal
employment. Documentation includes W-2 or 1099 statements, payroll
documents/records, etc. Also, include record of any unemployment earning
statements, workers’ compensation, CSRS/FERS retirement annuity payments,
refunds of CSRS/FERS employee premiums, or severance pay received by the
employee upon separation.
Lump Sum Leave Payment Debts: When a separation is later reversed, there is no authority
under 5 U.S.C. § 5551 for the reinstated employee to keep the lump sum annual leave payment
they may have received. The payroll office must collect the debt from the back pay award. The
annual leave will be restored to the employee. Annual leave that exceeds the annual leave
ceiling will be restored to a separate leave account pursuant to 5 CFR § 550.805(g).
NATIONAL FINANCE CENTER CHECKLIST FOR BACK PAY CASES
Below is the information/documentation required by National Finance Center to process
payments/adjustments agreed on in Back Pay Cases (settlements, restorations) or as ordered by
the Merit Systems Protection Board, EEOC, and courts .
1.Initiate and submit AD-343 (Payroll/Action Request) with clear and concise information
describing what to do in accordance with decision.
2.The following information must be included on AD-343 for Restoration:
a.Employee name and social security number.
b.Detailed explanation of request.
c.Valid agency accounting.
d.Authorized signature (Table 63).
e.If interest is to be included.
f.Check mailing address.
g.Indicate if case is prior to conversion. Computations must be attached.
h.Indicate the amount of Severance and Lump Sum Annual Leave Payment to be
collected (if applicable).
Attachments to AD-343
1.Provide pay entitlement to include Overtime, Night Differential, Shift Premium, Sunday
Premium, etc. with number of hours and dates for each entitlement (if applicable).
2.Copies of SF-50s (Personnel Actions) or list of salary adjustments/changes and amounts.
3.Outside earnings documentation statement from agency.
4.If employee received retirement annuity or unemployment, provide amount and address to
return monies.
5.Provide forms for FEGLI, FEHBA, or TSP deductions (if applicable).
6.If employee was unable to work during any or part of the period involved, certification of the
type of leave to be charged and number of hours.
7.If employee retires at end of Restoration Period, provide hours of Lump Sum Annual Leave
to be paid.
NOTE: If prior to conversion, agency must attach Computation Worksheet by Pay Period and
required data in 1-7 above.
The following information must be included on AD-343 for Settlement Cases: (Lump Sum
Payment, Correction to Promotion, Wage Grade Increase, FLSA, etc.)
a.Must provide same data as in 2, a-g above.
b.Prior to conversion computation must be provided.
c.Lump Sum amount of Settlement, and if taxable or non-taxable.
If you have any questions or require clarification on the above, please contact NFC’s
Payroll/Personnel Operations at 504-255-4630. | Jones_Courtney_L_PH-315H-21-0050-I-1_Final_Order.pdf | 2025-01-30 | COURTNEY L. JONES v. SOCIAL SECURITY ADMINISTRATION, MSPB Docket No. PH-315H-21-0050-I-1, January 30, 2025 | PH-315H-21-0050-I-1 | NP |
230 | https://www.mspb.gov/decisions/nonprecedential/McCullar_Katrina_D_DA-0353-23-0358-I-1_Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
KATRINA D. MCCULLAR,
Appellant,
v.
DEPARTMENT OF VETERANS
AFFAIRS,
Agency.DOCKET NUMBER
DA-0353-23-0358-I-1
DATE: January 30, 2025
THIS FINAL ORDER IS NONPRECEDENTIAL1
Yolanda R. Conner , Dallas, Texas, for the appellant.
Kacy Coble , Esquire, and Tijuana Griffin , North Little Rock, Arkansas,
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 this appeal for lack of Board jurisdiction. On petition for review, the
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).
appellant reasserts that the agency violated her restoration rights by denying her
incentive pay for the period in which she was off-duty and collecting Office of
Workers’ Compensation Programs (OWCP) benefits. See, e.g., Petition for
Review File, Tab 1 at 4-8. The appellant also alludes to other allegations of
wrongdoing, such as ones that concern the voluntariness of her incentive pay
agreement and the timeliness of incentive pay provided to her coworkers. Id.
at 8-9, 12. Next, the appellant argues that while she did begin to receive some
incentive pay after she recovered from her injury and returned to duty, the agency
should have provided more. Id. at 12. She also seems to assert that the agency
should have given her back pay for part of the OWCP period, in connection with
a within-grade step increase. Id. at 14. Finally, the appellant attached
documentation concerning her pay to her petition for review. Id. at 28-39.
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).
2 Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise which option is most appropriate in any matter.3
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the following
address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. 420 (2017). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the district court no later than 30 calendar days after your representative
receives this decision. If the action involves a claim of discrimination based on4
race, color, religion, sex, national origin, or a disabling condition, you may be
entitled to representation by a court-appointed lawyer and to waiver of any
requirement of prepayment of fees, costs, or other security. See 42 U.S.C.
§ 2000e-5(f) and 29 U.S.C. § 794a.
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702(b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or5
other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
disposition of allegations of a prohibited personnel practice described in
section 2302(b) other than practices described in section 2302(b)(8), or
2302(b)(9)(A)(i), (B), (C), or (D),” then you may file a petition for judicial
review either with the U.S. Court of Appeals for the Federal Circuit or any court
of appeals of competent jurisdiction.3 The court of appeals must receive your
petition for review within 60 days of the date of issuance of this decision.
5 U.S.C. § 7703(b)(1)(B).
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the following
address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
3 The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115-195,
132 Stat. 1510. 6
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
Contact information for the courts of appeals can be found at their
respective websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
FOR THE BOARD: ______________________________
Gina K. Grippando
Clerk of the Board
Washington, D.C.7 | McCullar_Katrina_D_DA-0353-23-0358-I-1_Final_Order.pdf | 2025-01-30 | KATRINA D. MCCULLAR v. DEPARTMENT OF VETERANS AFFAIRS, MSPB Docket No. DA-0353-23-0358-I-1, January 30, 2025 | DA-0353-23-0358-I-1 | NP |
231 | https://www.mspb.gov/decisions/nonprecedential/Skiles_Jennifer_E_CH-0752-23-0141-I-1_Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
JENNIFER ELIZABETH SKILES,
Appellant,
v.
DEPARTMENT OF THE ARMY,
Agency.DOCKET NUMBER
CH-0752-23-0141-I-1
DATE: January 30, 2025
THIS FINAL ORDER IS NONPRECEDENTIAL1
Jennifer Elizabeth Skiles , Shepherdsville, Kentucky, pro se.
G. Houston Parrish , Esquire, and Timothy Harner , Fort Knox, Kentucky,
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.
**Member Kerner recused himself and
did not participate in the adjudication of this appeal.
FINAL ORDER
The appellant has filed a petition for review of the initial decision, which
affirmed the appellant’s removal based on the charge of failure to maintain a
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).
condition of employment. On petition for review, the appellant argues, among
other things, that the agency discriminated against her and committed procedural
errors in revoking her security clearance and removing her from the Federal
service.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
2 The appellant argues for the first time on review that the agency was obligated “to try
to accommodate or reassign” her under Executive Order 13,164, 5 C.F.R. parts 731 and
732, 29 C.F.R. § 1614.203, and other provisions of law. Petition for Review (PFR)
File, Tab 1 at 4. Generally, the Board will not consider evidence or argument submitted
for the first time on review unless the party shows that it was unavailable when the
record closed below. Turner v. United States Postal Service, 90 M.S.P.R. 385, 388
(2001). Further, even if the Board considered the authorities cited by the appellant,
they would not be persuasive. The provisions do not address an obligation to reassign
an employee who has lost access to classified information. To the extent that the
provisions address an obligation to reassign an employee, they do so in the context of
the obligation to reasonably accommodate an employee with a disability through
reassignment. The Board is not permitted to adjudicate whether an agency’s adverse
action, which is premised on the revocation of a security clearance, constitutes
impermissible discrimination or reprisal because deciding the discrimination allegation
would involve an inquiry into the validity of the agency’s reasons for deciding to
revoke the appellant’s access to classified information. Doe v. Department of Justice ,
118 M.S.P.R. 434, ¶ 40 (2012).2
petition for review and AFFIRM the initial decision, which is now the Board’s
final decision.3 5 C.F.R. § 1201.113(b).
NOTICE OF APPEAL RIGHTS4
You may obtain review of this final decision. 5 U.S.C. § 7703(a)(1). By
statute, the nature of your claims determines the time limit for seeking such
review and the appropriate forum with which to file. 5 U.S.C. § 7703(b).
Although we offer the following summary of available appeal rights, the Merit
Systems Protection Board does not provide legal advice on which option is most
appropriate for your situation and the rights described below do not represent a
statement of how courts will rule regarding which cases fall within their
jurisdiction. If you wish to seek review of this final decision, you should
immediately review the law applicable to your claims and carefully follow all
filing time limits and requirements. Failure to file within the applicable time
limit may result in the dismissal of your case by your chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
3 After the record closed on review, the appellant filed a motion to submit additional
information and evidence concerning the Office of Personnel Management’s approval of
her “medical retirement” and the denial of her Freedom of Information Act request for
the records that are being used against her. PFR File, Tab 5 at 3. Once the record closes
on review, no additional evidence or argument will be accepted unless it is new and
material as defined in 5 C.F.R. § 1201.115. 5 C.F.R. § 1201.114(k). Evidence or
argument is material if it is of sufficient weight to warrant an outcome different from
that of the initial decision. 5 C.F.R. § 1201.115(a)(1). Because the appellant does not
show the relevance of the evidence she seeks to file, her motion is denied.
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. 4
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. 420 (2017). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the district court no later than 30 calendar days after your representative
receives this decision. If the action involves a claim of discrimination based on
race, color, religion, sex, national origin, or a disabling condition, you may be
entitled to representation by a court-appointed lawyer and to waiver of any
requirement of prepayment of fees, costs, or other security. See
42 U.S.C. § 2000e-5(f) and 29 U.S.C. § 794a.
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702(b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision. 5
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or
other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
disposition of allegations of a prohibited personnel practice described in section
2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i),
(B), (C), or (D),” then you may file a petition for judicial review either with the
U.S. Court of Appeals for the Federal Circuit or any court of appeals of
competent jurisdiction.5 The court of appeals must receive your petition
for review within 60 days of the date of issuance of this decision.
5 U.S.C. § 7703(b)(1)(B).
5 The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115-195,
132 Stat. 1510.6
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the following
address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case. 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 | Skiles_Jennifer_E_CH-0752-23-0141-I-1_Final_Order.pdf | 2025-01-30 | JENNIFER ELIZABETH SKILES v. DEPARTMENT OF THE ARMY, MSPB Docket No. CH-0752-23-0141-I-1, January 30, 2025 | CH-0752-23-0141-I-1 | NP |
232 | https://www.mspb.gov/decisions/nonprecedential/Thayer_Renard_K_DE-0752-20-0190-I-1_Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
RENARD K. THAYER,
Appellant,
v.
DEPARTMENT OF THE AIR FORCE,
Agency.DOCKET NUMBER
DE-0752-20-0190-I-1
DATE: January 30, 2025
THIS FINAL ORDER IS NONPRECEDENTIAL1
Renard K. Thayer , Cottonwood Heights, Utah, pro se.
Don Evans , Esquire, Hill Air Force Base, Utah, 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 his involuntary retirement appeal for lack of jurisdiction. On petition
for review, the appellant argues that his retirement was the result of duress and
coercion, the administrative judge favored the agency by dismissing his appeal
1A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).
for lack of jurisdiction because of the lack of a Board quorum, and the agency
removed him in reprisal for a prior grievance about race and age discrimination.
Generally, we grant petitions such as this one only in the following
circumstances: the initial decision contains erroneous findings of material fact;
the initial decision is based on an erroneous interpretation of statute or regulation
or the erroneous application of the law to the facts of the case; the administrative
judge’s rulings during either the course of the appeal or the initial decision were
not consistent with required procedures or involved an abuse of discretion, and
the resulting error affected the outcome of the case; or new and material evidence
or legal argument is available that, despite the petitioner’s due diligence, was not
available when the record closed. Title 5 of the Code of Federal Regulations,
section 1201.115 (5 C.F.R. § 1201.115). After fully considering the filings in this
appeal, we conclude that the petitioner has not established any basis under
section 1201.115 for granting the petition for review. Therefore, we DENY the
petition for review and AFFIRM the initial decision, which is now the Board’s
final decision. 5 C.F.R. § 1201.113(b).
Although the administrative judge correctly adjudicated this appeal as an
involuntary retirement appeal, it is appropriate to first address the application of
5 U.S.C. § 7701(j) to this matter. That statutory provision provides that, in
determining whether a removal is appealable to the Board, “an individual’s status
under any retirement system established by or under Federal statute nor any
election made by such individual under any such system may be taken into
account.” 5 U.S.C. § 7701(j). In other words, once a final decision to remove is
issued, an employee’s decision to retire is irrelevant when determining whether
the Board has jurisdiction over a removal claim. See Mays v. Department of
Transportation, 27 F.3d 1577, 1580 (Fed. Cir. 1994). Further, as the statute says
nothing about pre- or post-removal retirement, the timing of the employee’s
election to retire in relation to the effective date of the removal is irrelevant. Id.2
However, if the agency cancels or rescinds the removal, allowing the
appellant to retire without reference to the removal in his official personnel file,
then the removal is rendered moot and the Board lacks jurisdiction. See Jenkins
v. Merit Systems Protection Board , 911 F.3d 1370, 1374 (Fed. Cir. 2019). The
court in Jenkins explained that, because the agency removed all references to the
removal action from the appellant’s personnel file, it “eliminat[ed] any potential
consequences the removal could have had on [the appellant’s] retirement.” Id.
By rescinding the removal decision and cleaning the appellant’s personnel file,
the court determined that the agency mooted the improper removal claim and left
the Board without jurisdiction. Id.
Here, the agency cancelled the appellant’s removal and allowed the
appellant to retire with a clean record, thus rendering an appeal of the removal
moot. The agency issued a Standard Form 50 stating that the appellant retired
voluntarily effective February 26, 2020 and contains no reference to the removal.
Initial Appeal File (IAF), Tab 14 at 10. Further, it does not appear that the
removal is referenced in any other location in the appellant’s personnel file.
Because the agency cancelled the appellant’s removal, it rendered the appellant’s
appeal of his removal moot, leaving the Board without jurisdiction over this
claim. Jenkins, 911 F.3d at 1374.
Regarding the appellant’s claim that his retirement was involuntary, we
agree with the administrative judge that the appellant failed to establish a
nonfrivolous allegation that his retirement was involuntary. IAF, Tab 17, Initial
Decision (ID). An employee-initiated action, such as resignation or retirement, is
presumed to be voluntary, and thus outside the Board’s jurisdiction. Vitale v.
Department of Veterans Affairs , 107 M.S.P.R. 501, ¶ 17 (2007). In order to
overcome the presumption that a resignation or retirement was voluntary, an
employee must show that (1) the resignation or retirement was the product of
misinformation or deception by the agency; or (2) the resignation or retirement
was the product of coercion by the agency. Id. at ¶ 19. There is no evidence in3
the record that the appellant’s decision to retire was the result of the agency’s
misinformation, deception, or coercion and thus we concur with the analysis
contained in the initial decision and find that the Board does not have jurisdiction
over the appellant’s appeal. ID at 4-6.
We interpret the appellant’s claim of favoritism by the administrative judge
as a claim of bias. We find that he has failed to overcome the presumption of
honesty and integrity that accompanies administrative adjudicators and observe
that he has not shown that the administrative judge possessed a “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); Oliver v.
Department of Transportation , 1 M.S.P.R. 382, 386 (1980). Any claim that the
lack of a quorum influenced the administrative judge’s decision is overcome by
our decision affirming the initial decision—a decision issued by a quorum of the
Board.
Finally, regarding the appellant’s reprisal claim, although reprisal for
exercising a grievance right is a prohibited personnel practice under 5 U.S.C.
§ 2302(b)(9), the Board only has jurisdiction if the previous grievance filed by
the appellant concerned remedying an alleged violation of 5 U.S.C. § 2302(b)(8).
Mudd v. Department of Veterans Affairs , 120 M.S.P.R. 365, ¶ 6-7 (2013).
Allegations of retaliation for exercising a Title VII right, however, do not fall
within the scope of 5 U.S.C. § 2302(b)(8). Young v. Merit Systems Protection
Board, 961 F.3d 1323, 1329 (Fed. Cir. 2020); Santillan v. Department of the Air
Force, 53 M.S.P.R. 487, 491 (1992) (holding that the Board had no jurisdiction
under 5 U.S.C. § 2302(b)(8) to consider the merits of the allegations of reprisal
made within the context of an EEO complaint). Because the appellant exercised a
Title VII right in the grievance, the appellant’s claim of retaliation does not
afford the Board jurisdiction in this matter.2
2 Because the appellant raised a claim of discrimination in this constructive adverse
action appeal, and the Board has now issued a Final Order dismissing the appeal for4
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).
lack of jurisdiction, the agency is now required, under Equal Employment Opportunity
Commission (EEOC) regulations, to reissue a notice under 29 C.F.R. § 1614.108(f)
giving the appellant the right to elect between a hearing before an EEOC administrative
judge and an immediate final decision. See 29 C.F.R. § 1614.302(b).
3 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.5
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the following
address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. 420 (2017). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the district court no later than 30 calendar days after your representative
receives this decision. If the action involves a claim of discrimination based on6
race, color, religion, sex, national origin, or a disabling condition, you may be
entitled to representation by a court -appointed lawyer and to waiver of any
requirement of prepayment of fees, costs, or other security. See 42 U.S.C.
§ 2000e-5(f) and 29 U.S.C. § 794a.
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702(b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or7
other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
disposition of allegations of a prohibited personnel practice described in
section 2302(b) other than practices described in section 2302(b)(8), or 2302(b)
(9)(A)(i), (B), (C), or (D),” then you may file a petition for judicial review either
with the U.S. Court of Appeals for the Federal Circuit or any court of appeals of
competent jurisdiction.4 The court of appeals must receive your petition for
review within 60 days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(B).
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
4 The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115-195,
132 Stat. 1510. 8
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
Contact information for the courts of appeals can be found at their
respective websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
FOR THE BOARD: ______________________________
Gina K. Grippando
Clerk of the Board
Washington, D.C.9 | Thayer_Renard_K_DE-0752-20-0190-I-1_Final_Order.pdf | 2025-01-30 | RENARD K. THAYER v. DEPARTMENT OF THE AIR FORCE, MSPB Docket No. DE-0752-20-0190-I-1, January 30, 2025 | DE-0752-20-0190-I-1 | NP |
233 | https://www.mspb.gov/decisions/nonprecedential/Keeler_Pamela_J_DE-315H-24-0078-I-1_Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
PAMELA JANE YVONNE KEELER,
Appellant,
v.
DEPARTMENT OF HOUSING AND
URBAN DEVELOPMENT,
Agency.DOCKET NUMBER
DE-315H-24-0078-I-1
DATE: January 30, 2025
THIS FINAL ORDER IS NONPRECEDENTIAL1
Pamela Jane Yvonne Keeler , Anaheim, California, pro se.
William Edwards , Esquire and Nicole A. Allard , Esquire, Denver,
Colorado, 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 appeal challenging her November 2022 probationary termination as
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).
barred by the doctrine of collateral estoppel. On petition for review, the appellant
largely argues the merits of her termination.2 Generally, we grant petitions such
as this one only in the following circumstances: the initial decision contains
erroneous findings of material fact; the initial decision is based on an erroneous
interpretation of statute or regulation or the erroneous application of the law to
the facts of the case; the administrative judge’s rulings during either the course of
the appeal or the initial decision were not consistent with required procedures or
involved an abuse of discretion, and the resulting error affected the outcome of
the case; or new and material evidence or legal argument is available that, despite
the petitioner’s due diligence, was not available when the record closed. Title 5
of the Code of Federal Regulations, section 1201.115 (5 C.F.R. § 1201.115).
After fully considering the filings in this appeal, we conclude that the petitioner
has not established any basis under section 1201.115 for granting the petition for
review. Therefore, we DENY the petition for review and AFFIRM the initial
decision, which is now the Board’s final decision. 5 C.F.R. § 1201.113(b).
NOTICE OF APPEAL RIGHTS3
You may obtain review of this final decision. 5 U.S.C. § 7703(a)(1). By
statute, the nature of your claims determines the time limit for seeking such
review and the appropriate forum with which to file. 5 U.S.C. § 7703(b).
Although we offer the following summary of available appeal rights, the Merit
Systems Protection Board does not provide legal advice on which option is most
2 The appellant submits several documents for consideration for the first time on
review. Petition for Review File, Tab 1 at 6-16, 30-44. The Board will not grant a
petition for review based on new evidence absent a showing that it is of sufficient
weight to warrant an outcome different from that of the initial decision. Russo v.
Veterans Administration , 3 M.S.P.R. 345, 349 (1980) (declining to grant review based
on arguments and documentary submissions that did not address the dispositive
jurisdictional issue in the appeal). We therefore decline to consider them further.
3 Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise which option is most appropriate in any matter.2
appropriate for your situation and the rights described below do not represent a
statement of how courts will rule regarding which cases fall within their
jurisdiction. If you wish to seek review of this final decision, you should
immediately review the law applicable to your claims and carefully follow all
filing time limits and requirements. Failure to file within the applicable time
limit may result in the dismissal of your case by your chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the following
address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation3
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. 420 (2017). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the district court no later than 30 calendar days after your representative
receives this decision. If the action involves a claim of discrimination based on
race, color, religion, sex, national origin, or a disabling condition, you may be
entitled to representation by a court-appointed lawyer and to waiver of any
requirement of prepayment of fees, costs, or other security. See
42 U.S.C. § 2000e-5(f) and 29 U.S.C. § 794a.
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702(b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file4
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or
other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
disposition of allegations of a prohibited personnel practice described in section
2302(b) other than practices described in section 2302(b)(8), or
2302(b)(9)(A)(i), (B), (C), or (D),” then you may file a petition for judicial
review either with the U.S. Court of Appeals for the Federal Circuit or any court
of appeals of competent jurisdiction.4 The court of appeals must receive your
4 The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115-195,
132 Stat. 1510. 5
petition for review within 60 days of the date of issuance of this decision.
5 U.S.C. § 7703(b)(1)(B).
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the following
address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case. 6
Contact information for the courts of appeals can be found at their
respective websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
FOR THE BOARD: ______________________________
Gina K. Grippando
Clerk of the Board
Washington, D.C.7 | Keeler_Pamela_J_DE-315H-24-0078-I-1_Final_Order.pdf | 2025-01-30 | PAMELA JANE YVONNE KEELER v. DEPARTMENT OF HOUSING AND URBAN DEVELOPMENT, MSPB Docket No. DE-315H-24-0078-I-1, January 30, 2025 | DE-315H-24-0078-I-1 | NP |
234 | https://www.mspb.gov/decisions/nonprecedential/Oquinn_Dana_A_AT-0752-18-0001-I-1_and_AT-1221-22-0478-W-1_Remand_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
DANA O’QUINN,
Appellant,
v.
DEPARTMENT OF HOMELAND
SECURITY,
Agency.DOCKET NUMBERS
AT-0752-18-0001-I-1
AT-1221-22-0478-W-1
DATE: January 30, 2025
THIS ORDER IS NONPRECEDENTIAL1
Dana O’Quinn , Folkston, Georgia, pro se.
Stephanie M. Lewis , Glynco, Georgia, 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.
**Member Kerner recused himself and
did not participate in the adjudication of this appeal.
REMAND ORDER
The appellant has filed a petition for review of the initial decision in
O’Quinn v. Department of Homeland Security , MSPB Docket No. AT-0752-18-
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).
0001-I-1 (O’Quinn I), which sustained her indefinite suspension, and a petition
for review of the initial decision in O’Quinn v. Department of Homeland Security ,
MSPB Docket No. AT-1221-22-0478-W-1 ( O’Quinn II), which dismissed her
individual right of action (IRA) appeal for lack of jurisdiction. For the reasons
discussed below, we GRANT both petitions, JOIN the appeals, VACATE both
initial decisions, and REMAND the joined appeal to the regional office for
further adjudication in accordance with this Remand Order.2
BACKGROUND
Events leading to the appellant’s indefinite suspension
The appellant occupies the position of Chief, Protocol and Communications
Office (PCO), GS-0301-15, in the Director’s Office of the Federal Law
Enforcement Training Center (FLETC) in Glynco, Georgia. O’Quinn v.
Department of Homeland Security , MSPB Docket No. AT-0752-18-0001-I-1,
Initial Appeal File (0001 IAF), Tab 1 at 1. The position description for the PCO
Chief position comprises a cover sheet, known as the Optional Form (OF) 8, and
a narrative portion. 0001 IAF, Tab 20 at 9, 12-23. Box 24 of the OF-8 includes a
remark, in a font noticeably different from that used elsewhere on the form,
2 Following the close of the record on review, the appellant filed a motion requesting
leave to file an additional pleading in O’Quinn I. The Board’s regulations did not
provide for pleadings other than a petition for review, a cross petition for review, and a
reply to a response to a petition for review. 5 C.F.R. § 1201.114(a)(5) (2022). For the
Board to consider a pleading other than one of those set forth above, the party must
have described the nature of and need for the pleading. 5 C.F.R. § 1201.114(a)(5)
(2022). If a party wished to submit a pleading after the record has closed, the party
must also have shown that the evidence was not readily available before the record
closed. 5 C.F.R. § 1201.114(a)(5), (k) (2022). The appellant asserts that she has
obtained “additional exculpatory information/evidence not available before April 25,
2022,” but she has not described the nature of the evidence or explained why it was not
available before that date. In the absence of any further details, we DENY her motion.
However, this ruling does not preclude the appellant from submitting additional
evidence on remand in accordance with the Board’s regulations and the administrative
judge’s instructions. 2
indicating “Top Secret Clearance.” Id. at 12. The narrative portion contains no
reference to classified information or a clearance requirement. Id. at 14-23.
On February 21, 2017, the appellant filed a complaint with the Office of
Special Counsel (OSC). O’Quinn v. Department of Homeland Security , MSPB
Docket No. AT-1221-22-0478-W-1, Initial Appeal File (0478 IAF), Tab 11
at 146-64. In her complaint, she alleged that the agency had retaliated against her
for various whistleblowing disclosures and activities, including reporting unfair
hiring practices at FLETC, providing a statement during an investigation by the
Office of Inspector General, and reporting that agency officials were soliciting
and approving organizations to hold conferences at FLETC. Id. at 149-50. She
identified various retaliatory actions including placing her under investigation;
moving her out of her position (twice); placing a hold on her clearance; creating a
hostile work environment; instructing her to sign a nondisclosure agreement that
did not include the language required under 5 U.S.C. § 2302(b)(13); and failing to
provide performance standards, a mid-year review, or a rating for FY 2016. Id.
On April 14, 2017, OSC informed the appellant of its determination that further
investigation was warranted into her allegations for possible violations of
5 U.S.C. § 2302(b)(8), (9), and (13). Id. at 145.
By letter dated July 19, 2017, the agency’s Office of the Chief Security
Officer notified the appellant that it was suspending her eligibility for access to
classified information, i.e., her security clearance.3 0001 IAF, Tab 4 at 56-58.
The following day, D.A., then Acting Chief of Staff, proposed to indefinitely
suspend the appellant based on the suspension of her security clearance, stating
that it was a condition of her employment. Id. at 54-55. The appellant provided
the agency a written response in which she argued, among other things, that her
position did not require access to classified information. Id. at 22-49. It appears
that at some point in July 2017, the appellant amended her pending OSC
3 At times the letter refers simply to “access to classified information,” but it is
apparent from context that this was intended as shorthand for eligibility for access.3
complaint to include the proposed indefinite suspension. See O’Quinn v.
Department of Homeland Security , MSPB Docket No. AT-1221-22-0478-W-1,
Petition for Review (0478 PFR) File, Tab 1 at 7.4
By letter dated August 31, 2017, D.A. notified the appellant of his decision
to indefinitely suspend her pending final adjudication of her eligibility for access
to classified information. 0001 IAF, Tab 4 at 19-21. In the notice of appeal
rights, under the subheading “Whistleblower Retaliation,” the letter explained
that if the appellant wished to allege that the action was being taken against her in
reprisal for whistleblowing activity, she could elect one of the following
remedies: (a) filing an appeal with the Board under 5 U.S.C. § 7701; or (b) filing
a complaint with OSC under 5 U.S.C. § 1214, potentially to be followed by an
IRA appeal under 5 U.S.C. § 1221. 0001 IAF, Tab 4 at 21. Under the same
subheading, the notice stated that an election would be “deemed to have been
made based upon which of the three [sic] actions is filed first,” but the notice did
not explicitly state that the remedies for alleged whistleblowing reprisal were
mutually exclusive. Id.
The appellant’s indefinite suspension began September 1, 2017. Id. at 18.
As discussed further below, it is unclear from the record whether the appellant
subsequently amended her OSC complaint to include the effected action, or on
what date she may have done so.
O’Quinn I
On September 28, 2017, the appellant filed an appeal with the Board
challenging her indefinite suspension. 0001 IAF, Tab 1. She requested a hearing
and contended that her indefinite suspension was improper on the grounds that:
4 The available correspondence between the appellant and OSC does not explicitly refer
to a notice of proposed indefinite suspension. However, OSC’s preliminary
determination letter includes the following statement: “In July 2017, you informed
OSC that FLETC had indefinitely suspended you.” Id. As of the end of July 2017, the
agency had not yet made a final decision to indefinitely suspend the appellant, so we
infer that she amended her complaint to include the proposed action.4
(1) the PCO Chief position did not require access to classified information;
(2) she was eligible for reassignment to another position that also did not require
classified information; and (3) the action was the result of sex discrimination and
reprisal for protected equal employment opportunity and whistleblowing activity.
Id. at 6.
During the discovery phase, the appellant challenged the veracity of the
clearance designation on the OF-8 and, citing Gamboa v. Department of the Air
Force, 120 M.S.P.R. 594 (2014) , sought to compel discovery concerning the
question of whether the PCO Chief position in fact required a clearance or access
to classified information . 0001 IAF, Tab 16 at 5-12. The administrative judge
denied the appellant’s request for discovery on that issue, reasoning that Gamboa
was inapposite because the position description “clearly contains the words ‘Top
Secret Clearance.’” 0001 IAF, Tab 21 at 2-3. In the same order, the
administrative judge also granted the agency’s motion to dismiss the appellant’s
affirmative defenses, reasoning that the Board lacked authority to adjudicate such
defenses in an appeal of an adverse action based on the suspension of a security
clearance. Id. at 3-4. In response, the appellant withdrew her hearing request,
explaining that the administrative judge’s rulings had “constrained [her] ability to
present her claims.” 0001 IAF, Tab 24 at 5.
On June 18, 2018, the administrative judge issued an initial decision
sustaining the indefinite suspension. 0001 IAF, Tab 30, Initial Decision
(0001 ID). He first found that, contrary to the appellant’s assertions, her position
did in fact require a security clearance. 0001 ID at 6-10. In reaching that
conclusion, he reasoned that the designation on the OF-8 was “very strong, if not
dispositive evidence,” and that it was “unnecessary to give significant weight to
evidence outside the position description itself.” 0001 ID at 6. The
administrative judge further found that the appellant’s clearance was suspended;
that the agency complied with the procedural requirements of 5 U.S.C. § 7513;
that the appellant failed to establish the existence of a statute, regulation, or5
agency policy requiring her reassignment to a position not requiring a clearance;
and that the indefinite suspension had a valid condition subsequent. 0001 ID
at 10-12. Finally, he reiterated his previous ruling that the Board lacked
jurisdiction over the appellant’s affirmative defenses. 0001 ID at 12.
On August 19, 2018, the appellant filed a petition for review, in which she
again challenged the veracity of the clearance designation on the OF-8 and argued
that the administrative judge improperly excluded evidence on that issue.
O’Quinn v. Department of Homeland Security , MSPB Docket No. AT-0752-18-
0001-I-1, Petition for Review (0001 PFR) File, Tab 3 at 4-16. She further
contended that the administrative judge erred in dismissing her affirmative
defenses. Id. at 6. In support of her petition, she provided various documents,
including a new declaration by K.L., former FLETC Chief of Staff.5 Id. at 19-21.
The agency filed a response, to which the appellant replied. 0001 PFR File,
Tabs 5, 7. The appellant’s petition for review in O’Quinn I has since remained
pending before the Board.
Closure of OSC investigation
Meanwhile, on March 8, 2022, OSC issued the appellant a letter stating its
preliminary findings on her complaint. 0478 PFR File, Tab 1 at 7-8. In the letter,
OSC related that when the appellant originally filed her complaint, she alleged
that the agency had placed her on a detail in retaliation for several disclosures,
including allegations of prohibited personnel practices made in February 2016 on
behalf of a terminated employee and violations of 18 U.S.C. § 205 in connection
with multiple conferences. Id. at 7. The letter further stated: “In July 2017 [sic],
you informed OSC that FLETC had indefinitely suspended you, and we began to
evaluate that allegation.” Id. OSC noted that the appellant had since filed a
Board appeal of her indefinite suspension (i.e., O’Quinn I), in which she argued
5 We accept the appellant’s explanation that the K.L. declaration was unavailable before
the close of the record despite her due diligence. 0001 PFR File, Tab 3 at 4; s ee
5 C.F.R. § 1201.115(d).6
that her position did not require a security clearance and that the appeal was then
pending before the Board. Id. OSC explained that, under Department of the
Navy v. Egan, 484 U.S. 518 (1988), it was prevented from reviewing any
personnel action that occurred because of an agency decision on a security
clearance and that the preliminary legal issue OSC would need to address, i.e.,
whether the appellant’s position in fact required a security clearance, was already
before the Board. 0478 PFR File, Tab 1 at 7. Thus, OSC explained, it could not
obtain any corrective action for the appellant at that point, and any action on the
preliminary legal question would be duplicative of the current Board proceeding.
Id. at 8. OSC further noted that its authority to consider the appellant’s
retaliation claims was unclear and concluded that it would decline to make any
determination on the merits of those claims. Id.
By letter dated April 25, 2022, OSC notified the appellant that it had
terminated its investigation into her complaint and informed her of her IRA
appeal rights. 0478 IAF, Tab 1 at 15. The letter stated that the appellant had
alleged that in retaliation for her February 2016 disclosures on behalf of a
terminated employee about prohibited disclosures, and her subsequent disclosures
concerning violations of 18 U.S.C. § 205, the agency “suspended [her]
indefinitely in July 2017 [sic] based on the erroneous belief that [her] position
required a clearance.” Id. Unlike the preliminary determination letter, the
closure letter neither explained the basis for OSC’s decision to terminate the
investigation, nor referred to any of the other alleged retaliatory actions the
appellant had raised in her complaint. Id.
O’Quinn II
On June 29, 2022, the appellant filed an IRA appeal seeking corrective
action for the ongoing indefinite suspension and various other alleged retaliatory
actions, including involuntary directed reassignments, failure to provide annual
performance plans from 2016 through 2021, and placement in hostile work
environments. 0478 IAF, Tab 1 at 4-5. She requested a hearing and specifically7
asked that the IRA appeal not be assigned to the administrative judge who had
handled O’Quinn I. Id. at 2, 4. She alleged that OSC had told her that the
administrative judge in O’Quinn I should not have taken jurisdiction in that case
and that his decision should be withdrawn. Id. at 4. She further alleged that the
agency had committed additional prohibited personnel practices, including
retaliation for EEO activity, and had denied her due process. Id. at 5.
The IRA appeal was assigned to a second administrative judge, who
advised the appellant of her burden of proof on jurisdiction and the merits of her
appeal. 0478 IAF, Tab 3. In response, the appellant provided copies of her
original OSC complaint and other correspondence with OSC. 0478 IAF, Tab 11.
Without holding the appellant’s requested hearing, the administrative judge
dismissed the appeal for lack of jurisdiction in a July 29, 2022 initial decision.
0478 IAF, Tab 17, Initial Decision. Relying exclusively on OSC’s closure letter,
while ignoring the appellant’s original complaint and other correspondence with
OSC, the administrative judge found that the appellant had exhausted her
remedies with OSC only with regard to the indefinite suspension. Id. at 3. The
administrative judge further found that the appellant had apparently elected to
contest her indefinite suspension with OSC before filing with the Board. Id. at 4.
In making that finding, the administrative judge seems to have relied on the fact
that the appellant filed her original OSC complaint in February 2017, which was
months before the indefinite suspension was even proposed. Id. The
administrative judge went on to find that, regardless of which action was filed
first, the Board lacked IRA jurisdiction over the indefinite suspension. Id. at 4-5.
In reaching that conclusion, the administrative judge cited Roach v. Department
of the Army, 82 M.S.P.R. 464 (1999), for the broad proposition that the Board
lacks IRA jurisdiction over retaliation claims “involving” the denial or
suspension of a security clearance.6 0478 ID at 4. Finally, the administrative
6 The Board held in Roach that a security clearance determination is not a personnel
action under 5 U.S.C. § 2302(a)(2)(A) and cannot itself be reviewed in an IRA appeal.8
judge noted that the Board lacked jurisdiction to consider EEO retaliation claims
in an IRA appeal and that it was unnecessary to address whether the appeal might
be precluded by res judicata or collateral estoppel. 0478 ID at 5.
The appellant filed a petition for review, in which she argues, among other
things, that the administrative judge erred in finding that she had exhausted her
remedies with OSC only with regard to the indefinite suspension. 0478 PFR,
Tab 1. The agency filed a response to the appellant’s petition. 0478 PFR, Tab 3.
ANALYSIS
We cannot determine based on the existing record whether the appellant is bound
by the election of remedies provisions of 5 U.S.C. § 7121(g) or, if so, whether she
made a binding election to challenge her indefinite suspension before OSC before
filing her first Board appeal.
Under 5 U.S.C. § 7121(g), an “employee” who claims to have suffered an
adverse action in retaliation for whistleblowing may elect no more than one of the
following remedies: (1) a direct appeal to the Board under 5 U.S.C. § 7701; (2) a
negotiated grievance procedure under 5 U.S.C. § 7121, if applicable;7 or (3) a
request for corrective action under 5 U.S.C. chapter 12, subchapters II and III,
i.e., an OSC complaint, potentially to be followed by an IRA appeal. Ordinarily,
an individual who first requests corrective action from OSC will be deemed to
have made a binding election to proceed in that forum. 5 U.S.C. § 7121(g)(4)(C).
In such a case, the jurisdictional requirements for an IRA appeal apply, even if
the contested personnel action would have been directly appealable to the Board.
See Agoranos v. Department of Justice , 119 M.S.P.R. 498, ¶ 14 (2013).
However, an election under 5 U.S.C. § 7121(g) is binding only if made knowingly
and voluntarily. Id., ¶ 16.
Roach, 82 M.S.P.R. 464, ¶ 53.
7 In this case, the appellant was not covered by a collective bargaining agreement.
0001 IAF, Tab 4 at 10. 9
For purposes of chapter 71, the term “employee” includes “an individual
employed in an agency” but not “a supervisor or a management official.”
5 U.S.C. § 7103(a)(2); see 5 U.S.C. § 7103(a)(10)-(11) (defining supervisor and
management official). Accordingly, the Board has held that supervisors and
management officials are not bound by the election of remedies provisions of
5 U.S.C. § 7121(g). Requena v. Department of Homeland Security , 2022 MSPB
39, ¶ 11. Here, the record suggests that the appellant may have been a
“supervisor,” as defined by 5 U.S.C. § 7103(a)(10), rather than an “employee,” as
defined by 5 U.S.C. § 7103(a)(2). If that is so, then the appellant is not covered
under 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.
Moreover, assuming the appellant is covered by 5 U.S.C. § 7121(g), the
record contains conflicting evidence as to whether she made a binding election to
contest her indefinite suspension through an OSC complaint before filing her
Board appeal. OSC’s preliminary determination and closure letters imply that the
appellant was indefinitely suspended in July 2017, and amended her pending
complaint that same month to allege that the action was the result of
whistleblowing reprisal. 0478 IAF, Tab 1 at 15; 0478 PFR File, Tab 1 at 7-8.
However, while the agency issued a proposal to indefinitely suspend the appellant
on July 20, 2017, it did not make a final decision on the proposed action until
August 31, 2017, and the indefinite suspension did not begin until September 1,
2017. 0001 IAF, Tab 4 at 18-21, 54-55. Given this discrepancy, it is unclear
from the record whether the appellant in fact amended her OSC complaint to
include the effected indefinite suspension, as opposed to the proposal notice. It is
also unclear whether, if the appellant did amend her OSC complaint to include the
effected action, she did so before filing her Board appeal on September 28, 2017,
or whether such an election would have been binding.
In order to determine the scope of the Board’s jurisdiction in these appeals,
it is necessary to remand for further development of the record. On remand, the10
administrative judge should first determine whether the appellant is an
“employee” subject to the election of remedies provisions of 5 U.S.C. § 7121(g).
If the administrative judge finds that the appellant is covered by 5 U.S.C.
§ 7121(g), he should next determine whether the appellant made a binding
election to challenge her indefinite suspension through OSC before filing directly
with the Board. In the event the record indicates that the appellant has not yet
made a binding election of remedies, i.e., one that was both knowing and
informed,8 the administrative judge should provide the appellant an opportunity to
choose whether to continue challenging her indefinite suspension through her
pending adverse action appeal, i.e., O’Quinn I, or through the procedures set forth
in 5 U.S.C. chapter 12, subchapters II and III.9 After resolving the election issue,
the administrative judge should further adjudicate the appeals as follows.
AT-0752-18-0001-I-1 ( O’Quinn I )
If the administrative judge determines that (1) the appellant is subject to
the election of remedies provisions of 5 U.S.C. § 7121(g), and (2) either the
appellant made a binding election to challenge the effected indefinite suspension
before OSC prior to filing her September 28, 2017 appeal in O’Quinn I or the
appellant did not previously make a binding election of remedies but indicates
that she now prefers to challenge the indefinite suspension through an IRA
appeal, the administrative judge should dismiss O’Quinn I for lack of jurisdiction.
Otherwise, the administrative judge should reconsider the merits of the agency’s
action and issue a new decision consistent with the analysis below.
8 Should the administrative judge reach the question of whether the appellant previously
made a binding election of remedies, he should bear in mind the Board’s decision in
Kaszowski v. Department of the Air Force , 2023 MSPB 15, ¶ 7 (finding that the
appellant’s election to challenge her removal through the negotiated grievance
procedures was not binding where the agency did not specifically notify her that
electing to file a grievance would result in a waiver of her Board appeal rights).
9 Depending on whether the appellant previously exhausted her remedies with OSC
concerning the effected indefinite suspension, the latter option could involve either
further adjudication in her pending IRA appeal ( O’Quinn II) or a new OSC complaint.11
In an appeal of an adverse action based on the denial, revocation, or
suspension of a security clearance, the Board does not have the authority to
review the substance of the underlying security clearance determination but may
review: (1) whether the employee’s position required a security clearance;
(2) whether the security clearance was denied, revoked, or suspended; and
(3) whether the agency followed the procedures set forth in 5 U.S.C. § 7513.
Egan, 484 U.S. at 530-31 (1988); Hesse v. Department of State , 217 F.3d 1372,
1376 (Fed. Cir. 2000) ; Gamboa, 120 M.S.P.R. 594, ¶ 5. With limited exceptions,
the Board’s review is confined to these issues.10
With respect to issue (1), the Board does not have authority to review an
agency’s reasons for imposing a security clearance requirement. Gamboa,
120 M.S.P.R. 594, ¶ 5. The Board must, however, determine whether a security
clearance was, in fact, a requirement for the appellant’s position. Id. If the
agency fails to meet its burden of proving by preponderant evidence that the
10 In an appropriate case, the Board may also review whether it was feasible to reassign
the appellant to a position not requiring the withheld security credential. Egan,
484 U.S. at 530-31. However, the U.S. Court of Appeals for the Federal Circuit
(Federal Circuit) has clarified that Egan does not create a substantive entitlement to
reassignment, and that the Board’s authority to review whether reassignment was
feasible arises only when a substantive right to reassignment is available from some
other source, such as a statute, regulation, or agency policy. Griffin v. Defense
Mapping Agency , 864 F.2d 1579, 1580 (Fed. Cir. 1989) . The administrative judge
found below that the appellant did not establish the existence of such a statute,
regulation, or policy, 0001 ID at 10-11, and the appellant does not contest that finding
on review. The Federal Circuit has also held that, pursuant to 5 U.S.C. § 7701(C)(2)
(A), the Board may review whether an agency committed harmful procedural error in
taking an adverse action based on a security clearance determination. Romero v.
Department of Defense , 527 F.3d 1324, 1328 (Fed. Cir. 2008). In addition, while a
security clearance determination does not by itself implicate any due process concerns,
the Board may review whether the agency provided due process in taking the resulting
adverse action. Buelna v. Department of Homeland Security , 121 M.S.P.R. 262, ¶ 15
(2014). The Board has also held open the possibility of other viable affirmative
defenses that would not require the Board to review the substance of the underlying
security clearance determination, e.g., a discrimination defense that solely goes to the
issue of penalty and is based on the agency’s treatment of similarly situated individuals
outside of the appellant’s protected class. See Helms v. Department of the Army ,
114 M.S.P.R. 447, ¶ 9 n.* (2010). 12
appellant’s position required a security clearance, the Board will not sustain an
adverse action based on a negative clearance determination. See id., ¶ 11.
The facts of this case differ somewhat from those in Gamboa, where the
position description was entirely silent as to the requirement for a security
clearance. See id., ¶ 6. Here, by contrast, the OF-8 indicates that a Top Secret
clearance was a requirement for the PCO Chief position. We find, however, that
the OF-8 is not dispositive evidence of a clearance requirement, and that it is
necessary to consider the appellant’s claim that the clearance designation on the
form was inauthentic or the result of ministerial error.11 Cf. Grigsby v.
Department of Commerce , 729 F.2d 772, 775-76 (Fed. Cir. 1984) (finding that the
Government was not barred from demonstrating “ministerial error” in the
execution of the appellant’s Standard Form 50 and/or 52, and that “[n]either form
is conclusive in face of error in its execution”); Fox v. Department of the Army ,
120 M.S.P.R. 529, ¶ 22 (2014) (“While an executed SF-50 is the customary
documentation for a personnel action, it does not constitute the personnel action
itself and does not on its face control an employee’s status and rights.”). Under
these circumstances, it was error to deny the appellant’s effort to obtain and
present evidence in support of her challenge to the authenticity of the clearance
designation. See West v. Department of the Navy , 63 M.S.P.R. 86, 89 (1994)
(finding that the administrative judge erred in excluding testimony proffered by
the appellant on the issue of whether his position required a security clearance).
The current record contains conflicting evidence as to whether the remark
in Box 24 of the OF-8 accurately reflects a security clearance requirement for the
PCO Chief position. The OF-8 bears the signatures of three individuals: K.L.,
11 In its response to the appellant’s motion to compel, the agency cited Robinson v.
Department of Homeland Security , 498 F.3d 1361, 1365 (Fed. Cir. 2007) , for the
proposition that an adverse action is warranted if an employee fails to maintain the
security clearance “required by the job description.” 0001 IAF, Tab 14 at 6. We agree
with the appellant that Robinson is distinguishable because the appellant in that case did
not challenge the authenticity of the clearance designation. 0001 IAF, Tab 16 at 9-10.13
then FLETC Chief of Staff; C.P., then FLETC Director; and P.A., a Human
Resources Specialist. 0001 IAF, Tab 20 at 12. C.P. stated in her declaration that
the position description for the PCO Chief position “does not include the need for
a clearance and was never adjudicated by the department to need one.” 0001 IAF,
Tab 4 at 37. She went on to state that K.L. “required it locally because he
believed that the job may require access to classified information.” Id. However,
in his own declaration, K.L. stated unequivocally that the appellant’s position did
not require a security clearance; that he did not order or request that the position
include a security clearance as a condition of employment; and that he never
requested that security or human resources personnel place a clearance
requirement in the position description. 0001 PFR File, Tab 1 at 19-20. In his
declaration, P.A. explained that he attached a sticker indicating a “Top Secret
Clearance” to the OF-8 he received from management, presumably after it had
been signed by C.P. and K.L. 0001 IAF, Tab 20 at 9. P.A. described the sticker
as a “correction,” but he did not explain the basis for his belief that the position
required a clearance, nor did he indicate who, if anyone, authorized him to make
the alteration.12 Id. In addition, the record contains a declaration by former
FLETC Chief of Special Security/Assistant Chief Security Officer J.D., who
stated that a position description for a position requiring a clearance must contain
a written justification clearly explaining how the incumbent’s duties are related to
classified information, and that this requirement was not met in the appellant’s
12 In addition to placing a sticker on Box 24, P.A. also altered Box 12 of the OF-8,
which purportedly indicates the position’s sensitivity level. Block 12 was originally
marked as “Non-Critical Sensitive” and still bears traces of ink in that box. 0001 IAF,
Tab 20 at 12. In his declaration, P.A. explains that he whited out the original mark and
changed it to “Critical Sensitive” to accord with a Top Secret clearance. Id. at 9. As
discussed above, however, it is unclear whether the Top Secret clearance designation
was correctly added to the OF-8 in the first instance. Moreover, the narrative portion of
the position description does not specify a sensitivity level. Id. at 14-23. Under these
circumstances, it would be circular reasoning to treat the “Critical Sensitive” checkmark
as evidence of a security clearance requirement.14
case. 0001 IAF, Tab 28 at 32 -33. Under these circumstances, we cannot rule out
the possibility of ministerial error in the execution of the OF-8.
Nor does the record apart from the OF-8 contain sufficient evidence to
support a finding that the PCO Chief position requires a clearance. As noted
above, the narrative portion of the position description contains no reference to
classified information or a clearance requirement. 0001 IAF, Tab 20 at 14-23.
The administrative judge found that, notwithstanding that conspicuous omission,
“certain portions of the narrative could . . . be read to suggest that a situation
could arise where the appellant would need to access classified information.”
0001 ID at 7-8. However, that finding is inconsistent with the statements made
by several agency officials, under penalty of perjury, that the appellant’s duties
did not in fact require a clearance or access to classified information. See 0001
PFR, Tab 3 at 19, Tab 28 at 22, Tab 4 at 41, 44. Moreover, while it appears the
appellant may have supervised employees with clearances, see 0001 IAF, Tab 28
at 42-51, this alone does not compel a conclusion that her own position required a
clearance, especially in light of the written testimony noted above.
In sum, the current record contains contradictions, and we cannot presently
determine whether the appellant’s position in fact required a clearance.
Accordingly, should the administrative judge determine that the Board has
jurisdiction in O’Quinn I, he should allow for further development of the record
on this issue. In light of the administrative judge’s erroneous decision to deny
discovery on that issue, the appellant may renew her request for a hearing. The
administrative judge should then make a new finding on the merits of the
indefinite suspension action. We stress that the burden of proof lies with the
agency to demonstrate by preponderant evidence that the appellant’s position
required a clearance. Gamboa, 120 M.S.P.R. 594, ¶ 11.
The administrative judge should also make a new finding as to whether,
under the particular circumstances of this case, the Board has authority to
consider the appellant’s affirmative defenses of discrimination, EEO retaliation,15
and whistleblowing reprisal. If the administrative judge determines that it is
possible to adjudicate some or all of these defenses without reviewing the merits
of the agency’s decision to suspend the appellant’s security clearance—which
may or may not have been a requirement of her position in the first instance—he
should allow for further development of the record on those defenses and
adjudicate them accordingly. See Helms v. Department of the Army ,
114 M.S.P.R. 447, ¶ 9 n.* (2010) (noting the possibility of a viable affirmative
defense that would not require the Board to review the substance of the
underlying security clearance determination).
AT-1221-22-0478-W-1 ( O’Quinn II )
If the administrative judge determines that (1) the appellant is covered by
the election of remedies provisions of 5 U.S.C. § 7121(g), and (2) either the
appellant made a binding election to contest her indefinite suspension before the
Board or the appellant did not previously make a binding election of remedies but
indicates that she now wishes to continue the proceedings in O’Quinn I, the
administrative judge should find that the Board lacks IRA jurisdiction with
respect to the indefinite suspension. Otherwise, the administrative judge should
make a new jurisdictional finding regarding that action. In doing so, the
administrative judge should consider whether, under the particular circumstances
of this case, it is possible to adjudicate the appellant’s claim of retaliation in
connection with her indefinite suspension without reviewing the merits of the
agency’s decision to suspend her security clearance.13
Regardless of whether the Board has IRA jurisdiction with regard to the
appellant’s indefinite suspension, the administrative judge should also determine
on remand whether the Board has jurisdiction with regard to any of the other
whistleblowing reprisal claims the appellant exhausted before OSC. See
Chambers v. Department of Homeland Security , 2022 MSPB 8, ¶ 11 (explaining
13 A relevant consideration may be whether the appellant’s position required a security
clearance in the first instance.16
that an appellant may demonstrate exhaustion through the initial complaint,
subsequent correspondence with OSC, or 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). Should the administrative judge
conclude that the Board has jurisdiction over any of the appellant’s
whistleblowing reprisal claims, he should provide the appellant her requested
hearing and adjudicate those claims on the merits.
ORDER
For the reasons discussed above, we remand this case to the Atlanta
Regional Office for further adjudication in accordance with this Remand Order.
FOR THE BOARD: ______________________________
Gina K. Grippando
Clerk of the Board
Washington, D.C.17 | Oquinn_Dana_A_AT-0752-18-0001-I-1_and_AT-1221-22-0478-W-1_Remand_Order.pdf | 2025-01-30 | null | AT-0752-18-0001-I-1; AT-1221-22-0478-W-1 | NP |
235 | https://www.mspb.gov/decisions/nonprecedential/Baker_John_E_DE-0432-21-0028-I-1_Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
JOHN E. BAKER, JR.,
Appellant,
v.
DEPARTMENT OF COMMERCE,
Agency.DOCKET NUMBER
DE-0432-21-0028-I-1
DATE: January 30, 2025
THIS FINAL ORDER IS NONPRECEDENTIAL1
Cynthia K. Singletary , Haltom City, Texas, for the appellant.
Derrick Storm , Rockville, Maryland, for the appellant.
Ryan Holguin , Esquire, Suitland, 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.
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).
FINAL ORDER
The appellant has filed a petition for review of the initial decision, which
affirmed his removal for unacceptable performance under 5 U.S.C. chapter 43.
Generally, we grant petitions such as this one only in the following
circumstances: the initial decision contains erroneous findings of material fact;
the initial decision is based on an erroneous interpretation of statute or regulation
or the erroneous application of the law to the facts of the case; the administrative
judge’s rulings during either the course of the appeal or the initial decision
were not consistent with required procedures or involved an abuse of discretion,
and the resulting error affected the outcome of the case; or new and material
evidence or legal argument is available that, despite the petitioner’s due
diligence, was not available when the record closed. Title 5 of the Code of
Federal Regulations, section 1201.115 (5 C.F.R. § 1201.115). After fully
considering the filings in this appeal, we conclude that the petitioner has not
established any basis under section 1201.115 for granting the petition for review.
Therefore, we DENY the petition for review. Except as expressly MODIFIED to
apply (1) the current standards to the agency’s unacceptable performance charge,
and (2) the Board’s recent case law to the appellant’s affirmative defense of
status-based disability discrimination, we AFFIRM the initial decision, which is
now the Board’s final decision.
BACKGROUND
The appellant was a GS-03 Field Representative for the agency’s Census
Bureau. Initial Appeal File (IAF), Tab 7 at 21. The appellant’s major duties
included administering surveys by conducting interviews and recording the
responses. Id. at 190-91. His performance standards included five critical
elements with varying weights, and his performance in each element was rated on
a 5-tier scale, with level 1 denoting unacceptable performance. Id. at 109. Under
the agency’s performance appraisal system, a rating of level 1 in any element2
would result in a rating of level 1 overall. Id. The appellant’s performance cycle
ran from October 1 through September 30 of each year. Id. at 111.
The performance element at issue in this appeal is “Interviewing, Listing,
and Sampling.” To achieve a minimally successful level 2 rating in this element,
the appellant needed to, among other things, achieve a “cumulative response rate
score” of at least 1.5. Id. at 117, 173. To calculate the response rate score, the
agency employs a mathematical formula that accounts for a variety of factors, but
the primary component of the calculation is the number of interviews assigned
versus the number of interviews actually conducted. Id. at 75-81. Generally
speaking, the higher that percentage, the higher the response rate score will be.
Id.
On May 14, 2019, the agency notified the appellant that his average
cumulative response rate score from October 2018 through March 2019 was 1.05,
and that his performance in the critical element of Interviewing, Listing, and
Sampling was therefore at an unacceptable level midway through the performance
year. Id. at 73-85. The agency informed the appellant that it would place him on
a 90-day performance improvement plan (PIP), from June 1 through August 31,
2019, to give him an opportunity to demonstrate acceptable performance. Id.
The agency warned the appellant that failure to improve his weighted average
cumulative response rate during the PIP period to at least a 1.5 could result in
administrative action, up to and including removal. Id. at 83.
After the close of the PIP, on September 26, 2019, the agency sent the
appellant a letter informing him that his weighted average cumulative response
rate during the PIP was 1.08, and that he had therefore failed to demonstrate
acceptable performance in the critical element of Interviewing, Listing, and
Sampling. Id. at 45-46. The agency followed up on May 28, 2020, with a
proposal to remove the appellant for unacceptable performance under the
provisions of 5 U.S.C. chapter 43. Id. at 34-42. The agency sent this notice to3
the appellant’s address of record.2 Id. at 34, 43-44. The appellant did not
respond to the proposal, and on September 24, 2020, the agency issued a decision
sustaining the charge and removing the appellant effective October 2, 2020. Id.
at 21-30.
The appellant filed a Board appeal, contesting the merits of the agency’s
action and raising affirmative defenses of violation of due process, harmful
procedural error, and disability discrimination. IAF, Tab 1 at 4, Tab 24 at 4.
After a hearing, the administrative judge issued an initial decision affirming the
appellant’s removal. IAF, Tab 30, Initial Decision (ID). She found that the
agency met its burden of proof on each of the elements of its case and that the
appellant failed to prove his affirmative defenses. ID at 6-26.
The appellant has filed a petition for review, disputing the administrative
judge’s analysis of his due process and harmful error claims. Petition for Review
(PFR) File, Tab 1. The agency has filed a response. PFR File, Tab 3.
ANALYSIS
The agency proved its case by substantial evidence.
Before removing an employee for unacceptable performance under
5 U.S.C. chapter 43, an agency must satisfy certain procedural requirements. See
5 C.F.R. §§ 432.104, 432.105. Consequently, the agency’s case-in-chief consists
of numerous elements, each of which it must prove by substantial evidence. See
5 C.F.R. § 1201.56(b)(1)(i). The Board’s case law has not been particularly
consistent in describing these elements of proof, and the Board has rendered
various formulations of them over the years. Compare, e.g., White v. Department
of Veterans Affairs , 120 M.S.P.R. 405, ¶ 5 (2013), with Gonzalez v. Department
of Transportation , 109 M.S.P.R. 250, ¶ 6 (2008), and Belcher v. Department of
2 It appears to be undisputed that, as a Field Representative, the appellant did not have
an office but rather worked out of his home or in the field, and therefore all
communications between him and the agency took place electronically, by telephone, or
by mail. IAF, Tab 7 at 16, 186-87.4
the Air Force, 82 M.S.P.R. 230, ¶ 4 (1999), and Kadlec v. Department of the
Army, 49 M.S.P.R. 534, 539 (1991). The administrative judge in this case used
yet another formulation of the agency’s burden as set forth in Muff v. Department
of Commerce, 117 M.S.P.R. 291, ¶ 5 (2012), which provides that the agency must
prove by substantial evidence that: (1) the agency had performance standards that
were approved by the Office of Personnel Management (OPM); (2) the
appellant’s performance failed to meet the established performance standards in
one or more critical elements of his position; (3) the agency established
performance standards and critical elements and communicated them to the
appellant at the beginning of the performance appraisal period; (4) the agency
warned the appellant of the inadequacies of his performance during the appraisal
period and gave him an adequate opportunity to improve; and (5) after an
adequate opportunity to improve, the appellant’s performance remained
unacceptable in at least one critical element. ID at 5. The administrative judge
addressed each of these issues in turn. The appellant has not contested the
administrative judge’s findings in this regard, and the Board will normally
consider only issues raised in a timely filed petition or cross-petition for review.
5 C.F.R. § 1201.115. Nevertheless, in light of the questionable formulation of the
Muff standard and certain developments in the case law after the initial decision
was issued, we find it appropriate to clarify the analysis of the agency’s
case-in-chief.
Specifically, after the initial decision in this case was issued, the U.S.
Court of Appeals for the Federal Circuit issued a precedential decision in Santos
v. National Aeronautics and Space Administration , 990 F.3d 1355, 1360 -61 (Fed.
Cir. 2021), holding that part of the agency’s burden of proof under chapter 43 is
to show by substantial evidence that the appellant’s performance leading up to the
PIP was unacceptable. Following Santos and the Board’s most recent chapter 43
case law, the Board issued an Opinion and Order in Lee v. Department of
Veterans Affairs , 2022 MSPB 11, ¶ 15, setting forth the agency’s burden of proof5
as follows: To defend an action under chapter 43, the agency must prove by
substantial evidence 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 his position; (3) the
appellant’s performance standards are valid under 5 U.S.C. § 4302(c)(1); (4) the
appellant’s performance during the appraisal period was unacceptable in one or
more critical elements ; (5) the agency warned the appellant of the inadequacies in
his performance during the appraisal period and gave him an adequate
opportunity to demonstrate acceptable performance; and (6) after an adequate
improvement period, the appellant’s performance remained unacceptable in at
least one critical element.
Regarding the first element, we observe that a “performance appraisal
system” is not the same thing as “performance standards,” and that the Muff
formulation is therefore misleading to the extent that it suggests that the
“performance standards” themselves must be approved by OPM. See Whitney v.
Department of the Treasury , 28 M.S.P.R. 330, 333-34 (1985); 5 C.F.R. § 430.203.
Under 5 C.F.R. §§ 430.209(a), 430.210, it is the overall appraisal system, not the
particular performance standards, which require OPM approval. Whitney,
28 M.S.P.R. at 333. Nevertheless , the administrative judge found it undisputed
that the agency’s performance appraisal system had been approved by OPM. ID
at 6. This finding is supported by the record, and the appellant has not challenged
it on review. IAF, Tab 7 at 197, Tab 24 at 5. Therefore, despite her use of the
Muff formulation, the administrative judge’s findings were directed to the proper
object, and we find that the agency proved the first element of its case by
substantial evidence.
Regarding the second element, relying on the documentary evidence and
the appellant’s testimony at the hearing, the administrative judge found that the
agency communicated the appellant’s performance standards to him both on
November 25, 2018, when he signed his fiscal year 2019 performance plan, and6
on May 24, 2019, when he received the PIP notice. ID at 7. Therefore, despite
Muff’s omission of this element of proof, the administrative judge made an
explicit finding on the issue, and we agree with her that the agency proved this
element of its case by substantial evidence. IAF, Tab 7 at 73-106, 111-34, 173.
Regarding the third element, although the Muff formulation omits the
requirement that the agency prove that its performance standards were valid, the
administrative judge analyzed the issue at length and made explicit findings on it.
ID at 6-8, 20. She found that the performance standard for the Interviewing,
Listing, and Sampling critical element was based on mathematically objective
criteria, was clearly expressed, and was realistic, reasonable, and attainable. ID
at 7-8, 20; see Towne v. Department of the Air Force , 120 M.S.P.R. 239, ¶ 21
(2013) (stating that valid performance standards must be reasonable, realistic, and
attainable, clearly stated in writing, and to the maximum extent feasible, permit
the accurate appraisal of performance based on objective criteria). For the
reasons explained in the initial decision, we agree with the administrative judge
that the agency proved this element of its case by substantial evidence. ID at 7-8,
20.
Regarding the fourth element, although the initial decision in this case
preceded the Federal Circuit’s decision in Santos, the administrative judge
explicitly found that the appellant’s performance during the 2018-2019 appraisal
period, from October 1, 2018, through February 28, 2019, was unacceptable in
the critical element of Interviewing, Listing, and Sampling. ID at 6. This finding
is supported by the record and appears to be undisputed. IAF, Tab 7 at 135,
Tab 9 at 26, 28, Tab 24 at 5. We therefore agree with the administrative judge
that the agency has proven by substantial evidence that the appellant
demonstrated unacceptable performance in the months leading up to the PIP.
Because the administrative judge addressed this element of the agency’s burden
to prove the charge, and because the parties do not dispute her finding on review,
we discern no need to remand the appeal for consideration of this element. See7
Lee, 2022 MSPB 11, ¶ 16 (remanding an appeal of a chapter 43 removal for
further consideration because the parties did not have the opportunity to address
the modified legal standard set forth in Santos); 5 C.F.R. § 1201.115 (stating that
the Board normally will consider only those issues raised by the parties on
review).
Regarding the fifth element of the agency’s case, this element is adequately
described in the Muff standard, and the administrative judge thoroughly addressed
the issue in her initial decision, with reasoned and explained findings that are
supported by the record. ID at 9-11. For the reasons explained in the initial
decision, we agree with the administrative judge that the agency warned the
appellant of the inadequacies in his performance during the appraisal period and
gave him an adequate opportunity to demonstrate acceptable performance. Id.
Regarding the sixth element, we find that this element is also adequately
described in the Muff standard, and that the administrative judge properly
addressed the issue in her initial decision, finding that the appellant’s
performance in Interviewing, Listing, and Sampling remained at level 1
throughout the PIP. ID at 11-12. The administrative judge’s finding is supported
by the record, and for the reasons explained in the initial decision, we agree that
the agency proved by substantial evidence that, after an adequate improvement
period, the appellant’s performance remained unacceptable in at least one critical
element. Id.; IAF, Tab 7 at 45-46, 67-68, Tab 9 at 8, 16.
The appellant did not prove that the agency violated his right to due process.
Due process entails, at a minimum, prior notice and an opportunity to
respond. An agency’s failure to provide a tenured public employee with an
opportunity to present a response, either in person or in writing, to an appealable
agency action that deprives him of his property right in his employment
constitutes an abridgement of his constitutional right to minimum due process of
law. Cleveland Board of Education v. Loudermill , 470 U.S. 532, 546 (1985);
Clark v. U.S. Postal Service , 85 M.S.P.R. 162, ¶ 1 (2000).8
In this case, the administrative judge found, and the agency does not
dispute, that the appellant did not actually receive the proposal notice until after
the agency issued its removal decision. ID at 14. Nevertheless, the
administrative judge found that the agency satisfied due process requirements by
making reasonable and diligent efforts under the circumstances to deliver the
proposal notice to the appellant. ID at 14-17. Because the appellant used his
parents’ address as his address of record with the agency and routinely received
agency correspondence there, the administrative judge found that the agency
acted diligently by sending the notice, with tracking and delivery confirmation, to
that address via private courier. Id. Although the appellant’s father testified that
he never received the notice of proposed removal, in light of contrary evidence in
the record, the administrative judge declined to credit this testimony. ID at 16.
On petition for review, the appellant disputes the administrative judge’s
analysis, emphasizing that he did not have any opportunity to respond to the
proposal notice because he never received it and disputing the administrative
judge’s finding that the proposal was delivered to his parents’ address. PFR File,
Tab 1 at 5-9. In particular, he argues that the administrative judge erred in her
credibility determination because she required his father to testify by telephone
rather than by videoconference like the rest of the witnesses. Id. at 9.
Even if an employee does not actually receive advance notice of a proposed
adverse action, the Board will nevertheless find that due process guarantees have
been satisfied if he has constructively received such notice. Anderson v.
Department of Transportation , 735 F.2d 537, 541 (Fed. Cir. 1984); Pangarova v.
Department of the Army , 42 M.S.P.R. 319, 325 (1989). Under Board precedent,
an individual may be deemed to have constructively received a document when
that document was received by a relative of suitable age and discretion at the
individual’s address of record. White v. Department of Justice , 103 M.S.P.R.
312, ¶¶ 3, 9 (2006), aff’d, 230 Fed. App’x 976 (Fed. Cir. 2007); Crearer v.
Department of Justice , 84 M.S.P.R. 434, 436 (1999); Cunningham v. Department9
of Transportation , 35 M.S.P.R. 674, 676-77 (1987); Anderson v. Department of
Transportation, 15 M.S.P.R. 157, 171-72 (1983), aff’d, 735 F.2d 537 (Fed. Cir.
1984); 5 C.F.R. § 1201.22(b)(3). It is undisputed that the appellant listed his
parents’ home address as his address of record with the agency. Therefore, the
question is whether the appellant’s father actually received the notice.
In her initial decision, the administrative judge considered testimony from
the appellant’s father that he had not received the notice of proposed removal.
However, she did not credit this testimony because the appellant’s father also
stated that he had never signed for any work-related packages for the appellant,
which statement the administrative judge found to be inaccurate because it was
contradicted by other evidence. ID at 16; see Skellham v. U.S. Postal Service ,
90 M.S.P.R. 361, ¶ 13 (2001) (stating that an individual’s untrue statement
regarding one matter may call into question his credibility regarding other matters
as well). As for whether the administrative judge erred by having this witness
testify by telephone, although it is well settled that an administrative judge may
not order such manner of testimony over the appellant’s objection, see Robertson
v. Department of Transportation , 113 M.S.P.R. 16, ¶ 10 (2009), in this case there
does not appear to have been any objection noted for the record,3 see Hamilton v.
U.S. Postal Service , 71 M.S.P.R. 547, 551 (1996). An appellant cannot wait until
after the adjudication is complete to object for the first time to the administrative
judge’s hearing-related rulings. Jones v. Department of Health and Human
Services, 52 M.S.P.R. 669, 671 (1992). The record in this case contains
3 The appellant does not allege that he raised an objection below, and after reviewing
the pertinent portions of the hearing recording, we were unable to find any such
objection. The prehearing conference summary indicates that all witnesses were
expected to testify by videoconference. IAF, Tab 24 at 1-3. It is not clear when the
decision was made to have the appellant’s father testify by telephone instead, but it
seems likely that this occurred during an off-the-record discussion on the day of the
hearing. Even if he expressed misgivings off the record at that time, the appellant, who
was represented by an attorney, does not appear to have preserved an objection for the
record.10
documentary evidence of FedEx tracking and delivery confirmation, which we
find to be persuasive, and for the reasons explained in the initial decision, we
agree with the administrative judge that this evidence is not outweighed by the
contrary testimony of the appellant’s father. ID at 16; IAF, Tab 7 at 34, 43-44.
We also agree with the administrative judge that the agency had no reason to
suspect that the appellant had not actually received the notice of proposed
removal. ID at 15. For these reasons, we agree with the administrative judge that
the appellant constructively received the notice of proposed removal on June 1,
2020, when it was delivered to his address of record and received by his father.
The due process requirements of notice and an opportunity to respond were
therefore satisfied.
The appellant did not prove that the agency committed harmful procedural error.
On petition for review, the appellant appears to raise several claims of
harmful procedural error. To prove that the agency committed harmful
procedural error under 5 U.S.C. § 7701(c)(2)(A), the appellant must show both
that the agency committed procedural error and that the error was harmful.
Parker v. Defense Logistics Agency , 1 M.S.P.R. 505, 513 (1980). In other words,
he must prove that any procedural errors by the agency prejudiced his substantive
rights by possibly affecting the agency’s decision; harmful error cannot be
presumed. Stephen v. Department of the Air Force , 47 M.S.P.R. 672, 681 (1991).
In this case, the appellant alleges that the agency violated 5 U.S.C.
§ 4303(b)(1) by failing to afford him actual notice and an opportunity to respond.
PFR File, Tab 1 at 5, 7-8. However, the administrative judge already addressed
this argument below and found that the appellant failed to show that any error in
this regard was harmful because he did not identify any information that he might
have offered in response to the notice of proposed removal that would likely have
affected the outcome of the proceedings. ID at 19-20. We agree with the
administrative judge’s analysis, and we find that the appellant’s bare invocation
of this statutory provision on review constitutes mere disagreement with the11
administrative judge’s reasoned and explained findings. See Weaver v.
Department of the Navy , 2 M.S.P.R. 129, 133 -34 (1980).
The appellant next argues that the deciding official helped to draft and
otherwise prepare the proposal, and that the agency therefore violated 5 U.S.C.
§ 4303(b)(1)(D)(ii), which generally requires that the deciding official in a
chapter 43 adverse action be in a higher position than the proposing official. PFR
File, Tab 1 at 7. However, it does not appear that the appellant raised this
argument below, and the Board generally will not consider an argument raised for
the first time in a petition for review absent a showing that it is based on new and
material evidence not previously available despite the party’s due diligence. Clay
v. Department of the Army , 123 M.S.P.R. 245, ¶ 6 (2016). In any event, we are
not persuaded that the agency committed procedural error in this regard because,
regardless of any assistance rendered by the deciding official, the record shows
that the proposing and deciding officials were in fact different individuals, and
that the deciding official was of a higher rank than the proposing official. IAF,
Tab 7 at 30, 41. Moreover, the appellant has not explained how he believes that
he was harmed by this alleged procedural error. See Towne, 120 M.S.P.R. 239,
¶ 37.
The appellant further argues that the agency violated 5 U.S.C.
§ 4303(b)(2)(C)(i) because it failed to render its decision within 30 days of the
expiration of the notice period. PFR File, Tab 1 at 7. However, this argument
also appears to be raised for the first time on review without a showing that it is
based on previously unavailable evidence. See Clay 123 M.S.P.R. 245, ¶ 6. Nor
has the appellant explained how his substantive rights were harmed by the
agency’s failure to issue its decision within the statutory time period. See Epstein
v. Department of Health and Human Services , 6 M.S.P.R. 235, 237-38 (1981).
The appellant did not prove his affirmative defense of disability discrimination.
The appellant argued below that the agency discriminated against him
based on his disabilities. IAF, Tab 18 at 3, 8, 10. In her initial decision, the12
administrative judge found that, although the appellant’s claimed conditions
constituted disabilities within the meaning of 29 C.F.R. § 1630.2(g)(1)(i), the
appellant failed to prove either status-based disability discrimination or disability
discrimination based on failure to accommodate. ID at 21-27. The appellant does
not contest these findings on petition for review, and for the reasons explained in
the initial decision, we agree with the administrative judge that the appellant
failed to prove his claim of disability discrimination under a reasonable
accommodation theory. ID at 22-24. However, in light of recent case law, we
find it appropriate to address briefly the administrative judge’s analysis of the
appellant’s status-based discrimination claim.
Specifically, in adjudicating this affirmative defense, the administrative
judge applied the framework set forth in Southerland v. Department of Defense ,
119 M.S.P.R. 566, ¶¶ 18-32 (2013), and found that the appellant bears the burden
of proving that his disability was a motivating factor in the contested action. ID
at 25-26. After the initial decision was issued, the Board overruled Southerland
in part in Pridgen v. Office of Management and Budget , 2022 MSPB 31, ¶ 47.
Nevertheless, despite the change in the case law, the requirement that the
appellant first prove that his disability was a motivating factor remains the same,
and for the reasons explained in the initial decision, we agree with the
administrative judge that the appellant did not make such a showing.4 ID
at 26-27.
4 Because the appellant here failed to prove his initial burden that a prohibited factor
played any part in his removal, the question of whether disability discrimination was a
but-for cause of that removal is not dispositive in this appeal. See Pridgen, 2022 MSPB
31, ¶¶20-22, 29-33.13
NOTICE OF APPEAL RIGHTS5
The initial decision, as supplemented by this Final Order, constitutes the
Board’s final decision in this matter. 5 C.F.R. § 1201.113. You may obtain
review of this final decision. 5 U.S.C. § 7703(a)(1). By statute, the nature of
your claims determines the time limit for seeking such review and the appropriate
forum with which to file. 5 U.S.C. § 7703(b). Although we offer the following
summary of available appeal rights, the Merit Systems Protection Board does not
provide legal advice on which option is most appropriate for your situation and
the rights described below do not represent a statement of how courts will rule
regarding which cases fall within their jurisdiction. If you wish to seek review of
this final decision, you should immediately review the law applicable to your
claims and carefully follow all filing time limits and requirements. Failure to file
within the applicable time limit may result in the dismissal of your case by your
chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(A).
5 Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise which option is most appropriate in any matter.14
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. 420 (2017). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with 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. 2050716
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or
other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
disposition of allegations of a prohibited personnel practice described in
section 2302(b) other than practices described in section 2302(b)(8), or
2302(b)(9)(A)(i), (B), (C), or (D),” then you may file a 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. 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.
Contact information for the courts of appeals can be found at their
respective websites, which can be accessed through 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 | Baker_John_E_DE-0432-21-0028-I-1_Final_Order.pdf | 2025-01-30 | null | DE-0432-21-0028-I-1 | NP |
236 | https://www.mspb.gov/decisions/nonprecedential/Norris_LaVena_M_CH-1221-21-0178-W-1_Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
LAVENA NORRIS,
Appellant,
v.
DEPARTMENT OF COMMERCE,
Agency.DOCKET NUMBER
CH-1221-21-0178-W-1
DATE: January 30, 2025
THIS FINAL ORDER IS NONPRECEDENTIAL1
LaVena Norris , Chicago, Illinois, pro se.
Ryan Holguin , Esquire, Suitland, 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.
**Member Kerner recused himself and
did not participate in the adjudication of this appeal.
FINAL ORDER
The appellant has filed a petition for review of the initial decision, which
dismissed her individual right of action (IRA) appeal for lack of jurisdiction.
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).
Generally, we grant petitions such as this one only in the following
circumstances: the initial decision contains erroneous findings of material fact;
the initial decision is based on an erroneous interpretation of statute or regulation
or the erroneous application of the law to the facts of the case; the administrative
judge’s rulings during either the course of the appeal or the initial decision
were not consistent with required procedures or involved an abuse of discretion,
and the resulting error affected the outcome of the case; or new and material
evidence or legal argument is available that, despite the petitioner’s due
diligence, was not available when the record closed. Title 5 of the Code of
Federal Regulations, section 1201.115 (5 C.F.R. § 1201.115). After fully
considering the filings in this appeal, we conclude that the petitioner has not
established any basis under section 1201.115 for granting the petition for review.
Therefore, we DENY the petition for review and AFFIRM the initial decision,
which is now the Board’s final decision. 5 C.F.R. § 1201.113(b).
In her petition for review, the appellant asserts confusion about the appeals
system process and argues that the agency abused its authority in handling
matters after her removal, including issues related to a demand for payment from
the Department of the Treasury. Petition for Review File, Tab 1 at 4-11.
Although we sympathize with the appellant, who was pro se, we find that the
removal decision adequately notified her of her election of remedies and of the
consequences of the election that she made. See Kazowski v. Department of the
Air Force, 2023 MSPB 15, ¶¶ 5-7 (discussing the requirements for a notice issued
under 5 C.F.R. § 1201.21(d)(1), informing an employee of her right to contest an
adverse action). The petition for review does not challenge the findings in the
initial decision and does not make any assertions related to the Board’s
jurisdiction over the appellant’s IRA appeal. We agree with the administrative
judge that four of the five allegations of protected activity post-dated the removal
and therefore could not have been a contributing factor in the removal, and that
the only remaining allegation of protected activity, a 2019 OIG complaint, was2
not exhausted before OSC. Initial Appeal File, Tab 12, Initial Decision at 8-11.
Accordingly, the Board lacks jurisdiction over the appellant’s IRA appeal.
The outcome here is not inconsistent with the decision in the appellant’s
earlier appeal. See Norris v. Department of Commerce , MSPB Docket No.
CH-0752-21-0066-I-1, Initial Decision (Feb. 22, 2021). There, the administrative
judge found that the appellant’s filing with OSC, wherein she alleged that her
removal was a prohibited personnel practice (PPP) pursuant to 5 U.S.C. § 2302(b)
(6), (12), precluded her direct Board appeal, filed 2 days later, based on the
election of remedy provisions contained in 5 U.S.C. § 7121(g). Id. at 5-7; see
Giove v. Department of Transportation , 89 M.S.P.R. 560, ¶ 10 (2001) (stating
that the election of remedy provisions contained in 5 U.S.C. § 7121(g) apply to
allegations that a personnel action violated 5 U.S.C. § 2302(b)(2)-(11)),2 aff’d,
50 F. App’x 421 (Fed. Cir. 2002). As set forth above, the appellant’s OSC
complaint did not allege a whistleblower reprisal claim, which would have been
appealable to the Board. We further find that this decision is consistent with
Andreski v. Department of Justice , 2024 MSPB 10, ¶ 10, in which the Board held
that the validity of an election to proceed before OSC is not contingent on
whether the Board has jurisdiction over the appellant’s subsequent IRA appeal.
Based on the foregoing, we deny the petition for review and affirm the initial
decision.
2 At the time Giove was issued, the PPPs set forth in 5 U.S.C. § 2302(b)(12)-(14) did
not yet exist under the law. However, under the plain language of the statute, the
election of remedy provisions at 5 U.S.C. § 7121(g) apply to those PPPs as well. See,
e.g., Brookins v. Department of the Interior , 2023 MSPB 3, ¶¶ 7-8 (applying
section 7121(g) to allegations of prohibited personnel practice under 5 U.S.C. § 2302(b)
(2) and (12)).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 | Norris_LaVena_M_CH-1221-21-0178-W-1_Final_Order.pdf | 2025-01-30 | LAVENA NORRIS v. DEPARTMENT OF COMMERCE, MSPB Docket No. CH-1221-21-0178-W-1, January 30, 2025 | CH-1221-21-0178-W-1 | NP |
237 | https://www.mspb.gov/decisions/nonprecedential/Hallett_BettySF-0752-16-0233-B-1_Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
BETTY HALLETT,
Appellant,
v.
DEPARTMENT OF AGRICULTURE,
Agency.DOCKET NUMBER
SF-0752-16-0233-B-1
DATE: January 29, 2025
THIS FINAL ORDER IS NONPRECEDENTIAL1
Betty Hallett , Round Rock, Texas, pro se.
Joshua N. Rose and Cliff Lockett , 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
In a June 9, 2022 Remand Order, the Board did not sustain the agency’s
enforced leave action and remanded this appeal to the administrative judge to
address the appellant’s affirmative defenses. The appellant has now filed a
petition for review of the remand initial decision that, consistent with the Board’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).
remand order, did not sustain the agency’s enforced leave action but denied the
appellant’s affirmative defenses. For the reasons discussed below, we GRANT
the appellant’s petition for review, AFFIRM the initial decision’s finding that the
enforced leave action is NOT SUSTAINED, and REVERSE the initial decision’s
finding that the appellant did not prove her affirmative defenses of disability
discrimination based on a failure to accommodate and equal employment
opportunity (EEO) retaliation.
BACKGROUND
At all times relevant to this appeal, the appellant was employed as a
GS-12 Supervisory Public Health Veterinarian (PHV), assigned to slaughter and
processing plants with the agency’s Food Safety Inspection Service (FSIS).
Hallett v. Department of Agriculture , MSPB Docket No. SF-0752-16-0233-I-1,
Initial Appeal File (IAF), Tab 5 at 7. Beginning in or around 2011, the appellant
began to suffer from tinnitus and associated hearing loss, with her symptoms
increasing when exposed to high-frequency noises, such as those created by the
splitting saws, which were consistently used in large processing plants. IAF,
Tab 12 at 33-37, Tab 49-1, Hearing Recording (HR) (testimony of the appellant).
On November 8, 2011, the appellant requested reasonable accommodation for her
tinnitus and hearing loss, explaining that her tinnitus increased when she was at
her duty station and requesting that she be allowed to stop working by the
splitting saw and work at another duty station. IAF, Tab 12 at 33, 38-39. The
agency denied the appellant’s reasonable accommodation request, claiming that
her impairment did not meet the definition of a disability. Id. at 42.
After the denial of her reasonable accommodation request, the appellant
took proactive steps to minimize her presence in large processing plants and
exposure to high -frequency noises. HR (testimony of the appellant). For
instance, the appellant bought custom earplugs and earmuffs to limit her noise
exposure. Id.; IAF, Tab 12 at 23-24. Then, in or around December 2012, the2
appellant transferred to Creston Valley, a mini-circuit assignment2 in which she
oversaw a group of smaller slaughter and processing plants that were less noisy
than the larger processing plants. IAF, Tab 12 at 97 -98, Tab 16 at 21,
HR (testimony of the appellant). However, even though the appellant sought out
the mini-circuit assignment specifically to minimize her time in large processing
plants, the appellant’s supervisor continued to assign her to large processing
plants on “relief” assignments. IAF, Tab 12 at 100-01, Tab 49-1, HR (testimony
of the appellant), Tab 49-4, HR (testimony of the appellant’s supervisor).
On July 21, 2014, while working on a relief assignment at a large
processing plant, the appellant began experiencing severe ringing in her ears.
IAF, Tab 21 at 62-63; HR (testimony of the appellant). She emailed her
supervisor, explaining that the ringing in her ears had become so severe that she
could not be on the kill floor while the splitting saw was running and requested
that her supervisor arrange for another individual to cover the line inspectors’
breaks that day.3 IAF, Tab 21 at 56-57. The appellant’s supervisor called the
appellant asking her to explain what made an environment “noisy,” to which the
appellant responded that the “split[tting] saw, or any other high pitched ‘ee-ee-ee’
type of noise [] made [her] tinnitus worse.” Id. at 62. She also explained to her
supervisor that she could perform her duties at her mini-circuit assignment,
explaining that, at Creston Valley, she was able to step out of the area when the
splitting saw was in use, and that the other two slaughter plants she oversaw
allowed her to either not be present in the trailer while the splitting saw was
running or watch through glass. Id. However, the appellant’s supervisor told her
2 The mini-circuit assignment is also referred to as a patrol assignment throughout the
record. See, e.g., IAF, Tab 33 at 47.
3 Approximately 15-minute breaks were given to each inspector on the line, during
which the Supervisory PHV assigned to the plant would provide coverage in the kill
room, which contained the splitting saw. HR (testimony of the appellant and her
supervisor). According to the appellant, she had to spend about 3 hours giving the line
inspectors breaks during relief assignments. HR (testimony of the appellant).3
that it was part of her duties to give breaks to the line inspectors and stated that
she could not be on duty if she could not perform her job. Id. The appellant took
leave for the rest of the day. Id. at 55-56.
That same day, the appellant went to an occupational health clinic and was
released with medical restrictions to limit noise exposure to under 100 decibels.
Id. at 64. The decibel level at the appellant’s office in Creston Valley was
approximately 65 decibels, and the noisiest areas of the facility read at
87 decibels, all within the acceptable range. IAF, Tab 24 at 71, HR (testimony of
the appellant). However, on August 12, 2014, the appellant’s supervisor assigned
her to a large processing plant with a noise level of approximately 95 decibels,
close to the maximum decibel level. IAF, Tab 21 at 66-67, HR (testimony of the
appellant and her supervisor).
The appellant returned to the occupational health clinic and received
updated medical restrictions, which stated that she “needs office/desk work only,
no noise exposure.” IAF, Tab 12 at 102. Immediately thereafter, the appellant
took scheduled annual leave for 3 weeks. Id. at 104; HR (testimony of the
appellant). When she returned to work on September 8, 2014, the appellant’s
supervisor claimed that there was no position that would allow her to work in an
office with no noise exposure, and that the appellant would need to take leave.
IAF, Tab 12 at 104-06; HR (testimony of the appellant’s supervisor). Therefore,
as of September 8, 2014, the agency placed the appellant on leave without pay
(LWOP) despite her objections that she could perform the essential functions of
her position at Creston Valley and in her mini-circuit assignment. IAF, Tab 21
at 58-63, 72-73, Tab 33 at 47, HR (testimony of the appellant). The appellant’s
supervisor did not request clarification of the appellant’s medical restrictions
before placing her on LWOP. HR (testimony of the appellant’s supervisor).
On September 11, 2014, the appellant went back to the occupational health
clinic and received updated medical documentation, which stated that she should
“limit noise exposure environment to 40-60 decibels,” such as “normal office4
noise level,” but, if she “need[ed] to be in higher noise, she [should] continue to
use double ear protection.” IAF, Tab 12 at 109, 111. The agency nevertheless
continued to prohibit the appellant from returning to work, claiming that there
was no environment of less than 60 decibels, given that even noises like the air
conditioner running, the ringing of phones, or a file cabinet slamming shut could
raise the level above 60 decibels. HR (testimony of the appellant’s supervisor).
On or around October 9, 2014, the appellant submitted a reasonable
accommodation request asking for, among other things, placement in her
mini-circuit assignment.4 HR (testimony of the appellant); IAF, Tab 33 at 47.
The agency denied the appellant’s request for reasonable accommodation on
November 7, 2014, claiming that her impairment did not meet the definition of a
disability. IAF, Tab 12 at 117. Shortly thereafter, the appellant again requested
reasonable accommodation, and in February 2015, the agency yet again denied
the appellant’s request, claiming that the appellant did not meet the definition of a
disabled person. IAF, Tab 21 at 117-18. On March 26, 2015, after the
appellant’s Office of Workers’ Compensation Programs (OWCP) claim was
denied and the agency concluded there was no position within the appellant’s
medical restrictions, the agency ordered the appellant to return to duty, or, if she
was unable to return, to resign or submit medical documentation certifying that
she was incapacitated for duty.5 Id. at 144-45. The appellant returned to work on
March 30, 2015.6 Id.; HR (testimony of the appellant).
4 On the reasonable accommodation form, the appellant listed her mini-circuit
assignment with “no noise exposure” as the reasonable accommodation request. IAF,
Tab 33 at 47. The appellant clarified in her testimony that she wanted to be placed back
in her mini-circuit assignment and not be given relief assignments to large processing
plants. HR (testimony of the appellant). As the agency found that the appellant was not
entitled to reasonable accommodation because she was not disabled, the agency never
clarified the appellant’s requested accommodations. IAF, Tab 12 at 117.
5 In June 2014, the appellant filed an OWCP claim because she was under the mistaken
belief that such a claim would result in reasonable accommodation. IAF, Tab 21
at 49-51, HR (testimony of the appellant). 5
The appellant filed an EEO complaint, and after receiving a final agency
decision, she filed a Board appeal challenging her forced absence from
September 8, 2014 to March 30, 2015. IAF, Tab 1. Initially characterizing this
appeal as a constructive suspension appeal, the administrative judge held a
jurisdictional hearing and issued an initial decision on July 12, 2016, finding that
the appellant did not establish by preponderant evidence that the agency
constructively suspended her and that the Board lacked jurisdiction over the
appellant’s affirmative defenses of discrimination and retaliation. IAF, Tab 53.
The appellant filed a petition for review of the initial decision, and on
June 9, 2022, the Board issued a Remand Order finding that the agency forced the
appellant to take leave for more than 14 days, which constituted an appealable
suspension, and, because the agency did not provide her with due process rights,
the Board reversed the agency’s enforced leave action. Hallett v. Department of
Agriculture, MSPB Docket No. SF-0752-16-0233-I-1, Remand Order at 4-5
(Jun. 9, 2022). Because the Board had jurisdiction over the agency’s enforced
leave action, the Board remanded the appeal for the administrative judge to issue
a decision on the merits of the appellant’s affirmative defenses of race, sex, color,
6 The appellant returned to work on March 30, 2015, but the next day, she took leave
until April 27, 2015, when the agency then placed her on administrative leave while it
searched for a vacant position within her restrictions. IAF, Tab 12 at 128. After
receiving another return-to-duty order on May 7, 2015, she returned to work. Id.
at 128-30; HR (testimony of the appellant). 6
national origin, and disability discrimination, as well as EEO retaliation.7
Id. at 5-6.
After deciding that a supplemental hearing was not required,8 the
administrative judge issued a remand initial decision reversing the agency’s
enforced leave action in accordance with the Board’s Remand Order but finding
that the appellant did not prove her affirmative defenses. Hallett v. Department
of Agriculture, MSPB Docket No. SF-0752-16-0233-B-1, Remand File (RF),
Tab 13, Remand Initial Decision (RID). First, the administrative judge found that
the appellant did not prove her claim of disability discrimination based on either
failure to accommodate or disparate treatment because she was not a qualified
individual with a disability. RID at 10-17. Then, the administrative judge found
that the appellant made only generic claims that the agency would have treated
her more favorably if she had been a non-white, non-American male, which were
insufficient to prove her claims of race, national origin, and sex discrimination.9
RID at 17-21. Regarding the appellant’s EEO retaliation claim, the
administrative judge found that the 6-week timeframe between the appellant’s
EEO activity and her placement on enforced leave was not suspicious because the
7 The Board also ordered the administrative judge to determine whether the appellant
raised an age discrimination claim, allow the appellant to proceed with a whistleblower
reprisal claim, and provide her with the applicable burdens of proof for a whistleblower
reprisal claim. Remand Order at 6-7. On remand, the administrative judge issued an
order requesting that the appellant clarify whether she was raising an age discrimination
claim and providing her notice of the applicable burdens of proof for a whistleblower
reprisal claim. RF, Tab 3. The appellant responded that she was not raising an age
discrimination claim, RF, Tab 5 at 9, and that she was “withdrawing [her] claim of
reprisal for whistleblowing at this time,” RF, Tab 6 at 10. The administrative judge
later issued an order confirming that the appellant had withdrawn her whistleblower
reprisal claim and listing the appellant’s affirmative defenses as discrimination based
on sex, race, color, physical disability, national origin, and EEO retaliation. RF, Tab 8
at 3-4. The appellant did not object to the administrative judge’s characterization of her
claims despite being afforded the opportunity to do so, id. at 5, and she does not
challenge the characterization on review.
8 The administrative judge provided the parties with notice that a supplemental hearing
may not be needed and afforded them an opportunity to explain their positions with
regards to a supplemental hearing. RF, Tab 3 at 2-3.7
enforced leave was explained by the changes in her medical restrictions.
RID at 21-23. The administrative judge ordered the agency to provide interim
relief if either party filed a petition for review. RID at 25.
The appellant has filed a petition for review, arguing, among other things,
that she could perform the essential functions of her position and that the agency
refused to reasonably accommodate her and forced her to take leave. Petition for
Review (PFR) File, Tab 1 at 4-24. She also asserts that the agency retaliated
against her for filing an EEO complaint.10 Id. at 24-28. The agency responded in
opposition to the appellant’s petition for review, and the appellant replied to the
agency’s response.11 PFR File, Tabs 3-4.
9 To the extent that the administrative judge conflated the claims of race discrimination
and color discrimination, the appellant does not assert a color discrimination claim on
review, and there is no evidence establishing that the appellant was discriminated
against on the basis of color. Panter v. Department of the Air Force , 22 M.S.P.R. 281,
282 (1984) (explaining that an adjudicatory error that is not prejudicial to a party’s
substantive rights provides no basis for reversal of an initial decision) .
10 To the extent that the appellant attempts to raise a claim of whistleblower reprisal on
review, PFR File, Tab 1 at 24-25, the appellant withdrew this claim in front of the
administrative judge, RF, Tab 6 at 10, Tab 8 at 3-4, and did not object to the
administrative judge’s finding that the defense was withdrawn, despite being afforded
an opportunity to do so, RF, Tab 8 at 5. Therefore, because the appellant affirmatively
waived the defense below, we will not address it here for the first time. See
Thurman v. U.S. Postal Service , 2022 MSPB 21, ¶ 18 (summarizing factors to be
considered when determining whether an appellant waived or abandoned an affirmative
defense, to include the degree to which the appellant pursued the defense after raising
it, and whether the appellant objected to the defenses exclusion from the summary of
issues to be decided).
11 After the close of the record on review, the appellant filed a submission asserting that
she has not received interim relief. PFR File, Tab 6. The agency filed a response to the
appellant’s submission, and the appellant filed a reply. PFR File, Tabs 7-8. The
appellant did not challenge the agency’s compliance with the interim relief order in her
petition for review or otherwise allege that her submission was filed within 25 days of
the date on which she became aware that the agency did not provide interim relief. See
5 C.F.R. § 1201.116(b)-(c). In any event, any noncompliance by the agency on interim
relief would now be moot by virtue of our final decision ordering relief. See
Smith v. Department of the Army , 2022 MSPB 4, ¶ 12.8
DISCUSSION OF ARGUMENTS ON REVIEW
The appellant is a qualified individual with a disability.
The administrative judge found that the appellant was not a qualified
individual with a disability because her medical restrictions rendered her
incapable of performing the essential functions of her position while she was on
enforced leave. RID at 11-16. On review, the appellant argues that she could
have performed the essential functions of her job at her mini-circuit assignment
while she was on enforced leave. PFR File, Tab 1 at 4-24. For the reasons set
forth below, we agree with the appellant and find that she is a qualified individual
with a disability.
The American with Disabilities Act (ADA)12 provides that it is illegal for
an employer to “discriminate against a qualified individual with a disability.”
42 U.S.C. § 12112(a); Haas v. Department of Homeland Security , 2022 MSPB 36,
¶ 28. Both a claim of disability discrimination based on an individual’s status as
disabled and a claim based on the agency’s failure to reasonably accommodate
that disability require that the individual be “qualified.” Haas, 2022 MSPB 36,
¶ 28. To prove that an appellant is an individual with a disability, she must show
that she: (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).
To be a qualified individual with a disability, the appellant must show that she
can “perform the essential functions of the . . . position that [she] holds or
desires” with or without reasonable accommodation. 42 U.S.C. § 12111(8).
12 The Board adjudicates claims of disability discrimination raised in connection with
an otherwise appealable action under the substantive standards of section 501 of the
Rehabilitation Act. Haas, 2022 MSPB 36, ¶ 28. The standards under the ADA, as
amended by the Americans with Disabilities Act Amendments Act of 2008, have been
incorporated into the Rehabilitation Act, and the Board applies them to determine
whether there has been a Rehabilitation Act violation. Id. 9
The record is replete with medical documentation establishing that the
appellant suffered from hearing loss, as well as tinnitus, which substantially
impacted her daily life. IAF, Tab 12 at 33, 40-41, 102, 107-115. Furthermore,
the governing regulations define “hearing” as a major life activity. 29 C.F.R.
§ 1630.2(i). Therefore, contrary to the agency’s position, IAF, Tab 12 at 42,
117, Tab 21 at 117-18, the administrative judge correctly found that the appellant
is a disabled individual. RID at 11. However, contrary to the administrative
judge’s findings, we find that the appellant is a qualified individual with a
disability. RID at 16.
The administrative judge found that the appellant was not qualified because
her medical restrictions required her to be in an environment of 40-60 decibels,
and there was no environment within the agency that was under 60 decibels.
RID at 12-16. We believe this is a mischaracterization of the appellant’s medical
restrictions. As of September 11, 2014, the appellant’s medical restrictions stated
that the “recommendation” was for the appellant to “work in an environment of
no greater than 40-60 decibels of noise which would be a normal office noise
level,” but that if she “need[ed] to be in higher noise, she [should] continue to use
double ear protection.” IAF, Tab 12 at 111. Per the agency’s measurements, the
appellant’s official duty station, Creston Valley, ranged from areas of 65 decibels
in the office with the air conditioner on to 87 decibels in the cut room with the
band saw or vacuum sealer running. IAF, Tab 24 at 71; PFR File, Tab 3
at 6, 9 n.9. The appellant’s medical restrictions expressly contemplated a
“normal office noise level,” which would reasonably include an environment with
a running air conditioner. IAF, Tab 12 at 111. The medical restrictions also
contemplated that the appellant may need to be in environments of higher noise
levels, as it stated that she should continue to wear double ear protection if in
those environments . Id.
Therefore, we find that the appellant could have performed the essential
functions of her position, even with her stated medical restrictions. This is10
consistent with the appellant’s own statements, as she has continuously asserted
that she could perform the essential duties of her position in her mini-circuit
assignment. IAF, Tab 21 at 58-63, 72-73; Tab 33 at 47, HR (testimony of the
appellant). This finding is also consistent with the fact that, when the appellant
returned from enforced leave in the spring of 2015, she continued to work in her
position without reasonable accommodation, under the same medical restrictions
that she had during her enforced leave period.13 HR (testimony of the appellant
and her supervisor); PFR File, Tab 1 at 4, 7. Stated another way, the fact that the
appellant was able to successfully perform her position under the same medical
restrictions after the period of enforced leave suggests that the appellant could
have performed the essential functions of her position, without reasonable
accommodation, during the entirety of the enforced leave period. Accordingly,
we find that the appellant could have performed the essential functions of her
position with or without reasonable accommodation, and therefore, she is a
qualified individual with a disability.
The agency failed to engage in the interactive process of reasonable
accommodation. 14
Because the administrative judge found that the appellant was not a
qualified individual with a disability, she found that the appellant did not prove
that the agency failed to reasonably accommodate her.15 RID at 16. To establish
disability discrimination based on a failure to accommodate, an employee must
show that: (1) she is an individual with a disability, as defined by 29 C.F.R.
13 The agency does not dispute that the appellant performed the essential functions of
her duties after she returned to work. The agency only claims that she could not
perform her duties during the approximately 7 months of enforced leave. PFR File,
Tab 3 at 8-10.
14 On review, the appellant does not dispute the administrative judge’s findings that she
failed to prove her affirmative defenses of race, sex, color, or national origin
discrimination. RID at 17-21. We agree with the administrative judge’s findings that
the appellant failed to present any evidence in support of these defenses, absent
conclusory statements, and, thus, we discern no basis to disturb these findings. Id. 11
§ 1630.2(g); (2) she is a qualified individual with a disability, as defined by
29 C.F.R. § 1630.2(m); and (3) the agency failed to provide a reasonable
accommodation. Miller v. Department of the Army , 121 M.S.P.R. 189, ¶ 13
(2015). As explained above, we find that the appellant proved that she is a
qualified individual with a disability. Therefore, the relevant question here is
whether the agency failed to provide the appellant with reasonable
accommodation.
An agency is required to make reasonable accommodation to the known
physical and mental limitations of an otherwise qualified individual with a
disability unless the agency can show that accommodation would cause an undue
hardship on its business operations. 29 C.F.R. § 1630.9(a); Miller, 121 M.S.P.R.
189, ¶ 13. Reasonable accommodation includes modifications to the manner in
which a position is customarily performed 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 Guidance on
Reasonable Accommodation and Undue Hardship under the Americans with
Disabilities Act, Notice No. 915.002, 2002 WL 31994335 at *2 (Oct. 17, 2002).
Once an appellant has requested an 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). Here, the
agency did not engage in the interactive process of reasonable accommodation.
First, the agency erroneously determined that the appellant did not meet the
definition of disabled and was therefore not entitled to reasonable
accommodation. IAF, Tab 12 at 42, 117, Tab 21 at 9-10, 117-18. On that basis,
the agency did not believe it was required to engage in the interactive process
15 The administrative judge also found that the appellant failed to establish a claim of
disability discrimination based on disparate treatment. RID at 16-17. While we find
that the appellant is a qualified individual with a disability, we decline to revisit the
remainder of the claim as the appellant does not contest the outcome of this claim on
review. 12
and, therefore, effectively concedes that it did not engage in the formal
reasonable accommodation process. IAF, Tab 12 at 42, 117, Tab 21 at 9-10,
117-18. Outside of that formal reasonable accommodation process, the
appellant’s supervisor sent an email to the appellant on November 19, 2014,
asking for clarification on the 40-60 decibel range, and the agency conducted a
vacant, funded position search resulting in an offer of a GS-5, GS-7, or GS -9
level position. IAF, Tab 12 at 128, Tab 50-1, HR (testimony of the Deputy
District Manager). Even though the agency did not engage in the formal
reasonable accommodation process, we nevertheless have considered whether
these actions constitute an attempt to accommodate the appellant outside of the
formalized process. For the reasons stated below, we do not find that these
actions prove that the agency engaged in the interactive process necessary to
determine a reasonable accommodation.
Regarding the November 19, 2014 email, the appellant’s supervisor asked
whether the “ambient noise level needs to be 40-60 [decibels] or that it must be
reduced to 40-60 [decibels].” IAF, Tab 21 at 107. Even though the appellant’s
response was not helpful, as she merely repeated her written medical restriction,
the appellant’s supervisor responded simply “[o]k. Thank you.” Id. The
appellant’s supervisor did not ask any other questions or make any other attempt
to clarify or seek additional information at that time. Nor does it appear from the
record that the appellant’s supervisor sought clarification at any other point
regarding the appellant’s medical restrictions while she was on enforced leave.
That lack of engagement is particularly concerning given that, as recently as July
and August 2014, the appellant told her supervisor that it was the large processing
plants and high-frequency noises, such as the splitting saw, that exacerbated her
condition, but she could still perform the essential functions at her mini-circuit
assignment. IAF, Tab 12 at 97-98, Tab 21 at 58-63, 72-73, HR (testimony of the
appellant). 13
Next, regarding the vacant, funded position search, the agency admits that
this search was undertaken pursuant to the Federal Employees Compensation Act
(FECA), which requires agencies to consider temporary assignments that allow
employees receiving OWCP benefits to work while recovering from a
work-related injury or illness. IAF, Tab 51 at 5-6, 8. The appellant never
received OWCP benefits and, therefore, FECA is not applicable. Nevertheless,
the standards under FECA are substantively different than the standards under the
ADA, and the completion of the vacant, funded search does not establish that the
agency met its obligations with respect to the reasonable accommodation process
required by the ADA. Furthermore, “[r]eassignment is the reasonable
accommodation of last resort,” and absent evidence that there was no effective
reasonable accommodation that would allow the appellant to perform the essential
duties of her current position, the agency’s offer of a lower-graded position is not
evidence, in and of itself, that it engaged in the interactive process of reasonable
accommodation. EEOC Notice 915.002, 2002 WL 31994335 at *20; see Angel v.
Office of Personnel Management , 122 M.S.P.R. 424, ¶ 9 (2015) (describing
reassignment as the reasonable accommodation of last resort, which is required
only after it has been determined that there are no effective accommodations that
would enable the employee to perform the essential duties of her current position
or that all other reasonable accommodations would impose an undue hardship).
In summary, the record is clear that the agency did not engage in the formal
reasonable accommodation process because it erroneously found that the
appellant was not disabled. IAF, Tab 12 at 42, 117, Tab 21 at 9-10, 117-18.
Furthermore, we do not find that a single email exchange with the appellant’s
supervisor 2 months after the appellant was placed on enforced leave, or a vacant,
funded position search under an inapplicable statute resulting in offers of
lower-graded positions, sufficiently establishes that the agency acted outside that
formal avenue to engage in the reasonable accommodation process. Stated
another way, we find that the record establishes that the agency failed to engage14
in the interactive process to determine an effective accommodation for
the appellant.
The agency’s failure to engage in the interactive process resulted in a failure to
provide reasonable accommodation.
An agency’s failure to engage in the interactive process alone does not
violate the Rehabilitation Act; instead, the appellant must show that the failure
resulted in no reasonable accommodation being provided. Sanchez, 117 M.S.P.R.
155, ¶ 18. In other words, the appellant must establish that an accommodation
existed and was reasonable. See Clemens v. Department of the Army ,
120 M.S.P.R. 616, ¶ 17 (2014) (finding that an appellant’s mere assertion that the
agency could have allowed him to use specific software was insufficient to
establish his burden that an accommodation existed and was reasonable); see also
Humphrey v. Memorial Hospitals Association , 239 F.3d 1128, 1137-39
(9th Cir. 2001) (finding an employer liable for denial of reasonable
accommodation when it failed to engage in the interactive process which caused
the denial of an effective accommodation).
Here, the appellant consistently identified an effective accommodation, i.e.,
to be assigned to her mini-circuit assignment. IAF, Tab 21 at 58-63, 72-73;
Tab 33 at 47, HR (testimony of the appellant). The agency, however, forced the
appellant to remain on leave, claiming that there was no environment that met the
appellant’s restrictions, given that even normal office noises, such as phones
ringing, file cabinets closing, or air conditioners running could raise the noise
level above 60 decibels. HR (testimony of the appellant’s supervisor); PFR File,
Tab 3 at 6, 9 n.9. As explained in detail above, we disagree with the agency’s
assertion and find that the appellant could have complied with her medical
restrictions and still have worked in her mini-circuit assignment. Furthermore,
the appellant has consistently claimed that the mini-circuit assignment
accommodated her disability, and she provided detailed testimony as to how it did
so. For instance, according to the appellant, the smaller plants in the mini -circuit15
assignment did not require as much physical supervision as the large processing
plants and allowed the line inspectors to cover their own breaks, which limited
the amount of time she had to spend near the saws when they were running. HR
(testimony of the appellant). She also explained that some of the smaller
facilities used a band saw and not a splitting saw normally used at larger
processing plants, which emitted the high-pitched noise that exacerbated her
tinnitus. Id. Additionally, per the appellant, the mini-circuit assignment had a
significant amount of office work and required travel between the plants;
therefore, she was less exposed to the noisier environments. Id.
Accordingly, we find that the appellant identified an accommodation that
was both effective and reasonable, namely, to allow her to continue working in
her mini-circuit assignment without returning to large plants for “relief
assignments.” IAF, Tab 21 at 58-63, 72-73; Tab 33 at 47, HR (testimony of the
appellant). Because the agency failed to engage in the interactive process of
reasonable accommodation, and the appellant has identified an effective and
reasonable accommodation, we find that the appellant proved her claim of
disability discrimination based on a failure to reasonably accommodate.
The appellant established her claim of EEO retaliation.
In the remand initial decision, the administrative judge found that the
appellant did not establish her claim of retaliation because her placement on
enforced leave was the result of a change in her medical restrictions, and, thus,
the 6-week timeframe between the appellant’s EEO activity and the enforced
leave action was not suspicious. RID at 22-23. We disagree. Instead, when
viewing the record as a whole, we find that the evidence contradicts the agency’s
explanation for its enforced leave action, rendering it unworthy of credence.
Coupled with the suspicious timing of the enforced leave action, we find that
EEO retaliation was a but-for cause of the agency’s action.
Claims of retaliation for opposing discrimination in violation of Title VII
are analyzed under the same framework used for Title VII discrimination claims.16
Pridgen v. Office of Management and Budget , 2022 MSPB 31, ¶ 30. To obtain
full relief under 42 U.S.C. § 2000e-16, including status quo ante, compensatory
damages, or other forms of relief related to an employment decision, the appellant
must show that such discrimination or retaliation was a “but-for” cause of the
employment outcome. Pridgen, 2022 MSPB 31, ¶ 22; Wilson v. Small Business
Administration, 2024 MSPB 3, ¶ 18. The “but-for” standard generally requires a
showing that the harm would not have occurred in the absence of—that is, but for
—the discriminatory conduct. Wilson, 2024 MSPB 3, ¶ 15. The methods by
which an appellant may prove a claim of discrimination or retaliation are:
(1) direct evidence; (2) circumstantial evidence, which may include (a) evidence
of “suspicious timing, ambiguous statements oral or written, behavior toward or
comments directed at other employees in the protected group, and other bits and
pieces from which an inference of discriminatory intent might be drawn,” also
known as “convincing mosaic”; (b) comparator evidence, consisting of “evidence,
whether or not rigorously statistical, that employees similarly situated to the
plaintiff other than in the characteristic . . . on which an employer is forbidden to
base a difference in treatment received systematically better treatment”;
(c) evidence that the agency’s stated reason for its action is “unworthy of belief, a
mere pretext for discrimination” (i.e., the burden-shifting standard under
McDonnell Douglas Corporation v. Green , 411 U.S. 792, 802-04 (1973)); and
(3) some combination of direct and indirect evidence. Pridgen, 2022 MSPB 31,
¶ 24.
In cases such as this, which involve at least some circumstantial evidence,
the Board has set forth two methods by which an appellant may establish but-for
causation, i.e., the pretext framework or the mixed-motive framework. Wilson,
2024 MSPB 3, ¶¶ 15-19. Under the pretext framework, an appellant may use the
McDonnell Douglas evidentiary framework to establish that Title VII
discrimination or retaliation was a but-for cause of the challenged personnel
action by showing that the employer’s reason is pretextual, or by showing that it17
is more likely than not that the agency was motivated by discrimination or
retaliation. Id., ¶¶ 16-17. Alternatively, under the mixed-motive framework, if
an appellant proves motivating factor and the agency does not prove by
preponderant evidence that it would have taken the same action in the absence of
discrimination, the appellant has established but-for causation. Id., ¶ 18. An
appellant may choose to show but-for causation under the pretext framework or
under the mixed-motive framework, or by proceeding under both theories
simultaneously. Id., ¶ 19.
Based on our review of the record, we find that EEO retaliation was a
but-for cause of the enforced leave action, because the agency’s stated reason for
placing the appellant on enforced leave was unworthy of belief. Namely, we find
the agency’s interpretation of the appellant’s medical restrictions to be
disingenuous in light of the information known by the appellant’s supervisor at
the time of the enforced leave. As early as December 2012, the appellant’s
supervisor was aware of the appellant’s hearing issues, and she knew that the
appellant transferred to the mini-circuit assignment to reduce her noise exposure.
IAF, Tab 22 at 124, HR (testimony of the appellant’s supervisor). Furthermore,
in July and August 2014, just before her placement on enforced leave, the
appellant reminded her supervisor that her tinnitus was exacerbated by the
high-frequency noises present at the facility she was temporarily assigned to as
relief for other inspectors, and she requested to perform her duties at her
mini-circuit assignment, which had “minimal noise exposure.” IAF, Tab 21
at 58-63, 72-73, HR (testimony of the appellant). Nevertheless, when the
appellant’s medical restrictions stated “needs office/desk duties, no noise
exposure,” her supervisor claimed she believed that the appellant must have
“zero” noise exposure, despite that being plainly unreasonable. IAF, Tab 12
at 102, HR (testimony of the appellant’s supervisor). Then, when the appellant’s
medical restrictions were revised, the appellant’s supervisor continued to claim
that the agency could not offer an environment that would comply, explaining18
that, for instance, the appellant may have to walk through an area exceeding
60 decibels to reach an office, or that even noises like the slamming of a file
cabinet or the ringing of a phone could raise noise levels above 60 decibels,
HR (testimony of the appellant’s supervisor).
Contrary to the testimony of the appellant’s supervisor, and as detailed
above, the appellant’s medical restrictions did not include a complete ban on
exposure to any environment that may rise above 60 decibels. IAF, Tab 12
at 111, HR (testimony of the appellant’s supervisor). This is, in fact, a
mischaracterization of the appellant’s restrictions. Further, we find this
mischaracterization to be suspicious, given that the appellant told her supervisor
in the weeks immediately preceding her placement on enforced leave that she
could perform her duties at her mini-circuit assignment, and that it was the
“constant high-pitched frequency noises” at the large processing plants that
exacerbated her condition. IAF, Tab 21 at 58-63, 72-73, HR (testimony of the
appellant). We also find it suspicious that the appellant’s supervisor asked almost
no questions regarding the appellant’s medical restrictions. Indeed, absent a
single email exchange sent 2 months after the appellant’s placement on enforced
leave, there is no evidence that the appellant’s supervisor asked any questions
about the appellant’s medical restrictions or inquired as to ways to accommodate
her condition. IAF, Tab 21 at 107. In fact, even when the appellant’s September
8, 2014 restriction called for “no noise exposure,” which is a patently
unreasonable restriction, the appellant’s supervisor admitted that she asked no
questions before placing the appellant on enforced leave. HR (testimony of the
supervisor). Such an extreme restriction surely should have generated some
questions if the interactive process had been respected.
Finally, the agency’s claim that it placed the appellant on leave because it
had no environment under 60 decibels is further undermined by the fact that the
agency did not measure the decibel levels during the enforced leave period, i.e.,
September 8, 2014, to March 30, 2015. Although the record does contain19
evidence that the agency measured the Creston Valley noise levels in July 2015,
IAF, Tab 24 at 71, this does not negate the fact that for 7 months, the agency
forced the appellant to remain on LWOP based on what was, in essence, the
agency’s hunch that it had no environment that measured at less than 60 decibels.
In conclusion, we find that the agency interpreted the appellant’s medical
restrictions in an unreasonable manner and engaged in little dialogue regarding
how to return her to work, despite evidence that the appellant was capable of
performing the essential functions of her mini-circuit assignment within her
medical restrictions. Therefore, we find the agency’s explanation for why it
placed the appellant on enforced leave to be unworthy of credence. Coupled with
the fact that the appellant’s supervisor placed her on enforced leave
approximately 6 weeks after the appellant told her that she was working on her
EEO complaint, IAF, Tab 21 at 55-56, we find that the appellant has proved that
her EEO activity was a but-for cause of the enforced leave action.
Thus, we find that the appellant proved her affirmative defenses of
disability discrimination and EEO retaliation. Additionally, in accordance with
the Board’s June 9, 2022 Remand Order, the agency’s enforced leave action is
still not sustained.
ORDER
We ORDER the agency to cancel the suspension and retroactively restore
the appellant to her position for the period from September 8, 2014, through
March 30, 2015. See Kerr v. National Endowment for the Arts , 726 F.2d 730
(Fed. Cir. 1984). The agency must complete this action no later than 20 days
after the date of this decision.
We also ORDER the agency to pay the appellant the correct amount of
back pay, interest on back pay, and other benefits under the Back Pay Act and/or
Postal Service regulations, as appropriate, no later than 60 calendar days after the
date of this decision. We ORDER the appellant to cooperate in good faith in the20
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 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 of21
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 nonpecuniary
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 RIGHTS16
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
16 Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise which option is most appropriate in any matter.22
the rights described below do not represent a statement of how courts will rule
regarding which cases fall within their jurisdiction. If you wish to seek review of
this final decision, you should immediately review the law applicable to your
claims and carefully follow all filing time limits and requirements. Failure to file
within the applicable time limit may result in the dismissal of your case by your
chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation23
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. 420 (2017). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the district court no later than 30 calendar days after your representative
receives this decision. If the action involves a claim of discrimination based on
race, color, religion, sex, national origin, or a disabling condition, you may be
entitled to representation by a court-appointed lawyer and to waiver of any
requirement of prepayment of fees, costs, or other security. See 42 U.S.C.
§ 2000e-5(f) and 29 U.S.C. § 794a.
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702(b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file24
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or
other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
disposition of allegations of a prohibited personnel practice described in
section 2302(b) other than practices described in section 2302(b)(8), or
2302(b)(9)(A)(i), (B), (C), or (D),” then you may file a petition for judicial
review either with the U.S. Court of Appeals for the Federal Circuit or any court
of appeals of competent jurisdiction.17 The court of appeals must receive your
17 The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court 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
petition for review within 60 days of the date of issuance of this decision.
5 U.S.C. § 7703(b)(1)(B).
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the 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.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).
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. | Hallett_BettySF-0752-16-0233-B-1_Final_Order.pdf | 2025-01-29 | BETTY HALLETT v. DEPARTMENT OF AGRICULTURE, MSPB Docket No. SF-0752-16-0233-B-1, January 29, 2025 | SF-0752-16-0233-B-1 | NP |
238 | https://www.mspb.gov/decisions/nonprecedential/Dunn_Sylvia_B_DC-1221-21-0086-W-1_Remand_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
SYLVIA DUNN,
Appellant,
v.
DEPARTMENT OF VETERANS
AFFAIRS,
Agency.DOCKET NUMBER
DC-1221-21-0086-W-1
DATE: January 29, 2025
THIS ORDER IS NONPRECEDENTIAL1
Dionna Maria Lewis , Esquire, Washington, D.C., for the appellant.
W. Iris Barber , Esquire, 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.
**Member 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 her individual right of action (IRA) appeal for lack of jurisdiction. For
the reasons discussed below, we GRANT the appellant’s petition for review,
VACATE the initial decision, and REMAND the case to the Washington Regional
Office for further adjudication in accordance with this Remand Order.
BACKGROUND
The appellant is employed as a Director, GS-15, in the Office of Resource
Management with the agency. Initial Appeal File (IAF), Tab 1 at 8. In 2018, she
filed a whistleblower retaliation complaint with the Office of Special Counsel
(OSC) and a subsequent Board appeal, and in 2019, she filed a complaint with the
agency’s Office of Accountability and Whistleblower Protection (OAWP).2 IAF,
Tab 2 at 4, Tab 7 at 4. On August 3, 2020, the appellant filed a second
whistleblower retaliation complaint with OSC. IAF, Tab 1 at 7-24, Tab 7 at 4.
Specifically, she alleged that, in retaliation for filing her previous OSC
complaint, Board appeal, and OAWP complaint, her current first -line supervisor:
(1) delayed issuance of her performance plan and then issued a performance plan
that violated merit system principles; (2) removed her duties related to the annual
Statement of Assurance; (3) designated her as a Records Management Liaison,
which constructively downgraded her position; and (4) removed her financial
management duties. IAF, Tab 1 at 25-26, Tab 7 at 4-5, 8 -13.
On October 26, 2020, OSC closed out the appellant’s complaint without
further action and informed her of the right to seek corrective action with the
Board. IAF, Tab 1 at 25-26. The appellant then filed this IRA appeal. IAF,
Tab 1. The administrative judge issued a jurisdiction order, notifying her that
2 The administrative judge issued an initial decision dismissing the previous Board
appeal for lack of jurisdiction. Dunn v. Department of Veterans Affairs , DC-1221-19-
0705-W-1, Initial Appeal File (0705 IAF), Tab 15, Initial Decision (0705 ID). No
petition for review was filed in that case.2
there was a question of jurisdiction, setting forth the applicable legal standards,
and ordering the appellant to produce evidence and/or argument establishing
Board jurisdiction. IAF, Tab 4. The appellant responded to the administrative
judge’s order with a narrative response and numerous exhibits. IAF, Tabs 7-8.
Without a hearing, the administrative judge issued an initial decision
dismissing the appeal for lack of jurisdiction, finding that the appellant had failed
to nonfrivolously allege that she engaged in protected whistleblowing or that her
whistleblowing was a contributing factor in the personnel actions. IAF, Tab 20,
Initial Decision (ID) at 13. The appellant filed this petition for review, arguing
that the administrative judge improperly applied the nonfrivolous standard and
that she presented sufficient information and evidence to make a nonfrivolous
allegation that her protected disclosures and/or protected activities were a
contributing factor in the personnel actions taken against her. Petition for Review
(PFR) File, Tab 1 at 18-26. The agency did not respond to the appellant’s
petition for review.
DISCUSSION OF ARGUMENTS ON REVIEW
The appellant made a nonfrivolous allegation that she engaged in a protected
activity.
Under the Whistleblower Protection Enhancement Act of 2012 (WPEA),
the Board has jurisdiction over an IRA appeal if the appellant has exhausted her
administrative remedies before OSC and makes nonfrivolous allegations that
(1) she made a protected disclosure described under 5 U.S.C. § 2302(b)(8) or
engaged in protected activity described under 5 U.S.C. § 2302(b)(9)(A)(i), (B),
(C), or (D) and; (2) the disclosure or protected activity was a contributing factor
in the agency’s decision to take or fail to take a personnel action as defined by
5 U.S.C. § 2302(a). Salerno v. Department of the Interior , 123 M.S.P.R. 230, ¶ 5
(2016). Once an appellant establishes jurisdiction over her IRA appeal, she is
entitled to a hearing on the merits of her claim, which she must prove by
preponderant evidence. Id. If the appellant proves that her protected disclosure3
or activity was a contributing factor in a personnel action taken against her, the
agency is given an opportunity to prove, by clear and convincing evidence, that it
would have taken the same personnel action in the absence of the protected
disclosure. 5 U.S.C. § 1221(e)(1)-(2); Salerno, 123 M.S.P.R. 230, ¶ 5.
In her response to the jurisdiction order, the appellant claimed that she
engaged in protected activity when she filed her first OSC complaint, a Board
appeal, and an OAWP complaint. IAF, Tab 7 at 13. The administrative judge
determined that the appellant’s claims did not meet the nonfrivolous standard
because the allegations were “conclusory and unsworn,” and the appellant failed
to produce any “material evidence” demonstrating that she actually filed the
complaints. ID at 10. He also stated that he was “unable to discern the precise
nature of her vague and conclusory complaints” and therefore could not determine
if the complaints qualified as protected whistleblowing under 5 U.S.C. § 2302(b)
(8) or (b)(9). ID at 11.
The U.S. Court of Appeals for the Federal Circuit (Federal Circuit) has
explained that the “non -frivolous allegation” standard is analogous to the
“well-pleaded complaint rule” used to evaluate Federal question jurisdiction in
Federal court. Hessami v. Merit Systems Protection Board , 979 F.3d 1362, 1367
(Fed. Cir. 2020) (quoting Spruill v. Merit Systems Protection Board , 978 F.2d
679, 687-689 (Fed. Cir. 1992)). “At the jurisdictional stage, the appellant need
only assert nonfrivolous allegations—allegations that are ‘not vague, conclusory,
or facially insufficient,’ and that the appellant ‘reasonably believe[s] to be
true. . . .’” Id. (quoting Piccolo v. Merit Systems Protection Board , 869 F.3d
1369, 1371 (Fed. Cir. 2017)). The Federal Circuit has clarified that “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.” Id. at 1369. As the court explained, “[p]ermitting
jurisdictional dismissal of an appeal based on a summary review of the evidence4
on the core merits issues would undermine Congress’s express intent that the
merits of employee appeals be resolved through a hearing rather than summary
judgment.” Id. at 1368.
In light of this guidance from our reviewing court, we find that the
appellant met the nonfrivolous allegation standard. Contrary to the
administrative judge’s assertions, an appellant is not required to submit “material
evidence” to substantiate her claims at the jurisdictional stage, nor is she required
to submit a sworn statement in support of her assertions.3 ID at 10; see Hessami,
979 F.3d at 1367 (explaining that the appellant need only submit facially
sufficient allegations); see also Edem v. Department of Commerce , 64 M.S.P.R.
501, 505 (1994) (explaining that there is no requirement that statements be sworn
in order to establish entitlement to a jurisdictional hearing). An appellant need
only submit facially sufficient allegations, which, taken as true, state a claim
plausible on its face. We find that the appellant met this standard.
The appellant alleged that she engaged in protected activities under
5 U.S.C. § 2302(b)(9) when she filed her first OSC complaint, a subsequent
Board appeal, and an OAWP complaint. IAF, Tab 7 at 13. Under 5 U.S.C.
§ 2302(b)(9)(C), an employee engages in protected activity when she discloses
information to OSC or to any agency component responsible for internal
investigation or review “in accordance with applicable provisions of law.”
Further, under 5 U.S.C. § 2302(b)(9)(C), there is no requirement that the
information disclosed meet the precise terms of the actions described in 5 U.S.C.
§ 2302(b)(8). See Salerno, 123 M.S.P.R. 230, ¶ 12. Thus, we need not make a
finding as to whether the disclosures within the complaints are protected under
5 U.S.C. § 2302(b)(8) to find that the complaints themselves are protected
3 The administrative judge was mistaken when he characterized the appellant’s
statement as unsworn because it was sworn to under penalty of perjury. ID at 10,
12-13; IAF, Tab 7 at 3.5
activity under 5 U.S.C. § 2302(b)(9)(C).4 See id. Accordingly, because the
appellant alleged that she disclosed information to OSC and OAWP, the agency’s
office responsible for internal investigation, we find that she nonfrivolously
alleged that she engaged in protected activities under 5 U.S.C. § 2302(b)(9).
Accordingly, we find that the appellant has presented facially sufficient
allegations to make nonfrivolous allegations that she engaged in a protected
activity under 5 U.S.C. § 2302(b)(9)(C).
The appellant made a nonfrivolous allegation that her protected activity was a
contributing factor in the actions taken against her.
In addition, based in part on the appellant’s assertions on review, we find
that the appellant raised a nonfrivolous allegation that her protected activity was a
contributing factor in the challenged personnel actions. 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 the content
of, the protected disclosure or activity was one factor that tended to affect the
personnel action in any way. Salerno, 123 M.S.P.R. 230, ¶ 13. One way to
establish this criterion is the knowledge/timing test, under which an employee
may nonfrivolously allege that the disclosure was a contributing factor in a
4 The appellant also claimed that she made protected disclosures under 5 U.S.C.
§ 2302(b)(8). PFR File, Tab 1 at 18-21; IAF, Tab 7 at 13. However, she provides no
specifics as to the contents of her disclosures, offering only generic characterizations
such as “equal pay violation in violation of The Classification Act of 1949, 5 U.S.C.
§ 5101(1)(A) and OPM policy” and “hiring and promotion violations.” PFR File, Tab 1
at 19; IAF, Tab 7 at 13. While the appellant provides a copy of her first OSC complaint
and documents related to her complaint, we are still unable to decipher the specific
contents of these alleged disclosures. PFR File, Tab 2. It is not the Board’s obligation
to review the record and create a viable argument for the appellant, especially in light
of the fact that the appellant is represented by counsel. See Keefer v. Department of
Agriculture, 92 M.S.P.R. 476, ¶ 18 n.2 (2002). Rather, the affirmative responsibility to
present evidence and argument is that of the parties. Id. An appellant whose
submissions lack clarity risks being found to have failed meet her burden of proof. Id.
Because the appellant failed to articulate her alleged disclosures with reasonable clarity
and precision, we see no reason to disturb the administrative judge’s finding that the
appellant failed to make a nonfrivolous allegation of protected disclosures. ID at 11.6
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 i.e., evidence sufficient to meet the knowledge/timing test satisfies the
contributing factor standard . Id.
The appellant alleges that her first-line supervisor took actions against her
in retaliation for her protected activities, i.e., the OSC complaint, the Board
appeal, and the OAWP complaint. IAF, Tab 7 at 13. In her responses, both
below and on review, the appellant alleged that “[i]t is the Appellant’s assertion
that [her first-line supervisor] knew of the Appellant’s MSPB and OAWP
complaints,” id., and that “it is reasonable to assert that [her former supervisor]
advised [her current first-line supervisor] on the landscape of the office and his
personal experiences and perspective . . . ,” PFR File, Tab 1 at 22.
Moreover, the appellant has submitted evidence in support of her allegation
that her protected activities were a contributing factor in the personnel actions at
issue. Specifically, the appellant, in response to OSC’s preliminary
determination letter, appears to have clarified that, while her former OSC
complaint and Board appeal were against her former supervisor, she referred to an
OAWP complaint filed against her current first-line supervisor. IAF, Tab 2 at 7.
Additionally, the appellant claims that she filed a complaint with the Office of
Inspector General (OIG), which was “then transferred to OAWP.”5 PFR File,
Tab 1 at 9. The record also contains a copy of an OIG complaint, which names
5 The appellant claims, for the first time on review, that she filed an OIG complaint,
which was then transferred to OAWP. PFR File, Tab 1 at 9, 25-26. To the extent she
argues that she was retaliated against for filing this OIG complaint, the administrative
judge should determine on remand whether she exhausted this claim in front of OSC.
PFR File, Tab 1 at 9, 25-26; see Salerno, 123 M.S.P.R. 230, ¶ 5 (stating that an
appellant must have exhausted her administrative remedies before OSC in order for the
Board to have jurisdiction).7
both her current first-line supervisor and her previous first-line supervisor.6 IAF,
Tab 2 at 498-506.
Therefore, although the appellant has not alleged with any specificity as to
the contents of this transferred complaint, we believe that these allegations, taken
together and viewed in light of relevant evidence submitted by the appellant, are
sufficient to find that the appellant raised a nonfrivolous allegation that she
engaged in protected activities that were a contributing factor in the challenged
personnel actions.7 Thus, because she raised a nonfrivolous allegation of Board
6 While being named in a complaint alone may not be sufficient to prove by
preponderant evidence that the appellant’s first-line supervisor knew of the protected
activity, we find that this evidence, coupled with the appellant’s allegations, evidences
a nonfrivolous allegation of contributing factor based on the knowledge/timing test.
Nonetheless, even if this evidence is not sufficient to constitute a nonfrivolous
allegation under the knowledge/timing test, the Board has held that, if an appellant fails
to satisfy the knowledge/timing test, then other evidence can be considered when
determining whether an appellant has met the contributing factor standard, including
whether the whistleblowing was personally directed at the official taking the action and
whether these individuals had a desire or motive to retaliate against the appellant.
Dorney v. Department of the Army , 117 M.S.P.R. 480, ¶ 15 (2012). Accordingly, we
find that, under the particular circumstances of this case, the naming of the relevant
management official in the protected activity is sufficient evidence to find that the
appellant made a nonfrivolous allegation that her protected activities were a
contributing factor in the challenged personnel actions.
7 Two of the actions the appellant claims the agency took in retaliation for her protected
activity were the removal of her duties related to the annual Statement of Assurance and
removal of her financial management duties. IAF, Tab 7 at 7-8, 14. Another allegedly
retaliatory action the appellant claims the agency took was designating her as a Records
Management Liaison, which she contends would normally be assigned to a significantly
lower-graded employee and was not assigned to other Directors. Id. We find that the
appellant has made a nonfrivolous allegation that these actions met the definition of
“personnel action” under the WPEA. 5 U.S.C. § 2302(a)(2)(A)(xii) (including a
“significant change in duties, responsibilities, or working conditions” as a personnel
action). However, we question whether the appellant’s first challenged personnel action
is a covered personnel action under 5 U.S.C. § 2302. OSC has characterized the
personnel action as a delayed performance plan that, when issued, violated merit system
principles by allowing hearsay to be considered in the rating and allowing duties to be
reassigned from the appellant. IAF, Tab 2 at 4. Although the appellant has never
clearly disputed OSC’s characterization of this action, she has provided several
extensive explanations regarding the performance plan that appear to go well outside of
these parameters. IAF, Tab 1 at 18-19, Tab 7 at 4-8. Therefore, we are unclear as to8
jurisdiction, the appellant is entitled to a hearing on the merits of her case, and
the matter must be remanded. See Salerno, 123 M.S.P.R. 230, ¶ 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.
FOR THE BOARD: ______________________________
Gina K. Grippando
Clerk of the Board
Washington, D.C.
the appellant’s exact allegations, whether such allegations were exhausted in front of
OSC, and whether such action constitutes a covered personnel action under 5 U.S.C.
§ 2302. Accordingly, because additional factual findings are necessary, the
administrative judge is in the best position to address these issues on remand. See
Mastrullo v. Department of Labor , 123 M.S.P.R. 110, ¶ 27 (2015) (stating that the
administrative judge, as the hearing officer, is in the best position to make factual
findings).9 | Dunn_Sylvia_B_DC-1221-21-0086-W-1_Remand_Order.pdf | 2025-01-29 | SYLVIA DUNN v. DEPARTMENT OF VETERANS AFFAIRS, MSPB Docket No. DC-1221-21-0086-W-1, January 29, 2025 | DC-1221-21-0086-W-1 | NP |
239 | https://www.mspb.gov/decisions/nonprecedential/Soto_EloinoCB-7121-21-0016-V-1_Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
ELOINO SOTO,
Appellant,
v.
SOCIAL SECURITY
ADMINISTRATION,
Agency.DOCKET NUMBER
CB-7121-21-0016-V-1
DATE: January 29, 2025
THIS FINAL ORDER IS NONPRECEDENTIAL1
Suzanne Pillari , Esquire, Syracuse, New York, for the appellant.
Peter Jewett , Esquire, New York, New York, for the agency.
Owen Keegan , Esquire, Atlanta, Georgia, 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
Pursuant to 5 U.S.C. § 7121(d), the appellant requests review of an
arbitrator’s decision that denied his request for attorney fees. For the reasons set
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).
forth below, we DENY the appellant’s request and AFFIRM the arbitrator’s
decision.
BACKGROUND
The following facts have been set forth by the arbitrator in his opinion and
award and are not disputed by either party. The appellant is a Claims Specialist
with the agency. Request for Review (RFR) File, Tab 1 at 74.
On August 30, 2019, the agency suspended the appellant for 15 days based on
charges of conduct unbecoming a Federal employee and lack of candor. Id.
at 21-31. After the appellant filed a grievance and his union invoked arbitration,
the arbitrator issued an opinion and award finding that, although the record
established that the appellant engaged in the misconduct as alleged, the 15-day
suspension was too harsh due, in part, to the passage of time between the
incidents and the proposal to suspend, and thus he mitigated the penalty to a
5-day suspension. Id. at 83-91.
Subsequently, the appellant submitted a petition for attorney fees to the
arbitrator. Id. at 94-100. The arbitrator issued a supplementary opinion and
award denying the appellant’s request for fees, finding that, although the
appellant was the prevailing party, an award of attorney fees was not warranted in
the interest of justice. Id. at 113-19. The appellant has filed a request to review
the arbitrator’s decision with the Board, and the agency has not filed a response.
Id. at 6-18.
ANALYSIS
The Board has jurisdiction to review an arbitrator’s decision under 5 U.S.C.
§ 7121(d) 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 underlying action, and a final decision has
been issued. Hollingsworth v. Department of Commerce , 115 M.S.P.R. 636, ¶ 6
(2011). Each of these conditions has been satisfied in this case. The agency’s2
15-day suspension of the appellant is within the Board’s jurisdiction. 5 U.S.C.
§ 7512(2); 5 U.S.C. § 7513(d). The appellant has alleged that his suspension was
the result of discrimination in violation of 5 U.S.C. § 2302(b)(1). RFR File,
Tab 1 at 12. The arbitrator issued a final decision on the appellant’s grievance.
Id. at 71-91, 113-19. Thus, we find that the Board has jurisdiction over this case.
The language of 5 U.S.C. § 7701(g)(1), which is applicable to cases not
involving a finding of prohibited discrimination under 5 U.S.C. § 2302(b)(1),
requires that each of the following requirements be met to award attorney fees:
(1) the appellant must be the “prevailing party”; (2) attorney fees must have been
“incurred”; (3) the award of attorney fees must be “warranted in the interest of
justice”; and (4) the fees awarded must be reasonable. Allen v. U.S. Postal
Service, 2 M.S.P.R. 420, 426-27 (1980).
As it is undisputed that the appellant is the prevailing party and that fees
were incurred, the issue before us is whether the arbitrator erred in his finding
that attorney fees were not warranted in the interest of justice. RFR File, Tab 1
at 114. 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. As the appellant alleges that3
he satisfied Allen factors 2, 3, and 5, we limit our analysis to these factors.2
RFR File, Tab 1 at 15-17. Further, because there is a greater question as to
whether the fifth Allen factor was met, we begin our analysis here and conclude
that the fifth Allen factor was not met. We then proceed to explain that the record
confirms the arbitrator’s findings that the second and third Allen factors were
similarly not met.
The arbitrator did not commit a legal error in finding that the agency did not
know or should have known that it would not prevail on the merits.
Under the fifth Allen factor, an agency’s penalty selection is part of the
merits of the case and an award of attorney fees is warranted if the agency knew
or should have known that its choice of penalty would not be sustained .
Lambert v. Department of the Air Force , 34 M.S.P.R. 501, 505-07 (1987 ).
Generally, attorney fees will be warranted under the “knew or should have
known” category when all charges are sustained and the Board mitigates the
penalty imposed by the agency, unless the Board’s decision to mitigate is based
upon evidence that was not presented before the agency . Id. at 507.
However, in this case, we are reviewing an arbitration decision, not an
initial decision issued by an administrative judge of the Board. The standard of
the Board’s review of an arbitrator’s award is limited; such awards are entitled to
a greater degree of deference than initial decisions issued by the Board’s
administrative judges. Sadiq v. Department of Veterans Affairs , 119 M.S.P.R.
450, ¶ 5 (2013). The Board will modify or set aside an arbitration award only
when the arbitrator has erred as a matter of law in interpreting a civil service law,
2 The appellant also disputes the arbitrator’s findings that fees were not warranted under
precedent set forth by the Federal Labor Relations Authority (FLRA) stating fees are
warranted when there is either a service rendered to the Federal workforce or a benefit
to the public derived from maintaining the action. RFR File, Tab 1 at 16, 117-18. As
an initial matter, FLRA decisions are not binding on the Board. Berkner v. Department
of Commerce, 116 M.S.P.R. 277, ¶ 8 (2011). Nevertheless, we agree with the arbitrator
that the record does not support a finding that this litigation was to the benefit of the
Federal workforce beyond this particular employee, and thus, this factor was also not
met. RFR File, Tab 1 at 118. 4
rule, or regulation. Id. Even if the Board disagrees with an arbitrator’s decision,
absent legal error, the Board cannot substitute its conclusions for those of the
arbitrator. Id.
Thus, the question is whether the arbitrator committed a legal error by
finding that the fifth Allen factor was not met and denying attorney fees, despite
mitigating the penalty. We do not find that this constitutes legal error. Both the
Board and the U.S. Court of Appeals for the Federal Circuit (Federal Circuit)
have stated that there is no per se rule that requires an award of attorney fees
based upon a mitigation of the penalty alone. Dunn v. Department of Veterans
Affairs, 98 F.3d 1308, 1313 (Fed. Cir. 1996); see Miller v. Department of the
Army, 106 M.S.P.R. 547, ¶ 9 (2007). In Dunn, the Federal Circuit reviewed an
arbitration decision denying attorney fees, even though the arbitrator had
mitigated the penalty despite sustaining the charges of misconduct . Dunn,
98 F.3d at 1311, 1313. Acknowledging its limited scope of review, the court
determined that the arbitrator did not abuse his discretion or commit a legal error
because, although the arbitrator disagreed with the penalty, there was no evidence
that the agency acted negligently or disregarded material facts, and there was no
per se rule requiring an award of fees solely because the penalty was mitigated.
Id. at 1313. Thus, the court affirmed the arbitrator’s denial of attorney fees. Id.
at 1314. Similarly here, although the arbitrator disagreed with the penalty
selected, there is no evidence in the record that the agency acted negligently or
disregarded relevant facts in issuing the original penalty. RFR File, Tab 1
at 83-91, 115-17. Thus, in line with the court’s reasoning in Dunn, we find that
the arbitrator did not err as a matter of law in finding that the fifth Allen factor
was not satisfied. Id. at 116-117.
The arbitrator correctly determined that the appellant had not satisfied the second
or third Allen factors.
We are similarly unpersuaded by the appellant’s argument that he satisfied
the second and third Allen factors. Under the second Allen factor, attorney fees5
are warranted when an employee is substantially innocent of the charges against
him, i.e., if he is innocent of the primary or major charges, or of the more
important and greater part of the original charges. Lambert, 34 M.S.P.R. 501,
503 (citing Boese v. Department of the Air Force , 784 F.2d 388, 391
(Fed. Cir. 1986)). The arbitrator found that the appellant engaged in the
misconduct as alleged, and the appellant does not dispute this finding. RFR File,
Tab 1 at 83-86, 115-16. The appellant was therefore not innocent of any of the
charges, never mind substantially innocent of all charges. Thus, the second Allen
factor cannot be met. Under the third Allen factor, attorney fees are warranted in
the interest of justice when the losing party has acted in bad faith, vexatiously,
wantonly, or for oppressive reasons . Woodard v. Department of the Navy ,
22 M.S.P.R. 614, 616 (1984). Absent conclusory and generic statements, the
appellant does not cite to, nor do we discern, any evidence in the record that
demonstrates that the agency pursued the suspension in bad faith or acted in a
vexatious manner. RFR File, Tab 1 at 16, 83-91, 116. Thus, the third Allen
factor cannot be met.3
As previously explained, absent an error of law or of the interpretation of a
civil service law, rule, or regulation, the Board will not modify or set aside an
arbitration decision. Sadiq, 119 M.S.P.R. 450, ¶ 5. Given the facts present here,
the appellant has not met our highly deferential standard of review for arbitration
decisions. Accordingly, we agree with the arbitrator’s conclusion that the Allen
factors were not met and that an award of attorney fees would not be in the
interest of justice. RFR File, Tab 1 at 114-18. Thus, we affirm the arbitrator’s
decision to deny the appellant’s request for attorney fees .
3 The appellant appears to argue that, because the penalty was deemed unreasonable and
excessive by the arbitrator, it must have been meritless and pursued in bad faith, as such
a penalty is “directly contrary” to the agency’s contractual obligations. RFR File, Tab 1
at 16. However, the appellant cites no authority, and we are unaware of any such
authority, that supports the proposition that mitigation of a penalty automatically
renders the original action meritless or pursued in bad faith. Id. 6
NOTICE OF APPEAL RIGHTS4
You may obtain review of this final decision. 5 U.S.C. § 7703(a)(1). By
statute, the nature of your claims determines the time limit for seeking such
review and the appropriate forum with which to file. 5 U.S.C. § 7703(b).
Although we offer the following summary of available appeal rights, the Merit
Systems Protection Board does not provide legal advice on which option is most
appropriate for your situation and the rights described below do not represent a
statement of how courts will rule regarding which cases fall within their
jurisdiction. If you wish to seek review of this final decision, you should
immediately review the law applicable to your claims and carefully follow all
filing time limits and requirements. Failure to file within the applicable time
limit may result in the dismissal of your case by your chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(A).
4 Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise which option is most appropriate in any matter.7
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. 420 (2017). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the district court no later than 30 calendar days after your representative
receives this decision. If the action involves a claim of discrimination based on8
race, color, religion, sex, national origin, or a disabling condition, you may be
entitled to representation by a court -appointed lawyer and to waiver of any
requirement of prepayment of fees, costs, or other security. See 42 U.S.C.
§ 2000e-5(f) and 29 U.S.C. § 794a.
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702(b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or9
other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
disposition of allegations of a prohibited personnel practice described in
section 2302(b) other than practices described in section 2302(b)(8), or
2302(b)(9)(A)(i), (B), (C), or (D),” then you may file a petition for judicial
review either with the U.S. Court of Appeals for the Federal Circuit or any court
of appeals of competent jurisdiction.5 The court of appeals must receive your
petition for review within 60 days of the date of issuance of this decision.
5 U.S.C. § 7703(b)(1)(B).
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
5 The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115-195,
132 Stat. 1510. 10
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
Contact information for the courts of appeals can be found at their
respective websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
FOR THE BOARD: ______________________________
Gina K. Grippando
Clerk of the Board
Washington, D.C.11 | Soto_EloinoCB-7121-21-0016-V-1_Final_Order.pdf | 2025-01-29 | ELOINO SOTO v. SOCIAL SECURITY ADMINISTRATION, MSPB Docket No. CB-7121-21-0016-V-1, January 29, 2025 | CB-7121-21-0016-V-1 | NP |
240 | https://www.mspb.gov/decisions/nonprecedential/Sanders_HarryAT-0752-20-0443-I-1_Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
HARRY SANDERS,
Appellant,
v.
DEPARTMENT OF
TRANSPORTATION,
Agency.DOCKET NUMBER
AT-0752-20-0443-I-1
DATE: January 28, 2025
THIS FINAL ORDER IS NONPRECEDENTIAL1
Christopher Vaughn , Esquire, Decatur, Georgia, for the appellant.
Jared S. Gross , Esquire, 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 challenges the
administrative judge’s sustaining the charge, finding not supported his affirmative
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).
defenses of denial of due process and discrimination based on age, and deferring
to the agency’s choice of penalty. Generally, we grant petitions such as this one
only in the following circumstances: the initial decision contains erroneous
findings of material fact; the initial decision is based on an erroneous
interpretation of statute or regulation or the erroneous application of the law to
the facts of the case; the administrative judge’s rulings during either the course of
the appeal or the initial decision were not consistent with required procedures or
involved an abuse of discretion, and the resulting error affected the outcome of
the case; or new and material evidence or legal argument is available that, despite
the petitioner’s due diligence, was not available when the record closed. Title 5
of the Code of Federal Regulations, section 1201.115 (5 C.F.R. § 1201.115).
After fully considering the filings in this appeal, we conclude that the petitioner
has not established any basis under section 1201.115 for granting the petition for
review. Therefore, we DENY the petition for review and AFFIRM the initial
decision, which is now the Board’s final decision. 5 C.F.R. § 1201.113(b).
NOTICE OF APPEAL RIGHTS2
You may obtain review of this final decision. 5 U.S.C. § 7703(a)(1). By
statute, the nature of your claims determines the time limit for seeking such
review and the appropriate forum with which to file. 5 U.S.C. § 7703(b).
Although we offer the following summary of available appeal rights, the Merit
Systems Protection Board does not provide legal advice on which option is most
appropriate for your situation and the rights described below do not represent a
statement of how courts will rule regarding which cases fall within their
jurisdiction. If you wish to seek review of this final decision, you should
immediately review the law applicable to your claims and carefully follow all
2 Since the issuance of the initial decision in this matter, the Board 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.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 | Sanders_HarryAT-0752-20-0443-I-1_Final_Order.pdf | 2025-01-28 | HARRY SANDERS v. DEPARTMENT OF TRANSPORTATION, MSPB Docket No. AT-0752-20-0443-I-1, January 28, 2025 | AT-0752-20-0443-I-1 | NP |
241 | https://www.mspb.gov/decisions/nonprecedential/Gilroy_Michael_P_DC-3443-22-0569-I-1_Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
MICHAEL P. GILROY,
Appellant,
v.
DEPARTMENT OF HEALTH AND
HUMAN SERVICES,
Agency.DOCKET NUMBER
DC-3443-22-0569-I-1
DATE: January 28, 2025
THIS FINAL ORDER IS NONPRECEDENTIAL1
Renn Fowler , Esquire, Silver Spring, Maryland, for the appellant.
Elbridge Smith , Esquire, Honolulu, Hawaii, for the appellant.
Jennifer Smith , Esquire, and Simone Jenkins , Esquire, 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.
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and 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 reduction in pay 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.
However, we VACATE the initial decision but still DISMISS the appeal for lack
of jurisdiction for the reasons set forth in this Final Order. We FIND that the
appellant failed to make a nonfrivolous allegation that he suffered a reduction in
pay.
DISCUSSION OF ARGUMENTS ON REVIEW
Legal standard
The Board’s jurisdiction is limited to those matters over which it has been
given jurisdiction by law, rule, or regulation. Maddox v. Merit Systems
Protection Board , 759 F.2d 9, 10 (Fed. Cir. 1985). The appellant has the burden
of proving the Board’s jurisdiction by a preponderance of the evidence. 5 C.F.R.
§ 1201.56(b)(2)(i)(A). However, once the appellant presents nonfrivolous
allegations of Board jurisdiction, he is entitled to a hearing. Carey v. Department
of Health and Human Services , 112 M.S.P.R. 106, ¶ 6 (2009). A nonfrivolous2
allegation is an assertion that, if proven, could establish the matter at issue.
5 C.F.R. § 1201.4(s). An allegation generally will be considered nonfrivolous
when, under oath or penalty of perjury, an individual makes an allegation that is
more than conclusory, is plausible on its face, and is material to the legal issues
in the appeal. Id.
A reduction in pay is appealable to the Board under 5 U.S.C. §§ 7512(4)
and 7513(d). For adverse action purposes, pay means “the rate of basic pay fixed
by law or administrative action for the position held by an employee.” 5 U.S.C.
§ 7511(a)(4); 5 C.F.R. § 752.402. Thus, a reduction in pay is appealable only
when “the rate of basic pay fixed by law or administrative action for the position
held by an employee” decreases. Gaydar v. Department of the Navy ,
121 M.S.P.R. 357, ¶ 6 (2014); see Wood v. Merit Systems Protection Board ,
938 F.2d 1280, 1282 (Fed. Cir. 1991) (explaining that “[s]ince Wood continued to
receive the same basic hourly rate of pay after the reclassification of the Penrod
Post Office, Wood did not suffer a reduction in pay within the meaning of
5 U.S.C. § 7512(4)”). The Board and the courts have interpreted the term “rate of
basic pay” restrictively because Congress intended adverse action rights, such as
the right to appeal a reduction in pay, to be given a narrow construction. Gaydar,
121 M.S.P.R. 357, ¶ 6.
The appellant failed to nonfrivolously allege that the Board has jurisdiction over
this reduction in pay appeal. 2
On review, the appellant asserts that, as a GS-13 series 0081 Firefighter
with a 40-hour-plus tour, his “rate of basic pay” was “fixed by” 5 U.S.C. § 5545b,
which discusses pay for firefighters. Petition for Review (PFR) File, Tab 1
2 In his petition for review, the appellant asserts that he was prejudiced in his ability to
brief the jurisdictional issue and to submit evidence before the administrative judge.
Petition for Review File, Tab 1 at 6-8. We find that the appellant was not prejudiced
because he was given a full opportunity to brief the jurisdictional issue on review. We
also find that any additional evidence that he would have submitted does not change the
outcome on the jurisdictional issue.3
at 11-13. Neither the Board nor the U.S. Court of Appeals for the Federal Circuit
(Federal Circuit) have analyzed 5 U.S.C. § 5545b or its applicability in an
adverse action appeal involving a reduction of pay.
Section 5545b was created by the Federal Firefighters Overtime Pay
Reform Act, which was part of the Omnibus Consolidated and Emergency
Supplemental Appropriations Act, 1999, Pub. L. No. 105-277, 112 Stat 2681,
§ 628 (Oct. 21, 1998). This section applies to an employee whose position is
classified in the Firefighter occupation in conformance with the GS-0081
standard, and whose normal work schedule, as in effect throughout the year,
consists of regular tours of duty that averaged at least 106 hours per biweekly pay
period. 5 U.S.C. § 5545b(a); see 5 C.F.R. § 550.1302.
The Office of Personnel Management (OPM) explained that, under the law
and regulations formerly in effect, firefighters were “entitled to the same rate of
basic pay that applied to General Schedule employees with a 40-hour workweek”
and they “generally received standby duty pay . . . to compensate them for their
extended tours of duty.” Firefighter Pay, 63 Fed. Reg. 64589-01, 64589
(Nov. 23, 1998) (Interim Rule). OPM explained that standby duty pay was “a
special form of premium pay designed to compensate employees who have
regularly scheduled workweeks that are much longer than the normal 40-hour
workweek and include substantial time during which employees are in a standby
status.” Id. Standby duty pay was paid as a percentage of basic pay and was
considered basic pay for retirement purposes. Id.
OPM stated that 5 U.S.C. § 5545b significantly changed how firefighter
pay was computed. Id. OPM described several of these changes as follows:
(1) it eliminated standby duty pay and paid firefighters on an hourly rate basis,
which simplified the pay computation; (2) it required that the applicable General
Schedule annual rate of basic pay be divided by a 2,756-hour factor to derive the
“firefighter hourly rate”; (3) it provided special pay computations for firefighters
whose regular tour of duty included a basic 40-hour workweek; and (4) it barred4
payment of any other premium pay, including night pay, Sunday pay, holiday pay,
and hazardous duty pay. Id. at 64589-64590.
In pertinent part, 5 U.S.C. § 5545b sets forth two frameworks for
computing an hourly rate based on whether the firefighter’s tour of duty was
“24-hour shifts” or “a basic 40-hour workweek.” 5 U.S.C. §§ 5545b(b)(1), (c)(1).
The appellant asserts that he worked a 40-hour weekly tour plus additional
non-overtime hours, and thus, the framework in 5 U.S.C. § 5545b(c)(1) applies to
this matter. PFR File, Tab 1 at 10-13. This provision states:
If the regular tour of duty of a firefighter subject to this section
includes a basic 40-hour workweek . . . [5 U.S.C. § 5504(b)3] shall
be applied as follows in computing pay--
(A) the provisions of such section shall apply to the hours within the
basic 40-hour workweek;
(B) for hours outside the basic 40-hour workweek, such section shall
be deemed to require that the hourly rate[4] be derived by dividing
the annual rate by 2756; and
(C) the computation of such firefighter’s daily, weekly, or biweekly
rate shall be based on subparagraphs (A) and (B), as each applies to
the hours involved.
5 U.S.C. § 5545b(c)(1).
The appellant alleged that, while a Supervisory Firefighter, pursuant to
section 5545b(c)(1)(A), his hourly rate for the basic 40-hour workweek was
$52.89, and pursuant to section 5545b(c)(1)(B), his hourly rate for his
non-overtime hours outside of the basic 40-hour workweek (the firefighter hourly
rate) was $40.05. Initial Appeal File (IAF), Tab 9 at 7-8, 20. The appellant
3 The statute at 5 U.S.C. § 5504(b)(1) explains how to convert an annual rate of basic
pay to a basic hourly, daily, weekly, or biweekly rate. In pertinent part, it explains that,
to derive an hourly rate, the annual rate of basic pay has to be divided by 2,087.
5 U.S.C. § 5504(b)(1). To derive a biweekly rate, the hourly rate has to be multiplied
by 80. 5 U.S.C. § 5504(b)(3).
4 It appears that Congress intended for section 5545b(c)(1)(B) to mean an “hourly rate
of basic pay” because section 5545b(d)(2), among other things, limits the overtime
hourly rate of pay for a firefighter to an amount equal to one and one-half times the
“firefighter’s hourly rate of basic pay under section . . . (c)(1)(B) of this section.”5
further alleged that, after his reassignment to the Emergency Management
Specialist position, his hourly rate was $52.89, and his adjusted basic pay in both
positions was $110,384.00. Id. at 10, 23-24.
However, the appellant asserts that further calculations are warranted.
Relying on 5 U.S.C. § 5545b and 5 C.F.R. § 550.1303, which discusses hourly
rates of basic pay, he presents the following calculations to support his claim that
he suffered a $26,701.00 reduction in pay:5
$52.89 (his hourly rate as a Supervisory Firefighter for the basic
40-hour workweek) * 80 hours/pay period = $4,231.20
$40.05 (his hourly rate as a Supervisory Firefighter for the
nonovertime hours outside of the basic 40-hour workweek) * 26
hours/pay period = $1,041.30
$4,231.20 + $1,041.30 = $5,272.50 (his biweekly “base pay” in the
Supervisory Firefighter position)
$5,272.50 * 26 pay periods = $137,085.00 (his base pay in the
Supervisory Firefighter position expressed on an annual basis)
$137,085.00 - $110,384.00 (his base pay after the reassignment) =
$26,701.00 reduction in pay
PFR File, Tab 1 at 12-13.
We are not persuaded that the appellant’s calculations constitute a
nonfrivolous allegation of a reduction in rate of basic pay for purposes of
establishing jurisdiction under 5 U.S.C. chapter 75. Importantly, 5 U.S.C.
§ 5545b(c)(2) identifies the limited circumstances under which the basic pay of a
firefighter includes the regular hourly rate and the firefighter hourly rate.
5 Initially, the appellant included 6 overtime hours per pay period in his calculations
and asserted that he suffered a $34,351.24 reduction in pay following his reassignment.
IAF, Tab 9 at 8-10. In a subsequent submission, he provided two sets of calculations,
with and without overtime hours because “5 [C.F.R. §] 550.1305 appears to exclude
[overtime hours].” IAF, Tab 23 at 6-7. On review, the appellant clarifies that “no
overtime is claimed here.” PFR File, Tab 1 at 10. Because the appellant no longer
relies on overtime hours to support his claim of an appealable reduction in pay, we do
not include any overtime hours in our calculations or analysis. 6
It states that, for purposes of 5 U.S.C. §§ 5595(c), 5941, 8331(3), and 8704(c),6
and as OPM may by regulation prescribe, “the basic pay of a firefighter subject to
[section 5545b(c)] shall include . . . an amount computed under paragraph [(c)](1)
(A) for the hours within the basic 40-hour workweek[] and an amount equal to the
firefighter’s basic hourly rate (as computed under paragraph [(c)](1)(B)) for all
hours outside the basic 40-hour workweek that are within such firefighter’s
regular tour of duty (including overtime hours).” None of these circumstances
are applicable to this matter.
We find it appropriate to apply the maxim of statutory interpretation
expressio unius est exclusio alterius, meaning “the expression of one thing is the
exclusion of the other.” Richardson v. Department of Veterans Affairs ,
2023 MSPB 1, ¶ 19. Under this maxim, when Congress has enumerated specific
things to which a statute applies, it should not be assumed that other things that
could have been listed were meant to be included; rather, the specific mention of
certain things implies the exclusion of others. Id. The statute at 5 U.S.C. § 7512
is not mentioned in 5 U.S.C. § 5545b(c). Therefore, 5 U.S.C. § 5545b—by its
own language—precludes the interpretation that the appellant advocates.
Even if we consider the appellant’s reliance on 5 C.F.R. § 550.1303,
PFR File, Tab 1 at 12, a different outcome is not warranted. In 5 C.F.R.
§ 550.1303(b), the regulation explains how to calculate the hourly rate of basic
pay using the dual divisors discussed above in 5 U.S.C. § 5545b(c)(1)(A) and (B).
The regulation at 5 C.F.R. § 550.1303(c) states, in relevant part, that a
firefighter’s “biweekly rate of basic pay must be computed using the applicable
rates” described in paragraph (b). This language, standing alone, tends to support
the appellant’s calculations. However, we cannot read this language in a vacuum.
Indeed, as noted above, 5 U.S.C. § 5545b(c)(2) expressly excludes from basic pay
6 These categories include severance pay, allowances based on living costs and
conditions of environment, civil service retirement benefits, and group life insurance,
respectively.7
the calculations provided by the appellant except for certain circumstances that
are not applicable here.
Moreover, the regulation at 5 C.F.R. § 550.1305(d) is also problematic for
the appellant’s argument. It states that, for firefighters compensated under
section 550.1303(b), such as the appellant, “pay for nonovertime hours within the
regular tour of duty, but outside of the basic 40-hour workweek, is basic pay only
for the purposes listed in paragraph (a),”7 and for other purposes, such as
firefighter overtime pay and biweekly and annual caps on premium pay. 5 C.F.R.
§ 550.1305(d). None of these circumstances are applicable to this matter.8
Notably, OPM stated in its Final Rule that it added the word “only” in 5 C.F.R.
§ 550.1305(a) “to emphasize that this definition of basic pay is to be used solely
for the listed purposes.” Firefighter Pay, 67 Fed. Reg. 15463-01, 15464
(Apr. 2, 2002) (Final Rule).
Ultimately, the appellant’s own allegations and documentation show that he
received more total take home pay as a Supervisory Firefighter because he
worked 26 more hours per biweekly pay period. Compare IAF, Tab 9 at 20-21
(showing that the appellant worked 106 hours (excluding overtime) in a biweekly
period as a Supervisory Firefighter), with id. at 24 (showing that the appellant
7 Paragraph (a) sets forth the following purposes: retirement deductions and benefits
under 5 U.S.C. chapters 83 and 84, life insurance premiums and benefits under 5 U.S.C.
chapter 87, severance pay under 5 U.S.C. § 5595, cost-of-living allowances and post
differentials under 5 U.S.C. § 5941, and advances in pay under 5 U.S.C. § 5524a.
8 The appellant makes the following arguments on review regarding 5 C.F.R.
§ 550.1305: (1) subsection (a) can be misread to say that the base pay methodology in
section 5545b(c)(1) applies only for the listed purposes in section 5545b(c)(2) (such as
retirement, severance, etc.); and (2) the regulation contradicts the plain language of
5 U.S.C. § 5545b, and the regulation should not trump the statute. PFR File, Tab 1
at 17-20. These arguments are not persuasive. First, 5 C.F.R. § 550.1305(a) discusses
the purposes for when “[t]he sum of pay for nonovertime hours that are part of a
firefighter’s regular tour of duty (as computed under § 550.1303) and the straight-time
portion of overtime pay for hours in a firefighter’s regular tour of duty is treated as
basic pay.” As noted at supra n.7, none of these purposes involve 5 U.S.C. chapter 75
adverse actions. Second, we disagree with the appellant’s premise that there is any
conflict between the regulation and 5 U.S.C. § 5545b. 8
worked 80 hours in a biweekly period as an Emergency Management Specialist).
The Federal Circuit has held, in the context of U.S. Postal Service employees,
that reductions resulting from fewer total regular hours worked do not establish
jurisdiction over a claim of a reduction in pay. See Wood, 938 F.2d at 1281-82
(finding that, even though Ms. Wood’s “annual equivalent salary” in her part -time
Postmaster position decreased by $6,660.00, she did not suffer an appealable
reduction in pay under 5 U.S.C. § 7512 because she “continued to receive the
same basic hourly rate of pay after the reclassification”); see also
Phillips v. Merit Systems Protection Board , 228 F. App’x 978, 979
(Fed. Cir. 2007) (holding that basic rate of pay means “the amount of money [an
employee] makes per hour worked” and finding that “reductions in the number of
hours worked are not adverse actions under 5 U.S.C. § 7512”).9 The appellant’s
reliance on 5 U.S.C. § 5545b and the relevant regulations do not persuade us that
firefighters should be treated differently for adverse action and reduction in pay
purposes.10
Finally, for the reasons described herein, we decline the appellant’s request
for regulation review of 5 C.F.R. § 550.1305, pursuant to 5 U.S.C. §§ 1204(a)(4)
and (f)(1). PFR File, Tab 1 at 21.
NOTICE OF APPEAL RIGHTS11
This is 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
9 The Board may rely on nonprecedential decisions of the Federal Circuit when we find
their reasoning persuasive, as we do here. Covington v. Department of the Interior ,
2023 MSPB 5, ¶ 19 n.5.
10 Indeed, OPM noted in its Final Rule that the “law and regulations provide no
authority to continue pay for a firefighter’s regular tour when he or she is moved to a
work schedule with lesser hours.” Firefighter Pay, 67 Fed. Reg. at 15464.
11 Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise which option is most appropriate in any matter.9
nature of your claims determines the time limit for seeking such review and the
appropriate forum with which to file. 5 U.S.C. § 7703(b). Although we offer the
following summary of available appeal rights, the Merit Systems Protection
Board does not provide legal advice on which option is most appropriate for your
situation and the rights described below do not represent a statement of how
courts will rule regarding which cases fall within their jurisdiction. If you wish
to seek review of this final decision, you should immediately review the law
applicable to your claims and carefully follow all filing time limits and
requirements. Failure to file within the applicable time limit may result in the
dismissal of your case by your chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular10
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. 420 (2017). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the district court no later than 30 calendar days after your representative
receives this decision. If the action involves a claim of discrimination based on
race, color, religion, sex, national origin, or a disabling condition, you may be
entitled to representation by a court-appointed lawyer and to waiver of any
requirement of prepayment of fees, costs, or other security. See 42 U.S.C.
§ 2000e-5(f) and 29 U.S.C. § 794a.
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx . 11
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702(b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or
other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
disposition of allegations of a prohibited personnel practice described in
section 2302(b) other than practices described in section 2302(b)(8), or
2302(b)(9)(A)(i), (B), (C), or (D),” then you may file a petition for judicial
review either with the U.S. Court of Appeals for the Federal Circuit or any court12
of appeals of competent jurisdiction.12 The court of appeals must receive your
petition for review within 60 days of the date of issuance of this decision.
5 U.S.C. § 7703(b)(1)(B).
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
12 The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115-195,
132 Stat. 1510. 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 | Gilroy_Michael_P_DC-3443-22-0569-I-1_Final_Order.pdf | 2025-01-28 | MICHAEL P. GILROY v. DEPARTMENT OF HEALTH AND HUMAN SERVICES, MSPB Docket No. DC-3443-22-0569-I-1, January 28, 2025 | DC-3443-22-0569-I-1 | NP |
242 | https://www.mspb.gov/decisions/nonprecedential/Gradnigo_MichelleCB-1208-25-0006-U-2_Order_on_Stay_Extension_Request.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
SPECIAL COUNSEL
EX REL. MICHELLE GRADNIGO,
Petitioner,
v.
DEPARTMENT OF VETERANS
AFFAIRS,
Agency.DOCKET NUMBER
CB-1208-25-0006-U-2
DATE: January 28, 2025
THIS STAY ORDER IS NONPRECEDENTIAL1
Dustin Frankel , Esquire, Washington, D.C., for the petitioner.
Michelle Gradnigo , Paradise, California, pro se.
Coleen L. Welch , Esquire, Martinez, California, for the agency.
Jeffrey D. Stacey , Esquire, Lakewood, Colorado, 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
the effective date of Acting Chairman Kerner’s designation.
**Member 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).
ORDER ON STAY EXTENSION REQUEST
Pursuant to 5 U.S.C. § 1214(b)(1)(B), the Office of Special Counsel (OSC)
requests that the Board indefinitely stay the appellant’s probationary termination
pending the resolution of its petition for corrective action. For the following
reasons, OSC’s request is GRANTED.
BACKGROUND
As set forth in the December 16, 2024 Order on Stay Request,
Ms. Gradnigo was terminated from her Site Manager position in March 2022.
Special Counsel ex rel. Gradnigo v. Department of Veterans Affairs , MSPB
Docket No. CB-1208-25-0006-U-1, Order on Stay Request, ¶ 2 (Dec. 16, 2024).
On December 11, 2024, OSC requested a 45-day stay of Ms. Gradnigo’s
termination. Id., ¶¶ 1-2. OSC argued that it had reasonable grounds to believe
that the agency had terminated Ms. Gradnigo during her probationary period
because of protected whistleblowing activity in violation of 5 U.S.C.
§ 2302(b)(8), and it requested that her termination be stayed while it prepared a
petition for corrective action. Id., ¶¶ 1-3. On December 16, 2024, OSC’s stay
request was granted.2 Id., ¶¶ 1, 9. The stay is currently in effect through
January 29, 2025. Id., ¶ 9.
On January 14, 2025, OSC filed a petition for corrective action on
Ms. Gradnigo’s behalf with the Board pursuant to 5 U.S.C. § 1212(a)(2)(A) and
5 U.S.C. § 1214(b)(2)(C). Special Counsel ex rel. Gradnigo v. Department of
Veterans Affairs , MSPB Docket No. CB-1214-25-0011-T-1, Complaint File,
Tab 1. On the same day, OSC filed the instant request to indefinitely extend the
stay of Ms. Gradnigo’s termination pursuant to 5 U.S.C. § 1214(b)(1)(B). Special
Counsel ex rel. Gradnigo v. Department of Veterans Affairs , MSPB Docket
2 On December 23, 2024, the agency filed a notice of compliance with the Order on
Stay Request, asserting that it had reinstated Ms. Gradnigo to her position, effective
December 16, 2024. Special Counsel ex rel. Gradnigo v. Department of Veterans
Affairs, MSPB Docket No. CB-1208-25-0006-U-1, Stay Request File, Tab 3 at 2.2
No. CB-1208-25-0006-U-2, Stay Request Extension File (SREF), Tab 1. In its
request, OSC asserts that an indefinite stay is appropriate because there are
reasonable grounds to believe that the agency has committed a prohibited
personnel practice and because OSC has filed a petition for corrective action in
the matter. Id. at 3-7. The agency has not filed a response to the request.
ANALYSIS
In evaluating a request for an extension, the Board will view the record in
the light most favorable to OSC and will grant a stay extension request if OSC’s
prohibited personnel practice claim is not clearly unreasonable. Special Counsel
ex rel. Waddell v. Department of Justice , 105 M.S.P.R. 208, ¶ 3 (2007). The
Board may extend the period of a stay for any period that it considers appropriate.
5 U.S.C. § 1214(b)(1)(B)(i); Waddell, 105 M.S.P.R. 208, ¶ 3; 5 C.F.R.
§ 1201.136(b).
Here, in its request for a stay extension, OSC explains that, because the
agency declined to either take corrective action regarding the prohibited
personnel practices identified in OSC’s prohibited personnel practices report or
respond to the report, it has filed a complaint with the Board seeking corrective
action. SREF, Tab 1 at 2. OSC asserts that the relevant factual record has not
changed since the initial stay request was granted. Id. at 3. Viewing the record
in the light most favorable to OSC, we find that OSC’s prohibited personnel
practice claim is not clearly unreasonable, and, therefore, we find that a further
stay is appropriate. See Special Counsel v. Department of Veterans Affairs ,
60 M.S.P.R. 40, 41 (1993) (indicating that no change in the evidentiary record is
a factor in favor of extending a stay).
A separate determination must be made regarding the length of the
requested stay extension. Waddell, 105 M.S.P.R. 208, ¶ 5. Here, OSC asserts,
among other things, that an indefinite stay extension will insulate Ms. Gradnigo
from further harm stemming from unemployment while the Board adjudicates the3
petition for corrective action. SREF, Tab 1 at 1, 6. The Board has found it
appropriate to grant an indefinite stay extension when OSC has filed a petition for
corrective action. Waddell, 105 M.S.P.R. 208, ¶ 5; cf. Special Counsel ex rel.
Feilke v. Department of Defense Dependent Schools , 76 M.S.P.R. 625, 629-30
(1997) (finding that an indefinite extension of the stay of an employee’s
termination was not appropriate, in part because OSC had not yet filed a petition
for corrective action). Given the circumstances, we find that an indefinite
extension of the stay is appropriate under 5 U.S.C. § 1214(b)(1)(B).
ORDER
Pursuant to 5 U.S.C. § 1214(b)(1)(B), an indefinite extension of the stay is
hereby GRANTED, and it is ORDERED that:
(1)The stay issued on December 16, 2024, is extended indefinitely on
the terms and conditions set forth in that Order until the Board
issues a final decision on the petition for corrective action, unless
the Board determines it is appropriate to terminate the stay under
5 U.S.C. § 1214(b)(1)(D); and
(2)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.
FOR THE BOARD: ______________________________
Gina K. Grippando
Clerk of the Board
Washington, D.C.4 | Gradnigo_MichelleCB-1208-25-0006-U-2_Order_on_Stay_Extension_Request.pdf | 2025-01-28 | null | CB-1208-25-0006-U-1; CB-1208-25-0006-U-2 | NP |
243 | https://www.mspb.gov/decisions/nonprecedential/Conklin_JeremySF-3330-23-0499-I-1_Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
JEREMY H. CONKLIN,
Appellant,
v.
DEPARTMENT OF VETERANS
AFFAIRS,
Agency.DOCKET NUMBER
SF-3330-23-0499-I-1
DATE: January 28, 2025
THIS FINAL ORDER IS NONPRECEDENTIAL1
Jeremy H. Conklin , Seattle, Washington, pro se.
Scott Ayers , Seattle, Washington, 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 his Veterans Employment Opportunities Act of 1998 (VEOA) appeal
for lack of jurisdiction . Generally, we grant petitions such as this one only in the
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).
following circumstances: the initial decision contains erroneous findings of
material fact; the initial decision is based on an erroneous interpretation of statute
or regulation or the erroneous application of the law to the facts of the case; the
administrative judge’s rulings during either the course of the appeal or the initial
decision were not consistent with required procedures or involved an abuse of
discretion, and the resulting error affected the outcome of the case; or new and
material evidence or legal argument is available that, despite the petitioner’s due
diligence, was not available when the record closed. Title 5 of the Code of
Federal Regulations, section 1201.115 (5 C.F.R. § 1201.115). After fully
considering the filings in this appeal, we conclude that the petitioner has not
established any basis under section 1201.115 for granting the petition for review.
Therefore, we DENY the petition for review and AFFIRM the initial decision,
which is now the Board’s final decision. 5 C.F.R. § 1201.113(b).
On review, the appellant argues, among other things, that VEOA applies to
physicians under 38 U.S.C. § 7403(f) and (g). Petition for Review (PFR) File,
Tab 1 at 7-11. He also argues that Scarnati v. Department of Veterans Affairs ,
344 F.3d 1246 (Fed. Cir. 2003), upon which the administrative judge relied, is not
applicable to this case because the court did not interpret or mention 38 U.S.C.
§ 7403 in its holding. PFR File, Tab 1 at 10. The Board is bound to follow
precedential decisions of the Federal Circuit unless they are overruled by the
court sitting en banc. See Conner v. Office of Personnel Management ,
120 M.S.P.R. 670, ¶ 6 (2014), aff’d, 620 F. App’x 892 (Fed. Cir. 2015); Coley v.
Department of Transportation , 112 M.S.P.R. 645, ¶ 6 (2009). The court’s
decision in Scarnati has not been overruled and constitutes controlling authority
for the Board.
The administrative judge correctly found that, because the appellant had
applied and not been selected for the Physician–Chief of Staff position with the
Veterans Health Administration (VHA), which falls under 38 U.S.C. § 7401(1),
the appellant did not have the right to file an appeal under VEOA. Initial Appeal2
File, Tab 10, Initial Decision at 7-8; see Scarnati, 344 F.3d at 1247-49. The civil
service requirements of Title 5 do not apply to the appointment of physicians or
other health care professionals listed in 38 U.S.C. § 7401(1). See 38 U.S.C.
§§ 7403(a)(1) and (2)(A), 7425(b); see also Scarnati , 344 F.3d at 1248. Though
VEOA may appear on its face to cover any allegation by a preference eligible that
veterans’ preference rights have been violated, by the terms of the statute
governing VHA appointments, Congress has specifically exempted such
appointments from the VEOA process. Scarnati, 344 F.3d at 1248.
We are not persuaded that VEOA applies to physicians under 38 U.S.C.
§ 7403(f)(2) and (f)(3). 38 U.S.C. § 7403(f)(2) states that, in appointing
individuals to positions listed in 38 U.S.C. § 7401(3), the Secretary “shall apply
the principles of preference for the hiring of veterans and other persons
established in subchapter I of chapter 33 of title 5.” 38 U.S.C. § 7403(f)(3) states
that “the applicability of the principles of preference referred to in
paragraph (2) . . . shall be resolved under the provisions of title 5 as though such
individuals had been appointed under that title.” In other words, Title 5
competitive service veterans’ preference requirements apply to appointments
made for 38 U.S.C. § 7401(3) positions. Graves v. Department of Veterans
Affairs, 114 M.S.P.R. 245, ¶ 12 (2010). Physicians, however, are listed in
section 7401(1), not section 7401(3). Moreover, the plain language of 38 U.S.C.
§ 7403(g) makes clear that it applies only to appointments to the competitive
service. Appointments made pursuant to 38 U.S.C. § 7401 are in the excepted
service, not the competitive service. Graves, 114 M.S.P.R. 245, ¶ 11. Thus,
38 U.S.C. § 7403(f) and (g) do not support jurisdiction in this appeal. We
therefore affirm the initial decision, which dismissed the appeal for lack of
jurisdiction. 3
NOTICE OF APPEAL RIGHTS2
You may obtain review of this final decision. 5 U.S.C. § 7703(a)(1). By
statute, the nature of your claims determines the time limit for seeking such
review and the appropriate forum with which to file. 5 U.S.C. § 7703(b).
Although we offer the following summary of available appeal rights, the Merit
Systems Protection Board does not provide legal advice on which option is most
appropriate for your situation and the rights described below do not represent a
statement of how courts will rule regarding which cases fall within their
jurisdiction. If you wish to seek review of this final decision, you should
immediately review the law applicable to your claims and carefully follow all
filing time limits and requirements. Failure to file within the applicable time
limit may result in the dismissal of your case by your chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(A).
2 Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise which option is most appropriate in any matter.4
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the following
address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. 420 (2017). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the district court no later than 30 calendar days after your representative
receives this decision. If the action involves a claim of discrimination based on5
race, color, religion, sex, national origin, or a disabling condition, you may be
entitled to representation by a court-appointed lawyer and to waiver of any
requirement of prepayment of fees, costs, or other security. See 42 U.S.C.
§ 2000e-5(f) and 29 U.S.C. § 794a.
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702(b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or6
other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
disposition of allegations of a prohibited personnel practice described in
section 2302(b) other than practices described in section 2302(b)(8), or
2302(b)(9)(A)(i), (B), (C), or (D),” then you may file a petition for judicial
review either with the U.S. Court of Appeals for the Federal Circuit or any court
of appeals of competent jurisdiction.3 The court of appeals must receive your
petition for review within 60 days of the date of issuance of this decision.
5 U.S.C. § 7703(b)(1)(B).
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the following
address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
3 The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115-195,
132 Stat. 1510. 7
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
Contact information for the courts of appeals can be found at their
respective websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
FOR THE BOARD: ______________________________
Gina K. Grippando
Clerk of the Board
Washington, D.C.8 | Conklin_JeremySF-3330-23-0499-I-1_Final_Order.pdf | 2025-01-28 | JEREMY H. CONKLIN v. DEPARTMENT OF VETERANS AFFAIRS, MSPB Docket No. SF-3330-23-0499-I-1, January 28, 2025 | SF-3330-23-0499-I-1 | NP |
244 | https://www.mspb.gov/decisions/nonprecedential/West_DarleneAT-0752-19-0755-I-1_Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
DARLENE WEST,
Appellant,
v.
SMALL BUSINESS
ADMINISTRATION,
Agency.DOCKET NUMBER
AT-0752-19-0755-I-1
DATE: January 27, 2025
THIS FINAL ORDER IS NONPRECEDENTIAL1
Adam P. Morel , Esquire, Birmingham, Alabama, for the appellant.
Claudine Landry , Esquire, and Ashley E. Obando , Esquire, 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 agency has filed a petition for review of the initial decision, which
reversed the appellant’s removal and found that she failed to prove her claim of
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).
retaliation for equal employment opportunity (EEO) activity. For the reasons
explained below, we DENY the petition for review. We REVERSE the initial
decision insofar as it found that the agency did not prove the charge of conduct
unbecoming a Government employee and AFFIRM the initial decision as
modified to FIND the agency did not establish nexus between the appellant’s
off-duty misconduct and the efficiency of the service and that the appellant
abandoned her claim of age discrimination, and to supplement the administrative
judge’s analysis of the appellant’s claim of reprisal for EEO activity, still finding
that the appellant failed to prove her claim.
BACKGROUND
The appellant was employed as a Loan Specialist with the Birmingham
Disaster Loan Servicing Center. Initial Appeal File (IAF), Tab 1 at 8. On June 2,
2017, officers from the Jefferson County Sheriff’s Office arrested the appellant
for an incident that occurred at her house and charged her with attempted murder
and shooting or discharging a firearm into an occupied building. IAF, Tab 12
at 95-97. While the charges were pending, the appellant was indefinitely
suspended.2 Id. at 71, 73-75. On October 3, 2017, the charges were dismissed.
Id. at 68-69. Thereafter, the agency terminated the appellant’s indefinite
suspension and placed her on administrative leave. Id. at 43, 45.
By letter dated December 3, 2017, the agency proposed the appellant’s
removal based on a charge of Conduct Unbecoming a Government Employee. Id.
at 36-39. In a narrative in support of its charge, the agency stated:
On June 2, 2017 . . . [the appellant] had an argument with [her]
son . . . at [her] residence. [She] told [her son] that he could not use
[her] vehicle or words to that effect. Soon after, he became angry
and began throwing picture frames on the floor and stomping them .
[She] then told him to leave the residence. According to the
Jefferson County Sheriff’s Office Field Incident Offense Report,
[she] stated that as he was leaving [she] shot at him once with a .40
2 The appellant did not appeal the indefinite suspension to the Board.2
caliber Smith and Wesson pistol but did not hit him. Subsequently,
officers from the Jefferson County[] Sheriff’s Office responded to
the scene and arrested [her]. Based on [this incident] . . . [she was]
consequently charged with two felonies: (1) Attempted Murder and
(2) Discharging a Firearm into An Occupied Building.
Id. at 36. After considering the appellant’s response, the agency sustained her
removal. Id. at 9-12, 29-30. Effective March 19, 2018, the appellant was
removed from her position. IAF, Tab 1 at 11.
The appellant timely appealed to the Board challenging her removal.3 Id.
at 4. She also raised affirmative defenses of race and age discrimination, and
retaliation for EEO activity. Id. During the hearing, the appellant withdrew her
claim of race discrimination. IAF, Tab 22, Hearing Compact Disc (HCD);
Petition for Review (PFR) File, Tab 1, Hearing Transcript (HT) at 4. Following
the hearing, the administrative judge issued an initial decision in which she
reversed the agency’s action. IAF, Tab 23, Initial Decision (ID) at 1.
Specifically, the administrative judge found that the agency did not prove by
preponderant evidence its charge of conduct unbecoming a Government employee
and that the appellant did not prove her claim of retaliation for EEO activity. ID
at 3-8. In a footnote, the administrative judge stated that, in her prehearing
submission, the appellant raised an affirmative defense of disability
discrimination but, prior to the hearing, the appellant’s counsel informed the
administrative judge that she had withdrawn that defense.4 ID at 3 n.2; IAF,
Tab 19. The administrative judge ordered the agency to provide the appellant
with interim relief if either party filed a petition for review. ID at 9.
3 The appellant filed her appeal within 30 days of the final agency decision in her equal
employment opportunity complaint alleging, among other things, that her removal
constituted race, age, and disability discrimination and was taken in reprisal for her
prior protected activity. IAF, Tab 4 at 6-28.
4 The appellant’s decision not to pursue such a claim is not documented anywhere else
in the record. The appellant does not challenge the administrative judge’s statement
that this defense was withdrawn.3
The agency has filed a petition for review to which the appellant has not
responded.5 PFR File, Tab 1. The agency has also stated that it has returned the
appellant to a paid, nonduty status effective the date of the initial decision
following a determination that returning her to work would be disruptive to
agency operations, given the nature and seriousness of her misconduct.6 PFR
File, Tab 1 at 19, Tab 3 at 4.
DISCUSSION OF ARGUMENTS ON REVIEW
The agency proved the charge of conduct unbecoming a Government employee.
In determining how charges are to be construed, the Board will examine the
structure and language of the proposal notice. Tom v. Department of the Interior ,
97 M.S.P.R. 395, ¶ 17 (2004). In this regard, an adverse action charge usually
has two parts: (1) a name or label that generally characterizes the misconduct;
and (2) a narrative description of the actions that constitute the misconduct.
Otero v. U.S. Postal Service , 73 M.S.P.R. 198, 203 (1997). The agency set forth
a single charge in this case, conduct unbecoming a Government employee. IAF,
Tab 12 at 36. Under its specification, the agency included a narrative description
of the appellant’s misconduct, procedural history, and penalty discussion. Id.
at 36-37. In the narrative description of the appellant’s misconduct, the agency
cited the Jefferson County Sheriff’s Office Field Incident Offense Report stating
5 With its petition for review, the agency provided a transcript of the hearing in this
case. PFR File, Tab 1 at 22-152, HT at 1-131. Although a hearing transcript does not
meet the criteria of “new evidence” under 5 C.F.R. § 1201.115, it may nevertheless be
considered by the Board as part of the record in this appeal. See Bain v. Department of
Justice, 15 M.S.P.R. 515, 517 n.1 (1983).
6 In support of its statement, the agency submitted a Standard Form 52 showing the
appellant’s placement in an interim appointment in non-duty status. PFR File, Tab 1
at 153-54. The appellant has not challenged the agency’s certification or the nature of
the interim relief provided. We discern no basis to find the agency in noncompliance
with the interim relief order. See King v. Jerome , 42 F.3d 1371, 1375 (Fed. Cir. 1994)
(explaining that the Board’s authority to review an agency’s compliance with interim
relief is limited to “whether the agency actually made an undue disruption
determination and whether the employee has received appropriate pay and benefits”).4
that the appellant told the police officers that she shot a gun at her son as he was
leaving the home. Id. at 36, 97.
In finding that the agency did not prove its charge, the administrative judge
considered the appellant’s testimony that she retrieved the gun to show it to her
son and scare him into leaving her home; she did not see him when she stepped
into the hallway; she surmised that he was gone because she saw the back door
open; she nonetheless held the gun tightly due to her anxiety, which caused the
gun to discharge. ID at 4, 6; HT at 91, 119, 123, 126-27 (testimony of the
appellant). Applying the factors set forth in Hillen v. Department of the Army,
35 M.S.P.R. 453, 458 (1987), the administrative judge credited the appellant’s
explanation that the gun accidentally discharged and she did not fire the gun at
anyone, noting that she was clear and forthright in describing the June 2, 2017
incident, and her testimony was consistent with her oral response to her proposed
indefinite suspension.7 ID at 6 & 6 n.4. In contrast, the administrative judge
noted that the agency did not present testimony or signed or sworn declarations
from any of the officers who were dispatched to the appellant’s home on June 2,
2017, and instead relied solely on the statement the police officers attributed to
the appellant in the Sheriff Office’s report; she found that the agency’s hearsay
evidence was insufficiently probative, in light of the appellant’s contradictory
testimony, to support the conclusion that it was more likely than not the appellant
shot at her son. ID at 4, 7.
7 The statement the administrative judge refers to is a handwritten note added to the
agency’s summary of the appellant’s oral reply to the proposed indefinite suspension by
the appellant and her representative. IAF, Tab 12 at 78. That note states that the
appellant had nothing additional to add “[o]ther than the fact, [she] did not fire a gun at
anyone” and “[t]he gun accidentally discharged.” IAF, Tab 12 at 78. In the appellant’s
written response to her proposed removal she stated that “[she] did not at any time tell
the police [she] shot at [her] [s]on” and “[she] attempted to defend [herself], ensuring
the agency knew that [it] was an unintentional act.” IAF, Tab 12 at 29. At the hearing,
the parties indicated that no claim of self-defense was raised. HT at 64-65, 106.5
On review, the agency argues that conduct unbecoming is a broad charge
that does not require a specific showing of intent and the supposed accidental
nature of the weapon discharge does not negate the fact that the appellant
engaged in misconduct. PFR File, Tab 1 at 10-12. The agency also argues that,
contrary to the administrative judge’s finding, it relied on other evidence besides
the Sheriff Office’s report, and that this evidence corroborates the report. Id.
at 13-14. In addition, the agency challenges the administrative judge’s decision
to credit the appellant’s explanation that the gun accidentally discharged on the
basis that it is implausible, inconsistent with her prior statements, and
contradicted by evidence in the record. Id. at 15-17.
To prove a charge of conduct unbecoming, the agency must show that the
charged conduct occurred and that the conduct was improper, unsuitable, or
detracted from the appellant’s character or reputation. See Miles v. Department
of the Army, 55 M.S.P.R. 633, 637 (1992). Ordinarily, intent is not an element of
this offense. King v. Frazier, 77 F.3d 1361, 1363 (Fed. Cir. 1996). However, in
its specifications, the agency may incorporate an element of intent by claiming
that the employee engaged in intentional misconduct or that the conduct was
improper because of the employee’s intent. Crouse v. Department of the
Treasury, 75 M.S.P.R. 57, 63 (1997), reversed on other grounds and remanded
sub nom. Lachance v. Merit Systems Protection Board , 147 F.3d 1367, 1371 -72
(Fed. Cir. 1998). If the agency does so, it must prove the employee’s intent as an
essential element of the charge. Id. at 64.
As noted above, in its charge, the agency cited the Sheriff Office’s report,
which describes the appellant having shot a gun, but the agency did not charge
the appellant with firing the gun intentionally or purposely aiming the shot at her
son. IAF, Tab 12 at 36. Rather, as stated by the agency, the charge centered on
the appellant’s discharge of her gun, irrespective of intent. HT at 77 (testimony
of the deciding official). The only reference to intent in the proposal notice and6
removal decision was directed at the penalty rather than the charge.8 IAF, Tab 12
at 10, 37. The agency can properly consider intent in connection with the
penalty, even if it was not an element of the charge. See Cross v. Department of
the Army, 89 M.S.P.R. 62, ¶ 10 (2001); Douglas v. Veterans Administration ,
5 M.S.P.R. 280, 305 (1981). We find that the charge, as crafted by the agency,
does not incorporate an element of intent.
It is undisputed that the appellant, by her own admission, stated that she
engaged in the alleged misconduct, i.e., she retrieved the gun from another room
of her home after an argument with her son to scare him and the gun discharged
while she was holding it, and her son was still inside the home. HT at 119, 123,
126-27 (testimony of the appellant).
Based on the foregoing, we find that the appellant discharged a gun during
an altercation with her son, which was the essence of the charge, and that the
appellant’s misconduct constitutes conduct that is improper, unsuitable, or
detracts from one’s character or reputation. Thus, we find that the agency proved
the charge of conduct unbecoming.
The agency did not establish nexus between the appellant’s off-duty misconduct
and the efficiency of the service.
Not every instance of off-duty misconduct bears a nexus to the efficiency
of the service. An agency may show nexus between off-duty misconduct and the
efficiency of the service by three means: (1) a rebuttable presumption in certain
egregious circumstances; (2) preponderant evidence that the misconduct
adversely affects the appellant’s or coworkers’ job performance or the agency’s
8 In the removal decision, the deciding official considered the appellant’s explanation
but observed that “whether . . . unintentional or not, [the appellant was] present where a
firearm was discharged potentially causing physical harm and no evidence exists that
someone other than [the appellant] discharged the firearm.” IAF, Tab 12 at 10. She
opined that, even if the appellant’s act of retrieving and firing a loaded weapon was
unintentional, she would still have sustained the charge because such an act was not a
rational reaction to an argument with her son and raised serious concerns about her lack
of judgment. HT at 58, 62, 76-77, 82 (testimony of the deciding official).
trust and confidence in the appellant’s job performance; or (3) preponderant
evidence that the misconduct interfered with or adversely affected the agency’s
mission. Hoofman v. Department of the Army , 118 M.S.P.R. 532, ¶ 16 (2012),
aff’d, 526 F. App’x 982 (Fed. Cir. 2013).
In this case, the appellant’s off-duty misconduct is not sufficiently
egregious so as to automatically give rise to a presumption of nexus. As the
deciding official noted, the appellant was charged with attempted murder and
discharging a firearm into an occupied building, but the charges were dismissed
because the State of Alabama filed a motion not to prosecute. IAF, Tab 12 at 22.
The Board has found that the presumption of nexus was applicable in another
case involving an off-duty shooting, noting that the appellant’s shooting of his
fiancée was violent and life-threatening in nature. Backus v. Office of Personnel
Management, 22 M.S.P.R. 457, 460 (1984). This case is distinguishable from
Backus, however. In this case, the appellant did not actually shoot anyone, and
she was not charged with intentionally shooting the gun at her son.
The agency has also not made a showing that the appellant’s misconduct
adversely affected her job performance or that of her coworkers or the agency’s
trust and confidence in the appellant’s job performance. The proposing and
deciding officials testified that the appellant had no performance problems for the
2 months immediately after her arrest, and the proposing official noted that she
was not aware of any other employee alleging that they had performance
problems because of the appellant’s arrest. HT at 25, 81 (testimony of the
proposing and deciding officials). The proposing and deciding officials also cited
the appellant’s FY 2016 performance rating of Exceeds Expectations, which was
completed after the appellant’s arrest, as a significant mitigating factor. IAF,
Tab 12 at 10, 23; HT at 37-38 (testimony of the proposing official). The deciding
official nonetheless stated that the agency did not have trust and confidence in the
appellant’s ability to perform her duties as a Loan Specialist because the
appellant failed to exhibit sound judgment and character, which was required for8
her work involving contact with borrowers, participating banks, members of the
business community, creditors, legal representatives, other Federal agencies,
accountants, program officials in the Service Center, and other field offices. IAF,
Tab 12 at 9-10; HT at 57-58 (testimony of the deciding official). However, we
find that the deciding official’s testimony with regard to “loss of confidence” is
not persuasive. The appellant’s job involved loan servicing and collection
activities, IAF, Tab 12 at 136-37, and her misconduct did not arise out of her
duties and was not related to those duties. The deciding official relies on an
overly broad description of the appellant’s job, and her conclusion is unsupported
by specific evidence indicating that the appellant could not effectively carry out
her duties. In this regard, it is significant that, as noted above, the record shows
that the appellant’s misconduct did not adversely affect her job performance.
Regarding the deciding official’s testimony that the appellant’s misconduct could
have made her colleagues feel unsafe around her, we discern no reason to base a
nexus finding on such testimony because it is speculative and the agency
presented no evidence that the appellant’s colleagues objected to her continued
employment or felt apprehensive in the workplace due to possible exposure to her
misconduct. HT at 58-59 (testimony of the deciding official); see Fisher v.
Department of Health and Human Services , 9 M.S.P.R. 2, 4-5 (1981) (finding that
nexus should not depend on mere assertion or speculation that the appellant’s
off-duty conduct created an apprehension among his coworkers).
Finally, the agency has not made a showing that the appellant’s misconduct
interfered with or adversely affected the agency’s mission. The proposing and
deciding officials noted that agency employees have the responsibility to refrain
from any activity, both on and off duty, that would interfere with effective
operations or would have an adverse impact on the agency and its reputation.
IAF, Tab 12 at 9-10, 37. However, they did not explain how the appellant’s
off-duty misconduct actually interfered with the agency’s mission. With regard
to the 2 months following the appellant’s arrest, the proposing official noted that9
she was not aware of any action by the appellant that negatively impacted the
agency’s mission. HT at 25 (testimony of the proposing official). We note that,
although the Board has consistently found a nexus between off-duty criminal
misconduct by law enforcement officers and the efficiency of the service, law
enforcement officers, due to the nature of their duties, are held to a higher
standard of conduct than other employees. See, e.g., Carlton v. Department of
Justice, 95 M.S.P.R. 633, ¶ 8 (2004). The appellant is not a law enforcement
officer, and accordingly, she is not subject to the same standard. As such, we
find that the agency failed to prove that the appellant’s removal for off -duty
misconduct promotes the efficiency of the service.
The appellant abandoned her affirmative defense of age discrimination.
The appellant identified age discrimination as one of her affirmative
defenses in her initial appeal form. IAF, Tab 1 at 4. Aside from this single
instance, the appellant did not raise this claim in any of the other pleadings in the
record below. As discussed below, we find that the appellant has abandoned this
previously raised affirmative defense.
In Thurman v. U.S. Postal Service , 2022 MSPB 21, ¶¶ 17-18, we set forth a
nonexhaustive list of factors for consideration when determining whether an
appellant will be deemed to have waived or abandoned a previously raised
affirmative defense. The factors include: (1) the thoroughness and clarity with
which the appellant raised her affirmative defense; (2) the degree to which the
appellant continued to pursue her affirmative defense in the proceedings below
after initially raising it; (3) whether the appellant objected to a summary of the
issues to be decided that failed to include the potential affirmative defense when
she was specifically afforded an opportunity to object and the consequences of
her failure were made clear; (4) whether the appellant raised her affirmative
defense or the administrative judge’s processing of the affirmative defense claim
in her petition for review; (5) whether the appellant was represented during the
course of her appeal before the administrative judge and on petition for review,10
and if she was not, the level of knowledge of Board proceedings possessed by the
appellant; and (6) the likelihood that the presumptive abandonment of the
affirmative defense was the product of confusion, or misleading or incorrect
information provided by the agency or the Board. Id., ¶ 18.
Notably, the appellant did not identify her claim of age discrimination as an
issue in her prehearing submission. IAF, Tab 19 at 4. The appellant had an
opportunity to object to the administrative judge’s order and summary of
prehearing conference that delineated the issues to be decided in the appeal, to
the exclusion of all others, which did not include this claim. IAF, Tab 20 at 3-7.
She did not do so. Additionally, the appellant did not file a response to the
agency’s petition for review or address the administrative judge’s failure to
adjudicate such a claim at any point. Throughout this appeal, the appellant was
represented by an attorney, and there is no evidence that her abandonment of her
affirmative defense was due to confusion or misleading or incorrect information
provided by the administrative judge or the agency. As such, we find that, when
weighing all these factors together, the appellant effectively abandoned the
affirmative defense of age discrimination, and we will not consider this issue
further.
We affirm the administrative judge’s finding that the appellant failed to prove her
affirmative defense of retaliation for her EEO activity, as modified to apply the
proper standard.
Below, the appellant alleged that the agency’s removal action was taken in
retaliation for her EEO activity. IAF, Tab 1 at 4, Tab 19 at 4, Tab 20 at 3. The
record shows that the appellant’s underlying EEO activity involved claims of
discrimination based on race, age, and disability. IAF, Tab 4 at 6.
In finding that the appellant failed to prove her affirmative defense of
reprisal for her EEO activity, the administrative judge discussed both the
motivating factor standard, citing to Savage v. Department of the Army ,
122 M.S.P.R. 612, ¶ 41 (2015), overruled in part on other grounds by Pridgen v.11
Office of Management and Budget , 2022 MSPB 31, ¶¶ 23-25, and the standard
applied by the Board for general reprisal claims, citing to Warren v. Department
of the Army, 804 F.2d 654, 656-58 (Fed. Cir. 1986). ID at 7. She applied the
Warren standard, finding that the appellant did not establish a nexus between her
EEO complaint and her removal. ID at 8. However, the Warre standard does not
apply to claims of retaliation for Title VII EEO activity. Mattison v. Department
of Veterans Affairs , 123 M.S.P.R. 492, ¶ 8 (2016). Rather, to prove such a claim,
the appellant must show that retaliation was a motivating factor in the agency’s
decision.9 Pridgen, 2022 MSPB 31, ¶¶ 19-21, 30. To obtain full relief under the
statute, including reinstatement, back pay, and damages, an appellant must show
that retaliation was a “but-for” cause of the agency’s action. Id., ¶ 22. An
appellant may prove a claim of retaliation under Title VII through direct
evidence, circumstantial evidence, or some combination of the two. Id., ¶ 24.
We find that that administrative judge’s application of the Warren standard
does not constitute reversible error because the evidence of record is insufficient
to support the appellant’s claim, even analyzed under the correct evidentiary
standards and framework.10 See Panter v. Department of the Air Force ,
9 The appellant’s EEO activity may have involved a claim of disability discrimination.
Such a claim arises under the Rehabilitation Act of 1973, Pub. L. No. 93-112, 87 Stat.
355, which incorporates the standards for determining whether there has been a
violation of the Americans with Disabilities Act of 1990 (ADA), Pub. L. No. 101-336,
104 Stat. 327, as amended by the ADA Amendments Act of 2008 (ADAAA), Pub. L.
No. 110-325, 122 Stat. 3553. See 29 U.S.C. § 791(f); 29 C.F.R. § 1614.203(b). A more
stringent but-for causation standard applies to claims of retaliation for engaging in
activity protected by the Rehabilitation Act. See Pridgen, 2022 MSPB 31, ¶¶ 46-47.
Because the appellant has failed to meet the less stringent motivating factor standard,
she would necessarily fail to meet the but-for standard.
10 The administrative judge’s discussion of the Warren standard in advising the
appellant of her burdens of proof regarding her affirmative defenses did not harm the
appellant. The Warren standard is higher than the motivating factor standard for
proving retaliation under Pridgen. In particular, in order to meet the “genuine nexus”
requirement under Warren, an appellant must prove, as relevant here, that the adverse
employment action was taken because of the protected activity. Mattison, 123 M.S.P.R.
492, ¶ 8. When a statute prohibits retaliation “because of” protected EEO activity, the
employee’s claim is subject to a but-for causation standard. Pridgen, 2022 MSPB 31,12
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 to reverse an initial
decision). We agree with the administrative judge that the appellant failed to
prove her affirmative defense of retaliation for EEO activity.
ORDER
We ORDER the agency to cancel the removal and restore the appellant,
effective March 19, 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
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
¶¶ 44-46. “But-for” causation is a higher burden than “motivating factor” causation.”
Id., ¶¶ 21 n.4, 22, 28.
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 OF APPEAL RIGHTS11
You may obtain review of this final decision. 5 U.S.C. § 7703(a)(1). By
statute, the nature of your claims determines the time limit for seeking such
review and the appropriate forum with which to file. 5 U.S.C. § 7703(b).
11 Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise which option is most appropriate in any matter.14
Although we offer the following summary of available appeal rights, the Merit
Systems Protection Board does not provide legal advice on which option is most
appropriate for your situation and the rights described below do not represent a
statement of how courts will rule regarding which cases fall within their
jurisdiction. If you wish to seek review of this final decision, you should
immediately review the law applicable to your claims and carefully follow all
filing time limits and requirements. Failure to file within the applicable time
limit may result in the dismissal of your case by your chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision.
5 U.S.C. § 7703(b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the following
address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.15
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.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. 420 (2017). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the district court no later than 30 calendar days after your representative
receives this decision. If the action involves a claim of discrimination based on
race, color, religion, sex, national origin, or a disabling condition, you may be
entitled to representation by a court-appointed lawyer and to waiver of any
requirement of prepayment of fees, costs, or other security. See
42 U.S.C. § 2000e-5(f) and 29 U.S.C. § 794a.
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702(b)(1). You must file any such request with the16
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or
other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
disposition of allegations of a prohibited personnel practice described in
section 2302(b) other than practices described in section 2302(b)(8), or
2302(b)(9)(A)(i), (B), (C), or (D),” then you may file a petition for judicial
review either with the U.S. Court of Appeals for the Federal Circuit or any court
of appeals of competent jurisdiction.12 The court of appeals must receive your
12 The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of17
petition for review within 60 days of the date of issuance of this decision.
5 U.S.C. § 7703(b)(1)(B).
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the following
address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the 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. 18
Contact information for the courts of appeals can be found at their
respective websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
FOR THE BOARD: ______________________________
Gina K. Grippando
Clerk of the Board
Washington, D.C.19
DEFENSE FINANCE AND ACCOUNTING SERVICE
Civilian Pay Operations
DFAS BACK PAY CHECKLIST
The following documentation is required by DFAS Civilian Pay to compute and pay back pay
pursuant to 5 CFR § 550.805. Human resources/local payroll offices should use the following
checklist to ensure a request for payment of back pay is complete. Missing documentation may
substantially delay the processing of a back pay award. More information may be found at:
https://wss.apan.org/public/DFASPayroll/Back%20Pay%20Process/Forms/AllItems.aspx.
NOTE: Attorneys’ fees or other non-wage payments (such as damages) are paid by
vendor pay, not DFAS Civilian Pay.
☐1) Submit a “SETTLEMENT INQUIRY - Submission” Remedy Ticket. Please identify the
specific dates of the back pay period within the ticket comments.
Attach the following documentation to the Remedy Ticket, or provide a statement in the ticket
comments as to why the documentation is not applicable:
☐2) Settlement agreement, administrative determination, arbitrator award, or order.
☐3) Signed and completed “Employee Statement Relative to Back Pay”.
☐4) All required SF50s (new, corrected, or canceled). ***Do not process online SF50s
until notified to do so by DFAS Civilian Pay.***
☐5) Certified timecards/corrected timecards. ***Do not process online timecards
until notified to do so by DFAS Civilian Pay.***
☐6) All relevant benefit election forms (e.g., TSP, FEHB, etc.).
☐7) Outside earnings documentation. Include record of all amounts earned by the
employee in a job undertaken during the back pay period to replace federal
employment. Documentation includes W-2 or 1099 statements, payroll
documents/records, etc. Also, include record of any unemployment earning
statements, workers’ compensation, CSRS/FERS retirement annuity payments,
refunds of CSRS/FERS employee premiums, or severance pay received by the
employee upon separation.
Lump Sum Leave Payment Debts: When a separation is later reversed, there is no authority
under 5 U.S.C. § 5551 for the reinstated employee to keep the lump sum annual leave payment
they may have received. The payroll office must collect the debt from the back pay award. The
annual leave will be restored to the employee. Annual leave that exceeds the annual leave
ceiling will be restored to a separate leave account pursuant to 5 CFR § 550.805(g).
NATIONAL FINANCE CENTER CHECKLIST FOR BACK PAY CASES
Below is the information/documentation required by National Finance Center to process
payments/adjustments agreed on in Back Pay Cases (settlements, restorations) or as ordered by
the Merit Systems Protection Board, EEOC, and courts .
1.Initiate and submit AD-343 (Payroll/Action Request) with clear and concise information
describing what to do in accordance with decision.
2.The following information must be included on AD-343 for Restoration:
a.Employee name and social security number.
b.Detailed explanation of request.
c.Valid agency accounting.
d.Authorized signature (Table 63).
e.If interest is to be included.
f.Check mailing address.
g.Indicate if case is prior to conversion. Computations must be attached.
h.Indicate the amount of Severance and Lump Sum Annual Leave Payment to be
collected (if applicable).
Attachments to AD-343
1.Provide pay entitlement to include Overtime, Night Differential, Shift Premium, Sunday
Premium, etc. with number of hours and dates for each entitlement (if applicable).
2.Copies of SF-50s (Personnel Actions) or list of salary adjustments/changes and amounts.
3.Outside earnings documentation statement from agency.
4.If employee received retirement annuity or unemployment, provide amount and address to
return monies.
5.Provide forms for FEGLI, FEHBA, or TSP deductions (if applicable).
6.If employee was unable to work during any or part of the period involved, certification of the
type of leave to be charged and number of hours.
7.If employee retires at end of Restoration Period, provide hours of Lump Sum Annual Leave
to be paid.
NOTE: If prior to conversion, agency must attach Computation Worksheet by Pay Period and
required data in 1-7 above.
The following information must be included on AD-343 for Settlement Cases: (Lump Sum
Payment, Correction to Promotion, Wage Grade Increase, FLSA, etc.)
a.Must provide same data as in 2, a-g above.
b.Prior to conversion computation must be provided.
c.Lump Sum amount of Settlement, and if taxable or non-taxable.
If you have any questions or require clarification on the above, please contact NFC’s
Payroll/Personnel Operations at 504-255-4630. | West_DarleneAT-0752-19-0755-I-1_Final_Order.pdf | 2025-01-27 | DARLENE WEST v. SMALL BUSINESS ADMINISTRATION, MSPB Docket No. AT-0752-19-0755-I-1, January 27, 2025 | AT-0752-19-0755-I-1 | NP |
245 | https://www.mspb.gov/decisions/nonprecedential/Cordova_CharaSF-0845-21-0545-B-1_Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
CHARA L. CORDOVA,
Appellant,
v.
OFFICE OF PERSONNEL
MANAGEMENT,
Agency.DOCKET NUMBER
SF-0845-21-0545-B-1
DATE: January 27, 2025
THIS FINAL ORDER IS NONPRECEDENTIAL1
Chara L. Cordova , Arcadia, California, pro se.
Angerlia D. Johnson and Carla Robinson , Washington, District of
Columbia, 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 remand initial decision,
which affirmed the final decision of the Office of Personnel Management (OPM)
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).
finding that the appellant received an overpayment of Federal Employees’
Retirement System retirement benefits and was not entitled to an adjustment of
the repayment schedule of $50 per month for 442 months with a final installment
of $2.00. On petition for review, the appellant argues that recovery of the
overpayment would be against equity and good conscience and would result in
financial hardship. 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.
In reaching this decision, we have considered the appellant’s June 9, 2023
pleading before the administrative judge and the documents that the appellant
submits for the first time on review, but find that they do not warrant an outcome
different from that of the remand initial decision. We have not considered OPM’s
response to the appellant’s petition for review because it was untimely filed
without a showing of good cause for the delay in filing. 5 C.F.R.
§ 1201.114(e)-(g). Therefore, we DENY the petition for review and AFFIRM the
remand 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).
2 Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise which option is most appropriate in any matter.3
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the following
address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. 420 (2017). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the district court no later than 30 calendar days after your representative
receives this decision. If the action involves a claim of discrimination based on4
race, color, religion, sex, national origin, or a disabling condition, you may be
entitled to representation by a court-appointed lawyer and to waiver of any
requirement of prepayment of fees, costs, or other security. See 42 U.S.C.
§ 2000e-5(f) and 29 U.S.C. § 794a.
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702(b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or5
other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
disposition of allegations of a prohibited personnel practice described in
section 2302(b) other than practices described in section 2302(b)(8), or
2302(b)(9)(A)(i), (B), (C), or (D),” then you may file a petition for judicial
review either with the U.S. Court of Appeals for the Federal Circuit or any court
of appeals of competent jurisdiction.3 The court of appeals must receive your
petition for review within 60 days of the date of issuance of this decision.
5 U.S.C. § 7703(b)(1)(B).
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the following
address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
3 The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115-195,
132 Stat. 1510. 6
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
Contact information for the courts of appeals can be found at their
respective websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
FOR THE BOARD: ______________________________
Gina K. Grippando
Clerk of the Board
Washington, D.C.7 | Cordova_CharaSF-0845-21-0545-B-1_Final_Order.pdf | 2025-01-27 | CHARA L. CORDOVA v. OFFICE OF PERSONNEL MANAGEMENT, MSPB Docket No. SF-0845-21-0545-B-1, January 27, 2025 | SF-0845-21-0545-B-1 | NP |
246 | https://www.mspb.gov/decisions/nonprecedential/Singh-Hart_NaliniSF-844E-23-0139-I-1_Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
NALINI SINGH-HART,
Appellant,
v.
OFFICE OF PERSONNEL
MANAGEMENT,
Agency.DOCKET NUMBER
SF-844E-23-0139-I-1
DATE: January 27, 2025
THIS FINAL ORDER IS NONPRECEDENTIAL1
Nalini Singh-Hart , Hayward, California, pro se.
Linnette Scott , Washington, District of Columbia, 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
affirmed the Office of Personnel Management’s reconsideration decision
dismissing her application for disability retirement under the Federal Employee
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and 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 as untimely filed. On petition for review, the appellant does
not dispute the administrative judge’s finding, but she asserts that she has gone
through “episodes of major depression.” 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 | Singh-Hart_NaliniSF-844E-23-0139-I-1_Final_Order.pdf | 2025-01-27 | null | SF-844E-23-0139-I-1 | NP |
247 | https://www.mspb.gov/decisions/nonprecedential/Smith_Jr._TerryCH-0714-23-0143-I-1_Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
TERRY SMITH JR.,
Appellant,
v.
DEPARTMENT OF VETERANS
AFFAIRS,
Agency.DOCKET NUMBER
CH-0714-23-0143-I-1
DATE: January 27, 2025
THIS FINAL ORDER IS NONPRECEDENTIAL1
Veronica Harte , Esquire, and Michael I. Sheeter , Esquire, Dallas, Texas,
for the appellant.
Gary Levine , Esquire, Nicholas Peluso , Esquire, and Justine Fernandez ,
Esquire, Hines, Illinois, 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
affirmed the appellant’s removal under the provisions of 38 U.S.C. § 714.
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).
Generally, we grant petitions such as this one only in the following
circumstances: the initial decision contains erroneous findings of material fact;
the initial decision is based on an erroneous interpretation of statute or regulation
or the erroneous application of the law to the facts of the case; the administrative
judge’s rulings during either the course of the appeal or the initial decision were
not consistent with required procedures or involved an abuse of discretion, and
the resulting error affected the outcome of the case; or new and material evidence
or legal argument is available that, despite the petitioner’s due diligence, was not
available when the record closed. Title 5 of the Code of Federal Regulations,
section 1201.115 (5 C.F.R. § 1201.115). After fully considering the filings in this
appeal, we conclude that the petitioner has not established any basis under section
1201.115 for granting the petition for review. Therefore, we DENY the petition
for review. Except as expressly MODIFIED to apply the law of Illinois regarding
collateral estoppel, we AFFIRM the initial decision.
Here, the agency removed the appellant from his Police Officer position
based on two charges, conduct unbecoming and failure to meet position
requirements. Initial Appeal File (IAF), Tab 5 at 20. The administrative judge
sustained the charges, finding that the appellant was collaterally estopped from
relitigating the facts underlying his criminal conviction for Reckless Conduct.
IAF, Tab 20, Initial Decision (ID) at 11-12.
Though not raised by either party on review, we find that the administrative
judge mistakenly relied on the wrong standards for collateral estoppel.
ID at 12 n.5. We nonetheless find that, under the proper standards, the
requirements for collateral estoppel are satisfied in this case.
Under the Board’s standards for collateral estoppel, a party is barred from
relitigating an issue that was previously litigated if: (1) the issue is identical to
that involved in the prior action; (2) the issue was actually litigated in the prior
action; (3) the determination on the issue in the prior action was necessary to the
resulting judgment; and (4) the party against whom issue preclusion is sought had2
a full and fair opportunity to litigate the issue in the prior action, either as a party
to the earlier action or one whose interests were otherwise fully represented in
that action. McNeil v. Department of Defense , 100 M.S.P.R. 146, ¶ 15 (2005).
However, in a case such as this, in which the prior action resulted in a criminal
conviction in state court, the Board must apply that state’s collateral estoppel
standards. Mosby v. Department of Housing and Urban Development ,
114 M.S.P.R. 674, ¶¶ 5-6 (2010) (applying District of Columbia collateral
estoppel standards). Accordingly, it is Illinois’s collateral estoppel standards that
govern in this appeal.
In Illinois, collateral estoppel applies when “(1) an issue decided in a prior
adjudication is identical with the one presented in the current litigation, (2) there
was a final judgment on the merits in the prior adjudication, and (3) the party
against whom estoppel is asserted was a party or in privity with a party to the
prior adjudication.” Givens v. City of Chicago , 2023 IL 127837, ¶ 48; Hope
Clinic for Women, Ltd. v. Flores , 2013 IL 112673, ¶ 77. All the requirements for
the application of collateral estoppel are met in this case. The issue in the
criminal proceeding is identical to the issue presented in this appeal; there was a
final judgment in the prior adjudication; and the appellant was a party to the
criminal proceeding. We agree with the administrative judge that the appellant is
precluded from re-litigating the facts underlying his criminal conviction for
Reckless Conduct. ID at 12.
For the reasons stated in the initial decision, we find that the agency proved
its charges, nexus, and the reasonableness of the penalty. We also find that the
appellant failed to prove his affirmative defenses of race discrimination and a
violation of due process. Accordingly, we affirm the initial decision, which
affirmed the appellant’s removal under the provisions of 38 U.S.C. § 714.3
NOTICE OF APPEAL RIGHTS2
The initial decision, as supplemented by this Final Order, constitutes the
Boards final decision in this matter. 5 C.F.R. § 1201.113. You may obtain
review of this final decision. 5 U.S.C. § 7703(a)(1). By statute, the nature of
your claims determines the time limit for seeking such review and the appropriate
forum with which to file. 5 U.S.C. § 7703(b). Although we offer the following
summary of available appeal rights, the Merit Systems Protection Board does not
provide legal advice on which option is most appropriate for your situation and
the rights described below do not represent a statement of how courts will rule
regarding which cases fall within their jurisdiction. If you wish to seek review of
this final decision, you should immediately review the law applicable to your
claims and carefully follow all filing time limits and requirements. Failure to file
within the applicable time limit may result in the dismissal of your case by your
chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(A).
2 Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise which option is most appropriate in any matter.4
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the following
address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. 420 (2017). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the district court no later than 30 calendar days after your representative
receives this decision. If the action involves a claim of discrimination based on5
race, color, religion, sex, national origin, or a disabling condition, you may be
entitled to representation by a court-appointed lawyer and to waiver of any
requirement of prepayment of fees, costs, or other security. See 42 U.S.C.
§ 2000e-5(f) and 29 U.S.C. § 794a.
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702(b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or6
other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
disposition of allegations of a prohibited personnel practice described in section
2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i),
(B), (C), or (D),” then you may file a petition for judicial review either with the
U.S. Court of Appeals for the Federal Circuit or any court of appeals of
competent jurisdiction.3 The court of appeals must receive your petition for
review within 60 days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(B).
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the following
address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
3 The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115-195,
132 Stat. 1510.7
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
Contact information for the courts of appeals can be found at their
respective websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
FOR THE BOARD: ______________________________
Gina K. Grippando
Clerk of the Board
Washington, D.C.8 | Smith_Jr._TerryCH-0714-23-0143-I-1_Final_Order.pdf | 2025-01-27 | TERRY SMITH JR. v. DEPARTMENT OF VETERANS AFFAIRS, MSPB Docket No. CH-0714-23-0143-I-1, January 27, 2025 | CH-0714-23-0143-I-1 | NP |
248 | https://www.mspb.gov/decisions/nonprecedential/Lauritano_Kristen_M_PH-3443-20-0157-I-2_Remand_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
KRISTEN M. LAURITANO,
Appellant,
v.
DEPARTMENT OF
TRANSPORTATION,
Agency.DOCKET NUMBER
PH-3443-20-0157-I-2
DATE: January 27, 2025
THIS ORDER IS NONPRECEDENTIAL1
William Blakely , Esquire, Great Falls, Virginia, for the appellant.
Daniel P. Kohlmeyer , Esquire, Jamaica, New York, for the agency.
Christopher R. Lopez , Esquire, Des Plaines, Illinois, 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.
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and 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 her appeal in part for lack of jurisdiction, and in part as untimely filed .
For the reasons discussed below, we GRANT the appellant’s petition for review,
VACATE the initial decision , and REMAND the case to the regional office for
further adjudication in accordance with this Remand Order.
BACKGROUND
The appellant was an Air Traffic Control Specialist (ATCS) for the agency,
stationed in Morristown, New Jersey. Lauritano v. Department of
Transportation, MSPB Docket No. PH-3443-20-0157-I-1, Initial Appeal File
(IAF), Tab 11 at 13. By memorandum dated April 16, 2018, the agency
discontinued her ATCS training at the New Jersey facility. IAF, Tab 10 at 43.
The appellant responded by requesting to be reassigned to a lower -level
tower facility in the agency’s eastern region. Id. at 44. Although the appellant’s
supervisor recommended her removal after the discontinuation of her ATCS
training, the agency instead approved her reassignment to one of two lower -level
facilities in Alaska—Fairbanks or Dillingham. Id. at 32-33, 40. The appellant’s
first choice was Dillingham, and the agency extended her an offer for that
position, but the appellant ultimately declined it. Id. at 24-26. Effective
October 20, 2018, the agency removed the appellant from her position for failure
to demonstrate skills essential to ATCS duties at the Certified Professional
Controller/Full Performance Level status. IAF, Tab 10 at 12-15, Tab 11 at 13.
Prior to her removal, on September 11, 2018, the appellant filed an equal
employment opportunity (EEO) complaint, alleging that she was subjected to
discrimination and harassment based on sex, perceived disability, and reprisal for
prior EEO activity when the agency discontinued her ATCS training and
recommended her employment retention at a lower-level facility in Alaska. IAF,2
Tab 7 at 22-33. On December 31, 2019, the agency issued a final decision
finding no discrimination. IAF, Tab 1 at 17-41.
On January 29, 2020, the appellant filed a Board appeal, contesting her
removal and the various agency actions and decisions leading up to it. IAF,
Tab 1. She requested a hearing. Id. at 1. Without holding the appellant’s
requested hearing, the administrative judge dismissed the appeal, in part for lack
of jurisdiction and in part as untimely filed. Lauritano v. Department of
Transportation, MSPB Docket No. PH-3443-20-0157-I-2, Appeal File (I-2 AF),
Tab 8, Initial Decision (ID) at 2. Specifically, he found that the Board lacks
jurisdiction over the several non-removal actions that the appellant was
attempting to appeal and that with respect to the removal itself, the appeal was
untimely by more than 14 months, without good cause shown for the delay. ID
at 5-9. The administrative judge acknowledged that the appellant filed her appeal
within 30 days of receiving the final agency decision on discrimination, but he
found that the removal was not a subject of the EEO complaint. ID at 6-8.
The appellant has filed a petition for review, disputing the administrative
judge’s analysis and providing additional documentation in support of her case.
Petition for Review (PFR) File, Tab 1. The agency has responded to the petition
for review, and the appellant has filed a reply to the agency’s response.2 PFR
File, Tabs 3, 4.
ANALYSIS
Jurisdiction
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
2 After the close of the record on review, the appellant filed a motion to supplement the
record with further briefing in light of a nonprecedential order that the Board issued in
another appeal. PFR File, Tab 6. We deny the motion on the basis that the record is
already sufficiently developed to rule in the appellant’s favor on the issue that she seeks
to address.3
Systems Protection Board , 759 F.2d 9, 10 (Fed. Cir. 1985). For the reasons
explained in the initial decision, we agree with the administrative judge that, in
the context of this appeal, the Board lacks independent jurisdiction over the
discontinuation of the appellant’s ATCS training and her directed reassignment to
Alaska.3 ID at 5-6. See Kirwan v. Department of Transportation , 88 M.S.P.R.
445, ¶ 6 (2001); Roush v. Department of the Interior , 59 M.S.P.R. 113, 117
(1993).
Regarding the reassignment in particular, the Board generally lacks
jurisdiction over a reassignment that does not result in a reduction in grade or
pay. White v. U.S. Postal Service , 117 M.S.P.R. 244, ¶ 13 (2012); Lopez v.
Department of the Navy , 108 M.S.P.R. 384, ¶ 18 (2008). “Pay” for these
purposes means the rate of basic pay fixed by law or administrative action for the
position held by an employee, and it does not include locality or premium pay.
5 U.S.C. § 7511(a)(4); Nigg v. U.S. Postal Service , 91 M.S.P.R. 164, ¶ 12 (2002),
aff’d 321 F3d. 1381 (Fed. Cir. 2003); Shifflett v. Department of the Navy ,
83 M.S.P.R. 472, ¶ 5 n.2 (1999). This limitation is consistent with the Office of
Personnel Management’s regulations governing adverse actions, which provide
that pay is the “basic pay fixed by law or administrative action . . . before any
deductions and exclusive of additional pay of any kind.” 5 C.F.R. § 752.402.
On review, the appellant disputes the administrative judge’s statement that
her directed reassignment to Alaska offered her higher pay than her position in
New Jersey. PFR File, Tab 1 at 24. We agree with the appellant that neither
position in Alaska would have offered her “a greater salary” than her position in
New Jersey. ID at 6. However, this does not change the result.
The base annual salary of $57,162 was the same for the positions in New
Jersey and Alaska. IAF, Tab 10 at 24, Tab 11 at 13. In New Jersey, the appellant
3 Arguably, the offer of reassignment is not a “directed reassignment” in the traditional
sense. However, the consequences to the appellant were the same—either accept the
reassignment or face removal.4
received 32.13% in locality pay, and in Alaska, she would have received both
28.02% in locality pay and a 5.30% Cost of Living Adjustment (COLA). IAF,
Tab 10 at 24, Tab 11 at 13. However, in New Jersey, the appellant also received
Controller Incentive Pay (CIP) such that her net pay in that position was $3,148
greater than the pay she would have received in Alaska.4 Id. at 24-25, Tab 11
at 13. As a result of a reduction in the various kinds of premium pay, the
appellant would have suffered a reduction in net pay had she relocated to Alaska.
However, because locality pay, COLAs, and CIPs are not part of basic pay, they
do not figure into the calculation for purposes of the jurisdictional analysis. We
find that the appellant’s “basic rate of pay” would have been the same in either
New Jersey or Alaska, and so the directed reassignment did not entail a reduction
in pay appealable under 5 U.S.C. chapter 75.
Nevertheless, we find, and it is undisputed, that the appellant’s October 20,
2018 removal is within the Board’s jurisdiction. See 5 U.S.C. § 7512(1).
Timeliness
If an employee files a formal complaint of discrimination concerning an
otherwise appealable action, she may file a Board appeal within 30 days of
receiving the agency’s final decision on the discrimination issue, or if she has not
received the agency’s decision, at any time after 120 days from filing her
complaint. 5 C.F.R. § 1201.154(b). In his initial decision, the administrative
judge found that this provision does not apply to the instant appeal because the
appellant did not include her removal as an issue in her discrimination complaint.
ID at 6-8. On review, the appellant argues that she raised her removal in her
September 11, 2018 discrimination complaint and in an October 21, 2019 letter
amending that complaint.5 PFR File, Tab 1 at 17, 21. We find that the
appellant’s original complaint could not have included her removal because it
4 The U.S. Court of Federal Claims has explained that CIP is a sum of money paid in
addition to salary; thus, it is premium pay. Abbey v. United States , 99 Fed. Cl. 430,
439, 441 (2011).5
predated the removal. However, for the reasons discussed below, we agree with
the appellant that she successfully amended her discrimination complaint to
include her removal.
On October 21, 2019—13 months after she filed her formal complaint of
discrimination and 12 months after the effective date of her removal—the
appellant sent a letter to the Chief of the Case Management Branch of the
agency’s Equal Employment Complaints and Investigations Division. IAF, Tab 7
at 41-43. The appellant requested that the agency accept the letter to amend her
complaint. Id. at 41. The gravamen of the letter was that the complaint should be
processed as a mixed case complaint, i.e., a claim of discrimination that includes
a matter directly appealable to the Merit Systems Protection Board—in this case,
the appellant’s “termination” from service after her probationary period had
expired.6 Id. at 41-43.
5 The Board generally will not consider evidence and argument filed for the first time
on petition for review, absent a showing that it was previously unavailable despite the
party’s due diligence. See Hamilton v. U.S. Postal Service , 123 M.S.P.R. 404, ¶ 19 n.12
(2016). In this case, however, the administrative judge did not clearly notify the
appellant of the timeliness issue in her appeal until the initial decision was issued. Cf.
Wright v. Department of Transportation , 99 M.S.P.R. 112, ¶ 12 (2005) (“The appellant
is entitled to clear notice of the precise timeliness issue and a full and fair opportunity
to litigate it.”). We therefore find it appropriate to consider the evidence and argument
that the appellant has filed on review to the extent that it pertains to the issue of
timeliness.
6 In the context of civil service law, the word “termination” has a very specific
meaning. As relevant here, “termination” refers to an involuntary separation from
service under the provisions of 5 C.F.R. part 315, subpart H, as opposed to “removal,”
which refers to an involuntary separation from service under the provisions of 5 U.S.C.
chapter 75. Compare 5 C.F.R. § 315.804(a), with 5 C.F.R. § 752.401(a)(1). In this
case, the appellant’s representative loosely referred to her removal as a “termination”
both in the complaint of discrimination and in the instant Board appeal. IAF, Tab 6
at 6-9, Tab 7 at 41-43. To make matters worse, one of the issues that the appellant
clearly raised in her initial complaint of discrimination was an April 16, 2018 agency
memorandum styled “Decision Regarding Proposed Termination of Training.” IAF,
Tab 7 at 29-31, 10 at 43. It appears that the agency’s EEO office was confused about
which “termination” was at issue in the discrimination complaint. This confusion has
resulted in an unnecessary delay in processing this case. We caution both parties to be
cognizant of the issue going forward, to refer to a removal as a “removal,” to refer to a6
Ten days later, on October 31, 2019, the Chief of Case Management sent
the appellant a letter, acknowledging receipt of the appellant’s amendment and
agreeing with her that her complaint was a mixed case with respect to Claim 1 in
the Report of Investigation, “as the claim of termination is related to or stems
from actions appealable to the Merit Systems Protection Board.” IAF, Tab 7
at 46-47. Neither party filed a copy of the Report of Investigation itself, but it
appears from the agency’s final decision that Claim 1 concerned the
“termination” of the appellant’s ATCS training—not the “termination” of her
employment. IAF, Tab 1 at 19. As explained above, the discontinuation of
training was not an employment action otherwise appealable to the Board, and the
parties’ undisciplined use of the word “termination” seems to have led the Chief
of Case Management to believe that Claim 1 pertained to a removal within the
Board’s jurisdiction. Supra pp. 4, 6; IAF, Tab 7 at 47. In any event, the
investigation had already concluded 2 days before, and based on the final agency
decision, it does not appear that the agency investigated, much less decided, the
removal issue per se. IAF, Tab 1 at 19-41.
Nevertheless, we find that the appellant’s October 21, 2019 letter was
sufficient to amend her complaint to include her October 20, 2018 removal.
Under 29 C.F.R. § 1614.106(d), “A complainant may amend a complaint at any
time prior to the conclusion of the investigation to include issues or claims like or
related to those raised in the complaint.” There is no requirement that the
complainant seek counseling on her amended claims, and the 45-day time limit of
29 C.F.R. § 1614.105(a)(1) does not apply. Braxton v. U.S. Postal Service ,
EEOC Appeal No. 0120102410, 2010 WL 4388483 at *2 (Oct. 29, 2010).
In this case, we find that the appellant’s removal was related to the
employment actions raised in her original complaint because they were all part of
the same continuum of employment actions. Indeed, the notice of proposed
termination as a “termination,” and to consider using other terms to refer to other
matters, such as, for example, a “discontinuation” of training. 7
removal discussed both the discontinuation of training and the declination of
reassignment at length. IAF, Tab 9 at 22-23. In addition, the appellant filed her
amendment on October 21, 2019, which was prior to the conclusion of the
investigation on October 28, 2019. IAF, Tab 1 at 20, Tab 7 at 41-43. Therefore,
the appellant’s October 21, 2019 letter met all of the requirements of 29 C.F.R.
§ 1614.106(d). To be sure, the agency could have processed the amendment as a
separate complaint, especially considering that the appellant filed it within days
of the deadline for completing the investigation, and it concerned a matter
directly appealable to the Board. See Equal Employment Opportunity
Commission, Management Directive 110, ch. 5 §§ II.A.1, III (Aug. 5, 2015).
However, we find that, in either case, the removal claim was timely raised under
the terms of 29 C.F.R. § 1614.106(d). The agency was not free to reject or ignore
the appellant’s amendment just because she filed it close to the deadline for
completing the investigation.
To the extent that the removal claim should be considered as an amendment
to the appellant’s formal complaint of September 18, 2018, her Board appeal was
timely under 5 C.F.R. § 1201.154(b)(1), having been filed within 30 days of her
receipt of the final agency decision. IAF, Tab 1 at 17, 44. To the extent that the
removal claim should be considered a timely amendment for the agency to
process separately, the appellant’s January 29, 2020 Board appeal would have
been premature, but because more than 120 days have now passed, it is ripe for
adjudication. See Moore v. Department of Justice , 112 M.S.P.R. 382, ¶ 19
(2009); 5 C.F.R. § 1201.154(c).
For these reasons, we find that the appellant’s removal is within the
Board’s jurisdiction and that her appeal of that removal was timely filed. The
appellant is therefore entitled to an adjudication of the merits, to include her
requested hearing.8
ORDER
For the reasons discussed above, we remand this case to the regional office
for further adjudication in accordance with this Remand Order.
FOR THE BOARD: ______________________________
Gina K. Grippando
Clerk of the Board
Washington, D.C.9 | Lauritano_Kristen_M_PH-3443-20-0157-I-2_Remand_Order.pdf | 2025-01-27 | KRISTEN M. LAURITANO v. DEPARTMENT OF TRANSPORTATION, MSPB Docket No. PH-3443-20-0157-I-2, January 27, 2025 | PH-3443-20-0157-I-2 | NP |
249 | https://www.mspb.gov/decisions/nonprecedential/Hayden_Laura_A_DC-3330-20-0376-I-1_Remand_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
LAURA A. HAYDEN,
Appellant,
v.
DEPARTMENT OF THE ARMY,
Agency.DOCKET NUMBER
DC-3330-20-0376-I-1
DATE: January 27, 2025
THIS ORDER IS NONPRECEDENTIAL1
Larry J. Hayden , Camp Creek, West Virginia, for the appellant.
Tatiana Marie Carradine , Esquire, and Jessica I. Ortiz-Sanchez , Esquire,
Fort Liberty, North Carolina, 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
denied her request for corrective action under the Veterans Employment
Opportunities Act (VEOA) of 1998. 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, AFFIRM the administrative judge’s
jurisdictional finding, VACATE the remainder of the initial decision, and
REMAND the case to the Washington Regional Office for further adjudication in
accordance with this Remand Order.
BACKGROUND
The agency issued a merit promotion vacancy announcement
(SCDN191582737538) for the position of GS-12 Organizational Resources
Specialist. Initial Appeal File (IAF), Tab 9 at 40-45. The announcement
specified that it was open to, among others, current or former competitive service
Federal employees, veterans, and military spouses. Id. at 41-42. The appellant, a
preference-eligible veteran, applied but was not selected for the position.2 IAF,
Tab 4 at 12-13, Tab 9 at 22-26. She filed a complaint with the Department of
Labor (DOL), alleging that the agency violated her veterans’ preference rights.
IAF, Tab 4 at 14-15. By letter dated February 5, 2020, DOL informed her that it
was closing its case because its investigation had shown that the evidence did not
support her allegation. Id. at 15.
The appellant filed a Board appeal alleging that her veterans’ preference
rights were violated because a military spouse “block[ed]” her from having her
application considered by the selecting official. IAF, Tab 1 at 6. She submitted
an email from an agency human resources consultant advising her that she was
eligible and qualified for the position but that “[the agency] had numerous
2 The appellant originally claimed that she was entitled to a preference based on her
husband’s status as a disabled veteran when she applied for the vacancy at issue. IAF,
Tab 9 at 24. In addition to honorably discharged veterans who served in the armed
forces of the United States under certain circumstances, spouses of some disabled
veterans are also considered preference eligibles. 5 U.S.C. § 2108. The administrative
judge found that the appellant failed to follow the instructions in the vacancy
announcement to provide proof of her marriage to be entitled to the derived preference
as the spouse of a disabled veteran. IAF, Tab 11, Initial Decision (ID) at 5-7; IAF,
Tab 9 at 28-40, 56. The administrative judge also found, however, that the agency
determined that the appellant was a preference eligible based on her own military
service. ID at 7; IAF, Tab 9 at 28. The parties do not dispute these findings on review.2
[m]ilitary [s]pouses with preference that qualified for [the] position” and
“[m]ilitary [s]pouses block new appointments.” IAF, Tab 4 at 13. The agency
explained the legal basis for granting military spouses a hiring preference and
noted that, for the vacancy at issue, “two referral lists were permitted to be
issued[,]” one with military spouses and another with those eligible for
noncompetitive appointment authorities “such as 30% or more disabled
veterans.”3 IAF, Tab 9 at 10. The agency stated that the selectee for the position
was on the latter referral list. Id.
The administrative judge found that the appellant established jurisdiction
over the VEOA appeal because she had exhausted her administrative remedy with
DOL and made a nonfrivolous allegation that she is a preference eligible within
the meaning of VEOA, the action at issue took place on or after the October 30,
1998 enactment date of VEOA, and the agency violated her rights under a statute
or regulation relating to veterans’ preference. IAF, Tab 11, Initial Decision (ID)
at 3-4; see Bent v. Department of State , 123 M.S.P.R. 304, ¶ 5 (2016) (stating the
basis for Board jurisdiction over a VEOA appeal). However, the administrative
judge denied the appellant’s request for corrective action, without holding a
hearing, because she found that the appellant failed to prove that the agency
violated her rights under any statute or regulation relating to veterans’ preference.
ID at 5-11. The administrative judge observed that, when an agency fills a
position using merit promotion procedures, veterans’ preference is inapplicable
but preference eligibles have the right to compete for the position. ID at 10.
Because the agency stated that the appellant was found to be qualified and the
appellant failed to identify a statute or regulation requiring her referral to the
selecting official or requiring that she receive any additional consideration, the
administrative judge found that the appellant failed to show that she was denied
3 The agency used the term “referral list” for the list of individuals that a selecting
official may choose from in making a hiring decision. Such a list is more commonly
referred to as a “certificate of eligibles.” 3
an opportunity to compete for the position under 5 U.S.C. § 3304(f)(1). ID
at 10-11; see IAF, Tab 9 at 9.
The appellant has filed a petition for review of the initial decision. Petition
for Review (PFR) File, Tab 1. She argues that she did not have the opportunity to
compete because her application did not reach the selecting official and that the
administrative judge misstated the meaning of section 3304(f) to suggest that she
had a right to apply for the position rather than the right to have her application
considered by the selecting official. Id. at 4-5. She also argues that a military
spouse was improperly given priority consideration for the vacancy. Id. at 5-6.
The agency has filed a response. PFR File, Tab 3.
DISCUSSION OF ARGUMENTS ON REVIEW
Title 5, United States Code, section 3304(f)(1) provides, in pertinent part,
that a preference eligible “may not be denied the opportunity to compete for
vacant positions for which the agency making the announcement will accept
applications from individuals outside its own workforce under merit promotion
procedures.” To prevail on the merits of a VEOA appeal involving a veterans’
preference claim,4 an appellant must prove by preponderant evidence that she is a
preference eligible or veteran who was separated from the armed forces under
honorable conditions after 3 years or more of active service; that the actions at
issue took place on or after the October 30, 1998 enactment date of VEOA for
preference eligibles or the December 10, 2004 enactment date of the Veterans’
Benefits Improvement Act of 2004 for veterans covered by section 3304(f)(1);
and 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. See Oram v. Department of the Navy ,
2022 MSPB 30, ¶ 6 (setting forth an appellant’s jurisdictional burden); see also
4 The parties do not dispute, and we agree with the administrative judge, that the
appellant established jurisdiction over the VEOA appeal.4
Graves v. Department of Veterans Affairs , 114 M.S.P.R. 209, ¶¶ 10, 19 (2010)
(reflecting that an appellant’s burden to prove the merits of his VEOA claim is
preponderant evidence). Here, the parties do not dispute, and we find no reason
to disturb, the administrative judge’s findings that the appellant is preference
eligible and the nonselection took place after VEOA’s enactment. ID at 4.
Therefore, the remaining issue is whether the agency’s action violated her right to
compete.5 See Oram, 2022 MSPB 30, ¶ 6.
According to the agency, the appellant applied for the position, her
application was reviewed, and she was ranked in the best qualified category,
along with a military spouse preference (MSP) applicant. IAF, Tab 9 at 9. The
right to compete under section 3304(f)(1) does not require that a preference
eligible be considered at every stage of the selection process up to that process’s
final stage, but it does require that the individual be permitted to compete on the
same basis as the other candidates. Harellson v. U.S. Postal Service ,
113 M.S.P.R. 534, ¶ 11 (2010).
The appellant argues that she was denied a right to compete when the
agency gave priority consideration to an MSP applicant for the vacancy at issue.
PFR File, Tab 1 at 5; IAF, Tab 1 at 6. The agency argues that its internal policy
supported its use of priority consideration for the MSP applicant, IAF, Tab 9
at 9-10, 64, and the record reflects that an agency human resources consultant
informed the appellant that MSP applicants who ranked among the best qualified
“block[ed] new appointments” and any applications resulting in new
appointments would not be referred to the selecting official, IAF, Tab 4 at 13.
The agency’s statement that an MSP applicant precluded further consideration of
the appellant, a preference eligible, raises a question as to whether the agency
5 In the show cause order issued by the Clerk of the Board on October 17, 2024, the
parties were directed to submit evidence and argument addressing whether the appellant
was a current Federal employee at the time she applied for the position at issue. PFR
File, Tab 5. The parties responded to the order, confirming that she was not a current
Federal employee at the time she applied for the position at issue. PFR File, Tabs 6, 9.5
violated the appellant’s right to compete. See Montgomery v. Department of
Health and Human Services , 123 M.S.P.R. 216, ¶ 9 (2016) (stating that an
agency’s internal policy may not override applicable status, including 5 U.S.C.
§ 3304(f)(1)); Shapley v. Department of Homeland Security , 110 M.S.P.R. 31,
¶¶ 12, 16 (2008) (finding a VEOA violation when a preference eligible’s
application was not forwarded to the selecting official because two other
individuals were entitled to priority consideration under agency policy),
overruled on other grounds by Oram , 2022 MSPB 30, ¶ 18; see also 10 U.S.C.
§ 1784 (stating that a military spouse should not be provided a hiring preference
over a preference eligible).
However, the agency stated that it issued two certificates of eligibles for
the vacancy at issue and made a selection from a noncompetitive certificate that
did not include the MSP applicant. IAF, Tab 9 at 10. An agency has the
discretion to fill a vacancy “by any authorized method.” Montgomery,
123 M.S.P.R. 216, ¶ 6. The Board will review the method used by an agency to
fill a vacancy to determine if it is authorized when the use of an unauthorized
method could have denied covered individuals the right to compete. Id.
As to this issue, the record in the instant appeal is not adequately
developed. The agency did not provide the certificate of eligibles from which it
made the selection or the certificate of eligibles on which the MSP applicant
“blocked” the appellant. The agency also did not provide a sworn statement or
declaration under penalty of perjury from anyone involved in the selection
process. If the agency used a means to fill the vacancy at issue under which the
appellant was not entitled to have her application considered, then that would be
relevant evidence that the selection of another individual did not constitute a
violation of the appellant’s right to compete as a preference eligible.6
Thus, we find it appropriate to remand the appeal for further development
of the record.6 On remand, the administrative judge should hold the appellant’s
requested hearing unless, after affording the parties the opportunity to develop
the record consistent with this decision, there is no genuine dispute of material
fact and one party must prevail as a matter of law. Montgomery, 123 M.S.P.R.
216, ¶ 13. The administrative judge should then issue a new initial decision
identifying all material issues of fact and law, summarizing the evidence,
resolving issues of credibility, and setting forth her conclusions of law and her
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).
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.
6 The parties are reminded that statements of a party’s representative in a pleading are
not considered evidence. Marcantel v. Department of Energy , 121 M.S.P.R. 330,
¶ 6 n.1 (2014).7 | Hayden_Laura_A_DC-3330-20-0376-I-1_Remand_Order.pdf | 2025-01-27 | LAURA A. HAYDEN v. DEPARTMENT OF THE ARMY, MSPB Docket No. DC-3330-20-0376-I-1, January 27, 2025 | DC-3330-20-0376-I-1 | NP |
250 | https://www.mspb.gov/decisions/nonprecedential/Ma_WannySF-531D-19-0584-I-1_Remand_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
WANNY MA,
Appellant,
v.
DEPARTMENT OF DEFENSE,
Agency.DOCKET NUMBER
SF-531D-19-0584-I-1
DATE: January 27, 2025
THIS ORDER IS NONPRECEDENTIAL1
Wanny Ma , Monterey Park, California, pro se.
Temple L. Wilson , Esquire, 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.
REMAND ORDER
The appellant has filed a petition for review of the initial decision, which
dismissed for failure to prosecute her appeal of the agency’s denial of a
within-grade increase. For the reasons discussed below, we GRANT the
appellant’s petition for review, VACATE the initial decision, and REMAND the
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).
case to the Western Regional Office for further adjudication in accordance with
this Remand Order.
BACKGROUND
On July 19, 2019, the appellant, a GS-12 Auditor, filed an appeal of the
agency action denying her within-grade increase. Initial Appeal File (IAF),
Tab 2. She requested a hearing. Id. at 2. On August 22, 2019, the administrative
judge scheduled the requested hearing for October 1, 2019, and the prehearing
conference for September 19, 2019, and he required that he receive prehearing
submissions by September 16, 2019. IAF, Tab 9 at 1-2. The agency filed a
prehearing submission, but the appellant did not. IAF, Tab 14. During the
prehearing conference, at which both parties appeared, the administrative judge
rescheduled the hearing for October 10, 2019. IAF, Tab 15 at 2.
On October 6, 2019, the appellant requested that the hearing be postponed
so that she could attend an agency-mandated forum for Auditors about which she
had just learned was to be held on October 10, 2019. IAF, Tab 18 at 4, 6. On
October 8, 2019, while her first motion was still pending, she requested to
“withdraw the hearing” so that she could attend the forum, and she also sought
leave to file more documents to support the allegations made in her previous
submissions. IAF, Tab 22 at 3.
In an Order dated October 9, 2019, the administrative judge denied the
appellant’s request for a postponement of the hearing for lack of good cause.
IAF, Tab 24 at 1, 3-4. He also denied as untimely her request to file additional
documents and rejected as untimely and improperly filed other documents the
appellant had submitted after the final date for such submissions. IAF, Tab 24
at 3-4. In addition, the administrative judge denied as not unequivocal the
appellant’s request to withdraw the hearing, and he ordered the parties and the
approved witnesses to appear at the hearing as scheduled. Id. The administrative
judge noted that the appellant had failed to file a prehearing submission and had2
been informed at the outset of the adjudication process that a failure to comply
with the administrative judge’s orders and the Board’s regulations could result in
the imposition of sanctions, including dismissal of the appeal with prejudice. Id.
at 4.
On October 9, 2019, the appellant filed additional documents, and on that
same date, she filed another pleading in which she again requested to “withdraw
the hearing” to attend the forum. IAF, Tab 26, Tab 27 at 4. On October 10,
2019, in advance of the time the hearing was set to begin, the administrative
judge issued an order rejecting the appellant’s most recent submissions as
untimely and improperly filed. IAF, Tab 28 at 1-2. He again reminded her that
her continued failure to comply could result in the imposition of sanctions,
including dismissal of her appeal for failure to prosecute. Id. at 3.
The appellant did not appear at the hearing. That same day, the
administrative judge issued an order directing the appellant to show cause why
her appeal should not be dismissed for failure to prosecute. IAF, Tab 31 at 1-2.
He ordered the appellant to respond by October 10, 2019, and also set that date as
the close of the record for receipt of all evidence and argument. Id. The agency
submitted a closing brief and evidence in the form of affidavits. IAF, Tab 32. In
two late-filed responses, the appellant sought to demonstrate good cause for her
numerous untimely filings, describing the difficulties she had with the agency
regarding her requests for official time to work on her appeal. IAF, Tabs 33, 35.
In his initial decision, the administrative judge dismissed the appeal for
failure to prosecute. IAF, Tab 37, Initial Decision (ID) at 1, 8-10. He found that
the appellant failed to exercise due diligence in complying with numerous Board
orders and/or exhibited bad faith in her efforts to comply with the Board’s orders.
Id. at 8-9.
The appellant has filed a petition for review. Petition for Review (PFR)
File, Tab 1. The agency has filed a response, and the appellant has replied. PFR
File, Tabs 3, 6.3
DISCUSSION OF ARGUMENTS ON REVIEW
The administrative judge erred in dismissing the appeal for failure to prosecute.
Dismissal for failure to prosecute is a sanction that may be imposed if a
party fails to prosecute or defend an appeal. Turner v. U.S. Postal Service ,
123 M.S.P.R. 640, ¶ 14 (2016), aff’d per curiam , 681 F. App’x 934 (Fed. Cir.
2017); 5 C.F.R. § 1201.43(b). The Board has held that the imposition of such a
severe sanction must be used only when necessary to serve the ends of justice, as
when a party has failed to exercise basic due diligence in complying with an order
or has exhibited negligence or bad faith in her efforts to comply. Turner,
123 M.S.P.R. 640, ¶ 14. The severe sanction of dismissal with prejudice for
failure to prosecute an appeal should not be imposed 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, and appears to be confused by
Board procedures. Id. Nevertheless, absent a showing of abuse of discretion, the
Board will not reverse an administrative judge’s determination regarding the
imposition of sanctions, including the sanction of dismissal with prejudice. Id.
Here, the record does not show that the appellant failed to exercise basic
due diligence or that she exercised negligence or bad faith in her efforts to
comply with the administrative judge’s orders under the circumstances.2 In
finding that dismissal for failure to prosecute was warranted, the administrative
judge reasoned that the appellant did not comply with his orders when, among
other things, she did not timely file prehearing submissions, did not attend the
2 The appellant has not shown good cause for her failure to file a prehearing
submission, as required by the administrative judge’s August 22, 2019 hearing order.
Nonetheless, while the administrative judge noted during the prehearing conference that
the appellant did not make the required submission, he did not indicate that he intended
to sanction her for it. IAF, Tab 15. In any event, this failure to comply with the
administrative judge’s order would not warrant a dismissal of the appeal for failure to
prosecute. See Murdock v. Government Printing Office , 38 M.S.P.R. 297, 299 (1988)
(stating that a single failure to comply with a Board order is insufficient to support
dismissal for failure to prosecute) .4
scheduled hearing, and did not timely respond to the order to show cause. ID
at 2, 6-8. For the following reasons, we find that the administrative judge erred
in not granting the appellant’s request to cancel the hearing and in not issuing a
close of record order that allowed the parties sufficient time to submit final
written submissions to adjudicate the appeal on the merits based on the written
record.
After the administrative judge issued the decision in this appeal, the Board
amended its regulations to clarify that, under 5 C.F.R. § 1201.41(b)(5),
“administrative judges may only hold a hearing if requested by an appellant.” See
Rules & Regulations, 89 Fed. Reg. 72957-01, 72958, 72961 (Sept. 9, 2024). The
Board explained that “[t]his modification reemphasizes that the right to request a
hearing belongs solely to appellants, and that neither administrative judges nor
agencies may order a hearing if the appellant does not wish to have a hearing.”
Id. at 72958. This amendment underlines a right that existed at the time the
administrative judge issued the initial decision, i.e., the right for an appellant to
request a hearing. See 5 U.S.C. § 7701(a)(1) (stating that an appellant shall have
the right to a hearing); Crispin v. Department of Commerce , 732 F.2d 919, 922-24
(Fed. Cir. 1984) (explaining that an appellant is statutorily entitled to a hearing
under 5 U.S.C. § 7701(a)(1)); 5 C.F.R. § 1201.24(d) (discussing an appellant’s
right to a hearing on the merits); 5 C.F.R.
§ 1201.41(b)(5) (reflecting an administrative judge’s authority to grant an
appellant’s request for a hearing).
Here, the appellant sought to withdraw her hearing request on two
occasions ahead of the hearing date on October 10, 2019. IAF, Tab 22 at 3;
Tab 27 at 4. We agree with the administrative judge’s finding that the appellant’s
first withdrawal of her request for a hearing was not unequivocal, as it was filed
while her request to reschedule the hearing was still pending; thus, the motion to
withdraw the hearing request was, in effect, conditioned on the administrative
judge denying the request for a postponement. ID at 4; IAF, Tab 22. However,5
the second request asking the administrative judge to “withdraw the hearing in its
entirety” was clear. IAF, Tab 27 at 4. At that point, the administrative judge
should have canceled the hearing. We therefore find that the extreme sanction of
dismissal for failure to prosecute, which denied the appellant an opportunity for
review of her appeal on the merits, does not serve the ends of justice. See Tully v.
Department of Justice , 95 M.S.P.R. 481, ¶¶ 8, 12 (2004) (vacating an
administrative judge’s dismissal for failure to prosecute because the sanction was
based in part on the pro se appellant failing to appear at a hearing that the
administrative judge scheduled during a period that the appellant had previously
advised the administrative judge he would be on military duty). Accordingly, we
find that the administrative judge abused his discretion in dismissing the appeal
for failure to prosecute.
Determining when to close the record is a matter within the sound
discretion of the administrative judge. Robinson v. Department of the Army ,
50 M.S.P.R. 412, 419 (1991). Nonetheless, when an appeal is decided without a
hearing, the procedures used must comport with the basic requirements of
fairness and notice, including an opportunity to respond to submissions of the
parties. Id. Although the administrative judge’s October 10, 2019 order to show
cause afforded the parties an opportunity to file additional evidence and
argument, he set that same date, i.e., October 10, 2019, as the close of record
date. IAF, Tab 31 at 2. While administrative judges are afforded significant
leeway in managing their dockets, we do not find that requiring parties to make
close of record submissions on the same date the close of record order is issued
allows the parties a reasonable amount of time to prepare and file additional
evidence and argument. See Holland v. Department of Labor , 108 M.S.P.R. 599,
¶¶ 5, 11 (2008) (finding that a 5-day deadline for an appellant to respond to an
order did not provide her with sufficient time to receive the order and respond).
Because we find that the administrative judge should have canceled the hearing
and provided the parties with sufficient time to file close of record submissions,6
we also disagree with the administrative judge’s determination that the
appellant’s absence at the hearing and failure to timely submit a response to the
show cause order demonstrates a lack of due diligence, negligence, or bad faith in
her efforts to comply with his orders.
Thus, we vacate the initial decision and remand the appeal to the regional
office for the administrative judge to adjudicate the appeal on the merits based on
the written record. On remand, the administrative judge should issue a new close
of record order that provides the parties with sufficient time to file additional
evidence and argument, as well as an opportunity to reply to each other’s
submissions. The administrative judge should then issue a decision on the merits
of the appeal based on the written record.
In remanding this appeal, we observe that appellants are expected to
comply with all orders issued by the Board’s administrative judges. Wiggins v.
Department of the Air Force , 113 M.S.P.R. 443, ¶ 15 (2010). Moreover, an
administrative judge may impose various sanctions when a party fails to comply
with an order. Id.; see 5 C.F.R. § 1201.43(a) (listing possible sanctions).
Accordingly, on remand, the appellant must be more diligent in complying with
the administrative judge’s orders and in pursuing her appeal to avoid the
imposition of sanctions as necessary to serve the ends of justice. See Wiggins,
113 M.S.P.R. 443, ¶ 15.3
The appellant argues that the administrative judge demonstrated bias
against her and in favor of the agency in his rulings. PFR File, Tab 1 at 3-5. In
making a claim of bias or prejudice against an administrative judge, a party must
overcome the presumption of honesty and integrity that accompanies
3 Because we are vacating the initial decision and remanding the appeal for a decision
on the merits, we need not reach the appellant’s remaining argument on review that the
agency hindered her efforts to comply with the administrative judge’s orders. PFR File,
Tab 1 at 21-22. We also have not considered the additional documentation that the
appellant submitted with her petition for review. PFR File, Tab 1 at 7-20, 22-23. The
appellant may submit these materials into the record on remand consistent with the
orders of the administrative judge.7
administrative adjudicators . Oliver v. Department of Transportation , 1 M.S.P.R.
382, 386 (1980). The party must show that the bias constitutes extrajudicial
conduct rather than conduct arising during the administrative proceedings before
him. Tyler v. U.S. Postal Service , 90 M.S.P.R. 545, ¶ 7 (2002); Gensburg v.
Department of Veterans Affairs , 85 M.S.P.R. 198, ¶ 6 (2000). The fact that an
administrative judge ruled against a party is insufficient evidence to show bias.
Tyler, 90 M.S.P.R. 545, ¶ 7; Gensburg, 85 M.S.P.R. 198, ¶ 6. Because the
appellant’s claims of bias derive from the administrative judge’s rulings during
the proceedings, she has not established bias.
ORDER
For the reasons discussed above, we remand this case to the Western
Regional Office for further adjudication in accordance with this Remand Order.
FOR THE BOARD: ______________________________
Gina K. Grippando
Clerk of the Board
Washington, D.C.8 | Ma_WannySF-531D-19-0584-I-1_Remand_Order.pdf | 2025-01-27 | WANNY MA v. DEPARTMENT OF DEFENSE, MSPB Docket No. SF-531D-19-0584-I-1, January 27, 2025 | SF-531D-19-0584-I-1 | NP |
251 | https://www.mspb.gov/decisions/nonprecedential/Thomas_Ernest_J_AT-0714-20-0654-I-1_Remand_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
ERNEST J. THOMAS,
Appellant,
v.
DEPARTMENT OF VETERANS
AFFAIRS,
Agency.DOCKET NUMBER
AT-0714-20-0654-I-1
DATE: January 24, 2025
THIS ORDER IS NONPRECEDENTIAL1
Joseph Emanuel Wade , Miami, Florida, for the appellant.
Caroline E. Johnson , St. Petersburg, Florida, for the agency.
Kristin Ann Langwell , Esquire, Tampa, Florida, 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.
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and 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
sustained his removal under the authority of the Department of Veterans Affairs
Accountability and Whistleblower Protection Act of 2017 (VA Accountability
Act), Pub. L. No. 115-41, § 202(a), 131 Stat. 862, 869-73 (2017) (codified at
38 U.S.C. § 714). For the reasons discussed below, we GRANT the appellant’s
petition for review, VACATE the initial decision, and REMAND the case to the
regional office for further adjudication in accordance with this Remand Order.
BACKGROUND
Effective June 26, 2020, the agency removed the appellant from his
position as a WG-2 Housekeeping Aid under 38 U.S.C. § 714 based on the charge
of failure to maintain a regular work schedule. Initial Appeal File (IAF), Tab 4
at 17, 19-21, 23. Specifically, the agency alleged that the appellant was
continuously absent from duty between March 5 and June 5, 2020, and that he did
not contact his supervisor during this timeframe. Id. at 23. The appellant
appealed his removal to the Board, averring that he suffered an addiction-related
relapse during the relevant period and that, although the agency was aware of his
struggles, it failed to refer him to Employee Assistance Program (EAP) or offer
any assistance. IAF, Tab 1 at 3, 5. Following a prehearing conference, the
administrative judge explained that, because the appellant had alleged that he
informed the agency of the relapse, he may be entitled to leave under the Family
and Medical Leave Act of 1993 (FMLA) during the relevant period. IAF, Tab 11
at 3. He also informed the appellant that he would consider the appellant’s claim
that the agency failed to refer him to EAP as a claim of harmful error, and
informed him of the evidentiary burdens associated with the same. Id. at 3-4.
After holding a hearing, the administrative judge issued an initial decision
finding that the agency proved its charge of failure to maintain a regular work
schedule by substantial evidence. IAF, Tab 29, Initial Decision (ID) at 2-4. In so2
finding, he concluded that the appellant had been absent from duty from March 5
to June 5, 2020, and that he made no attempt to contact the agency regarding his
medical conditions or his absence until after his shift ended on June 5, 2020. ID
at 4. The administrative judge also found that the agency established that its
removal action did not interfere with the appellant’s FMLA rights and that the
penalty of removal was supported by substantial evidence. ID at 4-8. Lastly, he
concluded that the appellant did not prove his claim of harmful error with respect
to the agency’s alleged failure to refer him to EAP because the appellant did not
present evidence establishing that the agency violated any law, rule, regulation,
or policy related thereto. ID at 8-9.
The appellant filed a petition for review, arguing, among other things, that
he was entitled to FMLA-protected leave during the relevant period and that the
agency committed various acts of improprieties prior to and during the hearing.
Petition for Review (PFR) File, Tabs 1-2. The agency has filed a response in
opposition to the appellant’s petition for review, and the appellant has filed a
reply. PFR File, Tabs 4-5.
DISCUSSION OF ARGUMENTS ON REVIEW
The appellant’s arguments on review do not provide a basis to disturb the
administrative judge’s findings sustaining the charge.
On review, the appellant effectively concedes that he was absent from work
between March 5 and June 5, 2020. PFR File, Tab 1 at 4. However, he contends
that he was entitled to FMLA-protected leave during the relevant period, but that
he was unable to request the same due to exigent circumstances related to his
relapse and health, and that when he did attempt to request FMLA-protected leave
by calling agency management on June 5, 2020, management disregarded him.
Id. at 4-5. If an agency bases an adverse action on its interference with an
employee’s rights under the FMLA, the adverse action is a violation of law and
cannot be sustained. Gross v. Department of Justice , 77 M.S.P.R. 83, 90 (1997).3
As relevant here, an employee may be eligible for FMLA-protected leave if the
employee suffers from a “serious health condition.” 5 U.S.C. § 6382(a)(1)(D).
An employee’s use of an illegal substance constitutes a “serious health condition”
only if “the employee is receiving treatment for substance abuse by a health care
provider or by a provider of health care services on referral by a health care
provider.” See 5 C.F.R. § 630.1202 (definition of “[s]erious health condition”).
Here, the appellant has not provided a basis to disturb the administrative
judge’s conclusion that his addiction did not qualify as a “serious health
condition” because there is no evidence that he received medical treatment for his
drug addiction between March 5 and June 5, 2020. ID at 6; see 5 C.F.R.
§ 630.1202. Moreover, he has not provided any basis to disturb the
administrative judge’s alternative conclusion that, even assuming that the
appellant’s medical issues constituted a “serious health condition,” the appellant
did not show that it was unfeasible for him, or for anyone else acting on his
behalf, to contact the agency and relay his need for leave between March 5 and
June 5, 2020. ID at 6-7; see 5 C.F.R. § 630.1207(d)-(e) (stating that generally an
employee should provide 30 calendar days’ notice of the need for FMLA leave,
but, if the need for leave is unforeseeable, an employee must provide notice
“within a reasonable period of time appropriate to the circumstances involved”).
Thus, we discern no basis to disturb the administrative judge’s findings that the
agency proved its charge by substantial evidence. ID at 4.
The appellant’s arguments on review do not provide a basis to disturb the
administrative judge’s findings regarding his affirmative defense of harmful
error.
The appellant also reiterates on review that agency management committed
harmful error by failing to offer him EAP services, arguing that, although the
agency mailed him two return-to-duty letters that specifically informed him of the
availability of EAP services, the agency should have done more to ensure that he
had received these letters, and that it should have offered him training on EAP4
services or sent agency police to conduct a welfare check on him. PFR File,
Tab 1 at 5-6, Tab 2 at 5-6, Tab 5 at 7; IAF, Tab 4 at 26-28, 30-32. The appellant
identifies no law, regulation, rule, or policy that he believes the agency violated,
and vague and conclusory assertions do not undermine the administrative judge’s
reasoned conclusion that the appellant failed to offer evidence of any procedural
error on the part of the agency, much less an error that would have resulted in a
different outcome. ID at 9; see Pumphrey v. Department of Defense ,
122 M.S.P.R. 186, ¶ 10 (2015) (explaining that a procedural error is harmful only
when 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); 5 C.F.R. § 1201.4(r). Thus, we discern no basis to
disturb the administrative judge’s findings regarding the appellant’s affirmative
defense of harmful error. ID at 9.
The appellant has not presented allegations on review that would warrant a
different outcome.
In general, the appellant’s assertions on review of agency wrongdoing,
including allegations of deception, coercion, perjury, and slander, are far too
vague and unsubstantiated to warrant a different outcome. See Tines v.
Department of the Air Force , 56 M.S.P.R. 90, 92 (1992) (explaining that a
petition for review must contain sufficient specificity to enable the Board to
ascertain whether there is a serious evidentiary challenge and concluding that the
appellant’s petition contained neither evidence nor argument demonstrating error
by the administrative judge). However, the appellant identifies two specific
purported improprieties committed by agency personnel during the hearing,
namely, that at an unspecified point during the hearing, he saw two agency
witnesses together in the same room and that an agency employee who was not a
witness was allowed to “participate” in the hearing. PFR File, Tab 1 at 6. The
appellant appears to be referring to the administrative judge’s ruling that an
agency employee, who was not a witness, was permitted to observe the Zoom5
hearing.2 IAF, Tab 22, Hearing Recording at 05:40 to 06:55 (statement of the
administrative judge). Nevertheless, the appellant has failed to explain how
either of these purported errors adversely affected his substantive rights, and thus,
they do not warrant a different outcome. See Karapinka v. Department of Energy ,
6 M.S.P.R. 124, 127 (1981) (explaining that the administrative judge’s procedural
error is of no legal consequence unless it is shown to have adversely affected a
party’s substantive rights).
We remand the matter for the administrative judge to provide the parties with an
opportunity to present evidence and argument regarding whether the agency’s
error in sustaining the removal based on substantial evidence harmed the
appellant.
Notwithstanding the above findings, remand of this appeal is required for a
different reason. To this end, the deciding official here sustained the agency’s
action because she found that there was substantial evidence to support the charge
levied against the appellant. IAF, Tab 4 at 19. After the initial decision in this
appeal was issued, the U.S. Court of Appeals for the Federal Circuit (Federal
Circuit) found in Rodriguez v. Department of Veterans Affairs , 8 F.4th 1290,
1296-1301 (Fed. Cir. 2021), that the agency had erred by applying the substantial
evidence standard to its internal review of a disciplinary action under 38 U.S.C.
§ 714. The Federal Circuit found that substantial evidence is the standard of
review to be applied by the Board, not the agency, and that the agency’s deciding
official must apply the preponderance of evidence standard in determining
whether the appellant’s performance or misconduct warrants the action at issue.
Rodriguez, 8 F.4th at 1298-1301; see Bryant v. Department of Veterans Affairs ,
26 F.4th 1344, 1347 (Fed. Cir. 2022) (agreeing with the appellant’s contention
that the agency’s decision was legally flawed when the deciding official found the
charge proven merely by substantial evidence rather than preponderant evidence,
as required by Rodriguez).
2 Board hearings are generally open to the public. See 5 C.F.R. § 1201.52(a). 6
The Federal Circuit’s decision in Rodriguez applies to all pending cases,
regardless of when the events took place. Semenov v. Department of Veterans
Affairs, 2023 MSPB 16, ¶ 22. The administrative judge and the parties here did
not have the benefit of Rodriguez prior to the close of record. We therefore
remand this case for adjudication of whether the agency’s application of the
substantial evidence standard was harmful error. See id., ¶ 23 (finding it
appropriate to apply the harmful error standard from 5 U.S.C. § 7701(c)(2)
actions taken under 38 U.S.C. § 714).
On remand, the administrative judge should allow the parties an opportunity to
present evidence and argument regarding whether the agency considered the
Douglas factors in determining the penalty.
In Connor v. Department of Veterans Affairs , 8 F.4th 1319, 1325-26 (Fed.
Cir. 2021), which was also issued subsequent to the initial decision, the Federal
Circuit determined that the Board must consider and apply the factors set forth in
Douglas v. Veterans Administration , 5 M.S.P.R. 280, 305-06 (1981), in its review
of an agency’s penalty selection under an action taken pursuant to 38 U.S.C.
§ 714. The Federal Circuit held that, although section 714 precludes the Board
from mitigating the agency’s chosen penalty, “[i]t does not alter the penalty
review with respect to the Douglas factors,” Connor, 8 F.4th at 1326, and that,
while the Board cannot mitigate the penalty, “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,” id. at 1326-27 (citing Brenner v. Department of Veterans Affairs ,
990 F.3d 1313, 1325 (Fed. Cir. 2021) (explaining that “if the [Board] concludes
that the [agency’s] removal decision is unsupported by substantial evidence, the
[Board] should remand to the [agency] for further proceedings”)). As we found
with the Rodriguez case, the Federal Circuit’s decision in Connor applies to all
pending cases, regardless of when the events at issue took place. See Semenov,
2023 MSPB 16, ¶¶ 22, 49-50. 7
Here, although it appears that the administrative judge did consider the
Douglas factors in his penalty determination, it is unclear from the record as to
whether the agency properly considered the Douglas factors in deciding to
remove the appellant. ID at 7-8, IAF, Tab 4 at 19-24. On remand, the
administrative judge shall permit the parties to submit additional evidence and
argument, including a supplemental hearing if requested by the appellant,
addressing 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, the administrative
judge should remand the appellant’s removal to the agency for a new decision on
the appropriate penalty. See id. (citing Connor, 8 F.4th at 1326-27; Sayers v.
Department of Veterans Affairs , 954 F.3d 1370, 1375-76, 1379 (Fed. Cir. 2020)).3
3 If remanded to the agency, the agency should be mindful of its obligations to provide
the appellant with the necessary due process. See Brenner, 990 F.3d at 1324 (observing
that the VA Accountability Act maintains due process protections for employees); Ward
v. U.S. Postal Service , 634 F.3d 1274, 1279-80 (Fed. Cir. 2011); Stone v. Federal
Deposit Insurance Corporation , 179 F.3d 1368, 1375-77 (Fed. Cir. 1999).8
ORDER
For the reasons discussed above, we remand this case to the regional office
for further adjudication in accordance with this Remand Order. As outlined
above, the administrative judge shall address whether the agency’s error in
applying the substantial evidence burden of proof to its action was harmful. If
the administrative judge determines that the agency’s error in applying the
incorrect burden of proof was not harmful, then he shall determine whether the
agency proved by substantial evidence that it applied the relevant Douglas factors
and that the penalty was reasonable.4 The administrative judge may, if
appropriate, incorporate into the remand decision his prior findings concerning
the agency’s proof of its charges and his findings on the appellant’s affirmative
defense.5
FOR THE BOARD: ______________________________
Gina K. Grippando
Clerk of the Board
Washington, D.C.
4 If the administrative judge finds that the agency committed harmful error such that the
disciplinary action is not sustained, he need not address the penalty issue.
5 If any argument or evidence adduced on remand affects the administrative judge’s
prior analysis of any issue in this appeal, he should address such argument in the
remand initial decision.9 | Thomas_Ernest_J_AT-0714-20-0654-I-1_Remand_Order.pdf | 2025-01-24 | ERNEST J. THOMAS v. DEPARTMENT OF VETERANS AFFAIRS, MSPB Docket No. AT-0714-20-0654-I-1, January 24, 2025 | AT-0714-20-0654-I-1 | NP |
252 | https://www.mspb.gov/decisions/nonprecedential/cook_sevgiDA-0752-20-0079-I-1_Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
SEVGI COOK,
Appellant,
v.
DEPARTMENT OF THE ARMY,
Agency.DOCKET NUMBER
DA-0752-20-0079-I-1
DATE: January 24, 2025
THIS FINAL ORDER IS NONPRECEDENTIAL1
Wesley E. McConnell , Palmer Lake, Colorado, for the appellant.
Matthew Watson , El Paso, Texas, 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.
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and 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 the appellant’s removal. Generally, we grant petitions such as this one
only in the following circumstances: the initial decision contains erroneous
findings of material fact; the initial decision is based on an erroneous
interpretation of statute or regulation or the erroneous application of the law to
the facts of the case; the administrative judge’s rulings during either the course of
the appeal or the initial decision were not consistent with required procedures or
involved an abuse of discretion, and the resulting error affected the outcome of
the case; or new and material evidence or legal argument is available that, despite
the petitioner’s due diligence, was not available when the record closed. Title 5
of the Code of Federal Regulations, section 1201.115 (5 C.F.R. § 1201.115).
After fully considering the filings in this appeal, we conclude 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. 5 C.F.R. § 1201.113(b).
NOTICE OF APPEAL RIGHTS3
You may obtain review of this final decision. 5 U.S.C. § 7703(a)(1). By
statute, the nature of your claims determines the time limit for seeking such
review and the appropriate forum with which to file. 5 U.S.C. § 7703(b).
2 On June 17, 2024, the appellant submitted a motion seeking to amend her petition for
review with additional argument on the merits of the removal, evidence regarding a
prior settlement agreement, and other unspecified new evidence that she “recently
discovered.” Petition for Review File, Tab 8. Once the record closes on review, no
additional evidence or argument will be accepted unless it is new and material and was
not readily available before the record closed. Maloney v. Executive Office of the
President, 2022 MSPB 26, ¶ 4 n.4; 5 C.F.R. § 1201.114(k) (2023). We deny the
appellant’s motion because she has not met these requirements.
3 Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise which option is most appropriate in any matter.2
Although we offer the following summary of available appeal rights, the Merit
Systems Protection Board does not provide legal advice on which option is most
appropriate for your situation and the rights described below do not represent a
statement of how courts will rule regarding which cases fall within their
jurisdiction. If you wish to seek review of this final decision, you should
immediately review the law applicable to your claims and carefully follow all
filing time limits and requirements. Failure to file within the applicable time
limit may result in the dismissal of your case by your chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the following
address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.3
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. 420 (2017). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the district court no later than 30 calendar days after your representative
receives this decision. If the action involves a claim of discrimination based on
race, color, religion, sex, national origin, or a disabling condition, you may be
entitled to representation by a court-appointed lawyer and to waiver of any
requirement of prepayment of fees, costs, or other security. See 42 U.S.C.
§ 2000e-5(f) and 29 U.S.C. § 794a.
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702(b)(1). You must file any such request with the4
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or
other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
disposition of allegations of a prohibited personnel practice described in section
2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i),
(B), (C), or (D),” then you may file a petition for judicial review either with the
U.S. Court of Appeals for the Federal Circuit or any court of appeals of
competent jurisdiction.4 The court of appeals must receive your petition for
4 The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of5
review within 60 days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(B).
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the following
address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115-195,
132 Stat. 1510. 6
Contact information for the courts of appeals can be found at their
respective websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
FOR THE BOARD: ______________________________
Gina K. Grippando
Clerk of the Board
Washington, D.C.7 | cook_sevgiDA-0752-20-0079-I-1_Final_Order.pdf | 2025-01-24 | SEVGI COOK v. DEPARTMENT OF THE ARMY, MSPB Docket No. DA-0752-20-0079-I-1, January 24, 2025 | DA-0752-20-0079-I-1 | NP |
253 | https://www.mspb.gov/decisions/nonprecedential/Lee_JaniceDC-0752-23-0575-I-1_Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
JANICE LEE,
Appellant,
v.
DEPARTMENT OF EDUCATION,
Agency.DOCKET NUMBER
DC-0752-23-0575-I-1
DATE: January 24, 2025
THIS FINAL ORDER IS NONPRECEDENTIAL1
Janice Lee , Capitol Heights, Maryland, pro se.
Jill Siegelbaum , Esquire, and Leah Travis , Esquire, 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
dismissed her involuntary retirement appeal for lack of jurisdiction. Generally,
we grant petitions such as this one only in the following circumstances: the
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).
initial decision contains erroneous findings of material fact; the initial decision is
based on an erroneous interpretation of statute or regulation or the erroneous
application of the law to the facts of the case; the administrative judge’s rulings
during either the course of the appeal or the initial decision were not consistent
with required procedures or involved an abuse of discretion, and the resulting
error affected the outcome of the case; or new and material evidence or legal
argument is available that, despite the petitioner’s due diligence, was not
available when the record closed. Title 5 of the Code of Federal Regulations,
section 1201.115 (5 C.F.R. § 1201.115). After fully considering the filings in this
appeal, we conclude that the petitioner has not established any basis under
section 1201.115 for granting the petition for review. Therefore, we DENY the
petition for review and AFFIRM the initial decision, which is now the Board’s
final decision.2 5 C.F.R. § 1201.113(b).
On review, the appellant expresses concern with the processing of the equal
employment opportunity (EEO) investigation and the merits of the final agency
decision; and she submits documentation on review such as letters, affidavits,
sworn declarations, emails, narrative responses and text messages concerning the
EEO investigation, and a news article about a certain agency employee that she
2 The appellant’s petition for review was due on Friday, November 17, 2023. She filed
her petition for review the next business day, on Monday, November 20, 2023, and a
supplement to her petition for review on Sunday, November 26, 2023. Petition for
Review (PFR) File, Tabs 4, 6. Addressing the delay, the appellant explained that she
was looking for an attorney, she did not understand the notification process with the
Board’s online system, she did not know she could request additional time, and she had
extenuating circumstances, including numerous family health issues and deaths in early
to mid-November. PFR File, Tab 7 at 4-5. The Board, having carefully balanced the
equities involved, finds that the delay here was excusable, considering its brevity, the
extenuating circumstances presented by the appellant, and the absence of a showing of
prejudice by the agency. Accordingly, we find good cause for the delay in filing her
petition for review and her supplement to her petition for review. See Cook v. Office of
Personnel Management , 31 M.S.P.R. 683, 685 & n.3 (1986) (finding that a series of
calamitous events in the appellant’s life, including deaths of his mother and stepfather,
caring for his mother prior to her death from cancer, caring for his minor daughter who
suffered from severe juvenile rheumatoid arthritis, and his own medical problems
warranted waiver of the time limit).2
alleged was involved in forcing her to retire. Petition for Review (PFR) File,
Tabs 4-5, 15. A portion of the documents that the appellant submitted on review,
such as her correspondence with the EEO office, EEO investigative affidavits,
and newspaper articles, are dated before the record closed, and some of her
documents, including declarations and affidavits, are dated after the initial
decision was issued. See, e.g., PFR File, Tabs 5, 15.
The Board generally will not consider evidence or argument submitted for
the first time with a petition for review absent a showing that it was unavailable
before the record was closed before the administrative judge despite a party’s due
diligence. Clay v. Department of the Army , 123 M.S.P.R. 245, ¶ 6 (2016);
Avansino v. U.S. Postal Service , 3 M.S.P.R. 211, 213-14 (1980). The appellant
has not made such a showing. Nevertheless, even if we consider the evidence
submitted in the appellant’s petition for review and her supplement to the petition
for review, a different outcome is not warranted.3 Russo v. Veterans
Administration, 3 M.S.P.R. 345, 349 (1980).
Furthermore, we have considered the appellant’s allegation that the
agency’s denial of her reasonable accommodation request for telework during the
2018 to 2019 timeframe led to her involuntary retirement in this regard. See, e.g.,
Hosozawa v. Department of Veterans Affairs , 113 M.S.P.R. 110, ¶¶ 2, 6-7 (2010)
(holding that a denial of a reasonable accommodation that would have permitted
an employee to continue working despite his medical conditions, and that leads to
the employee’s retirement, is a wrongful action that can be the basis of an alleged
3 The appellant also states on review that she did not respond to the administrative
judge’s jurisdictional order because she thought she would get all appeal documents
through regular mail, not through e-Appeal, even though she filed her appeal online.
PFR File, Tab 15 at 4-5. We are not persuaded by the appellant’s explanation for her
failure to respond to the administrative judge’s jurisdictional order. As a registered
e-filer, the appellant consented to accept service of all pleadings and documents issued
by the Board in electronic form and to monitor case activity at e-Appeal to ensure that
she had received all case-related documents. Initial Appeal File, Tab 1 at 2; see
5 C.F.R. §§ 1201.14(e), (j)(3) (2023). 3
involuntary retirement claim). Even if we assume for the purposes of our analysis
that the appellant nonfrivolously alleged that the agency wrongfully denied her
request for telework as a reasonable accommodation during the 2018 to 2019
timeframe, she has not nonfrivolously alleged that the agency’s wrongful actions
denied her a meaningful choice in the matter. Indeed, the appellant does not
allege that she challenged the agency’s denial of her reasonable accommodation
request through the interactive process or by filing an EEO complaint before she
retired. See Axsom v. Department of Veterans Affairs , 110 M.S.P.R. 605, ¶ 17
(2009) (finding that the appellant failed to prove that a reasonable person in his
position would have felt compelled to resign when he had the option to stand and
fight the alleged discrimination, harassment, and retaliation rather than resign);
see also Lawson v. U.S. Postal Service , 68 M.S.P.R. 345, 350 (1995) (finding that
an employee is faced with an inherently unpleasant situation or that her choices
are limited to unpleasant alternatives does not make her decision involuntary).
Accordingly, we conclude that the appellant did not make a nonfrivolous
allegation that she lacked a meaningful choice in the matter, or that the agency’s
wrongful actions deprived her of that choice. Bean v. U.S. Postal Service ,
120 M.S.P.R. 397, ¶ 8 (2013).
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
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
jurisdiction. If you wish to seek review of this final decision, you should
immediately review the law applicable to your claims and carefully follow all
filing time limits and requirements. Failure to file within the applicable time
limit may result in the dismissal of your case by your chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the following
address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The5
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. 420 (2017). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the district court no later than 30 calendar days after your representative
receives this decision. If the action involves a claim of discrimination based on
race, color, religion, sex, national origin, or a disabling condition, you may be
entitled to representation by a court-appointed lawyer and to waiver of any
requirement of prepayment of fees, costs, or other security. See 42 U.S.C.
§ 2000e-5(f) and 29 U.S.C. § 794a.
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702(b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file6
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or
other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
disposition of allegations of a prohibited personnel practice described in
section 2302(b) other than practices described in section 2302(b)(8), or
2302(b)(9)(A)(i), (B), (C), or (D),” then you may file a petition for judicial
review either with the U.S. Court of Appeals for the Federal Circuit or any court
of appeals of competent jurisdiction.5 The court of appeals must receive your
5 The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115-195,
132 Stat. 1510. 7
petition for review within 60 days of the date of issuance of this decision.
5 U.S.C. § 7703(b)(1)(B).
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the following
address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to the U.S.
Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the 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 | Lee_JaniceDC-0752-23-0575-I-1_Final_Order.pdf | 2025-01-24 | JANICE LEE v. DEPARTMENT OF EDUCATION, MSPB Docket No. DC-0752-23-0575-I-1, January 24, 2025 | DC-0752-23-0575-I-1 | NP |
254 | https://www.mspb.gov/decisions/nonprecedential/HILKEY_EDWIN_L_SF-0845-22-0189-I-1_Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
EDWIN LAVERN HILKEY,
Appellant,
v.
OFFICE OF PERSONNEL
MANAGEMENT,
Agency.DOCKET NUMBER
SF-0845-22-0189-I-1
DATE: January 24, 2025
THIS FINAL ORDER IS NONPRECEDENTIAL1
Edwin Lavern Hilkey , Coupeville, Washington, pro se.
Karla W. Yeakle , Washington, D.C., for the agency.
BEFORE
Cathy A. Harris, Chairman*
Raymond A. Limon, Vice Chairman
Henry J. Kerner, Member
*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
affirmed the Office of Personnel Management’s (OPM) reconsideration 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).
but modified the appellant’s repayment schedule. On petition for review, the
appellant reasserts that he attempted to inform OPM of his receipt of Office of
Workers’ Compensation Programs (OWCP) benefits several times and that he is
financially unable to make the ordered payments. Petition for Review (PFR) File,
Tab 1 at 1. He also submits an August 25, 2022 letter from the Department of
Labor (DOL) purporting to show that his OWCP benefits have been reduced.
Id. 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.2 5 C.F.R. § 1201.113(b).
We agree with the administrative judge that OPM proved the existence of a
$120,985.21 overpayment due to the appellant’s collection of both his Federal
Employees’ Retirement System (FERS) annuity and his OWCP benefits without
offset. Initial Appeal File (IAF), Tab 25, Initial Decision (ID) at 3-4. We also
2 The appellant’s petition for review appears to be untimely filed by 1 day. See
5 C.F.R. § 1201.114(e); PFR File, Tab 1 at 3, Tab 4 at 1. Although the Board may
waive its timeliness regulations based upon a showing of good cause, see
Palermo v. Department of the Navy, 120 M.S.P.R. 694, ¶ 4 (2014), we do not reach the
question of whether the appellant established good cause because we otherwise affirm
the initial decision, see Petersen v. Office of Personnel Management, 99 M.S.P.R. 469,
¶ 1 n.1 (2005). 2
agree with the administrative judge that the appellant knew or should have known
that he could not collect both his FERS annuity and OWCP benefits, but that he
nonetheless accepted the full FERS annuity benefit and did not provide any
evidence that he set aside the payments to which he was not entitled. ID at 5-6;
see Knox v. Office of Personnel Management, 107 M.S.P.R. 353, ¶ 8 (2007).
Thus, we agree that the appellant failed to show that he was entitled to a waiver
of the overpayment. See Boone v. Office of Personnel Management,
119 M.S.P.R. 53, ¶¶ 5-6 (2012). We also agree with the administrative judge
that, because the appellant demonstrated that his ordinary and necessary living
expenses and liabilities exceed his current income and liquid assets based on
information that he provided in a financial resources questionnaire (FRQ), he is
entitled to an adjustment of the repayment schedule. ID at 5-9; see
Dorrello v. Office of Personnel Management, 91 M.S.P.R. 535, ¶¶ 9-10 (2002).
Neither party has directly challenged the administrative judge’s decision to
reduce the repayment schedule from $450.00 per month to $15.00 per month.
See 5 C.F.R. § 1201.115 (explaining that the Board normally will consider only
issues raised in a timely filed petition for review).
As noted, the appellant submits an August 25, 2022 letter from DOL
purporting to show that his OWCP benefits were reduced. PFR File, Tab 1 at 1-2.
The Board generally will not consider evidence submitted for the first time with a
petition for review absent a showing that it was unavailable before the record
closed before the administrative judge despite the party’s due diligence. See
Avansino v. U.S. Postal Service, 3 M.S.P.R. 211, 213-14 (1980). Here, the record
closed before the administrative judge on June 30, 2022. IAF, Tab 23 at 2. The
DOL letter is dated August 25, 2022, and was, therefore, unavailable before the
record closed. It is also material because it relates to the appellant’s financial
ability to comply with the collection schedule. Accordingly, we consider it here.
The letter provides that DOL decreased the appellant’s monthly OWCP
benefit to $2,392.72. PFR File, Tab 1 at 2. The appellant asserts that this3
represents a decrease in his monthly income, which further demonstrates his
inability to honor the repayment schedule. Id. at 1. However, on his FRQ, which
is in the record, the appellant reported his OWCP benefit to be $1,138.17.
IAF, Tab 17 at 4. Although we conclude that the DOL letter is insufficient to
disturb the administrative judge’s conclusion that the appellant’s expenses and
liabilities exceed his monthly income, the letter does not show that the appellant’s
monthly income has decreased. We, therefore, decline to further reduce the
repayment schedule ordered by the administrative judge, and we affirm the initial
decision.
Additionally, OPM has advised the Board that it may seek recovery of any
debt remaining upon an appellant’s death from his estate or other responsible
party. A party responsible for any debt remaining upon the appellant’s death may
include an heir (spouse, child, or other) who is deriving a benefit from the
appellant’s Federal benefits, an heir or other person acting as the representative
of the estate if, for example, the representative fails to pay the United States
before paying the claims of other creditors in accordance with 31 U.S.C.
§ 3713(b), or transferees or distributers of the appellant’s estate.
Pierotti v. Office of Personnel Management, 124 M.S.P.R. 103, ¶ 13 (2016).
NOTICE OF APPEAL RIGHTS3
You may obtain review of this final decision. 5 U.S.C. § 7703(a)(1). By
statute, the nature of your claims determines the time limit for seeking such
review and the appropriate forum with which to file. 5 U.S.C. § 7703(b).
Although we offer the following summary of available appeal rights, the Merit
Systems Protection Board does not provide legal advice on which option is most
appropriate for your situation and the rights described below do not represent a
statement of how courts will rule regarding which cases fall within their
3 Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise which option is most appropriate in any matter.4
jurisdiction. If you wish to seek review of this final decision, you should
immediately review the law applicable to your claims and carefully follow all
filing time limits and requirements. Failure to file within the applicable time
limit may result in the dismissal of your case by your chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision.
5 U.S.C. § 7703(b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the following
address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The5
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems
Protection Board, 582 U.S. 420 (2017). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the district court no later than 30 calendar days after your representative
receives this decision. If the action involves a claim of discrimination based on
race, color, religion, sex, national origin, or a disabling condition, you may be
entitled to representation by a court-appointed lawyer and to waiver of any
requirement of prepayment of fees, costs, or other security. See
42 U.S.C. § 2000e-5(f) and 29 U.S.C. § 794a.
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702(b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file6
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or
other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
disposition of allegations of a prohibited personnel practice described in
section 2302(b) other than practices described in section 2302(b)(8), or
2302(b)(9)(A)(i), (B), (C), or (D),” then you may file a petition for judicial
review either with the U.S. Court of Appeals for the Federal Circuit or any court
of appeals of competent jurisdiction.4 The court of appeals must receive your
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
petition for review within 60 days of the date of issuance of this decision.
5 U.S.C. § 7703(b)(1)(B).
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the following
address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case. 8
Contact information for the courts of appeals can be found at their
respective websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
FOR THE BOARD: ______________________________
Gina K. Grippando
Clerk of the Board
Washington, D.C.9 | HILKEY_EDWIN_L_SF-0845-22-0189-I-1_Final_Order.pdf | 2025-01-24 | EDWIN LAVERN HILKEY v. OFFICE OF PERSONNEL MANAGEMENT, MSPB Docket No. SF-0845-22-0189-I-1, January 24, 2025 | SF-0845-22-0189-I-1 | NP |
255 | https://www.mspb.gov/decisions/nonprecedential/Startz_Sherman_S_SF-1221-23-0258-W-1_Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
SHERMAN S. STARTZ, JR.,
Appellant,
v.
DEPARTMENT OF THE ARMY,
Agency.DOCKET NUMBER
SF-1221-23-0258-W-1
DATE: January 17, 2025
THIS FINAL ORDER IS NONPRECEDENTIAL1
Sherman S. Startz, Jr. , Bremerton, Washington, pro se.
Charles Robert Eiser , Esquire, Fort Wainwright, Alaska, for the agency.
BEFORE
Cathy A. Harris , Chairman
Raymond A. Limon , Vice Chairman
Henry J. Kerner, Member*
*Member Kerner recused himself and
did not participate in the adjudication of this appeal.
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and 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 his request for corrective action in his individual right of action (IRA)
appeal on the grounds that he failed to show 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). On petition for review, the appellant argues that the administrative
judge made various erroneous findings and that the agency refused to provide him
the requested discovery necessary to prove his claims.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
2 Although the appellant argues on review that he did not waive his right to a hearing,
he clearly indicated on his initial appeal that he did not want a hearing. Petition for
Review (PFR) File, Tab 1 at 4; Initial Appeal File (IAF), Tab 1 at 2. We discern no
error in the administrative judge’s decision to decide this case on the written record.
The appellant also broadly asserts that the agency’s failure to respond to his discovery
requests resulted in his inability to prove his case. PFR File, Tab 1 at 12-13. However,
the appellant did not include a copy of his original discovery request with his motion to
compel; the administrative judge nevertheless granted the appellant’s motion; and
although the appellant expressed dissatisfaction with the agency’s discovery response,
there is no indication that he subsequently filed a renewed motion to compel, a motion
for sanctions, or otherwise asked the administrative judge to intervene. See IAF,
Tab 27, Tab 32 at 9, Tab 33 at 7, Tab 34 at 5. Accordingly, the appellant’s allegations
regarding discovery do not warrant remand or otherwise disturbing the initial decision.
Cf. Bedynek-Stumm v. Department of Agriculture , 57 M.S.P.R. 176, 178-79 (1993)
(finding that the employee’s motion to compel discovery was defective when it was not
accompanied by copy of his original discovery request or affidavit or sworn statement
supporting his assertion that he had not received a response to request);
Rana v. Department of Defense , 27 M.S.P.R. 678, 679-80 (1985) (finding that the
presiding official did not abuse her discretion in failing to impose sanctions on the
agency for failing to produce certain documents requested by the employee when the
employee had not requested a formal order of the Board on discovery, and the requests
for documents were overbroad, of limited relevance and unduly burdensome).2
outcome of the case; or new and material evidence or legal argument is available
that, despite the petitioner’s due diligence, was not available when the record
closed. Title 5 of the Code of Federal Regulations, section 1201.115
(5 C.F.R. § 1201.115). After fully considering the filings in this appeal, we
conclude that the petitioner has not established any basis under section 1201.115
for granting the petition for review.3 Therefore, we DENY the petition for review
and AFFIRM the initial decision, which is now the Board’s final decision.
5 C.F.R. § 1201.113(b).
NOTICE OF APPEAL RIGHTS4
You may obtain review of this final decision. 5 U.S.C. § 7703(a)(1). By
statute, the nature of your claims determines the time limit for seeking such
review and the appropriate forum with which to file. 5 U.S.C. § 7703(b).
Although we offer the following summary of available appeal rights, the Merit
Systems Protection Board does not provide legal advice on which option is most
appropriate for your situation and the rights described below do not represent a
statement of how courts will rule regarding which cases fall within their
jurisdiction. If you wish to seek review of this final decision, you should
immediately review the law applicable to your claims and carefully follow all
filing time limits and requirements. Failure to file within the applicable time
limit may result in the dismissal of your case by your chosen forum.
3 To the extent that the appellant’s allegations of adjudicatory error have merit, they are
immaterial and do not otherwise warrant a different outcome in this appeal. See
Panter v. Department of the Air Force , 22 M.S.P.R. 281, 282 (1984) (finding that an
adjudicatory error that is not prejudicial to a party’s substantive rights provides no basis
for reversal of an initial decision); Cortright v. Department of Transportation ,
37 M.S.P.R. 565, 568-69 (1988) (explaining that mere disagreement with the
administrative judge’s findings does not warrant disturbing the initial decision).
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
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the
U.S. Court of Appeals for the Federal Circuit, which must be received by the
court within 60 calendar days of the date of issuance of this decision.
5 U.S.C. § 7703(b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the following
address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case. 4
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. 420 (2017). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the district court no later than 30 calendar days after your representative
receives this decision. If the action involves a claim of discrimination based on
race, color, religion, sex, national origin, or a disabling condition, you may be
entitled to representation by a court-appointed lawyer and to waiver of any
requirement of prepayment of fees, costs, or other security. See
42 U.S.C. § 2000e-5(f) and 29 U.S.C. § 794a.
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702(b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision. 5
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or
other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
disposition of allegations of a prohibited personnel practice described in
section 2302(b) other than practices described in section 2302(b)(8), or
2302(b)(9)(A)(i), (B), (C), or (D),” then you may file a petition for judicial
review either with the U.S. Court of Appeals for the Federal Circuit or any court
of appeals of competent jurisdiction.5 The court of appeals must receive your
petition for review within 60 days of the date of issuance of this decision.
5 U.S.C. § 7703(b)(1)(B).
5 The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115-195,
132 Stat. 1510. 6
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the following
address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
Contact information for the courts of appeals can be found at their
respective websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
FOR THE BOARD: ______________________________
Gina K. Grippando
Clerk of the Board
Washington, D.C.7 | Startz_Sherman_S_SF-1221-23-0258-W-1_Final_Order.pdf | 2025-01-17 | null | SF-1221-23-0258-W-1 | NP |
256 | https://www.mspb.gov/decisions/nonprecedential/Randolph_William_J_SF-0845-20-0012-I-1_Remand_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
WILLIAM J. RANDOLPH,
Appellant,
v.
OFFICE OF PERSONNEL
MANAGEMENT,
Agency.DOCKET NUMBER
SF-0845-20-0012-I-1
DATE: January 16, 2025
THIS ORDER IS NONPRECEDENTIAL1
William J. Randolph , Citrus Heights, California, pro se.
Carla Robinson , Washington, D.C., for the agency.
BEFORE
Cathy A. Harris , Chairman
Raymond A. Limon , Vice Chairman
Henry J. Kerner , Member
REMAND ORDER
The appellant has filed a petition for review of the initial decision, which
reversed and remanded the reconsideration decision of the Office of Personnel
Management (OPM) that had reduced the appellant’s total service time by the
amount of his military service time because he had not waived his military retired
1A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).
pay (MRP). The administrative judge determined that the appellant was entitled
to creditable service under the Federal Employees’ Retirement System (FERS) for
his military service time but only for the periods during which the appellant was
on paid leave from his civilian position as a dual status military technician while
serving on active military duty. Initial Appeal File (IAF), Tab 21, Initial
Decision (ID). On review, the appellant argues that he should also receive credit
for the period of time he was on leave without pay (LWOP) from his civilian
position while he was serving on active military duty. Petition for Review (PFR)
File, Tab 1. Generally, we grant petitions such as this one only in the following
circumstances: the initial decision contains erroneous findings of material fact;
the initial decision is based on an erroneous interpretation of statute or regulation
or the erroneous application of the law to the facts of the case; the administrative
judge’s rulings during either the course of the appeal or the initial decision
were not consistent with required procedures or involved an abuse of discretion,
and the resulting error affected the outcome of the case; or new and material
evidence or legal argument is available that, despite the petitioner’s due
diligence, was not available when the record closed. Title 5 of the Code of
Federal Regulations, section 1201.115 (5 C.F.R. § 1201.115). After fully
considering the filings in this appeal, we conclude that the petitioner has not
established any basis under section 1201.115 for granting the petition for review.2
2 In considering the appellant’s arguments about the impact of OPM’s Handbook, the
administrative judge cited to Chevron, U.S.A., Inc. v. Natural Resource Defense
Council, Inc., 467 U.S. 837 (1984). The Supreme Court overruled Chevron in Loper
Bright Enterprises v. Raimondo , 603 U.S. 369 (2024). Because the administrative judge
gave no deference to the OPM Handbook in his decision, we need not revisit the issue.
In any event, we do not find OPM’s Handbook inconsistent with the Board’s ruling in
this case, as a fuller reading of it supports the Board’s conclusion that the appellant
cannot receive MRP and creditable service for the same time period. See OPM, Civil
Service Retirement System and FERS Handbook for Personnel and Payroll Office,
Section 22A3.1-3 (stating that an employee must waive MRP to receive credit for
service under FERS subject to certain conditions); see also id. at Section 22A4.1-1
(confirming that to receive credit for service an employee must waive MRP),
https://www.opm.gov/retirement-center/publications-forms/csrsfers-handbook/c022.pdf .2
Therefore, we DENY the petition for review and AFFIRM the initial decision.
Consistent with the initial decision, we REVERSE OPM’s reconsideration
decision and REMAND this matter to OPM to recalculate the appellant’s annuity
by granting him service credit for the periods of military service during which he
was on paid leave from his civilian position.
ORDER
We ORDER OPM to recalculate the appellant’s annuity to include periods
of creditable concurrent service when the appellant was on paid leave from his
civilian position while in military service. In that decision, OPM shall advise the
appellant of the right to file an appeal with the Board if he disagrees with that
new decision. See 5 U.S.C. §§ 8347(d)(1), 8461(e)(1); 5 C.F.R. §§ 831.110,
841.308. Any such appeal must be filed consistent with the Board’s regulations.
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).3
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).
FOR THE BOARD: ______________________________
Gina K. Grippando
Clerk of the Board
Washington, D.C.4 | Randolph_William_J_SF-0845-20-0012-I-1_Remand_Order.pdf | 2025-01-16 | WILLIAM J. RANDOLPH v. OFFICE OF PERSONNEL MANAGEMENT, MSPB Docket No. SF-0845-20-0012-I-1, January 16, 2025 | SF-0845-20-0012-I-1 | NP |
257 | https://www.mspb.gov/decisions/nonprecedential/Rister_Vincent_M_AT-0432-20-0614-I-1_Remand_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
VINCENT M. RISTER,
Appellant,
v.
DEPARTMENT OF AGRICULTURE,
Agency.DOCKET NUMBER
AT-0432-20-0614-I-1
DATE: January 15, 2025
THIS ORDER IS NONPRECEDENTIAL1
Jesse L. Kelly II , Esquire, and Shaun Southworth , Esquire,
Atlanta, Georgia, for the appellant.
Lori A. Ittner , Silas Elwood York, Jr. , and Patricia McNamee ,
Washington, D.C., for the agency.
BEFORE
Cathy A. Harris , Chairman
Raymond A. Limon , Vice Chairman
Henry J. Kerner , Member
REMAND ORDER
The appellant has filed a petition for review of the initial decision, which
sustained his performance-based removal. For the reasons discussed below, we
GRANT the petition for review, VACATE the initial decision, and REMAND the
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).
case to the Atlanta Regional Office for further adjudication in accordance with
this Remand Order and Santos v. National Aeronautics and Space Administration ,
990 F.3d 1355 (Fed. Cir. 2021).
BACKGROUND
Unless otherwise indicated, the following facts are not in dispute. The
appellant was employed as a Plant Protection Quarantine Technician with the
agency. Initial Appeal File (IAF), Tab 6 at 21. In that role, he assisted the
agency’s mission to detect and exclude fruit flies from the United States by
setting traps to catch fruit flies, checking those traps, identifying target fruit flies,
and submitting those flies to a lab for identification. IAF, Tab 52, Hearing
Recording (HR) (testimony of the appellant’s supervisor). Between April 22 and
October 24, 2019, the appellant met with his supervisor three times for quarterly
performance reviews to discuss several performance deficiencies such as, among
other things, projects, surveys, and assessments not being completed within a
reasonable amount of time, a lack of responsiveness to requests for information or
corrective action, and the submission of paperwork with errors. IAF, Tab 6 at 91.
As a result, on December 2, 2019, the agency placed the appellant on a
Demonstration Opportunity (DO), which is the agency’s version of a performance
improvement plan (PIP). IAF, Tab 6 at 91-93. The DO notice explained that the
agency had determined that the appellant’s performance was at an unacceptable
level in two critical elements: Critical Element 1—Survey and EEO Civil Rights
(Mission Results); and Critical Element 3—Communication/Customer Service.
Id. at 91. Under Critical Element 1, the DO required, among other things, that all
trap line evaluations be satisfactory and that two Fruit Fly Detection (FFD)
reports be conducted with a score of 305 or higher. Id. at 92. It also required the
appellant to report weekly on the progress of the route book assessment; to
conduct all surveys, duties, and responsibilities as assigned; and to maintain and2
address the corrective action report no later than 10 business days after receipt.2
Id. Under Critical Element 3, the DO required the appellant to meet and deal
with others and to “communicate[] program purpose of activities in a manner
which ensures equal access to program and information.” Id. The DO provided
the appellant with 60 days to demonstrate acceptable performance in those critical
elements and informed him that failing to bring his performance to an acceptable
level could result in, among other actions, removal from Federal service. Id.
at 91-92.
On April 7, 2020, following the completion of the DO, the agency informed
the appellant that his performance did not reach the “Fully Successful” level,3 and
it proposed his removal. IAF, Tab 6 at 73-76. Regarding Critical Element 1, the
agency concluded that the appellant failed to receive a passing score on either
FFD report. Id. at 74. It also concluded that, in two instances, the appellant
failed to submit a completed corrective action report by the required deadline. Id.
For Critical Element 3, the agency stated that the appellant failed to sign out of
the office indicating that he would be in the field on three dates during a single
week and that he did not attend December’s monthly meeting with his supervisor.
Id. at 74-75. The appellant provided an oral reply to the proposed removal, but
on May 21, 2020, the Acting State Plant Health Director sustained the proposal
and removed the appellant, pursuant to chapter 43, effective May 23, 2020. Id.
at 22-25.
The appellant filed a Board appeal, arguing that his supervisor illegally
recorded his conversations and that the agency discriminated against him due to
2 Discrepancies identified in the FFD reports form the basis for a corrective action
report. HR (testimony of the appellant’s supervisor). This critical element concerns the
quality and timeliness of both the FFD reports and the subsequent corrective action
reports addressing any discrepancies in the FFD reports.
3 The agency’s appraisal system has two performance levels: “Fully Successful” and
“Exceeds Fully Successful.” IAF, Tab 42 at 75. Thus, the appellant did not meet the
lowest acceptable performance level during the DO. 3
his age. IAF, Tab 1, Tab 4 at 3. He also asserted that he was not given a
reasonable opportunity to improve because the standards set forth in the DO with
respect to the first subelement of Critical Element 1, which concerns the FFD
reports, differed from those set forth in his fiscal year (FY) 2020 performance
plan. IAF, Tab 53 at 4-5. Specifically, he argued that the DO required that all of
his FFD reports be satisfactory, but his FY 20 performance plan required only a
minimum average score of 305 points. Id. Similarly, he argued that the FY 20
performance plan, requiring a minimum average score of 305 points for FFD
reports, had been switched from the FY 19 performance plan, which, like the DO,
required that all FFD reports be satisfactory. Id. at 5. He further argued that he
did not have enough time to demonstrate acceptable performance under the new
FY 20 standard prior to being placed on the DO. Id.
After holding the appellant’s requested hearing, IAF, Tab 4 at 2; HR, the
administrative judge issued an initial decision sustaining the appellant’s removal,
IAF, Tab 55, Initial Decision (ID). In so doing, he found that the agency met all
of the elements of a chapter 43 performance-based action. ID at 5-12. He
specifically concluded that he did not need to determine whether the agency
impermissibly changed the first subelement in Critical Element 1 (which concerns
the scoring of the FFD reports) because he otherwise concluded that the agency
proved that the appellant’s performance under the third subelement (which
concerns, among other things, the timeliness of corrective action report
submissions) was unacceptable. ID at 6-9. Additionally, the administrative judge
found that the appellant failed to carry his burden with respect to his affirmative
defense of age discrimination. ID at 12-15.
The appellant has filed a petition for review, wherein he renews his
argument regarding apparent changes to subelement 1 of Critical Element 1 and
his opportunity to improve in that subelement. Petition for Review (PFR) File,
Tab 1 at 5-7. The agency has filed a response. PFR File, Tab 3. 4
DISCUSSION OF ARGUMENTS ON REVIEW
As noted above, consistent with the decision of the U.S. Court of Appeals
for the Federal Circuit in Santos, 990 F.3d at 1360-63, we are remanding this
appeal for further adjudication. In Santos, the court held for the first time that, in
addition to the elements of a chapter 43 case set forth by the administrative judge
and discussed below, an agency also must show that the initiation of a PIP was
justified by the appellant’s unacceptable performance before the PIP. Id. Prior to
addressing the remand, however, we address the administrative judge’s findings
on the elements of a chapter 43 appeal as they existed at the time of the initial
decision.
At the time the initial decision was issued, the Board’s case law stated that,
in a performance-based action under 5 U.S.C. chapter 43, an agency must
establish by substantial evidence that: (1) the Office of Personnel Management
approved its performance appraisal system; (2) the agency communicated to the
appellant the performance standards and critical elements of his position; (3) the
appellant’s performance standards are valid under 5 U.S.C. § 4302(c)(1); (4) the
agency warned the appellant of the inadequacies of his performance during the
appraisal period and gave him a reasonable opportunity to improve; and (5) the
appellant’s performance remained unacceptable in at least one critical element.
White v. Department of Veterans Affairs , 120 M.S.P.R. 405, ¶ 5 (2013).
The administrative judge addressed each of these criterion in turn and
found that the agency carried its burden on all of them with respect to Critical
Element 1.4 ID at 5-12. Regarding the first criterion, the administrative judge
4 Because the administrative judge found that the agency proved that the appellant’s
performance was unacceptable in Critical Element 1, he did not substantively discuss
Critical Element 3 . ID at 4-5. Given the applicable law at the time of the initial
decision, we discern no immediate error in this decision. See White, 120 M.S.P.R. 405,
¶ 5. However, as discussed further in our remand instructions below, should the agency
fail to prove that the appellant’s performance under Critical Element 1 was
unacceptable prior to his placement on the DO pursuant to Santos, the administrative
judge should revisit his discussion of Critical Element 3 and undertake the relevant
analysis of that critical element. See infra p. 11.5
observed that it was undisputed that the agency’s performance appraisal system
was approved by OPM, and the record further contains uncontroverted evidence
of that fact. ID at 5; IAF, Tab 26 at 8-14. The administrative judge further stated
that it was undisputed that the appellant received his FY 20 performance plan
prior to being placed on the DO, and the record includes that performance plan,
which was signed by the appellant on a date prior to the DO. ID at 5; IAF, Tab 6
at 80-90. In discussing whether the appellant was warned of his performance
inadequacies, the administrative judge relied on the language of the DO to
conclude that the agency established by substantial evidence that it advised the
appellant that his performance was unacceptable, warned him of his performance
inadequacies, and informed him of what he would need to do to bring his
performance to an acceptable level. ID at 9-10. The appellant has not disputed
any of these findings. PFR File, Tab 1.
As set forth previously, the administrative judge concluded that, because
the agency met its burden with respect to the third subelement under Critical
Element 1, which required the appellant to timely submit corrective action
reports, he did not need to resolve the purportedly different standards of the
FY 20 performance plan and the DO with respect to the first subelement. ID at 6
(citing Rogers v. Department of Defense Dependents Schools , 814 F.2d 1549,
1554 (Fed. Cir. 1987) (reiterating that an agency can satisfy its burden of proof
by showing that an employee’s unacceptable performance on fewer than all the
components or subelements of a critical job element warranted an unacceptable
rating on the critical element as a whole)). The administrative judge proceeded to
analyze the appellant’s chapter 43 removal with a focus on subelement 3 of
Critical Element 1. ID at 6-12.
The administrative judge observed that the Board has held that
“[g]enerally, performance standards must, ‘to the maximum extent feasible,
permit the accurate appraisal of performance based on objective criteria,’ and
must be ‘reasonable, realistic, attainable[,] and clearly stated in writing.’” ID at 66
(quoting 5 U.S.C. § 4302(c)(1) and Benton v. Veterans Administration ,
37 M.S.P.R. 284, 286 (1988)). The administrative judge also observed that the
Board has held that “[p]erformance standards should be specific enough to
provide an employee with a ‘firm benchmark’ toward which to aim his
performance.” ID at 6 (quoting Smith v. Department of Energy , 49 M.S.P.R. 110,
116 (1991)). In applying these principles, the administrative judge concluded
that subelement 3 was a valid standard because it was objective, in that the
appellant either corrected any inaccuracy in a corrective action report or he did
not, and because it provided him with a “firm benchmark to aim his performance
for timeliness because it unequivocally requires [him] to ‘address the corrective
action report no later than ten business days after receipt.’” ID at 6, 8.
Regarding the appellant’s opportunity to improve, the administrative judge
explained that the appellant did not argue that, for the third subelement of Critical
Element 1, the 60-day DO was an inadequate time to improve, and he stated that
“a reasonable person could conclude that 60 days was adequate.” ID at 10.
Therefore, he found that the agency provided the appellant with a reasonable
opportunity to improve. ID at 10. We agree. The Board has found that 60 days
is a sufficient period of time for an opportunity to improve. See Lee v.
Environmental Protection Agency , 115 M.S.P.R. 533, ¶ 33 (2010). Accordingly,
we discern no basis to disturb the administrative judge’s finding in this regard.
Regarding the appellant’s performance in the third subelement of Critical
Element 1, the administrative judge considered testimony from the appellant’s
first-level supervisor, who stated that the appellant failed to complete his first
corrective action report by the required deadline, that an extension of time was
not approved, and that the corrective action report had multiple items that were
not adequately addressed. ID at 11; HR (testimony of the appellant’s supervisor).
With respect to the second corrective action report, the administrative judge
considered evidence that the appellant had requested and received a 1 -day
extension but failed to submit the report by that deadline, and that the report7
contained six line items that were not adequately addressed. ID at 11; IAF, Tab 6
at 74, Tab 42 at 55-61. Accordingly, the administrative judge found that the
agency proved by substantial evidence that the appellant failed to meet the
timeliness standard included in subelement 3 of Critical Element 1 and failed to
address multiple line items on those corrective action reports. ID at 12. He
further stated that he was “of the firm conviction that the appellant’s performance
for subelement 3, [Critical Element 1] was, in fact, unsatisfactory.” ID at 12.
Because the DO required the appellant to satisfactorily complete all of the
subelements of each critical element, the administrative judge found that the
appellant’s failure in that subelement was adequate to find that the appellant
failed Critical Element 1 and the DO in its entirety. Id.
These findings are supported by the record, and the appellant does not
challenge them on petition for review. 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);
see also 5 C.F.R. § 1201.115 (“The Board normally will consider only issues
raised in a timely-filed petition or cross-petition for review.”). Rather, as
explained above, the appellant’s petition for review reiterates his argument from
below that the agency impermissibly changed the performance standards from his
FY 20 performance plan to the DO with respect to the first subelement of Critical
Element 1. PFR File, Tab 1. We address this issue below.
The administrative judge did not err in declining to resolve the appellant’s
challenge to the standard set forth in subelement 1 of Critical Element 1.
We agree with the administrative judge that it was unnecessary to reach the
appellant’s challenge to the first subelement of Critical Element 1. ID at 6. The
Board has stated that an agency need not show that an employee’s performance
was unacceptable on a majority of subelements to prove unacceptable8
performance on the critical element as a whole. See Lee, 115 M.S.P.R. 533, ¶ 37.
Rather, as the administrative judge correctly noted, an agency can satisfy its
burden of showing that an employee’s performance on fewer than all of the
components or subelements of a critical element still warranted an unacceptable
rating on the critical element as a whole if it can provide evidence of the
following: (1) the employee knew or should have known the significance of the
subelement; and (2) the importance of the component or subelement in relation to
the duties or responsibilities of the critical element as a whole. See Rogers,
814 F.2d at 1554.
The administrative judge observed that Critical Element 1 for the
appellant’s FY 20 performance plan contained approximately 16 subelements and
that the DO isolated 3 of those 16. ID at 7. He found that the agency thereby
placed the appellant on notice of which subelements it considered important in
passing Critical Element 1 in its entirety. Id. Additionally, the administrative
judge found that the standard set forth in subelement 3 of Critical Element 1 is
“tailored to the specific requirements of [the appellant’s] position because, if
either he or whoever is using his report to locate a trap cannot do so because of
[an] inaccuracy, the agency’s mission to eradicate fruit flies suffers.” ID at 8-9.
Thus, although not explicitly stating so, the administrative judge concluded
impliedly that the agency met the factors set forth in Rogers. ID at 6-9. On
review, the appellant does not argue that he did not know that subelement 3 was
significant to the overall performance of Critical Element 1, nor does he claim
that subelement 3 is not sufficiently related to the overall duties and
responsibilities with which Critical Element 1, as a whole, is concerned. PFR
File, Tab 1.
We have reviewed the record, and we agree with the administrative judge
that the appellant was aware of the importance of subelement 3 of Critical
Element 1. In addition to the DO’s focus on the 3 out of 16 subelements, the
record reflects that a point of focus in the meetings leading up to the appellant’s9
placement on the DO was his responsiveness to requests for corrective action.
IAF, Tab 6 at 91. We also agree that subelement 3 is germane to the overall
performance of the critical element because, as the administrative judge
concluded, providing correct information in his reports is necessary to enable the
agency to carry out its mission of detecting and excluding fruit flies from the
United States. Therefore, we agree that the agency did not need to prove that the
appellant failed to achieve acceptable performance in all subelements of Critical
Element 1, and that unacceptable performance in subelement 3 was sufficient to
conclude that the appellant’s performance in that critical element was
unacceptable. See Wallace v. Department of the Air Force , 879 F.2d 829, 834
(Fed. Cir. 1989) (recognizing that an appellant’s failure to meet a single
component of one critical element may be sufficient to justify removal for
unacceptable performance) ; Rogers, 814 F.2d at 1554 (finding that an
unsatisfactory performance on one of six components of one critical element and
two of four components of another warranted an unacceptable rating on both
critical elements); Lee, 115 M.S.P.R. 533, ¶ 37 (finding that unsatisfactory
performance in two of six components of one critical element warranted an
unacceptable rating in that element). For these reasons, regardless of the merits
of the appellant’s argument that the agency impermissibly changed the standard
for the first subelement of Critical Element 1, we nonetheless agree with the
administrative judge that the agency met its burden under White with respect to
the third subelement of Critical Element 1, as set forth above.
Remand is necessary to afford the parties an opportunity to submit evidence and
argument regarding whether the appellant’s placement on a PIP was proper.
Although the appellant has identified no basis for us to disturb the
administrative judge’s findings below, we nonetheless must remand this appeal
for another reason. As noted, during the pendency of the petition for review, the
Federal Circuit held in Santos, 990 F.3d at 1360-61, that, in addition to the five
elements of the agency’s case set forth above, the agency must also justify the10
institution of a PIP by proving by substantial evidence that the employee’s
performance was unacceptable prior to the PIP. The Federal Circuit’s decision in
Santos applies to all pending cases, including this one, regardless of when the
events took place. Lee v. Department of Veterans Affairs , 2022 MSPB 11, ¶ 16.
Although the record already contains some evidence on this issue, the parties
were not notified that it would be material to the adjudication, and thus, they have
not had a full and fair opportunity to address it. We therefore remand the appeal
to give the parties the opportunity to present argument and additional evidence on
whether the appellant’s performance during the period leading up to the DO was
unacceptable in one or more critical elements. See Lee, 2022 MSPB 11, ¶¶ 15-17.
On remand, the administrative judge shall accept argument and evidence on this
issue and shall hold a supplemental hearing if appropriate. Id., ¶ 17.
The administrative judge shall then issue a new initial decision consistent
with Santos. See id. If the agency makes the additional showing required under
Santos on remand that the appellant’s performance in Critical Element 1 was at an
unacceptable level prior to his placement on the DO, the administrative judge
may incorporate his prior findings on the other elements of the agency’s case and
the appellant’s affirmative defense5 in the remand initial decision. See id.
However, if the agency fails to show that the appellant’s performance was at an
unacceptable level for Critical Element 1 prior to his placement on the DO, the
administrative judge should consider whether the agency met its burden of proof
in a chapter 43 performance -based removal appeal under Santos with respect to
Critical Element 3. Regardless of whether the agency meets its burden, if the
argument or evidence on remand regarding the appellant’s pre -DO performance
5 As noted above, the appellant alleged that he was discriminated against based on his
age. IAF, Tab 4 at 3. The administrative judge found that the appellant failed to prove
that his age was a motivating factor in his removal, ID at 13-14, and the appellant does
not contest this finding on review. As explained above, however, to the extent that any
further evidence or argument on remand affects the discrimination analysis, the
administrative judge should address it in the remand initial decision.11
affects the administrative judge’s analysis of the appellant’s affirmative defense,
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 Atlanta
Regional Office for further adjudication in accordance with this Remand Order.
FOR THE BOARD: ______________________________
Gina K. Grippando
Clerk of the Board
Washington, D.C.12 | Rister_Vincent_M_AT-0432-20-0614-I-1_Remand_Order.pdf | 2025-01-15 | VINCENT M. RISTER v. DEPARTMENT OF AGRICULTURE, MSPB Docket No. AT-0432-20-0614-I-1, January 15, 2025 | AT-0432-20-0614-I-1 | NP |
258 | https://www.mspb.gov/decisions/nonprecedential/Clark_Eric_U_PH-3330-16-0355-I-1_Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
ERIC URIAH CLARK,
Appellant,
v.
DEPARTMENT OF DEFENSE,
Agency.DOCKET NUMBER
PH-3330-16-0355-I-1
DATE: January 15, 2025
THIS FINAL ORDER IS NONPRECEDENTIAL1
Eric Uriah Clark , Waldorf, Maryland, pro se.
Kevin Greenfield and Lundi M. Shafiei , Esquire, Washington, D.C.,
for the agency.
BEFORE
Cathy A. Harris, Chairman
Raymond A. Limon, Vice Chairman
Henry J. Kerner, Member
FINAL ORDER
The appellant has filed a petition for review of the initial decision, which
dismissed the appeal for lack of jurisdiction. Generally, we grant petitions such
as this one only in the following circumstances: the initial decision contains
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).
erroneous findings of material fact; the initial decision is based on an erroneous
interpretation of statute or regulation or the erroneous application of the law to
the facts of the case; the administrative judge’s rulings during either the course of
the appeal or the initial decision were not consistent with required procedures or
involved an abuse of discretion, and the resulting error affected the outcome of
the case; or new and material evidence or legal argument is available that, despite
the petitioner’s due diligence, was not available when the record closed. Title 5
of the Code of Federal Regulations, section 1201.115 (5 C.F.R. § 1201.115). For
the reasons discussed below, we DENY the appellant’s petition for review.
However, we VACATE the initial decision’s findings that the doctrine of
collateral estoppel bars the appellant’s claim under the Veterans Employment
Opportunities Act of 1998 (VEOA) and instead DENY the appellant’s request for
corrective action under VEOA on the basis that he failed to meet the time limit
for filing a complaint with the Department of Labor (DOL) set forth at 5 U.S.C.
§ 3330a(a)(2)(A). We FORWARD the appellant’s potential individual right of
action (IRA) and Uniformed Services Employment and Reemployment Rights Act
of 1994 (USERRA) claims to the Northeastern Regional Office for further
adjudication in accordance with this Final Order.
BACKGROUND
On June 13, 2016, the appellant filed a Board appeal challenging his
August 2012 removal from a Personnel Security Specialist position with the
agency. Clark v. Department of Defense , MSPB Docket No. PH-3330-16-0355-
I-1, Initial Appeal File (IAF), Tab 1 at 1, 7. The appellant asserted that the
agency removed him in violation of his veterans’ preference rights and in
retaliation for whistleblowing activity. Id. at 2. The administrative judge issued
a jurisdictional order informing the appellant of what he had to show to establish
Board jurisdiction over his VEOA appeal, including the statutory deadlines for
filing a complaint with DOL. IAF, Tab 2 at 2-3. The appellant responded by2
requesting a hearing on the merits of his appeal and attaching documents from
DOL and the Office of Special Counsel (OSC). IAF, Tab 6, Tab 7, Initial
Decision (ID) at 5.2
In an initial decision based on the written record, the administrative judge
dismissed the appeal. ID. She found that, although the appellant previously had
appealed his chapter 43 removal, that appeal was dismissed as untimely filed with
no good cause shown for the untimeliness, and that decision became the final
decision of the Board on his removal on January 2, 2013, when the appellant did
not file a petition for review. ID at 2; Clark v. Department of the Air Force ,
MSPB Docket No. PH-0432-13-0033-I-1, Initial Decision (Nov. 28, 2012)
(0033 ID). The administrative judge also found that the appellant filed an equal
employment opportunity (EEO) complaint with the agency on March 7, 2016,
challenging his removal and several nonselections based on negative information
contained in his personnel file. ID at 2. By final agency decision dated May 13,
2016, the agency dismissed the appellant’s claim regarding his removal because
he had elected to appeal his removal to the Board and dismissed the remaining
claims as untimely filed. ID at 2; IAF, Tab 1 at 7-9.
Regarding the appellant’s VEOA claim, the administrative judge found that
the appellant could have asserted a violation of VEOA as a defense in the prior
appeal of his removal, but that he did not. ID at 3. The administrative judge also
found the appellant’s VEOA complaint was not timely filed with DOL and that
there was no basis to warrant equitable tolling of the statutory filing deadline. ID
at 3-4. The administrative judge further found that, because the appellant did not
timely file his previous removal appeal or establish good cause for his failure to
2 Due to an administrative error during the conversion of this paper appeal record to an
electronic case file, the Board cannot locate pages 6 through 14 of Tab 6 in the Initial
Appeal File. The Office of the Clerk of the Board twice issued a notice to the parties
directing resubmission of the referenced documents. Petition for Review (PFR) File,
Tabs 11-12. The agency indicated in response that it does not possess the referenced
documents. PFR File, Tab 13. The appellant did not respond to the notices.3
do so, collateral estoppel applies, and the appellant cannot now assert a VEOA
claim in an effort to relitigate the prior untimely appeal of his removal. ID at 4.
Finally, although the appellant submitted documents attempting to show
that he had filed a complaint with OSC, the administrative judge found that the
documents show only that he may have initiated the complaint process, but he
failed to provide any evidence that he had received a letter from OSC terminating
its investigation. ID at 5. Because 120 days had not yet elapsed since the
appellant’s OSC filing, the administrative judge found that, to the extent the
appellant was attempting to file an IRA appeal, his appeal was premature. ID
at 5-6. Thus, the administrative judge dismissed the appeal. ID at 6.
The appellant has filed a petition for review.3 Petition for Review (PFR)
File, Tab 7. The agency has not responded.
DISCUSSION OF ARGUMENTS ON REVIEW
The administrative judge erred when dismissing the appellant’s VEOA claim as
barred by the doctrine of collateral estoppel.
Generally, for the Board to adjudicate a VEOA claim on the merits, an
appellant must, inter alia, prove by preponderant evidence4 that he exhausted his
remedy with DOL. Bent v. Department of State , 123 M.S.P.R. 304, ¶ 5 (2016).
To do so, an appellant must file a complaint with the Secretary of Labor “within
3 The appellant filed his petition for review—at most—29 minutes late. PFR File,
Tab 7. In the sworn declaration of the appellant, who is pro se, he states that he began
sending the petition for review electronically prior to the filing deadline but
encountered technical difficulties and was logged off the system. PFR File, Tab 9.
Given the appellant’s attempt to file before the deadline, the minimal delay, and that the
agency has not alleged any prejudice from the delay, we find that the appellant has
shown good cause for the untimely filing. See Social Security Administration v. Price ,
94 M.S.P.R. 337, ¶ 7 (2003) (finding that the agency exercised due diligence and
showed good cause for filing a petition for review 34 minutes late when its attorney
began sending the petition prior to the filing deadline but experienced technical
problems), aff’d, 398 F.3d 1322 (Fed. Cir. 2005).
4 Preponderant evidence is defined as, 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
60 days after the date of the alleged violation.” 5 U.S.C. § 3330a(a)(2)(A). This
60-day time limit is not a jurisdictional requirement and thus is subject to
equitable tolling if the circumstances warrant. Garcia v. Department of
Agriculture, 110 M.S.P.R. 371, ¶ 12 (2009). Equitable tolling is a rare remedy
that is to be applied sparingly and generally requires a showing that the litigant
has been pursuing his rights diligently and some extraordinary circumstances
stood in his way. Heimberger v. Department of Commerce , 121 M.S.P.R. 10,
¶ 10 (2014). We find that the administrative judge should have solely analyzed
the appellant’s VEOA claim against this framework. She committed an error by
instead applying collateral estoppel as a result of the appellant’s untimely
chapter 43 removal appeal previously filed with the Board.
Collateral estoppel, or issue preclusion, precludes a party from relitigating
an issue when the following criteria are met: (1) the issue is identical to one in a
prior action; (2) the issue was actually litigated in the prior action; (3) the
previous determination of that issue was necessary to the resulting judgment; and
(4) the party against whom issue preclusion is sought had a full and fair
opportunity to litigate the issue in the prior action, either as a party to the earlier
action or as one whose interests were otherwise fully represented in that action.
McNeil v. Department of Defense , 100 M.S.P.R. 146, ¶ 15 (2005). For the
following reasons, collateral estoppel does not apply to the instant appeal as the
administrative judge incorrectly held in the initial decision. ID at 3-4.
First, the sole issue in the appellant’s prior appeal was whether he timely
filed his chapter 43 removal appeal with the Board, and if not, whether good
cause existed to waive the missed deadline. 0033 ID at 1-5. In this instant
appeal, the issue regarding the appellant’s VEOA claim is whether he timely filed
his complaint with DOL as mandated by statute, and if not, does the evidence
warrant the application of equitable tolling. The filing time limits, procedures,
requirements, and basis for waiving or accepting late filings for removal appeals
filed with the Board, compared to VEOA complaints filed with DOL, differ in5
many respects.5 Next, in the appellant’s previous removal appeal, the timeliness
of the filing of his VEOA complaint with DOL was not adjudicated, as he never
raised such a claim.6 Id.; ID at 3. Lastly, the appellant did not have a full and
fair opportunity to adjudicate the timeliness of his VEOA complaint filing with
DOL in his previous Board appeal, as he was never apprised of his burden and
given an opportunity to brief the issue. Thus, we vacate the administrative
judge’s findings that the appellant’s VEOA claim was barred before the Board by
the doctrine of collateral estoppel. See Matosian v. Department of the Air Force ,
56 M.S.P.R. 689, 694 (1993) (holding that the administrative judge erred in
applying collateral estoppel to preclude the appellant’s claim, as the issues were
not identical and required different standards of proof).7
The appellant’s request for corrective action under VEOA is denied because he
failed to meet the statutory time limit for filing a complaint with DOL.
We must now, using the framework outlined above, examine whether the
appellant’s VEOA claim is properly before the Board. Here, the undisputed
evidence of record shows that the administrative judge apprised the appellant of
his exhaustion requirement with DOL, IAF, Tab 2 at 2, and that the appellant
filed his complaint with DOL in October 2016, PFR File, Tab 7 at 9. This was
5 For example, a removal appeal generally must be filed with the Board within 30 days
of the effective date of the action or receipt of the decision notice (whichever is later),
the filing period is regulatory in nature, and the filing period may be waived upon a
showing of good cause. 5 C.F.R. § 1201.22(b)(1), (c). The time limit to file a VEOA
complaint with DOL derives from statute, a complaint must be filed within 60 days of
the alleged violation, and the filing time limit is subject to equitable tolling. 5 U.S.C.
§ 3330a(a)(2)(A); Garcia, 110 M.S.P.R. 371, ¶ 12.
6 The appellant failing to raise a VEOA claim in his previous removal appeal before the
Board is irrelevant to our findings herein, as a dismissal of an appeal for failing to meet
a regulatory time limit is not entitled to a res judicata effect because it is not a decision
on the merits. Peartree v. U.S. Postal Service , 66 M.S.P.R. 332, 340 (1995).
7 The administrative judge also erred in holding that the dismissal of the appellant’s
previous removal appeal as untimely filed was a jurisdictional decision. ID at 4; see
Kloeckner v. Solis , 568 U.S. 41, 48-49 (2012) (recognizing that Board dismissals of
removal appeals as untimely filed is a decision on procedural grounds).6
well beyond the 60-day statutory deadline of the alleged VEOA violation, as it
was more than 4 years after the agency removed the appellant.8 5 U.S.C.
§ 3330a(a)(2)(A); IAF, Tab 3 at 13. To the extent that the appellant is raising
nonselections as part of his VEOA claim, the result is the same, as the alleged
nonselections occurred in 2014 through February 2016.9 IAF, Tab 1 at 7-8.
Further, there has been no argument proffered by the appellant, nor is there
evidence in the record, in support of equitable tolling applying. Therefore, we
deny the appellant’s request for corrective action under VEOA on the basis that
he failed to meet the time limit for filing a complaint with DOL set forth at
5 U.S.C. § 3330a(a)(2)(A). See Garcia, 110 M.S.P.R. 371, ¶ 13 (denying an
appellant’s request for corrective action under VEOA without a hearing because
he did not meet the requirement of filing a complaint with DOL pursuant to
5 U.S.C. § 3330a(a)(2)(A)).10
8 The fact that DOL categorized the appellant’s complaint as a claim under USERRA
does not change our analysis or findings on the VEOA claim. PFR File, Tab 7 at 9.
9 The administrative judge appeared to reach this same conclusion regarding the
nonselections. ID at 5.
10 On review, the appellant appears to challenge the merits of the underlying removal
action and disputes documentation contained in his personnel file concerning the length
of his probationary period. PFR File, Tab 7 at 5. We need not address these arguments
as they are irrelevant to the threshold issue of whether the appellant timely filed his
VEOA complaint with DOL and whether equitable tolling applies. The appellant also
attaches documents to his petition for review concerning his EEO complaint and raises
issues with the EEO investigatory and alternative dispute resolution processes. Id. at 5,
10-26. However, these documents also include a September 1, 2016 decision from the
Equal Employment Opportunity Commission (EEOC) Office of Federal Operations
(OFO) that affirms the final agency decision that dismissed his removal claim because
he elected to appeal his removal to the Board and dismissed his remaining claims as
untimely filed. Id. at 21-26. To the extent the appellant may be challenging OFO’s
decision dismissing his removal claim because he elected to appeal his removal to the
Board, the Board lacks jurisdiction to review this claim. See Peartree, 66 M.S.P.R.
at 341-42 (finding that an employee may not file a Board appeal under 5 C.F.R.
§ 1201.154(b), upon exhausting the agency’s EEO procedure, if she previously had
made a valid election of the direct Board procedure). To the extent the appellant may
be challenging OFO’s decision to dismiss his nonselection claims, the Board defers to a
final EEOC decision finding a complaint untimely filed. See McCoy v. U.S. Postal
Service, 108 M.S.P.R. 160, ¶ 11 (2008). 7
We forward the appellant’s petition for review to the regional office for docketing
as an IRA appeal. 11
The appellant has attached new evidence to his petition showing that he has
filed a complaint with OSC, and he appears to renew his assertion that his
removal was in retaliation for whistleblowing. PFR File, Tab 7 at 7-9, 20.
However, the appellant has not shown error in the administrative judge’s finding
that the Board lacked jurisdiction over the appeal when he first filed it because he
had not received notice from OSC that it had terminated its investigation into his
complaint and 120 days had not yet expired since he filed his complaint. See
5 U.S.C. § 1214(a)(3); Jundt v Department of Veterans Affairs , 113 M.S.P.R. 688,
¶ 6 (2010).
Nevertheless, the Board’s practice is to adjudicate an appeal that was
premature when it was filed but becomes ripe while pending with the Board. See,
e.g., Jundt, 113 M.S.P.R. 688, ¶ 7. The undisputed evidence shows that the
appellant filed a complaint with OSC no later than October 19, 2016. PFR File,
Tab 7 at 7, 20. Because 120 days have passed since that date, we find that the
appellant has exhausted his administrative remedies before OSC and that his
appeal is now ripe for adjudication. We therefore forward the appellant’s petition
for review to the regional office for docketing as an IRA appeal. See Jundt,
113 M.S.P.R. 688, ¶ 7. This IRA appeal will be deemed filed on November 19,
2016—the date that the appellant filed his petition for review. See Story v.
Department of the Air Force , 55 M.S.P.R. 222, 226 (1992) (deeming a
whistleblower claim filed as of the date of the initial misdirected filing with
Board Headquarters).
11 We have reviewed the relevant legislation enacted during the pendency of this appeal
and have concluded that it does not affect the outcome of the appeal.8
We forward the appellant’s petition for review to the regional office for docketing
as a USERRA appeal.
The appellant also attached new evidence indicating that he has filed a
USERRA complaint with DOL. PFR File, Tab 7 at 7-9. Because it appears that
the appellant is now attempting to raise a claim of uniformed service
discrimination before the Board under 38 U.S.C. § 4324, we forward his petition
for review to the regional office for docketing as a USERRA appeal. This
USERRA appeal will be deemed filed on November 19, 2016—the date that the
appellant filed his petition for review.
An appellant may either file a USERRA complaint with the Secretary of
Labor pursuant to 38 U.S.C. § 4322 or file an appeal directly with the Board
pursuant to 38 U.S.C. § 4324(b). Gossage v. Department of Labor , 118 M.S.P.R.
455, ¶ 8 (2012). If an appellant first files a USERRA complaint with the
Secretary of Labor, he may not file a USERRA appeal with the Board until the
Secretary notifies the appellant that he was unable to resolve the complaint. Id.
USERRA does not provide for exhaustion of the complaint before DOL as a
matter of time; it instead requires notification that the Secretary of Labor’s efforts
did not resolve the complaint. Id. Here, we have found no evidence indicating
that the appellant previously raised a USERRA claim before the Board. Thus,
under 38 U.S.C. § 4324(b)(2), the appellant may not appeal to the Board until he
receives the required notification from DOL. See id. Because it is unclear
whether the Secretary of Labor has notified the appellant that he was unable to
resolve his complaint, we are unable to determine whether the USERRA claim is
ripe for adjudication. Therefore, the administrative judge should address this
issue in the first instance and provide the parties the opportunity to present
evidence and argument regarding the Board’s jurisdiction under that statute. If
jurisdiction is established, then the administrative judge shall decide the
USERRA appeal on the merits. 9
NOTICE OF APPEAL RIGHTS12
The initial decision, as supplemented by this Final Order, constitutes the
Boards final decision in this matter. 5 C.F.R. § 1201.113. You may obtain
review of this final decision. 5 U.S.C. § 7703(a)(1). By statute, the nature of
your claims determines the time limit for seeking such review and the appropriate
forum with which to file. 5 U.S.C. § 7703(b). Although we offer the following
summary of available appeal rights, the Merit Systems Protection Board does not
provide legal advice on which option is most appropriate for your situation and
the rights described below do not represent a statement of how courts will rule
regarding which cases fall within their jurisdiction. If you wish to seek review of
this final decision, you should immediately review the law applicable to your
claims and carefully follow all filing time limits and requirements. Failure to file
within the applicable time limit may result in the dismissal of your case by your
chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(A).
12 Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise which option is most appropriate in any matter.10
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the following
address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. 420 (2017). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the district court no later than 30 calendar days after your representative
receives this decision. If the action involves a claim of discrimination based on11
race, color, religion, sex, national origin, or a disabling condition, you may be
entitled to representation by a court-appointed lawyer and to waiver of any
requirement of prepayment of fees, costs, or other security. See 42 U.S.C.
§ 2000e-5(f) and 29 U.S.C. § 794a.
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702(b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or12
other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
disposition of allegations of a prohibited personnel practice described in section
2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i),
(B), (C), or (D),” then you may file a petition for judicial review either with the
U.S. Court of Appeals for the Federal Circuit or any court of appeals of
competent jurisdiction.13 The court of appeals must receive your petition for
review within 60 days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(B).
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the following
address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
13 The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115-195,
132 Stat. 1510. 13
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
Contact information for the courts of appeals can be found at their
respective websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
FOR THE BOARD: ______________________________
Gina K. Grippando
Clerk of the Board
Washington, D.C.14 | Clark_Eric_U_PH-3330-16-0355-I-1_Final_Order.pdf | 2025-01-15 | ERIC URIAH CLARK v. DEPARTMENT OF DEFENSE, MSPB Docket No. PH-3330-16-0355-I-1, January 15, 2025 | PH-3330-16-0355-I-1 | NP |
259 | https://www.mspb.gov/decisions/nonprecedential/Mendoza_AntonioDA-0752-21-0226-I-1_Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
ANTONIO MENDOZA,
Appellant,
v.
DEPARTMENT OF HOMELAND
SECURITY,
Agency.DOCKET NUMBER
DA-0752-21-0226-I-1
DATE: January 15, 2025
THIS FINAL ORDER IS NONPRECEDENTIAL1
Christopher H. Bonk , Esquire, and Christopher P. Byrd , Esquire,
Silver Spring, Maryland, for the appellant.
Lisa Rios Donaldson and Mark W. Hannig , Esquire, El Paso, Texas,
for the agency.
BEFORE
Cathy A. Harris, Chairman
Raymond A. Limon, Vice Chairman
Henry J. Kerner, Member
FINAL ORDER
The appellant has filed a petition for review of the initial decision, which
dismissed his removal appeal for lack of jurisdiction pursuant to a Last Chance
Agreement (LCA). Generally, we grant petitions such as this one only in the
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).
following circumstances: the initial decision contains erroneous findings of
material fact; the initial decision is based on an erroneous interpretation of statute
or regulation or the erroneous application of the law to the facts of the case; the
administrative judge’s rulings during either the course of the appeal or the initial
decision were not consistent with required procedures or involved an abuse of
discretion, and the resulting error affected the outcome of the case; or new and
material evidence or legal argument is available that, despite the petitioner’s due
diligence, was not available when the record closed. Title 5 of the Code of
Federal Regulations, section 1201.115 (5 C.F.R. § 1201.115). After fully
considering the filings in this appeal, we conclude that the petitioner has not
established any basis under section 1201.115 for granting the petition for review.
Therefore, we DENY the petition for review and AFFIRM the initial decision,
which is now the Board’s final decision. 5 C.F.R. § 1201.113(b).
On review, the appellant challenges the demeanor-based credibility
determinations the administrative judge made in concluding that the appellant
engaged in misconduct that constituted a breach of the LCA. Petition for Review
File, Tab 1 at 9-15. 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. Haebe
v. Department of Justice, 288 F.3d 1288, 1301 (Fed. Cir. 2002). The Board may
overturn such determinations only when it has “sufficiently sound” reasons for
doing so. Id. Although the administrative judge did not provide a detailed
explanation for her credibility determinations, it is clear that she found the
agency’s witnesses to be more credible than the appellant, and the appellant has
not identified a sufficiently sound reason for us not to defer to those findings.
Regarding the testimony of the appellant’s coworker who observed part of the
altercation between the appellant and his supervisors, we have carefully
considered her testimony and find that it does not present a sufficient basis to
disturb the initial decision.2
NOTICE OF APPEAL RIGHTS2
You may obtain review of this final decision. 5 U.S.C. § 7703(a)(1). By
statute, the nature of your claims determines the time limit for seeking such
review and the appropriate forum with which to file. 5 U.S.C. § 7703(b).
Although we offer the following summary of available appeal rights, the Merit
Systems Protection Board does not provide legal advice on which option is most
appropriate for your situation and the rights described below do not represent a
statement of how courts will rule regarding which cases fall within their
jurisdiction. If you wish to seek review of this final decision, you should
immediately review the law applicable to your claims and carefully follow all
filing time limits and requirements. Failure to file within the applicable time
limit may result in the dismissal of your case by your chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(A).
2 Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise which option is most appropriate in any matter.3
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems
Protection Board, 582 U.S. 420 (2017). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the district court no later than 30 calendar days after your representative
receives this decision. If the action involves a claim of discrimination based on4
race, color, religion, sex, national origin, or a disabling condition, you may be
entitled to representation by a court -appointed lawyer and to waiver of any
requirement of prepayment of fees, costs, or other security. See 42 U.S.C.
§ 2000e-5(f) and 29 U.S.C. § 794a.
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702(b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or5
other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
disposition of allegations of a prohibited personnel practice described in
section 2302(b) other than practices described in section 2302(b)(8), or
2302(b)(9)(A)(i), (B), (C), or (D),” then you may file a petition for judicial
review either with the U.S. Court of Appeals for the Federal Circuit or any court
of appeals of competent jurisdiction.3 The court of appeals must receive your
petition for review within 60 days of the date of issuance of this decision.
5 U.S.C. § 7703(b)(1)(B).
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
3 The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115-195,
132 Stat. 1510. 6
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
Contact information for the courts of appeals can be found at their
respective websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
FOR THE BOARD: ______________________________
Gina K. Grippando
Clerk of the Board
Washington, D.C.7 | Mendoza_AntonioDA-0752-21-0226-I-1_Final_Order.pdf | 2025-01-15 | ANTONIO MENDOZA v. DEPARTMENT OF HOMELAND SECURITY, MSPB Docket No. DA-0752-21-0226-I-1, January 15, 2025 | DA-0752-21-0226-I-1 | NP |
260 | https://www.mspb.gov/decisions/nonprecedential/Pelayo_ErnestoSF-0752-20-0286-I-1_Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
ERNESTO PELAYO,
Appellant,
v.
DEPARTMENT OF HOMELAND
SECURITY,
Agency.DOCKET NUMBER
SF-0752-20-0286-I-1
DATE: January 15, 2025
THIS FINAL ORDER IS NONPRECEDENTIAL1
Ryan C. Nerney , Esquire, Ladera Ranch, California, for the appellant.
Lauren J. Johnson , Esquire, San Diego, California, for the agency.
BEFORE
Cathy A. Harris, Chairman
Raymond A. Limon, Vice Chairman
Henry J. Kerner, Member
FINAL ORDER
The appellant has filed a petition for review of the initial decision, which
affirmed his removal. Generally, we grant petitions such as this one only in the
following circumstances: the initial decision contains erroneous findings of
material fact; the initial decision is based on an erroneous interpretation of statute
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).
or regulation or the erroneous application of the law to the facts of the case; the
administrative judge’s rulings during either the course of the appeal or the initial
decision were not consistent with required procedures or involved an abuse of
discretion, and the resulting error affected the outcome of the case; or new and
material evidence or legal argument is available that, despite the petitioner’s due
diligence, was not available when the record closed. Title 5 of the Code of
Federal Regulations, section 1201.115 (5 C.F.R. § 1201.115). After fully
considering the filings in this appeal, we conclude that the petitioner has not
established any basis under section 1201.115 for granting the petition for review.
Therefore, we DENY the petition for review. Except as expressly MODIFIED to
recognize and apply the proper standards for the agency’s charge and the
appellant’s disability discrimination claims and to address the appellant’s
argument that the agency’s requirement that he undergo a fitness for duty
examination constituted disability discrimination, we AFFIRM the initial
decision.
The following facts, as further detailed in the parties’ stipulations and the
initial decision, appear to be undisputed. Initial Appeal File (IAF), Tab 18
at 16-18; Tab 22 at 8-11; Tab 24 at 3-6; Tab 35, Initial Decision (ID) at 2-5. The
appellant began working as a Customs and Boarder Protection Officer (CBPO) in
2005. ID at 2. In November 2016, he had an off-duty accident in which he
suffered multiple fractures in his spine and hip. Id. After 2 months of leave and
extensive medical treatment, the appellant returned to a light duty assignment. ID
at 2-3. A couple of months later, the appellant returned to his assignment with
the agency’s Anti-Terrorism Contraband Enforcement Team, though his physician
indicated that he could work no more than 8 hours per day. ID at 3. That
restriction continued until August 2017, when the appellant’s physician indicated
that he could work no more than 12 hours per day. Id. Subsequent
communications from the appellant’s physician maintained similar restrictions,2
citing degenerative joint disease in the hip, as well as pain and stiffness. Id.;
IAF, Tab 5 at 22.
In February 2019, the agency ordered that the appellant undergo a fitness
for duty examination. ID at 4; IAF, Tab 17 at 20. This included an independent
medical exam by a family practitioner in April, IAF, Tab 5 at 7-16, followed by
an independent medical exam by an orthopedist in June, IAF, Tab 4 at 72-78,
Tab 5 at 41-47, then a review of medical information by a third physician in
August, IAF, Tab 4 at 66-68. The latter two provided their opinion about the
appellant’s condition as it related to his position, with each concluding that he
was not medically fit for duty as a CBPO. IAF, Tab 4 at 66-71.
In September 2019, the agency proposed the appellant’s removal for
inability to perform the full range of duties. IAF, Tab 4 at 62-64. The appellant
responded to the proposal and provided a note from the physician who performed
his 2016 surgery indicating that the appellant was fit for duty. ID at 4; IAF,
Tab 5 at 39. At that point, the fitness for duty physicians who had previously
opined that the appellant was not fit issued a supplemental report indicating that
their opinions were unchanged. IAF, Tab 4 at 52-60. Then, in January 2020, the
agency offered to reassign the appellant to a non-law enforcement position, but he
declined the offer. Id. at 33, 61. The next month, February 2020, the deciding
official effectuated the appellant’s removal. ID at 5; IAF, Tab 4 at 47-50.
The appellant filed the instant appeal to challenge his removal. IAF, Tab 1.
After developing the record and holding the requested hearing, the administrative
judge affirmed the action. She first found that the agency proved its charge. ID
at 14-21. Next, the administrative judge found that the appellant failed to prove
his claims of disparate treatment disability discrimination, ID at 21-24, disability
discrimination based on a failure to accommodate, ID at 25-29, harmful
procedural error, ID at 29-32, or a violation of due process rights, ID at 32-33.
Lastly, she found that the agency established the requisite nexus and
reasonableness of its penalty. ID at 33-35.3
The appellant has filed a petition for review. Petition for Review (PFR)
File, Tab 1. He challenges the administrative judge’s findings regarding proof of
the charge and credibility, id. at 9-14, 22-26, disability discrimination, id.
at 14-19, harmful procedural error, id. at 19-21, and nexus, id. at 21-22. The
agency has filed a response. PFR File, Tab 3.
The administrative judge applied an inapplicable legal standard to the agency’s
charge.
Once again, the agency proposed and then effectuated the appellant’s
removal based on a single charge of inability to perform the full range of his
CBPO duties. IAF, Tab 4 at 47, 62. The administrative judge analyzed this
charge under 5 C.F.R. § 339.206 and the standard set out in Sanders v.
Department of Homeland Security , 122 M.S.P.R. 144, ¶ 11, aff’d per curiam ,
625 F. App’x 549 (Fed. Cir. 2015), finding that the agency proved its charge by
establishing that the appellant had a disqualifying medical condition that poses a
reasonable probability of causing substantial harm. ID at 13-14, 21.
Though not raised by either party on review, we find section 339.206 and
the Sanders standard inapplicable. See 5 C.F.R. § 1201.115(e) (providing that,
although the Board normally will consider only issues raised by the parties on
review, it reserves the authority to consider any issue in an appeal before it). As
explained below, section 339.206 and Sanders do not apply to this appeal because
the agency did not remove the appellant based solely on his medical history;
rather, it removed the appellant based on a current medical condition and inability
to perform.
In Haas v. Department of Homeland Security , 2022 MSPB 36, we revisited
the Board’s precedent concerning a medical inability to perform charge when the
employee occupied a position that was subject to medical standards, e.g., the
position of CBPO. We overruled a number of cases on this point, including
Sanders, and found that 5 C.F.R. § 339.206 should not be universally applied in
removals based on medical inability to perform. Id., ¶¶ 11-16. Rather,4
section 339.206 only applies to removals that are “solely on the basis of medical
history.” Id., ¶¶ 11-12.
Regardless of whether a position is subject to medical standards, if an
agency removes an employee for inability to perform because of a current
medical condition or impairment, the agency must prove either a nexus between
the employee’s medical condition and observed deficiencies in his performance or
conduct, or a high probability, given the nature of the work involved, that his
condition may result in injury to himself or others. Id., ¶¶ 15, 20 & n.3. The
Board has otherwise described the standard as requiring that the agency establish
that the appellant’s medical condition prevents him from being able to safely and
efficiently perform the core duties of his position. Id., ¶¶ 15, 20.
In the instant appeal, the agency did not remove the appellant based solely
on his medical history. The agency instead removed him because of his current
medical condition. The proposal to remove the appellant cited his degenerative
joint disease, pain, stiffness, and the appellant’s own medical submissions, which
indicated that he was still limited in terms of the number of hours he could work
in a day. IAF, Tab 4 at 62. The proposal also cited additional ongoing
limitations described in the fitness for duty examinations, such as ones
concerning his lifting capacity, climbing, bending, and stooping. Id.
Accordingly, section 339.206 does not apply.
As modified to apply the correct legal standard, we affirm the administrative
judge’s conclusion that the agency proved its charge.
Although the administrative judge rendered the initial decision in this
appeal before we issued Haas and, consequently, misapplied 5 C.F.R. § 339.206,
remand is unnecessary because the record is fully developed on the relevant
issues. See Haas, 2022 MSPB 36, ¶ 20. Because the agency removed the
appellant based on a current medical condition, its burden was to prove either a
nexus between the employee’s medical condition and observed deficiencies in his
performance or conduct, or a high probability, given the nature of the work5
involved, that his condition may result in injury to himself or others . Id. In other
words, the agency must establish that the appellant’s medical condition prevents
him from being able to safely and efficiently perform the core duties of his
position. Id. While determining whether the agency has met this burden, the
Board will consider whether a reasonable accommodation, short of reassignment,
exists that would enable the appellant to safely and efficiently perform those core
duties. Id., ¶ 25.
The core duties of a position are synonymous with the essential functions
of a position under the Americans with Disabilities Act (ADA), as amended by
the Americans with Disabilities Act Amendments Act of 2008 (ADAAA), i.e., the
fundamental job duties of the position, not including marginal functions. Id.,
¶ 21. One of the bases for finding that a function is essential is that it is the
“reason the position exists.” Id.; 29 C.F.R. § 1630.2(n)(2)(i).
According to the relevant position description and associated medical
standards, CBPOs are weapon-carrying border security officers whose “primary
function” includes “detect[ing] and prevent[ing] terrorists and instruments of
terror from entering the United States” and ensuring border security. IAF, Tab 5
at 27-30, 74-82. A CBPO must be “prepared mentally and physically to respond
to unexpected situations and have the functional capacity to defend self and
others from threatening situations in which the use of deadly force may be
necessary.” Id. at 27. Among other things, the physical demands of the position
“range from sedentary to arduous” and include “sustained heavy manual labor,”
as well as “extended or unscheduled hours.” Id. at 28. In addition, the CBPO
must be able to “escalate quickly . . . to pursue then physically control a suspect
and sprint or run at full speed for 150 feet to respond to an emergency.” Id. at 29.
Although the administrative judge applied the legal framework for a
removal based on a medical history, she made well-reasoned findings regarding
conflicting arguments and evidence about the appellant’s condition. ID at 14-21.
Most notably, she recognized differences in the treatment notes and hearing6
testimony of the various physicians who examined the appellant or reviewed his
fitness for duty. ID at 14-20. The administrative judge also considered the
appellant’s performance during the period leading up to his removal, finding that
it did not outweigh medical evidence about his limitations. ID at 20-21.
Ultimately, she was most persuaded by the fitness for duty orthopedic examiner
and the fitness for duty consultant, who both indicated that the appellant was not
fit. ID at 19-20; see, e.g., IAF, Tab 4 at 52-60, 67-78, Tab 30, Hearing Compact
Disc, Day 1 (testimony of fitness for duty consultant and fitness for duty
orthopedic examiner).
Broadly speaking, the fitness for duty orthopedic examiner relied on the
appellant’s subjective reports, diagnostic imaging, and a physical exam to
determine that the appellant was limited in terms of lifting, pushing, pulling,
climbing, bending, stooping, crouching, crawling, working on uneven surfaces,
and working more than 12 hours. IAF, Tab 4 at 72-78. The fitness for duty
orthopedic examiner concluded that the appellant was “not fit to safely and
efficiently perform all the essential duties of [the CBPO position], without
restrictions.” Id. at 77. In a supplemental report, he elaborated. Id. at 69-71.
Among other things, the fitness for duty orthopedic examiner explained how some
of the physical requirements of the CBPO position would put the appellant at risk
of injury and increase his pain. Id. at 69. Specific to a question about responding
to a sudden physical attack, he surmised that the appellant may have difficulty
protecting himself or others. Id. at 70. The fitness for duty orthopedic examiner
also described the appellant as having “no endurance” and unable to maintain a
high standard of physical conditioning. Id. The fitness for duty consultant
agreed with the fitness for duty orthopedic examiner. Id. at 66-68.
On review, the appellant challenges the administrative judge’s findings
about his alleged inability to perform. He first reasserts that successful
performance during the period leading up to his removal demonstrates that he was
not medically unable to perform. PFR File, Tab 1 at 9-11. We disagree. It is7
apparent that the CBPO position is unique in that an incumbent may not often
encounter a life-or-death physical altercation, but they must be prepared for such
an encounter to occur in an instant. Supra p. 6. Although the appellant’s
successful performance in the period leading up to his removal may be indicative
of his medical ability to perform at least some functions of the CBPO position,
we are aware of no persuasive argument or evidence that he successfully engaged
in the type of physical altercations a CBPO must be prepared for during the same
period. The appellant argues that he had the highest arrest rate among his peers,
but his petition contains nothing to suggest that any of those arrests were
particularly combative. He has not pointed us to evidence of him successfully
pursuing and apprehending uncooperative individuals, protecting himself or
others, or engaging in any of the additional tasks identified by clinicians as
limited by his medical condition, such as those concerning heavy lifting. IAF,
Tab 4 at 62, 67-70. More importantly, the appellant’s recent performance does
not negate the prevailing medical opinion regarding his underlying condition and
the risk it posed in terms of further injury or handicap to the appellant if he were
to continue performing the CBPO position. E.g., id. at 69; see Haas, 2022 MSPB
36, ¶ 19 (rejecting arguments that past successful performance outweighed
current medical impressions).
The appellant’s next set of arguments concern the administrative judge’s
weighing of medical opinions.2 PFR File, Tab 1 at 11-14. In short, he argues that
the administrative judge afforded too much weight to the clinicians who indicated
the appellant was not fit for duty and not enough to those who indicated
otherwise. Id. While we have considered these arguments, we find no basis for
disturbing the administrative judge’s well-reasoned conclusions. See Haas,
2022 MSPB 36, ¶¶ 24, 26 (agreeing with an administrative judge’s weighing of
2 To the extent it may have caused any confusion, we recognize that the administrative
judge seems to have inadvertently referred to one of the clinicians by her first name, at
times. Compare IAF, Tab 4 at 68 (identifying the clinician’s full name), with ID at 4
(referring to her by last name), and ID at 19 (referring to her by first name).8
medical evidence to find an independent medical examiner more persuasive than
the appellant’s treating clinician).
In sum, we find that the administrative judge properly considered factors
such as the length of any treating relationship with the appellant, any
specialization of the clinicians, the extent of any physical exam, and witness
demeanor to weigh the conflicting medical records and opinions. ID at 14-20; see
Brown v. Department of the Interior , 121 M.S.P.R. 205, ¶ 11 (2014) (recognizing
these as some of the factors to consider while assessing the probative weight of
medical opinions). The appellant’s arguments on review do not persuade us to
disturb the administrative judge’s conclusions about which medical reports and
opinions were most persuasive, or the relevance of the appellant’s past
performance. We further find that, under the proper legal framework, i.e., the
one for a current medical condition rather than a history of medical condition, the
agency met its burden. The record establishes that the appellant’s current
medical condition prevents him from being able to safely and efficiently perform
the core duties of his CBPO position, thereby proving the agency’s medical
inability to perform charge.
The appellant failed to establish that the agency engaged in disability
discrimination because he did not meet his burden of proving that he is a
qualified individual with a disability, as that term is defined under the relevant
statutes.
The administrative judge considered but rejected the appellant’s claims that
the agency engaged in disability discrimination. ID at 21-29. First, she found
that the appellant’s disparate treatment claim failed because there was no
evidence that the removal was improperly motivated by the appellant’s disability.
ID at 24. Second, she found that the appellant’s failure to accommodate claim
failed because the appellant was not a qualified individual with a disability. ID
at 28-29. We modify the administrative judge’s analysis but agree that these
claims fail.9
The Board adjudicates claims of disability discrimination raised in
connection with an otherwise appealable action under the substantive standards of
section 501 of the Rehabilitation Act. Haas, 2022 MSPB 36, ¶ 28. The
Rehabilitation Act has incorporated the standards of the ADA, as amended by the
ADAAA. Id. Therefore, we apply those standards here to determine if there has
been a Rehabilitation Act violation. Id. In particular, the ADAAA provides that
it is illegal for an employer to “discriminate against a qualified individual on the
basis of disability.” 42 U.S.C. § 12112(a). A qualified individual with a
disability is one who can “perform the essential functions of the . . . position that
such individual holds or desires” with or without reasonable accommodation.
42 U.S.C. § 12111(8). An employer is also required to provide reasonable
accommodations to an otherwise qualified individual with a disability. 42 U.S.C.
§ 12112(b)(5).
A claim of disability discrimination based on an individual’s status as
disabled and a claim based on an agency’s failure to reasonably accommodate
that disability both require that the individual be “qualified.” Haas, 2022 MSPB
36, ¶¶ 28-30. Accordingly, if the administrative judge properly determined that
the appellant’s failure to accommodate claim failed because he was not
“qualified,” that conclusion also would be dispositive for his disparate treatment
claim and any discussion of the agency’s motive would be unnecessary. Id., ¶ 30.
A qualified individual with a disability is one who can “perform the
essential functions of the . . . position that such individual holds or desires” with
or without reasonable accommodation. 42 U.S.C. § 12111(8); Haas, 2022 MSPB
36, ¶ 28. The appellant argues that he meets this standard because he could
perform the essential functions of his CBPO position and had been doing so
during the period leading up to his removal. PFR File, Tab 1 at 16-19. He
suggests that the only accommodation he needed was a limitation of working no
more than 12 hours per day. Id. The administrative judge disagreed. She found
that the appellant was not “qualified” because the essential functions of the CBPO10
position were physically rigorous duties, which the appellant could not perform
without risking his own safety or the safety of others. ID at 28-29.
We agree with the administrative judge. The appellant’s arguments on this
point essentially mirror those regarding the agency’s charge. He disputes the
medical evidence and opinions that the administrative judge found most
persuasive and argues that his performance during the period leading up to his
removal demonstrates that he can perform as a CBPO. But we are unmoved. See
Haas, 2022 MSPB 36, ¶ 30 (discounting an appellant’s argument that his
performance history supported a finding that he was qualified).
Based on the prevailing medical evidence and opinions, the appellant was
unable to perform the essential functions of his CBPO position without risking
his own safety or the safety of others, regardless of the number of hours worked.
In addition, the appellant rejected an offer of reassignment prior to his removal,
and we found no indication that the appellant has ever identified any other
alternative position or other accommodation that he desired beyond the
already-provided limitation in his hours. IAF, Tab 4 at 33, 61; see Haas,
2022 MSPB 36, ¶ 30 (finding that an appellant did not establish his failure to
accommodate claim when he was unable to perform the essential functions of his
CBPO position and he did not identify any alternative position desired as an
accommodation). Accordingly, the administrative judge correctly determined that
the appellant’s claim of disability discrimination based on an alleged failure to
accommodate fails because the appellant did not prove that he is a qualified
individual with a disability. For the same reason, his disparate treatment claim
fails as well.
Although not addressed by the administrative judge, the appellant appears
to be arguing that the fitness for duty exam he was ordered to undergo was
inappropriate and is evidence of disability discrimination. E.g., IAF, Tab 18 at 7,
10; PFR File, Tab 1 at 16. While we have found that the appellant is not a
qualified individual with a disability, the statute and implementing regulations11
limit examinations or inquiries of “an employee,” not just qualified individuals
with a disability. 42 U.S.C. § 12112(d)(4)(A); 29 C.F.R. § 1630.14(c); see
Archerda v. Department of Defense , 121 M.S.P.R. 314, ¶ 31 (2014) (citing
Watkins v. Potter , EEOC Appeal No. 01981800, 2001 WL 1097442, at *2
(Aug. 29, 2001) (indicating that “[t]he ADA’s restrictions on inquiries and
examinations apply to all employees”)). For the reasons that follow, we modify
the initial decision to consider this allegation and find that the agency did not err.
The ADAAA significantly restricts the medical inquiries that an agency
may make of an employee. Martin v. U.S. Postal Service , 2022 M.S.P.R. 22 ¶ 11;
Archerda, 121 M.S.P.R. 314, ¶ 29 & n.6. Under the ADAAA, an agency may
require a medical examination or make a medical inquiry regarding whether an
employee “is an individual with a disability or as to the nature or severity of the
disability” only when such inquiry or examination “is shown to be job-related and
consistent with business necessity.” 42 U.S.C. § 12112(d)(4)(A). It is the
employer’s burden to show that its disability-related inquiries and requests for
examination are job related and consistent with business necessity. Martin,
2022 M.S.P.R. 22, ¶ 12; Archerda, 121 M.S.P.R. 314, ¶ 31.
Ordinarily, a disability-related inquiry or medical examination may be “job
related and consistent with business necessity” if an employer “has a reasonable
belief, based on objective evidence, that: (1) an employee’s ability to perform
essential job functions will be impaired by a medical condition; or (2) an
employee will pose a direct threat due to a medical condition.” Martin,
2022 M.S.P.R. 22, ¶ 12 (citations omitted); Archerda, 121 M.S.P.R. 314, ¶ 30.
However, when an employee occupies a position that is subject to medical
standards or physical requirements, as here, 5 C.F.R. § 339.301(b)(3) authorizes
an agency to order a medical examination whenever there is a reasonable belief,
based on objective evidence, that there is a question about the employee’s
continued capacity to meet the physical requirements or medical standards of the
position. See IAF, Tab 5 at 27-30, 74-82. 12
Here, the letter ordering the appellant to undergo the fitness for duty exam
explicitly cited section 339.301 and indicated that the agency had a direct
question about the appellant’s continued capacity to meet the physical or medical
requirements of his CBPO position. IAF, Tab 17 at 20. Therefore, that is the
standard under which we consider the propriety of his fitness for duty exam.
As previously discussed, the appellant occupies a CBPO position that is
physically demanding. E.g., IAF, Tab 5 at 27-30, 74-82. He had an off-duty
accident in November 2016 that resulted in multiple fractures to his spine and
hip, requiring 2 months of leave before he could return to any work. E.g., IAF,
Tab 18 at 16. The appellant would eventually return to the assignment he had
prior to his accident in March 2017, with the only remaining limitation described
by his physician being a requirement that he work no more than 8 hours per day.
Id. However, by May 2017, his physician was still describing the appellant’s
fractures as in the process of healing. Id. A few months later, the appellant
submitted documentation from a new physician indicating that he could work as
many as 12 hours at a time. Id. at 17. Through subsequent communications, he
extended this limitation through at least November 2019. Id.
The agency’s February 2019 order that the appellant undergo its fitness for
duty exam cited the latest note it had from the appellant’s treating physician.
IAF, Tab 17 at 20 (referencing IAF, Tab 5 at 22). That November 2018 doctor’s
note described the appellant injuries in 2016 and indicated that current imaging
showed that he had degenerative joint disease in the hip. IAF, Tab 5 at 22. It
also described the appellant as developing pain and stiffness in that hip after
standing for more than 12 hours. Id. According to the agency’s instruction that
he undergo a fitness for duty exam, this “rais[ed] questions . . . regarding [the
appellant’s] continued capacity to perform the full range of duties of [his]
position in a safe and effective manner.” IAF, Tab 17 at 20.
The official who ordered the appellant to undergo the fitness for duty exam
was the Assistant Port Director. IAF, Tab 17 at 20-21. The appellant called him13
as a witness at the hearing below. IAF, Tab 24 at 6, Tab 33 at 2. While
testifying, he indicated that he did not know the appellant personally, and he only
learned of the appellant’s 2016 injury when the November 2018 medical note was
passed along the chain of command to him. IAF, Tab 32, Hearing Compact Disc,
Day 2 (testimony of Assistant Port Director). The Assistant Port Director
explained that he had only recently joined that office a few months earlier, so he
had not previously been involved in the situation and that he was not aware of the
details concerning how the situation had been handled before. Id. But he would
later provide additional context, testifying that he did not have a predecessor, and
the appellant’s division had been lacking in terms of managerial oversight and
administrative functioning, which led to the creation of his position. Id. The
Assistant Port Director suggested that this lack of oversight may have been the
reason why the appellant had not been ordered to undergo a fitness for duty exam
earlier. Id. According to the Assistant Port Director, the appellant was one of
several employees he ordered to undergo fitness for duty exams as he familiarized
himself with the division, its employees, and their situations. Id.
Upon questioning about the rationale for ordering the appellant’s fitness for
duty exam, the Assistant Port Director testified that he was concerned about the
medical report indicating that the appellant had degenerative joint disease, which
was a recent diagnosis and one he knew little about. Id. He further provided that
although the appellant’s doctor only described a limitation on him standing or
working more than 12 hours, that called into question whether the appellant could
perform other CBPO functions that were even more physically demanding. Id.
The Assistant Port Director gave examples, such as confrontations with
noncompliant travelers or detainees and jumping on trucks or trains. Id. He
summarized by stating that the medical information the appellant submitted gave
him cause for concern about whether the appellant met the medical requirements
of the position—a position he was very familiar with from his years with the
agency. Id. 14
As the appellant’s counsel confronted the Assistant Port Director about the
delay between his receipt of the November 2018 medical note and his February
2019 order for a fitness for duty exam, the Assistant Port Director attributed the
delay to a government shutdown and the agency’s administrative process, which
involved him making the ultimate decision, but only after consulting with others,
including an agency nurse. Id. He also explained that he felt he had no choice
from an administrative standpoint but to allow the appellant to continue working
while waiting for the fitness for duty exam and follow-ups, despite his concerns
about the appellant’s ability to perform. Id.
Under these circumstances, we find that the agency had ample reason to
question whether the appellant met the medical requirements of his position in the
immediate aftermath of his November 2016 accident. Although the appellant
recovered to a significant degree over the ensuing years, he continued to submit
medical documentation indicating that he had at least some persisting limitations
and abnormalities, particularly ones involving his hip. E.g., IAF, Tab 5 at 22.
Meanwhile, his CBPO position had medical standards indicating that the demands
of the position were arduous and included, inter alia, “sustained heavy manual
labor,” the ability to “pursue then physically control a suspect,” as well as the
ability to crawl and jump from heights of 4-5 feet. Id. at 28-29.
In the absence of any persuasive evidence to the contrary, we find that the
Assistant Port Director’s testimony provided a reasoned explanation for his
decision to order the fitness for duty exam that comports with 5 C.F.R.
§ 339.301(b)(3). Throughout this appeal, the appellant has continually pointed to
his successful performance during the period leading up to his fitness for duty
exam and removal to argue that neither was warranted. E.g., PFR File, Tab 1
at 16. While we have considered the same, for the reasons explained above we
find that the agency had a legitimate question about his ability to meet the
medical requirements of the CBPO position; thus, he has not shown that the
agency violated statutes or regulations prohibiting disability discrimination when15
it sent him for the fitness for duty examination. See 42 U.S.C. § 12112(d) and
29 C.F.R. §§ 1630.13(b), 1630.14(c).
The administrative judge correctly found that the appellant failed to prove any
harmful procedural error.
The administrative judge considered but rejected the appellant’s various
arguments concerning harmful procedural error. ID at 29-32. In his petition for
review, the appellant reasserts some of his harmful procedural error claims,
arguing that the agency erred by failing to follow the procedures required by both
5 C.F.R. § 339.303(b) and a provision within the applicable collective bargaining
agreement. PFR File, Tab 1 at 19-21.
According to the appellant, section 339.303(b) required that the agency
send the records from the fitness for duty clinicians and the records from his own
surgeon to another specialist to resolve their conflicting conclusions about the
appellant’s ability to perform the CBPO position. Id. at 19-21. We, however,
agree with the administrative judge’s determination that the appellant failed to
establish any error regarding this regulation, much less a harmful one. ID
at 29-31. Generally speaking, the relevant language from section 339.303(b)
provides that if an agency’s medical exam conflicts with the medical records of
an employee’s own providers, and the agency’s medical examiner cannot resolve
the conflict, the agency “may” seek another opinion from an appropriate
specialist. The provision does not require that the agency seek that additional
opinion from another specialist, nor does it preclude the agency from obtaining a
supplemental report from its fitness for duty examiners, as it did in this case.
Compare IAF, Tab 4 at 66-72 (August 2019 reports from the agency’s fitness for
duty clinicians, indicating that the appellant was unable to perform), with IAF,
Tab 5 at 39 (September 2019 report from appellant’s physician, indicating that he
was able to perform), and IAF, Tab 4 at 52-60 (December 2019 and January 2020
reports from agency’s fitness for duty clinicians, considering but discounting the
opinion of the appellant’s physician).16
Turning to the appellant’s collective bargaining agreement, he argues that a
particular provision requires that the agency observe applicable rules and
regulations about fitness for duty exams, which would encompass 5 C.F.R.
§ 339.303(b). PFR File, Tab 1 at 21. But again, we are not persuaded by his
arguments pertaining to that regulation. He has not established a harmful error
concerning section 339.303(b) or any collective bargaining agreement requiring
compliance with the same.
The administrative judge correctly found that the agency established the requisite
nexus between the appellant’s removal and the efficiency of the service. 3
The administrative judge lastly found that the agency met its burden
regarding nexus and the reasonableness of its penalty. ID at 33-35. Among other
things, she considered the appellant’s post-removal treatment records but found
that it did not establish that the appellant was recovered. Id. (discussing IAF,
Tab 18 at 250-52). On review, the appellant challenges the administrative judge’s
findings on that point. He argues that post-removal medical evidence
unambiguously shows that he has recovered, so his removal does not promote the
efficiency of the service. PFR File, Tab 1 at 21-22 (citing IAF, Tab 18 at 252).
The Board has recognized that even when an agency proves by
preponderant evidence that the appellant was unable for medical reasons to
perform the duties of his position when he was removed, the removal action will
be reversed on the basis that such action does not promote the efficiency of the
service if, during the pendency of the Board appeal, the appellant presents new
medical evidence showing that he has recovered such that he is able to perform
the essential duties of his position. See, e.g., Johnson v. U.S. Postal Service ,
3 The Board does not typically undertake a full penalty analysis in nondisciplinary
removals, and we decline to do so here. See Brown v. Department of the Interior ,
121 M.S.P.R. 205, ¶¶ 4, 18 (2014) (finding that the analysis of the penalty under
Douglas does not apply when the agency’s action is based on physical inability to
perform, consistent with the Board’s practice of not applying them to nondisciplinary
matters), overruled on other grounds by Haas , 2022 MSPB 36, ¶ 14.17
120 M.S.P.R. 87, ¶ 8 (2013); Street v. Department of the Army , 23 M.S.P.R. 335,
340-43 (1984). Here, the post-removal evidence the appellant presented was
documentation of a single visit with an orthopedic surgeon in April 2020. IAF,
Tab 18 at 250-52. The appellant describes the associated exam as more thorough
than that of the fitness for duty exams. PFR File, Tab 1 at 21-22. However, the
corresponding record to which he has referred is quite limited. Based on a
current exam and X-ray, the physician indicated that the appellant “has no
restrictions in the open labor market and may participate in his job without any
restrictions.” IAF, Tab 18 at 252. However, the physician reached that
conclusion without any mention of the appellant’s prior limitations or his job
duties, and without even acknowledging that the appellant had occupied a CPBO
position. Id. In addition, it appears that the physician was relying on the
appellant’s own subjective reporting, which was less than forthcoming.
According to this physician’s recounting of why the appellant was seeking his
opinion, the individuals responsible for the agency’s fitness for duty exams
“never even performed a physical examination,” id., which is untrue.
Additionally, unlike the fitness for duty physicians who did testify, this physician
did not, so we have nothing more than his brief examination note. Therefore, we
agree with the administrative judge. The appellant’s limited post-removal
medical evidence does not unambiguously show that he recovered while this
appeal was pending, so his removal for medical inability to perform does promote
the efficiency of the service.
NOTICE OF APPEAL RIGHTS4
The initial decision, as supplemented by this Final Order, constitutes the
Board’s final decision in this matter. 5 C.F.R. § 1201.113. You may obtain
review of this final decision. 5 U.S.C. § 7703(a)(1). By statute, the nature of
4 Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise which option is most appropriate in any matter.18
your claims determines the time limit for seeking such review and the appropriate
forum with which to file. 5 U.S.C. § 7703(b). Although we offer the following
summary of available appeal rights, the Merit Systems Protection Board does not
provide legal advice on which option is most appropriate for your situation and
the rights described below do not represent a statement of how courts will rule
regarding which cases fall within their jurisdiction. If you wish to seek review of
this final decision, you should immediately review the law applicable to your
claims and carefully follow all filing time limits and requirements. Failure to file
within the applicable time limit may result in the dismissal of your case by your
chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular19
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. 420 (2017). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the district court no later than 30 calendar days after your representative
receives this decision. If the action involves a claim of discrimination based on
race, color, religion, sex, national origin, or a disabling condition, you may be
entitled to representation by a court -appointed lawyer and to waiver of any
requirement of prepayment of fees, costs, or other security. See 42 U.S.C.
§ 2000e-5(f) and 29 U.S.C. § 794a.
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx . 20
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702(b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or
other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
disposition of allegations of a prohibited personnel practice described in
section 2302(b) other than practices described in section 2302(b)(8), or
2302(b)(9)(A)(i), (B), (C), or (D),” then you may file a petition for judicial
review either with the U.S. Court of Appeals for the Federal Circuit or any court21
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. 22
Contact information for the courts of appeals can be found at their
respective websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
FOR THE BOARD: ______________________________
Gina K. Grippando
Clerk of the Board
Washington, D.C.23 | Pelayo_ErnestoSF-0752-20-0286-I-1_Final_Order.pdf | 2025-01-15 | ERNESTO PELAYO v. DEPARTMENT OF HOMELAND SECURITY, MSPB Docket No. SF-0752-20-0286-I-1, January 15, 2025 | SF-0752-20-0286-I-1 | NP |
261 | https://www.mspb.gov/decisions/nonprecedential/Walla_Richard_SF-1221-17-0282-W-2_Final Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
RICHARD WALLA,
Appellant,
v.
DEPARTMENT OF HOMELAND
SECURITY,
Agency.DOCKET NUMBER
SF-1221-17-0282-W-2
DATE: January 15, 2025
THIS FINAL ORDER IS NONPRECEDENTIAL1
Joy Bertrand , Esquire, Scottsdale, Arizona, for the appellant.
Lauren J. Barefoot , Esquire, San Diego, California, for the agency.
BEFORE
Cathy A. Harris, Chairman
Raymond A. Limon, Vice Chairman
Henry J. Kerner, Member
FINAL ORDER
The appellant has filed a petition for review of the initial decision, which
denied his request for corrective action in an individual right of action (IRA)
appeal. For the reasons discussed below, we GRANT the appellant's petition for
review, REVERSE the initial decision, and find that the agency did not prove 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).
clear and convincing evidence that it would have issued two proposed 3-day
suspensions or an oral counseling in the absence of the appellant’s
whistleblowing. Therefore, we GRANT the appellant’s request for corrective
action with respect to the agency’s proposed suspensions and issued oral
counseling.
BACKGROUND
The appellant holds a Supervisory Border Patrol Agent (SBPA) position
with the U.S. Customs and Border Protection at the Indio Border Patrol Station.
Walla v. Department of Homeland Security , MSPB Docket No. SF-1221-17-0282-
W-1, Initial Appeal File (IAF), Tab 14 at 4-5. On March 31, 2014, the appellant
emailed his supervisor regarding allegations that Border Patrol Agent (BPA) A.R.
had arrived 3 hours late to an assignment after riding in the vehicle of a canine
handler (BPA H.P.), and that BPA A.R. had twice left his assigned work area to
visit a girlfriend. Id. at 40; Walla v. Department of Homeland Security , MSPB
Docket No. SF-1221-17-0282-W-2, Appeal File (W-2 AF), Hearing Transcript
(HT) at 118-19, 122-23, 163-65, 168 (testimony of the appellant). In early April
2014, the appellant reported to his chain-of-command that BPAs H.P. and A.R.
allegedly had been insubordinate and had made false statements after being
directed to write memorandums about their conduct. HT at 120-21, 123-24,
165-67 (testimony of the appellant).
Thereafter, on April 11, 2014, the National Border Patrol Council (union)
filed a grievance on behalf of BPA H.P. accusing the appellant of sexual
harassment in 2008 and 2014. IAF, Tab 13 at 26-30. That same day, Deputy
Patrol Agent in Charge (DPAC) M.L. forwarded the complaint to the Joint Intake
Center (JIC), an intake center that is operated by the agency’s Office of the
Inspector General. Id. at 25; HT at 52. On April 28, 2014, the JIC remanded the
case back to the appellant’s management. IAF, Tab 13 at 7, 19. That same day,
Assistant Chief Patrol Agent (ACPA) P.W. directed Field Operations Supervisor2
(FOS) M.G. to conduct a Management Inquiry (MI). Id. at 7, 33. According to
DPAC M.L., the decision of whether to conduct an MI after the JIC remands a
case to management is discretionary. HT at 12. In August 2014, FOS M.G.
completed the MI and issued a Report of Investigation (ROI) concluding that the
allegations against the appellant were substantiated. IAF, Tab 13 at 7-17.
In a letter dated October 30, 2014, ACPA P.W. proposed to suspend the
appellant for 3 days based on unprofessional conduct. IAF, Tab 10 at 17-19. The
proposal letter specifies that the appellant inadvertently exposed himself to
BPA H.P. and SBPA D.G. in 2008. Id. at 17. In a letter dated February 13, 2015,
ACPA B.W. rescinded the October 2014 proposal letter and again proposed the
appellant’s 3-day suspension for unprofessional conduct.2 Id. at 20-22. The
second proposal letter specifies that the appellant had a conversation of a sexual
nature with BPA H.P. in front of SBPA E.G. in February 2014. Id. at 20. In a
letter dated April 29, 2015, Deputy Chief Patrol Agent (DCPA) R.V. decided to
mitigate the proposed 3-day suspension to an oral counseling. Id. at 23-24.
The appellant then filed a complaint with OSC alleging that the agency had
retaliated against him for reporting the misconduct of subordinates. W-2 AF,
Tab 5 at 93-96, 99; IAF, Tab 1 at 5, 13-18. On December 30, 2016, OSC
informed the appellant that it had closed his complaint and notified him of his
right to file an IRA appeal with the Board. W-2 AF, Tab 5 at 98-100.
The instant appeal followed, and the appellant requested a hearing. IAF,
Tab 1 at 1-7. After holding a hearing on the merits, the administrative judge
issued an initial decision denying the appellant’s request for corrective action.
W-2 AF, Tab 11, Initial Decision (ID) at 1-2, 13. Specifically, the administrative
judge found that the appellant made nonfrivolous allegations of Board jurisdiction
and that it was undisputed that he exhausted his remedies with OSC. ID
2 Although the February 2015 proposal letter refers to a proposal letter issued to the
appellant on November 14, 2014, IAF, Tab 10 at 20, it is undisputed that the agency
was referring to the October 2014 proposal letter, Petition for Review File, Tab 3 at 15.3
at 1, 2 n.3. The administrative judge further found that the appellant made
protected disclosures that were a contributing factor in the agency’s personnel
actions. ID at 8-9. Finally, the administrative judge found that the agency
proved by clear and convincing evidence that it would have taken the same
personnel actions in the absence of the appellant’s protected disclosures, and he
therefore denied corrective action. ID at 9-13.
The appellant has filed a petition for review, and the agency has filed a
response.3 Petition for Review (PFR) File, Tabs 3, 9.
DISCUSSION OF ARGUMENTS ON REVIEW
To establish a prima facie case of whistleblower retaliation, an appellant
must prove by preponderant evidence that he made a protected disclosure that was
a contributing factor in a personnel action taken against him. 5 U.S.C.
§ 1221(e)(1);4 Lu v. Department of Homeland Security , 122 M.S.P.R. 335, ¶ 7
(2015). If the appellant makes out a prima facie case, the agency is given an
opportunity to prove by clear and convincing evidence that it would have taken
the same personnel action in the absence of the protected disclosure. 5 U.S.C.
§ 1221(e)(1)-(2); Lu, 122 M.S.P.R. 335, ¶ 7. In determining whether an agency
has met this burden, the Board will consider all of the relevant factors, commonly
known as the Carr 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
3 The agency’s deadline to file a response to the appellant’s petition for review was
January 26, 2018. PFR File, Tab 8. This deadline was automatically extended by
3 days due to the Federal-Government shutdown from January 20 through 22, 2018.
Therefore, the agency’s response filed on January 29, 2018, was timely filed. PFR File,
Tab 9.
4 During the pendency of this appeal, the National Defense Authorization Act for Fiscal
Year 2018 (NDAA), Pub. L. No. 115-91, 131 Stat. 1283, was signed into law on
December 12, 2017. Section 1097 of the NDAA amended various provisions of Title 5
of the U.S. Code. Our decision to deny the appellant’s request for corrective action in
this IRA appeal would be the same under both pre- and post-NDAA law.4
decision; and (3) any evidence that the agency takes similar actions against
employees who are not whistleblowers but who are otherwise similarly situated.
Soto v. Department of Veterans Affairs , 2022 MSPB 6, ¶ 11; see also Carr v.
Social Security Administration , 185 F.3d 1318, 1323 (Fed. Cir. 1999). The Board
does not view these factors as discrete elements, each of which the agency must
prove by clear and convincing evidence; rather, the Board will weigh the factors
together to determine whether the evidence is clear and convincing as a whole.
Lu, 122 M.S.P.R. 335, ¶ 7. The Board must consider all pertinent record evidence
in making this determination, and it must not exclude or ignore countervailing
evidence by only looking at the evidence that supports the agency’s position.
Alarid v. Department of the Army , 122 M.S.P.R. 600, ¶ 14 (2015) .
The appellant proved a prima facie case of whistleblower reprisal.
Here, the administrative judge found that the appellant made protected
disclosures to his superiors of alleged wrongdoing by his subordinates. ID at 8.5
The administrative judge further found that the disclosures were a contributing
factor in the agency’s personnel actions, including two proposed suspensions, an
oral counseling, a reassignment to a position without the possibility of night or
Sunday pay differentials, and the denial of a cash award and the opportunity to
apply for promotions and acting positions.6 ID at 8-9 & n.8. The appellant does
5 To the extent the agency argues that the appellant’s reports of insubordination and
false statements by his subordinates are not protected disclosures, we do not agree.
PFR File, Tab 9 at 7 n.2. The Board has suggested that an agency “rule” includes
established or authoritative standards for conduct or behavior. Chavez v. Department of
Veterans Affairs , 120 M.S.P.R. 285, ¶ 25 (2013). Accordingly, we find that a
disinterested observer with knowledge of the essential facts known to and readily
ascertainable by the appellant could reasonably conclude that the subordinates’ alleged
insubordination and false statements evidenced a violation of an agency rule. Id.
(finding that the appellant’s disclosure that an employee borrowed money from a patient
was protected because a disinterested observer with knowledge of the essential facts
known to and readily ascertainable by the appellant could reasonably conclude that the
conduct violated an agency rule).
6 The agency claims that the record does not establish a nexus between the agency’s
knowledge of the appellant’s email to his supervisor and the union’s action of filing a5
not dispute, and we discern no reason to disturb, such findings.7 PFR File, Tab 3.
Accordingly, we find that the appellant proved a prima facie case of
whistleblower reprisal regarding those personnel actions.
In his petition for review, the appellant reasserts his argument that the
agency’s MI investigation, which led to the challenged personnel actions, was
itself retaliation for his whistleblowing. IAF, Tab 10 at 10-11; PFR File, Tab 3
at 18-24. The administrative judge did not explicitly consider this claim in the
initial decision, ID at 8-9, and we take the opportunity here to review how such
claims are properly analyzed. Since the issuance of the initial decision, the U.S.
Court of Appeals for the Federal Circuit (Federal Circuit) has clarified that “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) (internal quotations
omitted);8 see also Skarada v. Department of Veterans Affairs , 2022 MSPB 17,
grievance. PFR File, Tab 9 at 7 n.2. However, the union’s grievance is not a personnel
action under 5 U.S.C. § 2302(a)(2)(A); thus, the appellant does not have to prove
contributing factor regarding the grievance. See Lu, 122 M.S.P.R. 335, ¶ 7.
7 The administrative judge made statements expressly disagreeing with OSC’s
conclusions that the appellant’s disclosures might not be protected and that a letter of
counseling is not a personnel action. ID at 8 nn.7-8; W-2 AF, Tab 5 at 95. We clarify
that the Board has not considered OSC’s conclusions as part of its analysis. See
Cassidy v. Department of Justice , 118 M.S.P.R. 74, ¶ 16 (2012) (observing that an IRA
appeal is a de novo action and that the Board must rely on its independent analysis of
the parties’ evidence, not on OSC’s characterizations of the appellant’s allegations).
8 Notwithstanding this holding, the court confirmed the long-standing principle that
retaliatory investigations, in and of themselves, do not qualify as personnel actions but
instead may provide a basis for additional corrective action if raised in conjunction with
one or more of the qualifying personnel actions specified in 5 C.F.R. § 2302(a)(2)(A).
Sistek, 955 F.3d at 955. Further, as set forth below, the Board may consider evidence
regarding the conduct of such an investigation when it is so closely related to a
qualifying personnel action that it could have been a pretext for gathering evidence to
retaliate against an employee for whistleblowing activity. Id. at 957. As also set forth
below, when, as in this case, an investigation is also found to create a significant
change in working conditions, it constitutes a personnel action by virtue of this
causative connection with one of the enumerated personnel actions under
¶ 16 (stating that agency actions that, individually or collectively, have practical
and significant effects on the overall nature and quality of an employee’s working
conditions, duties, or responsibilities will be found to constitute a personnel
action covered by section 2302(a)(2)(A)(xii)).
In the present case, the appellant has asserted that the investigation here
significantly changed his working conditions because it was accompanied by a
reassignment to a position without the possibility of night or Sunday pay
differentials, and caused the agency to deny him a cash award and the opportunity
to apply for promotions and acting positions. HT (testimony of the appellant);
PFR File, Tab 3 at 6, 12. The agency has not disputed these assertions. HT
at 13-14, 20-23, 31-33 (testimony of DPAC M.L.). Thus, we find that the
investigation significantly changed the appellant’s working conditions and
therefore constituted a personnel action under 2302(a)(2)(A)(xii). Moreover, we
further find no reason to disturb the administrative judge’s holding that the
appellant’s supervisors and other management officials were aware of his
disclosures before the investigation was initiated, and therefore, we conclude that
the appellant has proven that his whistleblowing activity was a contributing factor
with respect to the agency’s initiation of the investigation in question. ID at 8-9.
As set forth more fully below, evidence regarding the agency’s motive in
initiating the investigation will be considered as part of the agency’s clear and
convincing burden, specifically, under Carr factor 2.
The agency proved by clear and convincing evidence that it would have
investigated and reassigned the appellant, but not that it would have proposed or
issued any disciplinary action, in the absence of the appellant’s whistleblowing.
Applying the Carr factors, and for the reasons set forth below, we find that
the agency proved by clear and convincing evidence that it would have
investigated and reassigned the appellant, and therefore, denied him an acting
position, opportunity for a promotion, and cash award, in the absence of his
section 2302(a)(2)(A).
whistleblowing. See Lu, 122 M.S.P.R. 335, ¶ 7. However, we find that the
agency did not prove by clear and convincing evidence that it would have issued
any disciplinary action in the absence of the appellant’s whistleblowing. Id.
The agency had evidence to support investigating and reassigning
the appellant, which caused the subsequent consequences.
Relying on the testimony of DPAC M.L., the administrative judge found
that the agency presented strong evidence in support of its decision to investigate
and reassign the appellant, deny him a cash award, and find him ineligible for
promotions and acting positions because of the investigation. ID at 9-10; HT
at 13-14, 20-23, 31-33 (testimony of DPAC M.L.). We agree and find that the
agency had strong reasons for initiating an investigation upon learning of
BPA H.P.’s allegation that the appellant sexually harassed him. See Spivey v.
Department of Justice , 2022 MSPB 24, ¶ 12 (stating that, to maintain the integrity
of the working environment, an employer should thoroughly investigate
allegations of possible employee wrongdoing). Specifically, we credit the
agency’s assertion that it has a duty, pursuant to law and agency policy, to
investigate and address all sexual harassment complaints. PFR File, Tab 9 at 8.
We also discern no reason to disturb the administrative judge’s finding that,
because of the investigation into the serious allegations against the appellant, he
was reassigned, was not allowed to hold an acting position, and was ineligible for
a cash award or a promotion. ID at 9-10.
The agency’s disciplinary actions were unwarranted.
Regarding the agency’s disciplinary actions, the administrative judge found
that the appellant’s own testimony during the MI investigation was sufficient to
support some disciplinary action. ID at 9. It is true that the appellant admitted
during the investigation, in a signed, sworn affidavit, that he had accidentally
exposed himself in 2008, and had joked about the incident with BPA H.P. in
2014. IAF, Tab 10 at 17-22, Tab 13 at 71-75. The appellant has consistently
claimed that his affidavit was inaccurate and coerced. IAF, Tab 10 at 8-9; HT8
at 131-33, 174-76 (testimony of the appellant); PFR File, Tab 3 at 15. However,
we need not make any findings related to whether the appellant’s affidavit was
coerced because, in light of the evidence gathered from the investigation, there
was no actionable misconduct, and thus, disciplinary action was not warranted.
First, the agency had no basis to propose a suspension based on the fact
that the appellant “inadvertently exposed [his] genitals” in 2008. IAF, Tab 10
at 17. Regardless of the fact that the agency rescinded the proposal, as the
agency concedes, the incident was “inadvertent[]” and occurred 6 years prior to
the proposed suspension. Id. Therefore—because the evidence shows the event
was accidental—there was never any basis to propose disciplinary action.
Similarly, the agency’s second proposed 3-day suspension, mitigated to an oral
counseling, was an excessive reaction to a conversation which, according to the
evidence, was nothing more than friendly, good-natured ribbing between
colleagues. Id. at 20-23. Indeed, SBPA E.G., who was present during the
conversation, stated that the appellant and BPA H.P. were “comfortable and no
one appeared bothered by the comments,” and that the appellant and BPA H.P.
were merely “teasing” or “joking around,” as they often did. IAF, Tab 13
at 61-62. She further stated that “there was nothing wrong with what happened,”
and that BPA H.P.’s allegations were “just a bunch of lies” designed to cause
trouble because he was facing disciplinary action due to the appellant’s reports.
Id.
Other agency officials were also incredulous of the agency’s handling of
the appellant’s matter, including DPAC M.L., who testified that the agency’s
actions were “silly,” and DPAC R.V. who, according to the appellant, apologized
to him for the matter being a “clusterfuck.”9 HT at 29-30 (testimony of
DPAC M.L.); IAF, Tab 10 at 9. This incredulousness is further underscored by
the fact that the agency denied BPA H.P.’s grievance against the appellant in
9 DPAC R.V. did not testify at the hearing, and despite several opportunities, the agency
has not disputed that DPAC R.V. made this statement.9
October 2014, finding that the appellant had not violated the agency’s standards
of conduct, including the provision requiring employees to behave professionally.
IAF, Tab 12 at 24-28. However, several months later, the agency alleged in the
proposed suspension that the conversation between the appellant and BPA H.P.
violated that exact provision of the standards of conduct—i.e., the provision
requiring employees to act professionally. Compare IAF, Tab 12 at 26, with
Tab 10 at 20-21. Therefore, the agency’s denial of the grievance undermines the
agency’s position that the appellant committed actionable misconduct.
In conclusion, we find that the agency had sufficient evidence at the time it
proposed and issued the disciplinary actions to recognize what had happened,
specifically, that BPA H.P. accused the appellant of misconduct in an attempt to
deflect attention away from potential disciplinary action for his own malfeasance,
which was reported by the appellant. Although we agree that the agency had a
duty to investigate BPA H.P.’s allegations and that it was proper for the agency to
reassign the appellant while that investigation was pending, based on the results
of the investigation, there was no basis for further action. The record simply does
not support a finding that the appellant committed any actionable misconduct, and
thus, the agency’s two proposed suspensions and the oral counseling were
unwarranted.
The relevant management officials did not have a motive to retaliate.
Regarding the second Carr factor, the administrative judge found that there
was no evidence that the agency officials who were involved in the personnel
actions had a motive to retaliate against the appellant. ID at 10-12. In particular,
although he acknowledged that the union’s grievance was filed in response to the
appellant’s disclosures in order to diminish the appellant’s credibility, he found
that BPA H.P.’s retaliatory motive could not be ascribed to the agency . ID
at 11-12.
Evidence as to whether an investigation was a retaliatory act, that is,
whether the investigation was initiated by agency officials with a motive to10
retaliate against the appellant for his or her whistleblowing activity, is properly
analyzed under Carr factor 2, the existence and strength of any motive to retaliate
on the part of agency officials who were involved in the decision to take a
personnel action against the appellant. See, e.g., Geyer v. Department of Justice ,
70 M.S.P.R. 682, 688-91 (1996) (holding that the lack of a retaliatory motive was
shown by evidence that the deciding official did not specify who was to conduct
the investigation, how it was to be done, or which witnesses should be
interviewed),10 aff’d, 116 F.3d 1497 (Fed. Cir. 1997) (Table); Mongird v.
Department of the Navy , 33 M.S.P.R. 504, 507 (1987) (remanding for further
development of the record because the appellant was not permitted to present
evidence and argument regarding the non-bona fides of the agency investigation
from which a retaliatory motive for the suspension could be inferred). In
considering such evidence, the Board looks to where the investigation had its
beginnings, in other words, to the motives of the agency officials responsible for
initiating the investigation.11 See Russell v. Department of Justice , 76 M.S.P.R.
317, 324 (1997).
On review, the appellant argues that the genesis of the investigation was
the union’s efforts to slander and discredit him in resistance to his reports of
10 Although the appellant relies on Geyer in support of his assertion that the agency’s
investigation was retaliatory, PFR File, Tab 3 at 21-23, in that case, the Board found
that the agency did not initiate an investigation into the appellant’s alleged misconduct
as a pretext for retaliation, Geyer, 70 M.S.P.R. at 698.
11 The weighing of the Carr factors is somewhat modified in the context of a retaliatory
investigation claim. For example, Carr factor 1, the strength of the evidence in support
of the agency’s personnel action, is evaluated based on the evidence before the officials
who initiated the investigation, rather than that uncovered by the resulting investigation
itself. See Russell v. Department of Justice , 76 M.S.P.R. 317, 326 (1997) . Moreover,
an agency’s failure to produce any evidence as to whether it initiates investigations of
similarly situated non -whistleblowers, pursuant to Carr factor 3, is not deemed neutral
or insignificant in this analysis, but instead may operate to tip the scale against the
agency. Id. at 327-28 (“[A]lthough the reporting officials had strong evidence to
support their reports concerning the appellant, this factor is far outweighed by their
strong motive to retaliate and the lack of any evidence showing that they treated non-
whistleblowers the same way they treated the appellant.”). 11
alleged misconduct by subordinates. PFR File, Tab 3 at 18-24. He further claims
that the agency has failed to prove that it would have investigated him in the
absence of his whistleblowing. Id. In the present case, however, it was not an
agency official, i.e., a supervisor or management official, who was responsible
for initiating the investigation—it was a subordinate. IAF, Tab 13 at 26-30. In
Carr, 185 F.3d at 1324-26, the Federal Circuit rejected a similar argument that
the Board failed to consider the extent to which agency officials who were
involved in her removal were influenced by complaints made against her by
“support staff” employees who had been the subject of her whistleblowing. In
particular, the appellant in Carr argued that the “support staff” employees would
not have complained about her behavior and the agency would not have sought to
remove her if she had not disclosed the staff’s misconduct. Id. at 1324.
The court distinguished the facts in Carr from the Board’s decision in
Russell, 76 M.S.P.R. at 324, in which the agency had demoted an appellant based
in part on the findings of investigations initiated by one of the two subjects of the
appellant’s disclosures. Specifically, the court in Carr found that the “critical
difference” between the case before it and Russell was that the two subjects of the
appellant’s disclosures in Russell were agency officials, whereas, in Carr, the
individuals who complained about the appellant were “line employees” who
witnessed, and were affected by, her conduct. Id. at 1326. Thus, the court in
Carr declined to hold that the Board erred in not taking into account the extent to
which these “support staff” employees were motivated to retaliate, finding that
such a holding would improperly shield the appellant from the consequences of
her misconduct, simply because, although the relevant agency officials were not
motivated to retaliate, they acted on information that came to them from “support
staff” employees who were so motivated.12 Id.
12 In his initial decision, the administrative judge relied on Staub v. Proctor Hospital ,
562 U.S. 411 (2011) to reach the same conclusion, i.e., that the BPA’s retaliatory
animus could not be attributed to the agency because he was a nonsupervisory employee
and was not an agent of the agency. ID at 11-12. We do not find Staub instructive on12
The facts of the instant appeal are similar to those in Carr and
distinguishable from those in Russell. Specifically, although BPAs H.P. and A.R.
had a motive to retaliate as subjects of the appellant’s disclosures, they were
subordinates, or “line employees,” and not management officials. Furthermore,
there is no evidence that BPAs H.P or A.R. had any influence over the agency
officials who took the personnel actions against the appellant. McCarthy v.
International Boundary and Water Commission , 116 M.S.P.R. 594, ¶ 62 (2011 )
(finding that, when applying the second Carr factor, the Board will consider any
motive to retaliate on the part of the agency official who ordered the action, as
well as any motive to retaliate on the part of other agency officials who
influenced the decision), aff’d, 497 F. App’x 4 (Fed. Cir. 2012). Nor does the
record suggest that the appellant’s disclosures regarding his subordinates’
unaccounted absence, tardiness, insubordination, and dishonesty were critical of
the agency such that they reflected poorly on the agency officials in their
capacities as managers. Cf. Robinson v. Department of Veterans Affairs , 923 F.3d
1004, 1019 (Fed. Cir. 2019) (finding that although the deciding official did not
have a personal motive to retaliate, the administrative judge erred by failing to
consider whether he had a “professional retaliatory motive” because the
appellant’s disclosures implicated the capabilities, performance, and veracity of
agency managers and employees and implied that the agency deceived a Senate
Committee); Whitmore v. Department of Labor , 680 F.3d 1353, 1370-71 (Fed.
Cir. 2012) (finding that the administrative judge took “an unduly dismissive and
this matter because Staub concerned retaliation under a different statute (the Uniformed
Services Employment and Reemployment Rights Act of 1994 (USERRA)), with a
different standard of causation. See 38 U.S.C. § 4311(c) (establishing a “motivating
factor” standard of causation for USERRA). In fact, dicta in Staub suggests that the
motivating factor causation standard in USERRA was dispositive and the result might
be different if the standard of causation were merely “causal factor.” 562 U.S.
at 418-19; see 5 U.S.C. § 2302(b)(8), (9) (prohibiting agencies from taking personnel
actions “because of” an employees’ protected disclosures or activities). Nevertheless,
for the reasons explained in this decision, we find that Carr is controlling and that it
supports the administrative judge’s conclusion.13
restrictive view” in finding no evidence of a retaliatory motive when the
appellant’s disclosures “repeatedly cast [the agency] and, by implication, all of
the responsible [agency] officials, in a highly critical light by calling into
question the propriety and honesty of their official conduct”).
In conclusion, there is no basis to impute the retaliatory motives of
BPAs H.P. or A.R. onto the agency officials who took the personnel actions, nor
is there any evidence that the agency officials had any independent retaliatory
motive against the appellant. Accordingly, we find that the second Carr factor
weighs in favor of the agency.
The agency failed to provide evidence that it takes similar actions
against similarly situated employees who are not whistleblowers.
The administrative judge found that there was no evidence relevant to the
third Carr factor. ID at 10. Although an agency does not have an affirmative
burden to produce evidence concerning each and every Carr factor, the Board has
held that an agency’s failure to present evidence of similarly situated employees
cannot weigh in its favor. Soto, 2022 MSPB 6, ¶ 18. To the extent the appellant
claims that the agency did not take similar actions against SBPA E.G. because she
was not a whistleblower, we find that the nature of the accusations against her is
not sufficiently similar to provide persuasive evidence regarding this factor. PFR
File, Tab 3 at 16; see, e.g., Chavez v. Department of Veterans Affairs ,
120 M.S.P.R. 285, ¶ 34 (2013) (finding that the conduct of the comparator
employees was not sufficiently similar to the appellant’s conduct to provide
persuasive evidence regarding the third Carr factor). Specifically, while the
union’s grievance accused the appellant of sexual harassment, it accused
SBPA E.G. of failing to report harassment that she witnessed. IAF, Tab 13
at 26-30. We therefore find this factor to be neutral.14
We grant corrective action with respect to the proposed suspensions and the oral
counseling.
Weighing the Carr factors as set forth above, we find that the agency
presented strong evidence in support of its investigation and reassignment, and its
decision that the appellant was ineligible to hold an acting position, or to receive
a cash award or a promotion while under investigation. In light of the fact that
the second Carr factor weighs in favor of the agency, and the fact that the third
Carr factor is neutral, we find that the agency proved by clear and convincing
evidence that it would have investigated and reassigned the appellant and denied
him an acting position, opportunity for promotion, and a cash award in the
absence of the appellant’s whistleblowing.
The weighing of the Carr factors is different, however, with respect to the
agency’s disciplinary actions. Unlike the investigation and reassignment, there
was no basis to propose any discipline, and therefore, the first Carr factor cuts
heavily in favor of the appellant. Although the second Carr factor still weighs in
favor of the agency, and the third Carr factor is neutral, because the first Carr
factor weighs so strongly in favor of the appellant, we find that the agency did
not prove by clear and convincing evidence that it would have proposed or issued
any discipline in the absence of the appellant’s whistleblowing. Accordingly, we
grant corrective action as it relates to the two proposed suspensions and the
issued oral counseling.
ORDER
We ORDER the agency to rescind any documentation related to the
October 30, 2014 proposed 3-day suspension, the February 13, 2015 proposed
3-day suspension, and the oral counseling issued on April 29, 2015. See Kerr v.
National Endowment for the Arts , 726 F.2d 730 (Fed. Cir. 1984). The agency
must complete this action no later than 20 days after the date of this decision.
We also ORDER the agency to pay the appellant the correct amount of
back pay, interest on back pay, and other benefits under the Back Pay Act and/or15
Postal Service regulations, as appropriate, no later than 60 calendar days after the
date of this decision. We ORDER the appellant to cooperate in good faith in the
agency’s efforts to calculate the amount of back pay, interest, and benefits due,
and to provide all necessary information the agency requests to help it carry out
the Board’s Order. If there is a dispute about the amount of back pay, interest
due, and/or other benefits, we ORDER the agency to pay the appellant the
undisputed amount no later than 60 calendar days after the date of this decision.
We further ORDER the agency to tell the appellant promptly in writing
when it believes it has fully carried out the Board’s Order and of the actions it has
taken to carry out the Board’s Order. The appellant, if not notified, should ask
the agency about its progress. See 5 C.F.R. § 1201.181(b).
No later than 30 days after the agency tells the appellant that it has fully
carried out the Board’s Order, the appellant may file a petition for enforcement
with the office that issued the initial decision on this appeal if the appellant
believes that the agency did not fully carry out the Board’s Order. The petition
should contain specific reasons why the appellant believes that the agency has not
fully carried out the Board’s Order, and should include the dates and results of
any communications with the agency. 5 C.F.R. § 1201.182(a).
For agencies whose payroll is administered by either the National Finance
Center of the Department of Agriculture (NFC) or the Defense Finance and
Accounting Service (DFAS), two lists of the information and documentation
necessary to process payments and adjustments resulting from a Board decision
are attached. The agency is ORDERED to timely provide DFAS or NFC with all
documentation necessary to process payments and adjustments resulting from the
Board’s decision in accordance with the attached lists so that payment can be
made within the 60-day period set forth above.16
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.
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.17
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 RIGHTS13
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
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.18
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the following
address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain19
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. 420 (2017). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the district court no later than 30 calendar days after your representative
receives this decision. If the action involves a claim of discrimination based on
race, color, religion, sex, national origin, or a disabling condition, you may be
entitled to representation by a court-appointed lawyer and to waiver of any
requirement of prepayment of fees, costs, or other security. See 42 U.S.C.
§ 2000e-5(f) and 29 U.S.C. § 794a.
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702(b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 2001320
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or
other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
disposition of allegations of a prohibited personnel practice described in
section 2302(b) other than practices described in section 2302(b)(8), or
2302(b)(9)(A)(i), (B), (C), or (D),” then you may file a 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 review within 60 days of the date of issuance of this decision.
5 U.S.C. § 7703(b)(1)(B).
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 of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115-195,
132 Stat. 1510. 21
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the following
address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
Contact information for the courts of appeals can be found at their
respective websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
FOR THE BOARD: ______________________________
Gina K. Grippando
Clerk of the Board
Washington, D.C.22
DEFENSE FINANCE AND ACCOUNTING SERVICE
Civilian Pay Operations
DFAS BACK PAY CHECKLIST
The following documentation is required by DFAS Civilian Pay to compute and pay back pay
pursuant to 5 CFR § 550.805. Human resources/local payroll offices should use the following
checklist to ensure a request for payment of back pay is complete. Missing documentation may
substantially delay the processing of a back pay award. More information may be found at:
https://wss.apan.org/public/DFASPayroll/Back%20Pay%20Process/Forms/AllItems.aspx.
NOTE: Attorneys’ fees or other non-wage payments (such as damages) are paid by
vendor pay, not DFAS Civilian Pay.
☐1) Submit a “SETTLEMENT INQUIRY - Submission” Remedy Ticket. Please identify the
specific dates of the back pay period within the ticket comments.
Attach the following documentation to the Remedy Ticket, or provide a statement in the ticket
comments as to why the documentation is not applicable:
☐2) Settlement agreement, administrative determination, arbitrator award, or order.
☐3) Signed and completed “Employee Statement Relative to Back Pay”.
☐4) All required SF50s (new, corrected, or canceled). ***Do not process online SF50s
until notified to do so by DFAS Civilian Pay.***
☐5) Certified timecards/corrected timecards. ***Do not process online timecards
until notified to do so by DFAS Civilian Pay.***
☐6) All relevant benefit election forms (e.g., TSP, FEHB, etc.).
☐7) Outside earnings documentation. Include record of all amounts earned by the
employee in a job undertaken during the back pay period to replace federal
employment. Documentation includes W-2 or 1099 statements, payroll
documents/records, etc. Also, include record of any unemployment earning
statements, workers’ compensation, CSRS/FERS retirement annuity payments,
refunds of CSRS/FERS employee premiums, or severance pay received by the
employee upon separation.
Lump Sum Leave Payment Debts: When a separation is later reversed, there is no authority
under 5 U.S.C. § 5551 for the reinstated employee to keep the lump sum annual leave payment
they may have received. The payroll office must collect the debt from the back pay award. The
annual leave will be restored to the employee. Annual leave that exceeds the annual leave
ceiling will be restored to a separate leave account pursuant to 5 CFR § 550.805(g).
NATIONAL FINANCE CENTER CHECKLIST FOR BACK PAY CASES
Below is the information/documentation required by National Finance Center to process
payments/adjustments agreed on in Back Pay Cases (settlements, restorations) or as ordered by
the Merit Systems Protection Board, EEOC, and courts .
1.Initiate and submit AD-343 (Payroll/Action Request) with clear and concise information
describing what to do in accordance with decision.
2.The following information must be included on AD-343 for Restoration:
a.Employee name and social security number.
b.Detailed explanation of request.
c.Valid agency accounting.
d.Authorized signature (Table 63).
e.If interest is to be included.
f.Check mailing address.
g.Indicate if case is prior to conversion. Computations must be attached.
h.Indicate the amount of Severance and Lump Sum Annual Leave Payment to be
collected (if applicable).
Attachments to AD-343
1.Provide pay entitlement to include Overtime, Night Differential, Shift Premium, Sunday
Premium, etc. with number of hours and dates for each entitlement (if applicable).
2.Copies of SF-50s (Personnel Actions) or list of salary adjustments/changes and amounts.
3.Outside earnings documentation statement from agency.
4.If employee received retirement annuity or unemployment, provide amount and address to
return monies.
5.Provide forms for FEGLI, FEHBA, or TSP deductions (if applicable).
6.If employee was unable to work during any or part of the period involved, certification of the
type of leave to be charged and number of hours.
7.If employee retires at end of Restoration Period, provide hours of Lump Sum Annual Leave
to be paid.
NOTE: If prior to conversion, agency must attach Computation Worksheet by Pay Period and
required data in 1-7 above.
The following information must be included on AD-343 for Settlement Cases: (Lump Sum
Payment, Correction to Promotion, Wage Grade Increase, FLSA, etc.):
a.Must provide same data as in 2, a-g above.
b.Prior to conversion computation must be provided.
c.Lump Sum amount of Settlement, and if taxable or non-taxable.
If you have any questions or require clarification on the above, please contact NFC’s
Payroll/Personnel Operations at 504-255-4630.
I certify that the attached Document(s) was (were) sent as indicated this day
to each of the following:CERTIFICATE OF SERVICE
U.S. Mail Richard Walla
c/o Attorney Joy Bertrand
PO Box 2734
Scottsdale, Arizona 85251Appellant
U.S. Mail Joy Bertrand
P.O. Box 2734
1826 N. 7th Avenue
Scottsdale, Arizona 85252-2734Appellant Representative
U.S. Mail Lauren Barefoot
610 W. Ash St., Suite 1200
San Diego, California 92101Agency Representative
01/15/2025
John Hayes
(Date) | Walla_Richard_SF-1221-17-0282-W-2_Final Order.pdf | 2025-01-15 | RICHARD WALLA v. DEPARTMENT OF HOMELAND SECURITY, MSPB Docket No. SF-1221-17-0282-W-2, January 15, 2025 | SF-1221-17-0282-W-1; SF-1221-17-0282-W-2 | NP |
262 | https://www.mspb.gov/decisions/nonprecedential/Holmes_Tysha_S_AT-0752-11-0263-C-1_and_AT-0752-11-0263-X-1_Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
TYSHA S. HOLMES,
Appellant,
v.
DEPARTMENT OF THE ARMY,
Agency.DOCKET NUMBERS
AT-0752-11-0263-C-1
AT-0752-11-0263-X-1
DATE: January 15, 2025
THIS FINAL ORDER IS NONPRECEDENTIAL1
Evan Greenstein , Esquire, Washington, D.C., for the appellant.
Robert J. Barham , Esquire, and Jerrod Fussnecker , Esquire, Fort Jackson,
South Carolina, for the agency.
BEFORE
Cathy A. Harris, Chairman
Raymond A. Limon, Vice Chairman
Henry J. Kerner, Member
FINAL ORDER
This matter is before the Board pursuant to the Board’s April 15, 2022
compliance Order, which granted the agency’s petition for review and denied the
appellant’s cross petition for review of a July 21, 2016 compliance initial decision
on the appellant’s petition for enforcement. Holmes 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-0752-11-0263-C-1, Order (Apr. 15, 2022); Holmes v.
Department of the Army , MSPB Docket No. AT-0752-11-0263-X-1, Compliance
Referral File (CRF), Tab 1; Holmes v. Department of the Army , MSPB Docket
No. AT-0752-11-0263-C-1, Compliance File (CF), Tab 12, 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 January 2, 2013, the administrative judge issued an initial decision
reversing the agency’s removal action in the appellant’s underlying appeal. Order,
¶ 3. The initial decision directed the agency to make interim relief payments. Id.
The agency filed a petition for review, and the Board remanded the initial decision,
finding in part that the appellant was not entitled to interim relief because she was
receiving Office of Worker’s Compensation Program (OWCP) benefits. Id.
During these proceedings, the appellant filed a petition for enforcement,
asserting that the agency had initiated an action to recoup interim relief payments
made to appellant under a Board Order. Id., ¶ 4. In the compliance initial decision,
the administrative judge found that, from January 13, 2013, through December 13,
2013, the appellant received both interim relief payments and OWCP benefits and
that she thus was not entitled to retain the interim relief payments, but, from
December 14, 2013, through July 9, 2014, the appellant received only interim relief
benefits, which the agency could not recoup. Id. The compliance initial decision
granted the petition for enforcement in part and denied it in part, and ordered the
agency to halt any efforts to recoup interim relief payments for the period between
December 14, 2013, and July 9, 2014, and to inform the Defense Finance and
Accounting Service (DFAS) to do the same. CID at 5-6.2
The agency filed a petition for review, and the appellant filed a cross-petition
for review of the compliance initial decision.2 Order, ¶ 5. The Board affirmed the
compliance initial decision’s finding as modified to correct the relevant dates.
Specifically, the Board modified the compliance initial decision to state that the
appellant improperly received both interim relief payments and OWCP benefits
from January 2, 2013, through December 14, 2013. Order, ¶ 6. The Board also
found that the appellant properly received only interim relief benefits from
December 15, 2013, through July 9, 2014, which the agency could not recoup.
Id., ¶ 7. In the Order, the Board directed the agency to submit evidence of
compliance and docketed the instant compliance referral matter to adjudicate the
remaining issues. Order, ¶¶ 12-13.
On June 13, 2022, the agency filed a Statement of Compliance, stating in part
that it had provided DFAS with a copy of the April 14, 2022 Board Order, and
informed DFAS that DFAS should not seek recoupment of any interim relief
payments made to the appellant during the period from December 15, 2013,
through July 9, 2014. CRF, Tab 3 at 4-6. The agency also submitted, among other
items, its memorandum to DFAS regarding the April 14, 2022 Board Order and a
declaration from a Senior Assistant Counsel in the DFAS Office of the General
Counsel at DFAS, confirming that DFAS had stopped any efforts to recoup the
interim relief payments during the relevant period. Id. at 7-39.
After several requests for extension, the appellant filed her response to the
agency’s statement of compliance on August 9, 2022, contending in part that the
agency’s statement did not include a calculation of the appellant’s debt related to
the interim relief she received during the time period between January 2 and
December 14, 2013, and requesting sanctions. CRF, Tab 9 at 6-8.
2 At the time, the Board’s regulation expressly allowed a party to file a cross petition for
review. 5 C.F.R. § 1201.114 (2023). The Board revised this regulation, effective
October 7, 2024, removing references to a cross petition for review but still allowing both
parties to file a petition for review. 5 C.F.R. § 1201.114.3
On March 25, 2024, the Clerk of the Board issued an Order directing the
agency to provide the Board with:
(1) a narrative statement with citation to specific evidence explaining
how the agency calculated the amount of the appellant’s debt resulting
from the interim relief payments from January 2 to December 14,
2013; and (2) evidence of the amount that the agency has recouped
from the appellant relating to the interim relief during that time period.
CRF, Tab 11 at 2.
On April 12, 2024, the agency filed a supplemental statement of compliance
entitled, “Response to 04 12 2024 Order,” responding to the March 25, 2024 Order.
CRF, Tab 12. The agency provided a declaration from J.S. of DFAS (J.S.
Declaration) with a narrative explanation of the calculation of the appellant’s debt,
a one-page summary of the appellant’s debt, and a settlement workbook supporting
the debt calculation. Id. at 10-44. On July 2, 2024, the appellant filed a reply to the
agency’s April 12, 2024 submission. CRF, Tab 23.
ANALYSIS
The agency bears the burden to prove compliance with the Board’s order by a
preponderance of the evidence.3 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
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.
Here, the agency has provided a narrative and spreadsheets with detailed
information for the relevant time period, explaining how the appellant’s debt was
calculated. CRF, Tab 12. The agency also provided information as to the
appellant’s returned checks and how those amounts offset the appellant’s debt.
3 A preponderance of the evidence is the degree of relevant evidence that a reasonable
person, considering the record as a whole, would accept as sufficient to find that a
contested fact is more likely to be true than untrue. 5 C.F.R. § 1201.4(q).4
E.g., id. at 33. Finally, DFAS stated that the collection of the debt has been on hold
until the resolution of this matter. Id. at 15.
The appellant makes several arguments regarding the agency’s alleged
noncompliance. First, the appellant contends that the agency has failed to properly
set forth “the gross amount owed; do not, explain deductions, reductions, and
offsets; does not set forth evidence of checks or electronic payments and does not
clearly explain interest. . . .” CRF, Tab 23 at 6 (citing Bruton v. Department of
Veterans Affairs , 111 M.S.P.R. 489, 496 (2009)). However, Bruton sets forth
compliance requirements with respect to back pay awards, while in the instant case,
the issue is the amount of the debt the appellant owes to the agency for improper
interim relief payments. The Board directed the agency to explain how it
calculated the debt owed by the appellant; in response, the agency has set forth the
gross amount owed by the appellant as $26,401.59, detailed how that debt accrued,
and explained the offsets created by the appellant’s returned checks. CRF, Tab 12
at 10-17.
The appellant also argues that the agency failed to explain a debt of $4,509,
which “was reported to the Transunion Credit Bureau.” CRF, Tab 23 at 6. In the
J.S. Declaration, however, J.S. specifically refers to a debt of $4,509.71 (CRF,
Tab 12 at 14), which represented a combined debt for 19 pay periods, from the pay
period ending March 19, 2013, to the pay period ending November 16, 2013 (Debt
Sequence Numbers 00007 and 00009), offset by checks returned by the employee.
CRF, Tab 12 at 11-12, 14. This debt was valid but not sent to the collection
division at DFAS. Id. at 14.
The appellant further challenges the agency’s explanation of a debt for social
security and Medicare tax (“FICA”), which the agency initially paid on behalf of
the appellant, arguing that the appellant should not be responsible for “a debt that
was apparently accrued through no fault of her own.” CRF, Tab 23 at 7-8.
However, 26 C.F.R. §31.6205-1(d)(1) provides for a situation in which FICA tax
has been undercollected, stating that the “the obligation of the employee to the5
employer with respect to the undercollection is a matter for settlement between the
employee and the employer.” The appellant provides no specific challenge to the
amount of FICA the agency paid on her behalf. Accordingly, the agency has
proven by a preponderance of the evidence that it properly seeks this debt for the
FICA tax it paid for the appellant. CRF, Tab 12 at 13.
Further, the appellant generally argues that “[the a]ppellant and her counsel
do not understand the figures and data cited” and that the agency has not made its
assertions with “reasonable clarity and precision.”4 CRF, Tab 23 at 5-6. She also
challenges the sufficiency of the agency’s evidence, stating that it did not provide a
cited Standard Form 50, a certain returned check, or evidence that the debt
collection has been on hold. Id. at 7-8. The agency has, however, provided
detailed spreadsheets and explanations of the appellant’s debt, proving by a
preponderance of the evidence that it is in compliance with the Board’s orders. The
appellant provides no specific challenges to the agency’s calculations; nor does she
argue that she returned additional amounts that the agency has not accounted for by
offsetting her debt. Accordingly, we find the agency in compliance.
Finally, regarding the appellant’s request for sanctions, we deny the request.
The Board’s sanction authority is limited to the sanctions necessary to obtain
compliance with a Board order. Mercado v. Office of Personnel Management ,
115 M.S.P.R. 65, ¶ 8 (2010) (stating that the Board’s ability to award sanctions is a
means to enforce compliance, and once compliance has been demonstrated, it
would be inappropriate to impose sanctions). Because the agency has complied
with the Board’s orders, we are without authority to impose sanctions in this
matter.
4 The appellant also claims that “Exhibit B” to the J.S. Declaration “contains no
discernable information.” CRF, Tab 23 at 7. Although Exhibit B is not labelled, the
J.S. Declaration and the agency’s supplemental statement of compliance make it clear
that Exhibit B is the settlement workbook attached to the J.S. Declaration, from pages 18
to 41 of the agency’s submission. See CRF, Tab 12 at 5, 10. 6
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
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 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
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
requirements. Failure to file within the applicable time limit may result in the
dismissal of your case by your chosen forum.
Please read carefully each of the three main possible choices of review below
to decide which one applies to your particular case. If you have questions about
whether a particular forum is the appropriate one to review your case, you should
contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to the
U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that any
attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of discrimination .
This option applies to you only if you have claimed that you were affected by an
action that is appealable to the Board and that such action was based, in whole or in8
part, on unlawful discrimination. If so, you may obtain judicial review of this
decision—including a disposition of your discrimination claims —by filing a civil
action with an appropriate U.S. district court ( not the U.S. Court of Appeals for the
Federal Circuit), within 30 calendar days after you receive this decision. 5 U.S.C.
§ 7703(b)(2); see Perry v. Merit Systems Protection Board , 582 U.S. 420 (2017).
If you have a representative in this case, and your representative receives this
decision before you do, then you must file with the district court no later than
30 calendar days after your representative receives this decision. If the action
involves a claim of discrimination based on race, color, religion, sex, national
origin, or a disabling condition, you may be entitled to representation by a court
appointed lawyer and to waiver of any requirement of prepayment of fees, costs, or
other security. See 42 U.S.C. § 2000e-5(f) and 29 U.S.C. § 794a.
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding all
other issues . 5 U.S.C. § 7702(b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case, and
your representative receives this decision before you do, then you must file with the
EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 200139
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or
other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D). If
so, and your judicial petition for review “raises no challenge to the Board’s
disposition of allegations of a prohibited personnel practice described in
section 2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)
(A)(i), (B), (C), or (D),” then you may file a petition for judicial review either with
the U.S. Court of Appeals for the Federal Circuit or any court of appeals of
competent jurisdiction.6 The court of appeals must receive your petition for review
within 60 days of the date of issuance of this decision. 5 U.S.C. § 7703(b)(1)(B).
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
6 The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on July
7, 2018, permanently allows appellants to file petitions for judicial review of MSPB
decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals for the
Federal Circuit or any other circuit court of appeals of competent jurisdiction. The All
Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115-195, 132 Stat.
1510.10
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to the
U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that any
attorney will accept representation in a given case.
Contact information for the courts of appeals can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
FOR THE BOARD: ______________________________
Gina K. Grippando
Clerk of the Board
Washington, D.C.11 | Holmes_Tysha_S_AT-0752-11-0263-C-1_and_AT-0752-11-0263-X-1_Final_Order.pdf | 752-11-02 | TYSHA S. HOLMES v. DEPARTMENT OF THE ARMY, MSPB Docket No. AT-0752-11-0263-X-1, January 15, 2025 | AT-0752-11-0263-X-1; AT-0752-11-0263-C-1 | NP |
263 | https://www.mspb.gov/decisions/nonprecedential/Mannucci_KristinaDC-0752-20-0749-I-1_Remand_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
KRISTINA MANNUCCI,
Appellant,
v.
DEPARTMENT OF THE ARMY,
Agency.DOCKET NUMBER
DC-0752-20-0749-I-1
DATE: January 15, 2025
THIS ORDER IS NONPRECEDENTIAL1
Debra D’Agostino , Esquire, Washington, D.C., for the appellant.
Erika Alise McPherson , Esquire, Redstone Arsenal, Alabama,
for the agency.
BEFORE
Cathy A. Harris, Chairman
Raymond A. Limon, Vice Chairman
Henry J. Kerner, Member
REMAND ORDER
The appellant has filed a petition for review of the initial decision, which
dismissed her suspension appeal for lack of jurisdiction. For the reasons
discussed below, we GRANT the appellant’s petition for review, VACATE the
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).
initial decision, and REMAND the case to the regional office for further
adjudication in accordance with this Remand Order.
BACKGROUND
The appellant is a GS-12 Contract Specialist for the agency. Initial Appeal
File (IAF), Tab 4 at 22. On May 20, 2020, the agency proposed to suspend her
for 14 calendar days based on one specification of insubordination and one
specification of AWOL. Id. at 234. On June 10, 2020, the deciding official
upheld the proposal and stated that the appellant would be suspended from duty
without pay, beginning Sunday, June 14, 2020, and that she was to return to duty
on Sunday, June 28, 2020.2 Id. at 27.
However, when June 14, 2020 arrived and the suspension began, the agency
issued a Standard Form 50 (SF-50) indicating that the suspension was
“NTE 28-Jun-2020,” id. at 26, which would have been a period of 15 calendar
days. On June 26, 2020, while the suspension was ongoing, the agency issued
another SF-50, documenting a return-to-duty date of June 29, 2020. IAF, Tab 5
at 9.
According to the appellant, she was unaware of these SF-50s at the time
they were issued, and she returned to the office on June 28, 2020, as indicated in
the decision letter. Id. at 5. On July 2, 2020, the appellant finally examined
these SF-50s, and she noticed the June 29, 2020 return-to-duty date. Id. The
appellant then submitted a request for leave without pay (LWOP) for
June 28, 2020, stating in the “Remarks” section, “Per SF-50.”3 Id. at 5, 12. The
appellant’s supervisor approved the request, and the appellant was carried on
LWOP for that date. Id. at 5, 12-13.
2 The appellant’s schedule was from Sunday to Thursday, with Fridays and Saturdays
off. IAF, Tab 4 at 10, Tab 5 at 4 n.1.
3 It appears that the agency had previously instructed the appellant to request LWOP to
cover the second week of her suspension, through June 25, 2020. IAF, Tab 5 at 5, 10.
We have never heard of this practice, and it is unclear why the agency thought it was
necessary.2
The appellant filed a Board appeal of a suspension of more than 14 days,
and she requested a hearing. IAF, Tab 1. The agency moved to dismiss the
appeal on the basis that the appellant’s suspension was for only 14 days and was
therefore outside the Board’s adverse action jurisdiction. IAF, Tab 4 at 7-13.
The administrative judge issued an initial decision dismissing the appeal
for lack of jurisdiction. IAF, Tab 9, Initial Decision (ID). She found that the
administrative errors in the SF-50s did not serve to convert the appellant’s 14-day
suspension to a 15-day suspension. ID at 9-10. She further found that “the
appellant’s failure to initially get paid for June 28, 2020, did not result in an
additional day of the appellant’s suspension.” ID at 11.
The appellant has filed a petition for review, and the agency has filed a
response. Petition for Review (PFR) File, Tabs 3, 5. After the close of the
record, the Clerk of the Board issued an order directing the agency to provide
evidence showing that the appellant had, in fact, been paid for June 28, 2020, as
the agency had suggested. PFR File, Tab 6. Both parties responded to the order.
PFR File, Tabs 7-8.
DISCUSSION OF ARGUMENTS ON REVIEW
For purposes of 5 U.S.C. chapter 75, a suspension is the placement of an
employee, for disciplinary reasons, in a temporary status without duties and pay.
5 U.S.C. §§ 7501(2), 7511(a)(2); 5 C.F.R. § 752.402. The Board’s adverse action
jurisdiction extends to suspensions of more than 14 days. 5 U.S.C. § 7512(2);
5 C.F.R. § 752.402; see Lazard v. U.S. Postal Service , 93 M.S.P.R. 337, ¶ 4
(2003) (noting that “a suspension for less than 15 days is generally not appealable
to the Board”). In this case, the sole jurisdictional question is whether the
appellant was suspended for 14 days, through June 27, 2020, or for 15 days,
through June 28, 2020.
In its response to the petition for review, the agency stated that it had
“confirmed with human resources that on August 24, 2020, a corrected timecard3
to pay Appellant for June 28, 2020 was submitted and Appellant never alleged in
her pleadings that she still hadn’t been paid for June 28, 2020.” PFR File, Tab 5
at 10 n.4. The agency reported similarly in a pleading below. IAF, Tab 6 at 6.
Noting that the statements of a party’s representative in a pleading do not
constitute evidence, the Clerk of the Board ordered the agency to provide
evidence showing that the appellant had, in fact, been paid for June 28, 2020.
PFR File, Tab 6.
The agency responded, stating that it was “providing two Declarations with
persons with first-hand knowledge that Appellant was paid on June 28, 2020,
along with documentary evidence to include Appellant’s Leave and Earning
statement printout (DoD Automated Time and Attendance Report) . . . .”
PFR File, Tab 7 at 5. The declarations, however, say nothing of the kind. The
first declaration, from a Supervisory Accountant, states that the suspension
included June 28, 2020. Id. at 8. The second declaration, from the Resource
Management Officer, is unresponsive. Id. at 10. Further, the time and attendance
report that the agency submitted plainly shows the appellant in suspension status
on June 28, 2020. Id. at 13. In reply to the agency’s response, the appellant also
has submitted documentary evidence showing that the agency carried her in
suspension status on June 28, 2020, PFR File, Tab 8 at 14, and that her
suspension encompassed a total of 48 working hours, which would be consistent
with a 15-day suspension, from June 14, 2020, through June 28, 2020,
id. at 12, 15.
The agency’s response to the Board’s order seems to be premised on a
misunderstanding of the law. The agency appears to argue that this was an
11-day suspension because it only encompassed 11 workdays. PFR File, Tab 7
at 5, 8-10. However, this is not how suspensions are calculated. “Day,” in this
context, means calendar day, not working day. 5 C.F.R. § 752.402; see
Klimek v. Department of the Army , 3 M.S.P.R. 139 (1980). When a period of
suspension encompasses a regularly scheduled day off, that day off is still4
included in the calculation. Klimek, 3 M.S.P.R. at 141-42. The agency’s
argument that the appellant was suspended for 11 workdays is tantamount to an
admission that she was suspended for 15 calendar days (11 workdays plus
4 regularly scheduled days off).
Nevertheless, the record is not sufficiently developed at this stage for the
Board to rule on the jurisdictional issue. The agency began this appeal by
arguing that the appellant did not return to work until June 29, 2020, in defiance
of instructions that she return on June 28, 2020. IAF, Tab 4 at 10, 12. When the
appellant responded, she indicated that she “reported for duty, and returned to her
office,” on June 28, 2020, but was “unable to access her personnel records, etc.,
on that day.” IAF, Tab 5 at 5. The agency then relied on the same to abandon its
prior claim and instead assert that the appellant “went to work” on June 28, 2020.
IAF, Tab 6 at 6. However, neither party provided adequate explanation or
evidence about whether the appellant was in duty status and worked that day.
This is especially glaring in light of the agency’s changed allegations about
whether the appellant was in the office on June 28, 2020, IAF, Tab 4 at 10, 12,
Tab 6 at 6, and its repeated claims that the appellant was paid for that day,
IAF, Tab 6 at 6; PFR File, Tab 5 at 10 n.4, Tab 7 at 5, as compared to the time
and attendance records it submitted in response to our inquiry about the matter
showing that the appellant’s unpaid “suspension” status extended through
June 28, 2020, PFR File, Tab 7 at 13.
It may be that the appellant’s status on June 28, 2020 does not fit the
statutory definition of “suspension.” See Smith v. Department of the Air Force ,
14 M.S.P.R. 112, 114 (1982) (observing that a suspension, by definition, requires
placement in a non -duty status, and not just a non-pay status). In particular, it
may be that the appellant was effectively placed in duty status without pay for5
June 28, 2020.4 Or, it may be that the appellant was not authorized to work on
June 28, 2020, but she did so anyway based on a misunderstanding. There does
not appear to be any Board caselaw governing that situation. Alternatively, it
may be that the appellant attempted to return to work on June 28, 2020, but the
agency effectively kept her in a non-duty status and prevented her from working.
When an appellant makes a nonfrivolous allegation that the Board has
jurisdiction over an appeal, she is entitled to a hearing on the jurisdictional
question. Liu v. Department of Agriculture , 106 M.S.P.R. 178, ¶ 8 (2007).
Nonfrivolous allegations of Board jurisdiction are allegations of fact which, if
proven, could establish a prima facie case that the Board has jurisdiction over the
matter at issue. Id. Also, of note, the Board is not obliged to accept the assertion
of a party as to the nature of a personnel action but may make its own
independent determination regarding the matter. See, e.g., Aguzie v. Office of
Personnel Management , 116 M.S.P.R. 64, ¶ 26 (2011); Russell v. Department of
the Navy, 6 M.S.P.R. 698, 704 (1981).
Under the circumstances presented here, we find that the record contains
nonfrivolous allegations that the appellant’s suspension extended to a 15th day,
such that the appellant is entitled to a jurisdictional hearing. We therefore
remand this case for the administrative judge to conduct a jurisdictional hearing
and collect additional argument and evidence on this issue before deciding anew
whether the appellant was subjected to an appealable adverse action.
4 Even if it turns out that the appellant’s suspension is outside the Board’s jurisdiction,
if she worked on June 28, 2020 without being paid, she may have a claim against the
Government for her pay on that date, albeit in another forum. See generally 31 U.S.C.
§ 1342 (setting forth a limitation on voluntary services).6
ORDER
For the reasons discussed above, we remand this case to regional office for
further adjudication in accordance with this Remand Order.
FOR THE BOARD: ______________________________
Gina K. Grippando
Clerk of the Board
Washington, D.C.7 | Mannucci_KristinaDC-0752-20-0749-I-1_Remand_Order.pdf | 2025-01-15 | KRISTINA MANNUCCI v. DEPARTMENT OF THE ARMY, MSPB Docket No. DC-0752-20-0749-I-1, January 15, 2025 | DC-0752-20-0749-I-1 | NP |
264 | https://www.mspb.gov/decisions/nonprecedential/Edinburgh_Derrick_AT-0752-23-0001-I-1_ Final Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
DERRICK EDINGBURGH,
Appellant,
v.
DEPARTMENT OF THE NAVY,
Agency.DOCKET NUMBER
AT-0752-23-0001-I-1
DATE: January 15, 2025
THIS FINAL ORDER IS NONPRECEDENTIAL1
Derrick Edingburgh , Memphis, Tennessee, pro se.
Ashley Rutherford , Jacksonville, Florida, for the agency.
BEFORE
Cathy A. Harris, Chairman
Raymond A. Limon, Vice Chairman
Henry J. Kerner, Member
FINAL ORDER
The appellant has filed a petition for review of the initial decision, which
sustained his removal for failing to meet a condition of 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
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).
based on an erroneous interpretation of statute or regulation or the erroneous
application of the law to the facts of the case; the administrative judge’s rulings
during either the course of the appeal or the initial decision were not consistent
with required procedures or involved an abuse of discretion, and the resulting
error affected the outcome of the case; or new and material evidence or legal
argument is available that, despite the petitioner’s due diligence, was not
available when the record closed. Title 5 of the Code of Federal Regulations,
section 1201.115 (5 C.F.R. § 1201.115). After fully considering the filings in this
appeal, we conclude that the petitioner has not established any basis under
section 1201.115 for granting the petition for review. Therefore, we DENY the
petition for review and AFFIRM the initial decision, which is now the Board’s
final decision. 5 C.F.R. § 1201.113(b).
On petition for review, the appellant argues that the administrative
judge erred with respect to his discovery rulings. Petition for Review (PFR) File,
Tab 1 at 3.2 He has not established that the administrative judge abused his broad
discretion. See Dieter v. Department of Veterans Affairs , 2022 MSPB 32, ¶ 25.
The appellant also argues that the administrative judge was biased towards him
and in favor of the agency. PFR File, Tab 1 at 5. He has not overcome the
presumption of honesty and integrity that accompanies administrative
2 More than a year after filing his petition for review, the appellant filed a motion
seeking the Board’s permission to file additional evidence. PFR File, Tab 6.
In particular, the appellant wants to submit emails between himself and agency counsel,
from February and March 2023, pertaining to discovery. Id. at 3. This motion is
denied. The appellant has not adequately explained why he did not submit this evidence
prior to the administrative judge’s July 2023 initial decision or with his August 2023
petition for review. See Avansino v. U.S. Postal Service , 3 M.S.P.R. 211, 213-14
(1980) (recognizing 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).
In addition, the appellant has not adequately explained why this evidence is material.
See 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).2
adjudicators. See Oliver v. Department of Transportation , 1 M.S.P.R. 382, 386
(1980).
The remaining arguments the appellant presents on review are similarly
unavailing. These include arguments or assertions that he had difficulties
convincing witnesses to testify on his behalf, PFR File, Tab 1 at 4, that the
administrative judge instructed him to submit only relevant portions of a
1000-page report, id. at 4-5, that the agency violated his rights under the
Americans with Disabilities Act, id. at 5, and that the agency could resolve this
appeal by helping him get a different position, id. at 6.
Finally, we recognize that the appellant attaches a scheduling order from
the Equal Employment Opportunity Commission to his petition for review.
Id. at 7-13. We need not consider this newly submitted evidence because the
appellant has not shown that it was previously unavailable. See Avansino,
3 M.S.P.R. at 214. Moreover, the relevance of this scheduling order is not
apparent.
NOTICE OF APPEAL RIGHTS3
You may obtain review of this final decision. 5 U.S.C. § 7703(a)(1). By
statute, the nature of your claims determines the time limit for seeking such
review and the appropriate forum with which to file. 5 U.S.C. § 7703(b).
Although we offer the following summary of available appeal rights, the Merit
Systems Protection Board does not provide legal advice on which option is most
appropriate for your situation and the rights described below do not represent a
statement of how courts will rule regarding which cases fall within their
jurisdiction. If you wish to seek review of this final decision, you should
immediately review the law applicable to your claims and carefully follow all
3 Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise which option is most appropriate in any matter.3
filing time limits and requirements. Failure to file within the applicable time
limit may result in the dismissal of your case by your chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the following
address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit.
The Board neither endorses the services provided by any attorney nor warrants
that any attorney will accept representation in a given case.4
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. 420 (2017). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the district court no later than 30 calendar days after your representative
receives this decision. If the action involves a claim of discrimination based on
race, color, religion, sex, national origin, or a disabling condition, you may be
entitled to representation by a court-appointed lawyer and to waiver of any
requirement of prepayment of fees, costs, or other security. See 42 U.S.C.
§ 2000e-5(f) and 29 U.S.C. § 794a.
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702(b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision. 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
I certify that the attached Document(s) was (were) sent as indicated this day
to each of the following:CERTIFICATE OF SERVICE
Electronic Service Derrick Edingburgh
Served on email address registered with MSPBAppellant
Electronic Service Ashley Rutherford
Served on email address registered with MSPBAgency Representative
01/15/2025
John Hayes
(Date) | Edinburgh_Derrick_AT-0752-23-0001-I-1_ Final Order.pdf | 2025-01-15 | DERRICK EDINGBURGH v. DEPARTMENT OF THE NAVY, MSPB Docket No. AT-0752-23-0001-I-1, January 15, 2025 | AT-0752-23-0001-I-1 | NP |
265 | https://www.mspb.gov/decisions/nonprecedential/Wunsch_Cindy_A_NY-844E-20-0231-I-1_Remand_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
CINDY A. WUNSCH,
Appellant,
v.
OFFICE OF PERSONNEL
MANAGEMENT,
Agency.DOCKET NUMBER
NY-844E-20-0231-I-1
DATE: January 15, 2025
THIS ORDER IS NONPRECEDENTIAL1
Cindy A. Wunsch , Williamsville, New York, pro se.
Linnette Scott , Washington, D.C., for the agency.
BEFORE
Cathy A. Harris, Chairman
Raymond A. Limon, Vice Chairman
Henry J. Kerner, Member
REMAND ORDER
The appellant has filed a petition for review of the initial decision, which
dismissed her disability retirement appeal for failure to prosecute. For the
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).
reasons discussed below, we GRANT the appellant’s petition for review,
VACATE the initial decision, and REMAND the case to the Northeastern
Regional Office for further adjudication in accordance with this Remand Order.
DISCUSSION OF ARGUMENTS ON REVIEW
The Office of Personnel Management (OPM) denied the appellant’s
application for disability retirement. Initial Appeal File (IAF), Tab 9 at 4-7. On
August 28, 2020, the appellant filed a Board appeal of that decision by U.S. Mail.
IAF, Tab 1. The administrative judge issued an acknowledgment order, a
jurisdictional order, and an order to the appellant to provide documentation. The
appellant was served these documents by U.S. Mail, and she responded to the
documentation order as requested. IAF, Tabs 2-5, 7.
Subsequently, the administrative judge issued a close of the record order
and served the appellant electronically. IAF, Tab 6. When the appellant failed to
appear at the close of the record conference, the administrative judge issued an
order to show cause why she did not attend the conference and warned the
appellant of possible sanctions, up to dismissal of her appeal for failure to
prosecute. IAF, Tab 10. Again, the appellant was served electronically and did
not respond. Id. at 3. The administrative judge then issued two more such
orders, directing the appellant to respond and warning her that her appeal would
be dismissed if she failed to do so. IAF, Tabs 11-12. These orders were served
electronically as well. IAF, Tab 11 at 4, Tab 12 at 4.
After the appellant’s failure to respond to these multiple orders, on
November 2, 2020, the administrative judge issued an initial decision dismissing
the appeal for failure to prosecute. IAF, Tab 13. The appellant was served the
initial decision electronically as well. IAF, Tab 14.
On November 28, 2020, the appellant filed a petition for review by
U.S. Mail, stating that she did not receive any emails from the Board. Petition for
Review (PFR) File, Tab 1 at 5. OPM has filed a response. 2
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).
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. 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. Williams v. U.S. Postal Service ,
116 M.S.P.R. 377, ¶ 9 (2011); see Turner v. U.S. Postal Service , 123 M.S.P.R.
640, ¶ 16 (2016), aff’d, 681 F. App’x 934 (Fed. Cir. 2017); Heckman v.
Department of the Interior , 106 M.S.P.R. 210, ¶ 16 (2007).
Nevertheless, electronic service of the Board’s issuances is only
appropriate for properly registered e-filers who affirmatively consent to
electronic service. See 5 C.F.R. § 1201.14(e)(1)-(2) (2020) (noting that
registration as an e-filer constitutes consent to accept electronic service and that
the exclusive means for registering as an e-filer is to do so through e-Appeal
Online), (j)(1) (identifying that paper copies of Board issuances are not ordinarily
served on registered e-filers), (j)(3) (noting that registered e-filers are responsible
for monitoring case activity in the e-Appeal Online Repository to ensure that they
have received all case-related documents).
The record for this appeal does not contain the appellant’s affirmative
consent to accept electronic service. Therefore, we find that none of the orders
served on the appellant electronically were properly served, and that it is not
appropriate to hold her accountable for failing to respond to them. IAF,
Tabs 6, 10-12. Under these circumstances, the sanction of dismissal for failure to
prosecute does not serve the ends of justice. See Tully v. Department of Justice ,
95 M.S.P.R. 481, ¶¶ 8, 12 (2004) (vacating an administrative judge’s dismissal3
for failure to prosecute because the sanction was based in part on the pro se
appellant failing to appear at a hearing that the administrative judge scheduled
during a period that the appellant had previously advised the administrative judge
he would be on military duty).
We therefore vacate the initial decision and remand the appeal for
adjudication of the merits. On remand, the administrative judge should update
and verify the appellant’s preferred method of service and establish a new close
of the record schedule.
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.4 | Wunsch_Cindy_A_NY-844E-20-0231-I-1_Remand_Order.pdf | 2025-01-15 | CINDY A. WUNSCH v. OFFICE OF PERSONNEL MANAGEMENT, MSPB Docket No. NY-844E-20-0231-I-1, January 15, 2025 | NY-844E-20-0231-I-1 | NP |
266 | https://www.mspb.gov/decisions/nonprecedential/Gabree_Christopher_T_DC-0752-20-0178-I-1_Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
CHRISTOPHER T. GABREE,
Appellant,
v.
UNITED STATES POSTAL SERVICE,
Agency.DOCKET NUMBER
DC-0752-20-0178-I-1
DATE: January 14, 2025
THIS FINAL ORDER IS NONPRECEDENTIAL1
Albert E. Lum , Esquire, Brooklyn, New York, for the appellant.
Keith L. Reid , Esquire, Virginia Beach, Virginia, for the appellant.
Earl L. Cotton , Esquire, Atlanta, Georgia, for the agency.
Ladonna L. Griffith-Lesesne , Esquire, Landover, Maryland, for the agency.
BEFORE
Cathy A. Harris , Chairman
Raymond A. Limon , Vice Chairman
Henry J. Kerner , Member
FINAL ORDER
The appellant has filed a petition for review of the initial decision, which
dismissed his constructive suspension appeal for lack of jurisdiction. 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.
Except as expressly MODIFIED in paragraph 16 below to find that the appellant
had a meaningful alternative to absence, we AFFIRM the initial decision.
BACKGROUND
The following facts are undisputed. The appellant was an EAS-22
Postmaster at the agency’s Monroe, North Carolina Post Office. Gabree v. U.S.
Postal Service, MSPB Docket No. DC-0752-19-0813-I-1, Initial Appeal File
(0813 IAF), Tab 4 at 15. The agency proposed his removal for misconduct.
Id. at 30-33. On August 28, 2019, the deciding official issued a decision sustaining
the charges but mitigating the penalty to a reduction in grade and pay and a
reassignment to the Concord, North Carolina Post Office as an EAS -17 Supervisor
of Customer Service, effective September 7, 2019.2 Id. at 16-17.
2 The appellant filed a Board appeal of that action, and on December 18, 2019, the
administrative judge reversed the reduction in pay and grade, finding that the agency
failed to prove its charges. 0813 IAF, Tab 18. The administrative judge ordered the
appellant restored to his former Postmaster position at the Monroe Post Office.
Id. at 14-15. Neither party petitioned for review, and the initial decision became final by
operation of law. See 5 C.F.R. § 1201.113.2
Prior to entering on duty at the Concord Post Office, the appellant informed
the Concord Postmaster that he had a medical restriction and was consequently
limited to working 6 hours per day. Gabree v. U.S. Postal Service , MSPB Docket
No. DC-0752-20-0178-I-1, Initial Appeal File (IAF), Tab 5 at 33, Tab 12 at 4. The
Postmaster informed the appellant that he would need to provide medical
documentation of his restrictions. IAF, Tab 5 at 33. The appellant did not provide
any documentation until October 22, 2019.3 IAF, Tab 5 at 33, 62, 65, Tab 12 at 5.
In the meantime, he was working 6-hour days but getting paid for 8 hours without
any leave being charged to him. IAF, Tab 5 at 33, 60-63.
After reviewing the appellant’s medical documentation and consulting with
agency management, the Postmaster determined that this arrangement could not go
on any longer. Id. at 60-63. On October 23, 2019, he proposed to inform the
appellant that, after completing his 6 hours of work, he must take leave to cover the
remainder of the tour. Id. at 60. However, the District Finance Manager told the
Postmaster that EAS employees are not permitted to take leave other than in 8 -hour
increments unless the leave is covered under the Family and Medical Leave Act
of 1993 (FMLA). IAF, Tab 5 at 60, 90-91, 96. The appellant was not eligible for
FMLA-protected leave either because he had already exhausted his FMLA leave
hours or had not worked the requisite number of hours during the previous year.
IAF, Tab 5 at 62, Tab 12 at 5. Therefore, on October 24, 2019, the Postmaster
advised the appellant that the agency would not be able to accommodate his light
duty request of a 6-hour workday and that he would need to take leave until he was
released to work a full 8-hour day. IAF, Tab 5 at 24.
The appellant, however, had only 4 hours of sick leave to his credit.
Id. at 78. On October 25, 2019, he requested and was granted 240 hours of advance
sick leave that, in combination with his accrued annual leave, he believed would
3 The doctor’s note stated that it was recommended that the appellant have 2 days off and
work no more than 6 hours per day because it would “be beneficial to the recovery of his
knee pain.” IAF, Tab 5 at 65. No further information was provided.3
give him sufficient time to obtain treatment and recover so that he could return to
8-hour days. Id. at 34, 54, 58, 80-82. In making this leave request to the
Postmaster, he stated, “I have been recently informed that the Postal Service would
no longer accommodate me for my disability.” Id. at 58.
On October 31, 2019, the appellant emailed the Postmaster an explicit
request for reasonable accommodations, and on November 4, 2019, the Postmaster
forwarded the appellant’s request to the agency’s District Reasonable
Accommodation Committee (DRAC). Id. at 53. On November 5, 2019, the DRAC
sent the appellant two forms to complete and return, one for himself and one for his
medical provider. Id. at 50. The appellant completed and returned his form on
about November 15, 2019, but he declined to complete and return the form from his
medical provider, stating that his “current restrictions [were already] on file.”
Id. at 48-49.
On November 22, 2019, the DRAC informed the appellant that he needed to
return the medical provider form to proceed with the interactive process, and that if
he already had medical documentation on file with his supervisor, he still needed to
provide that information to the DRAC if he wanted it to be considered. Id. at 45.
The appellant filed the instant appeal shortly thereafter, but the DRAC continued to
seek this information from the appellant during the pendency of the appeal.
Id. at 36. It appears that the appellant never returned to duty as an EAS-17
Supervisor of Customer Services and resumed work only when he was restored to
his former Postmaster position pursuant to the Final Order in his demotion Board
appeal. Petition for Review (PFR) File, Tab 1 at 6.
On his initial appeal form, the appellant requested a hearing and indicated
that he was appealing a suspension of more than 14 days. IAF, Tab 1 at 6-7. The
administrative judge issued an order informing the appellant of the jurisdictional
standards for a constructive suspension appeal and ordered him to file evidence and
argument on the issue. IAF, Tab 9. After the parties responded, the administrative
judge issued an initial decision dismissing the appeal for lack of jurisdiction4
without holding the appellant’s requested hearing. IAF, Tab 13, Initial Decision
(ID). He found that the appellant made a nonfrivolous allegation that his absence
from work was involuntary, but that the appellant failed to make a nonfrivolous
allegation that it was rendered involuntary by the agency’s improper actions.
ID at 5-8.
The appellant has filed a petition for review, disputing the administrative
judge’s jurisdictional analysis. PFR File, Tab 1. The agency has filed a response.
PFR File, Tab 2.
ANALYSIS
Employee-initiated actions are presumed to be voluntary, and the Board
lacks jurisdiction over voluntary actions. Polen v. Department of Defense ,
72 M.S.P.R. 1, 5 (1996). However, employee-initiated actions that appear
voluntary on their face are not always so, and the Board may have jurisdiction over
such actions under 5 U.S.C. chapter 75 as “constructive” adverse actions.
Bean v. U.S. Postal Service , 120 M.S.P.R. 397, ¶ 7 (2013). Generally, all
constructive adverse actions have two things in common: (1) the employee lacked
a meaningful choice in the matter; and (2) it was the agency’s wrongful actions that
deprived the employee of that choice. Assuming that the jurisdictional
requirements of 5 U.S.C. chapter 75 are otherwise met, proof of these two things is
sufficient to establish Board jurisdiction.4 Id., ¶ 8. An appellant is entitled to a
hearing on the jurisdictional issue if he makes a nonfrivolous allegation casting
doubt on the presumption of voluntariness. Burgess v. Merit Systems Protection
Board, 758 F.2d 641, 643 (Fed. Cir. 1985). In this case, the administrative judge
found that the appellant made a nonfrivolous allegation that he lacked a meaningful
4 The administrative judge found that the constructive suspension analysis applies
because this is not a case involving enforced leave; rather, the appellant initiated his own
absence. ID at 5. We agree with the administrative judge, and the appellant does not
dispute this finding. See Abbott v. U.S. Postal Service , 121 M.S.P.R. 294, ¶¶ 7-10 (2014)
(finding that an agency’s placement of an employee on enforced leave for more than
14 days constitutes a suspension and not a constructive suspension).5
choice in his extended leave beginning October 25, 2019. ID at 6. However, he
went on to find that the appellant failed to make a nonfrivolous allegation that he
was deprived of meaningful choice by an improper agency action. ID at 6-8.
On petition for review, the appellant argues that he was deprived of meaningful
choice by two improper agency actions—the agency’s failure to accommodate his
disability and his reduction in grade and pay under 5 U.S.C. chapter 75. PFR File,
Tab 1 at 4-5.
Regarding the alleged failure to accommodate, the appellant argues that the
agency was accommodating his disability between his entry on duty as a Supervisor
of Customer Service and its unjustifiable termination of this accommodation on
October 25, 2019. IAF, Tab 10 at 7-8, Tab 12 at 9, 11. He further argues that the
agency failed to schedule a reasonable accommodation meeting with him until
January 2020. IAF, Tab 10 at 11, Tab 12 at 8, 10; PFR File, Tab 1 at 4. However,
we agree with the administrative judge that the appellant has not made nonfrivolous
allegations of fact that would support a finding that these actions were improper.
ID at 6-7. The record shows, and the appellant does not dispute, that, despite not
being paid at an hourly rate, employees exempt from the Fair Labor Standards Act
(FLSA) “are expected to work a full day.” IAF, Tab 5 at 90. It is also undisputed
that “[m]anagers are responsible for controlling the workhours of their exempt
employees,” and have the discretion to disapprove early departures in light of the
current workload, the frequency of such absences, and so forth. Id. at 91-92.
Furthermore, according to agency regulations, the leave program for exempt
employees “must be administered in a fair and equitable manner.” Id. at 92.
We note, however, that, notwithstanding the general rule that FLSA-exempt
employees are expected to work a full 8-hour day, part-day leave can still be a form
of reasonable accommodation. See Perry v. Department of the Treasury ,
EEOC Appeal No. 01873264, 1988 WL 917558 at *2 (Apr. 15, 1988).
“An employer must provide a modified or part-time schedule when required as a
reasonable accommodation, absent undue hardship, even if it does not provide such6
schedules for other employees.” Equal Employment Opportunity Commission
Enforcement Guidance on Reasonable Accommodation and Undue Hardship under
the Americans with Disabilities Act (ADA Guidance), Question 22,
Notice No. 915.002, 2002 WL 31994335 at *18 (Oct. 17, 2002); see U.S. Airways,
Inc. v. Barnett , 535 U.S. 391, 397-98 (2002). Nevertheless, even if this
arrangement were a reasonable accommodation, the agency would still not be
obliged to offer it before going through the interactive process of 5 C.F.R.
§ 1630.2(o)(3) to see if there was some other arrangement that might allow the
appellant to perform the essential functions of his position.
Royce O. v. Department of Veterans Affairs , EEOC Petition No. 2023004555,
2023 WL 8713924 at *6-7 (Nov. 27, 2023). A disabled employee is entitled to a
reasonable accommodation but not necessarily the accommodation of his choice.5
Henry v. Department of Veterans Affairs , 108 M.S.P.R. 458, ¶ 22 (2008).
In that regard, we also agree with the administrative judge that the appellant
has not made any allegations of fact that would support his assertion that the
agency acted improperly by failing to engage in the interactive process. ID at 7-8.
The record shows that the Concord Postmaster requested medical documentation
from the appellant before he entered on duty, but the appellant waited 6 weeks to
comply. IAF, Tab 5 at 33. Because the nature and extent of the appellant’s
disability, and his need for reasonable accommodation were not obvious, the
agency was entitled to request such documentation. See ADA Guidance,
Question 6. Furthermore, the agency was entitled to know the activities that the
5 Assuming, without deciding, that the part-time work schedule was an effective
accommodation that allowed the appellant to perform all the essential functions of his
8-hour position in a 6-hour workday, we find that the agency acted properly in allowing
this arrangement as an interim accommodation for nearly 2 months after the appellant
entered the Supervisor of Customer Service position. See generally 29 C.F.R.
§ 1614.203(d)(3)(i)(Q) (providing for interim accommodations pending the outcome of
the interactive process). The agency was not required to continue this interim
accommodation indefinitely merely because the appellant declined to participate in the
interactive process.7
appellant’s impairment would limit, the expected duration of the impairment, and
why the impairment necessitated a modified work schedule as opposed to other
possible accommodations. Id. Even the medical documentation that the appellant
eventually supplied lacked most of this information. IAF, Tab 5 at 65.
The appellant faults the Postmaster for not initiating the interactive process
on his behalf at the beginning of September, but it was the appellant who failed to
give the Postmaster the information needed to do so. Furthermore, it was not until
he had been on leave for a week that the appellant explicitly requested reasonable
accommodation. IAF, Tab 5 at 53. The record shows that the case was then
promptly referred to the DRAC, which immediately contacted the appellant to
request the pertinent information. Id. at 50, 53. The record further shows that the
DRAC responded to the appellant’s communications within 1 day of receiving
them, but that the appellant failed to supply the requested information despite the
DRAC’s repeated requests. Id. at 36-49. Thus, the undisputed record shows that
the agency did not act improperly in delaying reasonable accommodation. Rather,
it was the appellant who was responsible for the breakdown of the interactive
process. See Rosario-Fabregas v. Department of the Army , 122 M.S.P.R. 468, ¶ 18
(2015), aff’d, 833 F.3d 1342 (Fed. Cir. 2016). The interactive process is a two -way
street, and both parties have an obligation to participate in good faith.
Collins v. U.S. Postal Service , 100 M.S.P.R. 332, ¶ 11 (2005).
Regarding the reduction in grade, the appellant argues that his 6-hour work
restriction was not a problem when he was the Monroe Postmaster because he was
able to take personal time for the balance of his workday after he had reached his
6-hour limit. This option was taken from him when the agency improperly demoted
him to an EAS-17 Supervisor of Customer Service. PFR File, Tab 1 at 4-5.
We agree with the appellant that the Board’s decision in his prior appeal establishes
that his reduction in grade and pay was improper. 0813 IAF, Tab 11. This adverse
action was not taken for such cause as would promote the efficiency of the service
as required under 5 U.S.C. § 7513(a). See Pope v. U.S. Postal Service , 114 F.3d8
1144, 1147 (Fed. Cir. 1997). The propriety of the appellant’s reduction in grade
and pay is not subject to relitigation in the instant appeal. See generally
Carson v. Department of Energy, 398 F.3d 1369, 1375 (Fed. Cir. 2005) (setting
forth the elements of res judicata).
However, we also agree with the administrative judge that the outcome of
that prior appeal ultimately does not affect the outcome of the instant appeal.
ID at 1 n.1. The appellant alleges that he suffered from the same medical condition
in his former Postmaster position, but he was able to perform the essential
functions of that position through a combination of personal absence and working
from home.6 PFR File, Tab 1 at 4-5; IAF, Tab 10 at 6-7. The only thing that
changed was that the agency improperly demoted him to Supervisor of Customer
Service. With that, the flexibility that allowed the appellant to perform in his
Postmaster position was gone, and he was compelled to go through the formal
reasonable accommodation process.
We do not agree with the administrative judge that the appellant lacked any
meaningful choice in this matter. ID at 6. His choices were not limited to taking
leave and working outside his medical restrictions. Cf. Bean, 120 M.S.P.R. 397,
¶ 13. Rather, he had a third option—to cooperate in the interactive process by
furnishing the requested medical information, first to the Concord Postmaster and
then to the DRAC. When the appellant repeatedly resisted these requests, insisting
that his information was already “on file,” he did so at his own peril. IAF, Tab 5
at 49, Tab 12 at 6. Even assuming that the information on file was actually the
information that the Postmaster and the DRAC were seeking, medical
documentation in the possession of one office is not necessarily available to
another. We therefore find that the appellant’s failure to avail himself of the
interactive process precludes us from finding that his leave of absence amounted to
6 The record seems to indicate that Postmasters and other installation heads tend to have
greater leeway with personal absences than do other exempt employees. IAF, Tab 5 at 91.9
a constructive suspension. See Heining v. General Services Administration ,
68 M.S.P.R. 513, 523 (1995).
Accordingly, we affirm the initial decision as modified.
NOTICE OF APPEAL RIGHTS7
The initial decision, as supplemented by this Final Order, constitutes the
Board’s final decision in this matter. 5 C.F.R. § 1201.113. You may obtain review
of this final decision. 5 U.S.C. § 7703(a)(1). By statute, the nature of your claims
determines the time limit for seeking such review and the appropriate forum with
which to file. 5 U.S.C. § 7703(b). Although we offer the following summary of
available appeal rights, the Merit Systems Protection Board does not provide legal
advice on which option is most appropriate for your situation and the rights
described below do not represent a statement of how courts will rule regarding
which cases fall within their jurisdiction. If you wish to seek review of this final
decision, you should immediately review the law applicable to your claims and
carefully follow all filing time limits and requirements. Failure to file within the
applicable time limit may result in the dismissal of your case by your chosen forum.
Please read carefully each of the three main possible choices of review below
to decide which one applies to your particular case. If you have questions about
whether a particular forum is the appropriate one to review your case, you should
contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(A).
7 Since the issuance of the initial decision in this matter, the Board may have updated the
notice of review rights included in final decisions. As indicated in the notice, the Board
cannot advise which option is most appropriate in any matter.10
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to the
U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that any
attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of discrimination .
This option applies to you only if you have claimed that you were affected by an
action that is appealable to the Board and that such action was based, in whole or in
part, on unlawful discrimination. If so, you may obtain judicial review of this
decision—including a disposition of your discrimination claims —by filing a civil
action with an appropriate U.S. district court ( not the U.S. Court of Appeals for the
Federal Circuit), within 30 calendar days after you receive this decision. 5 U.S.C.
§ 7703(b)(2); see Perry v. Merit Systems Protection Board , 582 U.S. 420 (2017).
If you have a representative in this case, and your representative receives this
decision before you do, then you must file with the district court no later than
30 calendar days after your representative receives this decision. If the action
involves a claim of discrimination based on race, color, religion, sex, national
origin, or a disabling condition, you may be entitled to representation by a11
court-appointed lawyer and to waiver of any requirement of prepayment of fees,
costs, or other security. See 42 U.S.C. § 2000e-5(f) and 29 U.S.C. § 794a.
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding all
other issues . 5 U.S.C. § 7702(b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case, and
your representative receives this decision before you do, then you must file with the
EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or
other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s12
disposition of allegations of a prohibited personnel practice described in
section 2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)
(A)(i), (B), (C), or (D),” then you may file a petition for judicial review either with
the U.S. Court of Appeals for the Federal Circuit or any court of appeals of
competent jurisdiction.8 The court of appeals must receive your petition for review
within 60 days of the date of issuance of this decision. 5 U.S.C. § 7703(b)(1)(B).
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to the
U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that any
attorney will accept representation in a given case.
8 The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115-195,
132 Stat. 1510. 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 | Gabree_Christopher_T_DC-0752-20-0178-I-1_Final_Order.pdf | 2025-01-14 | CHRISTOPHER T. GABREE v. UNITED STATES POSTAL SERVICE, MSPB Docket No. DC-0752-20-0178-I-1, January 14, 2025 | DC-0752-20-0178-I-1 | NP |
267 | https://www.mspb.gov/decisions/nonprecedential/Adams_Charles_D_DC-3443-23-0578-I-1_Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
CHARLES DERECK ADAMS,
Appellant,
v.
DEPARTMENT OF DEFENSE,
Agency.DOCKET NUMBER
DC-3443-23-0578-I-1
DATE: January 14, 2025
THIS FINAL ORDER IS NONPRECEDENTIAL1
Charles Dereck Adams , Herndon, Virginia, pro se.
Paul Y. Kim , Esquire, Redstone Arsenal, Alabama, for the agency.
BEFORE
Cathy A. Harris, Chairman
Raymond A. Limon, Vice Chairman
Henry J. Kerner, Member
FINAL ORDER
The appellant has filed a petition for review of the initial decision, which
dismissed his appeal for lack of jurisdiction. On petition for review, the appellant
reiterates his argument that the Board has jurisdiction over his claim that the
Office of the Secretary of Defense and the Department of Defense Inspector
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).
General failed to hold the component of the Department of Defense for which
he previously worked accountable for unlawful discrimination. Generally, we
grant petitions such as this one only in the following circumstances: the initial
decision contains erroneous findings of material fact; the initial decision is based
on an erroneous interpretation of statute or regulation or the erroneous application
of the law to the facts of the case; the administrative judge’s rulings during either
the course of the appeal or the initial decision were not consistent with required
procedures or involved an abuse of discretion, and the resulting error affected the
outcome of the case; or new and material evidence or legal argument is available
that, despite the petitioner’s due diligence, was not available when the record
closed. Title 5 of the Code of Federal Regulations, section 1201.115
(5 C.F.R. § 1201.115). After fully considering the filings in this appeal, we
conclude that the petitioner has not established any basis under section 1201.115
for granting the petition for review. Therefore, we DENY the petition for review
and AFFIRM the initial decision, which is now the Board’s final decision.
5 C.F.R. § 1201.113(b).
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 | Adams_Charles_D_DC-3443-23-0578-I-1_Final_Order.pdf | 2025-01-14 | CHARLES DERECK ADAMS v. DEPARTMENT OF DEFENSE, MSPB Docket No. DC-3443-23-0578-I-1, January 14, 2025 | DC-3443-23-0578-I-1 | NP |
268 | https://www.mspb.gov/decisions/nonprecedential/Joachin_Michelle_P_DA-0752-19-0528-I-1_Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
MICHELLE P. JOACHIN,
Appellant,
v.
DEPARTMENT OF THE ARMY,
Agency.DOCKET NUMBER
DA-0752-19-0528-I-1
DATE: January 10, 2025
THIS FINAL ORDER IS NONPRECEDENTIAL1
R. Chris Pittard , Esquire, San Antonio, Texas, for the appellant.
Olga Sinquefield , Esquire, Fort Bliss, Texas, for the agency.
Matthew Watson , El Paso, Texas, for the agency.
BEFORE
Cathy A. Harris , Chairman
Raymond A. Limon , Vice Chairman
Henry J. Kerner , Member
FINAL ORDER
The appellant has filed a petition for review of the initial decision, which
sustained the appellant’s removal. 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 review, the appellant argues that, contrary to the administrative judge’s
findings, she proved that the agency discriminated against her based on her
disability and failed to reasonably accommodate her. Petition for Review (PFR)
File, Tab 1 at 9-12; Initial Appeal File (IAF), Tab 34, Initial Decision (ID)
at 21-22, 25-26.
First, we are unpersuaded by the appellant’s argument that, in order for a
reassignment to constitute a reasonable accommodation, it must be agreed to by
both parties. PFR File, Tab 1 at 9. An appellant is not entitled to a specific
accommodation or the one that she desires. Miller v. Department of the Army ,
121 M.S.P.R. 189, ¶ 15 (2014) (stating an employer does not have to provide the
requested accommodation or adjustment). Thus, the appellant’s refusal to accept
the agency’s offered reassignments, on its own, does not support a finding that
the agency failed to provide her with a reasonable accommodation. Similarly, we
are unconvinced by the appellant’s argument that the reassignment to the Medical
Support Assistant (MSA) position offered by the agency posed a “direct threat” to
her health. PFR File, Tab 1 at 11. The medical provider’s letter, cited by the
appellant, only states that the MSA position “could” exacerbate her condition.2
IAF, Tab 15 at 81. Such a conditional statement is insufficient to establish that
the position was a “direct threat” to the appellant, nor does it justify the
appellant’s refusal to report to duty, which led to her removal. See Cano v. U.S.
Postal Service, 107 M.S.P.R. 284, ¶ 14 (2007) (in determining whether an
individual would pose a direct threat to the health or safety of herself or others,
factors to be considered include, among other things, the likelihood that potential
harm will occur and the imminence of the potential harm). Ultimately, we agree
with the administrative judge’s finding that the appellant did not prove that the
agency failed to reasonably accommodate her. ID at 21 .
Furthermore, contrary to the appellant’s assertions on review, we agree
with the administrative judge that she did not otherwise prove that her removal
was based on her disability. ID at 23-26; PFR File, Tab 1 at 9-12. Nonetheless,
in analyzing the appellant’s disability discrimination claim, the administrative
judge identified the legal standard set forth in Savage v. Department of the Army ,
122 M.S.P.R. 612 (2015), discussed the various methods of direct and
circumstantial evidence, and concluded that the appellant did not prove that her
disability was a motivating factor in her removal. ID at 23-26. The Board has
since overruled Savage to the extent that it held that the McDonnell Douglas
framework is not applicable to Board proceedings. Pridgen v. Office of
Management and Budget , 2022 MSPB 31, ¶ 25 (citing McDonnell Douglas
Corporation v. Green , 411 U.S. 792, 802-04 (1973)). Regardless, the outcome of
this appeal under Pridgen would be the same as that arrived at by the
administrative judge. Notably, under Pridgen, to obtain any relief, the appellant
must still show, at a minimum, that her disability was a motivating factor in the
agency’s decision to remove her, Pridgen, 2022 MSPB 31, ¶¶ 20-22, 40, and we
agree with the administrative judge that the appellant did not make this showing,
ID at 23-26. Therefore, because she did not prove that her disability was a
motivating factor in her removal, the appellant necessarily cannot prove that it
was a “but-for” cause of her removal. Pridgen, 2022 MSPB 31, ¶¶ 22, 40.3
NOTICE OF APPEAL RIGHTS2
You may obtain review of this final decision. 5 U.S.C. § 7703(a)(1). By
statute, the nature of your claims determines the time limit for seeking such
review and the appropriate forum with which to file. 5 U.S.C. § 7703(b).
Although we offer the following summary of available appeal rights, the Merit
Systems Protection Board does not provide legal advice on which option is most
appropriate for your situation and the rights described below do not represent a
statement of how courts will rule regarding which cases fall within their
jurisdiction. If you wish to seek review of this final decision, you should
immediately review the law applicable to your claims and carefully follow all
filing time limits and requirements. Failure to file within the applicable time
limit may result in the dismissal of your case by your chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(A).
2 Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise which option is most appropriate in any matter.4
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. 420 (2017). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the district court no later than 30 calendar days after your representative
receives this decision. If the action involves a claim of discrimination based on5
race, color, religion, sex, national origin, or a disabling condition, you may be
entitled to representation by a court -appointed lawyer and to waiver of any
requirement of prepayment of fees, costs, or other security. See 42 U.S.C.
§ 2000e-5(f) and 29 U.S.C. § 794a.
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702(b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or6
other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
disposition of allegations of a prohibited personnel practice described in
section 2302(b) other than practices described in section 2302(b)(8), or
2302(b)(9)(A)(i), (B), (C), or (D),” then you may file a petition for judicial
review either with the U.S. Court of Appeals for the Federal Circuit or any court
of appeals of competent jurisdiction.3 The court of appeals must receive your
petition for review within 60 days of the date of issuance of this decision.
5 U.S.C. § 7703(b)(1)(B).
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
3 The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115-195,
132 Stat. 1510. 7
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
Contact information for the courts of appeals can be found at their
respective websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
FOR THE BOARD: ______________________________
Gina K. Grippando
Clerk of the Board
Washington, D.C.8 | Joachin_Michelle_P_DA-0752-19-0528-I-1_Final_Order.pdf | 2025-01-10 | MICHELLE P. JOACHIN v. DEPARTMENT OF THE ARMY, MSPB Docket No. DA-0752-19-0528-I-1, January 10, 2025 | DA-0752-19-0528-I-1 | NP |
269 | https://www.mspb.gov/decisions/nonprecedential/Swinton_Malik_H_CH-844E-22-0208-I-2_Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
MALIK H. SWINTON,
Appellant,
v.
OFFICE OF PERSONNEL
MANAGEMENT,
Agency.DOCKET NUMBER
CH-844E-22-0208-I-2
DATE: January 8, 2025
THIS FINAL ORDER IS NONPRECEDENTIAL1
Malik H. Swinton , Fort Wayne, Indiana, pro se.
Linnette Scott , Washington, D.C., for the agency.
BEFORE
Cathy A. Harris, Chairman
Raymond A. Limon, Vice Chairman
Henry J. Kerner, Member
FINAL ORDER
The appellant has filed a petition for review of the initial decision, which
affirmed the reconsideration decision of the Office of Personnel Management
(OPM) denying his application for disability retirement under the Federal
Employees’ Retirement System (FERS). Generally, we grant petitions such as
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).
this one only in the following circumstances: the initial decision contains
erroneous findings of material fact; the initial decision is based on an erroneous
interpretation of statute or regulation or the erroneous application of the law to
the facts of the case; the administrative judge’s rulings during either the course of
the appeal or the initial decision were not consistent with required procedures or
involved an abuse of discretion, and the resulting error affected the outcome of
the case; or new and material evidence or legal argument is available that, despite
the petitioner’s due diligence, was not available when the record closed. Title 5
of the Code of Federal Regulations, section 1201.115 (5 C.F.R. § 1201.115).
After fully considering the filings in this appeal, we conclude that the petitioner
has not established any basis under section 1201.115 for granting the petition for
review. Therefore, we DENY the petition for review and AFFIRM the initial
decision, which is now the Board’s final decision. 5 C.F.R. § 1201.113(b).
DISCUSSION OF ARGUMENTS ON REVIEW
Regarding the appellant’s arguments on the merits of his claim, we find no
error in the administrative judge’s conclusions, and the appellant’s arguments on
review are insufficient to warrant a different outcome. See Crosby v. U.S. Postal
Service, 74 M.S.P.R. 98, 106 (1997) (explaining that the Board will not disturb an
administrative judge’s findings when 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).
Regarding the appellant’s claim of bias by the administrative judge, which
is based on his disagreement with her rulings, our review of the record does not
support the appellant’s contention that the administrative judge favored the
agency in her adjudication of the appeal. Petition for Review (PFR) File, Tab 1
at 1-17. The Board has held that an appellant’s disagreement with an
administrative judge’s rulings and findings neither establishes bias nor provides a2
basis for recusal. See Smith v. U.S. Postal Service , 81 M.S.P.R. 443, ¶¶ 6-7
(1999). The mere fact that an administrative judge ruled against a party is
insufficient to show bias. Tyler v. U.S. Postal Service , 90 M.S.P.R. 545, ¶ 6
(2002). In making a claim of bias or prejudice against an administrative judge,
the party must overcome the presumption of honesty and integrity that
accompanies administrative adjudicators. Id. 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 judgement 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)). Because the appellant’s mere disagreement
with the administrative judge’s rulings does not establish that the administrative
judge held a deep-seated favoritism or antagonism, we find that the appellant did
not prove his claim of bias. See Smith, 81 M.S.P.R. 443, ¶¶ 6-7 (stating that an
administrative judge’s case-related rulings are generally insufficient to establish
bias and concluding that the appellant failed to prove his bias claim by merely
disagreeing with the administrative judge’s rulings).
We have considered the appellant’s remaining assertions on review, and we
find that they do not warrant a different outcome.2 Accordingly, we deny his
petition for review and affirm the initial decision.
2 The appellant attached several documents to his petition for review, most of which
have been submitted for the first time on review. PFR File, Tab 3. The Board generally
will not consider new evidence raised for the first time in a petition for review absent a
showing that it is based on new and material evidence not previously available despite
the party’s due diligence. Clay v. Department of the Army , 123 M.S.P.R. 245, ¶ 6
(2016); 5 C.F.R. § 1201.115(d). The appellant has not explained why he did not submit
the evidence prior to the close of the record, nor has he claimed that the documents
were unavailable, despite his due diligence, prior to the closing of the record. PFR File,
Tab 3 at 1-10. In any event, none of these documents contain information 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); 5 C.F.R. § 1201.115(a)(1).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 | Swinton_Malik_H_CH-844E-22-0208-I-2_Final_Order.pdf | 2025-01-08 | MALIK H. SWINTON v. OFFICE OF PERSONNEL MANAGEMENT, MSPB Docket No. CH-844E-22-0208-I-2, January 8, 2025 | CH-844E-22-0208-I-2 | NP |
270 | https://www.mspb.gov/decisions/nonprecedential/Morales_Tatiana_D_SF-315H-23-0577-I-1_Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
TATIANA D. MORALES,
Appellant,
v.
DEPARTMENT OF THE NAVY,
Agency.DOCKET NUMBER
SF-315H-23-0577-I-1
DATE: January 8, 2025
THIS FINAL ORDER IS NONPRECEDENTIAL1
Tatiana D. Morales , Chula Vista, California, pro se.
Elizabeth Pietanza , Esquire, and Drew Lautemann , Esquire, San Diego,
California, for the agency.
BEFORE
Cathy A. Harris, Chairman
Raymond A. Limon, Vice Chairman
Henry J. Kerner, Member
FINAL ORDER
The appellant has filed a petition for review of the initial decision, which
dismissed her appeal of a probationary termination for lack of jurisdiction.
On petition for review, the appellant contests, for the first time, that she was not
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).
serving a probationary period at the time of her termination.2 Generally, we grant
petitions such as this one only in the following circumstances: the initial decision
contains erroneous findings of material fact; the initial decision is based on an
erroneous interpretation of statute or regulation or the erroneous application of
the law to the facts of the case; the administrative judge’s rulings during either
the course of the appeal or the initial decision were not consistent with required
procedures or involved an abuse of discretion, and the resulting error affected the
outcome of the case; or new and material evidence or legal argument is available
that, despite the petitioner’s due diligence, was not available when the record
closed. Title 5 of the Code of Federal Regulations, section 1201.115
(5 C.F.R. § 1201.115). After fully considering the filings in this appeal, we
conclude that the petitioner has not established any basis under section 1201.115
for granting the petition for review. Therefore, we DENY the petition for review
and AFFIRM the initial decision, which is now the Board’s final decision.
5 C.F.R. § 1201.113(b).
NOTICE OF APPEAL RIGHTS3
You may obtain review of this final decision. 5 U.S.C. § 7703(a)(1). By
statute, the nature of your claims determines the time limit for seeking such
review and the appropriate forum with which to file. 5 U.S.C. § 7703(b).
2 The appellant made no such argument while the appeal was before the administrative
judge, and as such, whether she can show that she completed her probationary period by
tacking on prior service is a new issue on review. The Board will generally not
consider an argument raised for the first time in a petition for review absent a showing
that it is based on new and material evidence not previously available despite the
party’s due diligence. Clay v. Department of the Army , 123 M.S.P.R. 245, ¶ 6 (2016);
Banks v. Department of the Air Force , 4 M.S.P.R. 268, 271 (1980). Nevertheless,
because she has not submitted any evidence or argument regarding the specifics of her
purported prior service, such as when and where it occurred, the employing agency, and
the nature of the appointment, she has not made a nonfrivolous allegation of the Board’s
jurisdiction.
3 Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise which option is most appropriate in any matter.2
Although we offer the following summary of available appeal rights, the Merit
Systems Protection Board does not provide legal advice on which option is most
appropriate for your situation and the rights described below do not represent a
statement of how courts will rule regarding which cases fall within their
jurisdiction. If you wish to seek review of this final decision, you should
immediately review the law applicable to your claims and carefully follow all
filing time limits and requirements. Failure to file within the applicable time
limit may result in the dismissal of your case by your chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the following
address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.3
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. 420 (2017). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the district court no later than 30 calendar days after your representative
receives this decision. If the action involves a claim of discrimination based on
race, color, religion, sex, national origin, or a disabling condition, you may be
entitled to representation by a court-appointed lawyer and to waiver of any
requirement of prepayment of fees, costs, or other security. See 42 U.S.C.
§ 2000e-5(f) and 29 U.S.C. § 794a.
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702(b)(1). You must file any such request with the4
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or
other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
disposition of allegations of a prohibited personnel practice described in
section 2302(b) other than practices described in section 2302(b)(8), or 2302(b)
(9)(A)(i), (B), (C), or (D),” then you may file a petition for judicial review either
with the U.S. Court of Appeals for the Federal Circuit or any court of appeals of5
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 | Morales_Tatiana_D_SF-315H-23-0577-I-1_Final_Order.pdf | 2025-01-08 | TATIANA D. MORALES v. DEPARTMENT OF THE NAVY, MSPB Docket No. SF-315H-23-0577-I-1, January 8, 2025 | SF-315H-23-0577-I-1 | NP |
271 | https://www.mspb.gov/decisions/nonprecedential/Benton_Karla_P_DA-0432-17-0073-I-1_Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
KARLA P. BENTON,
Appellant,
v.
DEPARTMENT OF HOMELAND
SECURITY,
Agency.DOCKET NUMBER
DA-0432-17-0073-I-1
DATE: January 8, 2025
THIS FINAL ORDER IS NONPRECEDENTIAL1
Karla P. Benton , Antioch, Tennessee, pro se.
Thomas A. Behe , Esquire, Houston, Texas, for the agency.
BEFORE
Cathy A. Harris, Chairman
Raymond A. Limon, Vice Chairman
Henry J. Kerner, Member
FINAL ORDER
The appellant has filed a petition for review of the initial decision, which
dismissed the appeal as settled . For the reasons set forth below, the appellant’s petition
for review is DISMISSED as untimely filed without good cause shown. 5 C.F.R.
§ 1201.114(e), (g).
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).
BACKGROUND
The appellant filed an appeal of her removal on November 23, 2016. Initial
Appeal File (IAF), Tab 1. While the case was pending in front of the administrative
judge, the parties reached a settlement agreement that included an agreement from the
appellant to withdraw her Board appeal with prejudice. IAF, Tab 27 at 4. Accordingly,
on March 2, 2017, the administrative judge dismissed the appeal as settled. IAF,
Tab 28, Initial Decision (ID). The initial decision specifically stated that the deadline
to file a petition for review was April 6, 2017, and provided information on how to file
a petition for review. ID at 3-7. The appellant filed a petition for review via facsimile
transmittal on January 28, 2021. Petition for Review (PFR) File, Tab 1.
The Acting Clerk of the Board notified the appellant that, because she filed her
petition for review after April 6, 2017, i.e., over 35 days following the issuance of the
March 2, 2017 initial decision, it was untimely filed. PFR File, Tab 2 at 1. The letter
explained to the appellant that the Board’s regulations require a petition for review that
appears untimely 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. at 2. The appellant timely responded to the letter, requesting that the Board
accept her petition as timely filed or waive the time limit for good cause, arguing,
among other things, that: (1) the agency acted improperly during her initial appeal; (2)
she was forced to settle; (3) she suffered significant financial distress in the years after
her appeal; and (4) there is no deadline to “correct the destruction of [her] life.” PFR
File, Tab 3 at 4-7. The agency has filed a response in opposition to the appellant’s
petition for review. PFR File, Tab 4.
DISCUSSION OF ARGUMENTS ON REVIEW
A petition for review generally must be filed within 35 days after the date of the
issuance of the initial decision or, if the appellant shows that the initial decision was
received more than 5 days after the initial decision was issued, within 30 days after the
date the appellant received the initial decision. 5 C.F.R. § 1201.114(e). The Board will
waive this time limit only upon a showing of good cause for the delay in filing.2
5 C.F.R. § 1201.114(g). To establish good cause for the untimely filing of a petition, a
party must show that she exercised due diligence or ordinary prudence under the
particular circumstances of the case. Rivera v. Social Security Administration ,
111 M.S.P.R. 581, ¶ 4 (2009) (citing Alonzo v. Department of the Air Force , 4 M.S.P.R.
180, 184 (1980)). To determine whether an appellant has shown good cause, the Board
will consider the length of the delay, the reasonableness of her excuse and her showing
of due diligence, whether she is proceeding pro se, and whether she has presented
evidence of the existence of circumstances beyond her control that affected her ability
to comply with the time limits or of unavoidable casualty or misfortune which similarly
shows a causal relationship to her inability to timely file her petition. Rivera,
111 M.S.P.R. 581, ¶ 4 (citing Moorman v. Department of the Army , 68 M.S.P.R. 60,
62-63 (1995), aff’d, 79 F.3d 1167 (Fed. Cir. 1996) (Table)).
The deadline for filing a petition for review in this appeal was April 6, 2017. ID
at 3. The appellant filed her petition for review nearly 4 years later, on January 28,
2021. PFR File, Tab 1. Such a filing delay is significant. Smith v. U.S. Postal Service ,
111 M.S.P.R. 341, ¶ 10 (2009) (finding a 3-year filing delay significant); Wyeroski
v. Department of Transportation , 106 M.S.P.R. 7, ¶ 10 (finding a filing delay of over
3 years significant), aff’d, 253 F. App’x. 950 (Fed. Cir. 2007). We recognize that the
appellant is pro se, but the assertions in her motion to accept the petition for review as
timely and/or waive the time limit for good cause do not offer a persuasive excuse,
show that she acted with diligence, or set forth circumstances beyond the appellant’s
control that affected her ability to comply with the filing limit.2 PFR File, Tab 3 at 4-7.
To the extent the appellant is complaining about purported agency misconduct during
her initial appeal and that the agency forced her to settle, there is nothing in the record
2 The appellant makes several arguments on review that address the merits of the
agency’s removal action, such as alleging that the agency committed harmful procedural
error, discriminated against her, and committed prohibited personnel practices in
removing her. PFR File, Tab 1 at 2-9. These arguments are not relevant to the issue of
timeliness, and thus, we need not address them. Abney v. Office of Personnel
Management, 89 M.S.P.R. 305, ¶ 4 (2001), aff’d, 41 F. App’x 421 (Fed. Cir. 2002).3
suggesting that the appellant was prevented from raising these arguments in a timely
manner.3
Accordingly, we dismiss the petition for review as untimely filed. This is the
final decision of the Merit Systems Protection Board regarding the timeliness of the
petition for review. The initial decision remains the final decision of the Board
dismissing the appeal as settled.
NOTICE OF APPEAL RIGHTS4
You may obtain review of this final decision. 5 U.S.C. § 7703(a)(1). By
statute, the nature of your claims determines the time limit for seeking such
review and the appropriate forum with which to file. 5 U.S.C. § 7703(b).
Although we offer the following summary of available appeal rights, the Merit
Systems Protection Board does not provide legal advice on which option is most
appropriate for your situation and the rights described below do not represent a
statement of how courts will rule regarding which cases fall within their
jurisdiction. If you wish to seek review of this final decision, you should
immediately review the law applicable to your claims and carefully follow all
3 The appellant also claims that she contacted the “Clerk of the Board Representative,”
who “indicat[ed] the additional claims have no time limit on submission” and that
“simply writing a letter is sufficient.” PFR File, Tab 3 at 6. Similarly, the appellant
claims that she had “problems” accessing the Board’s system and received “different
feedback regarding the first initial appeal process versus re-appeal from local to DC.”
Id. The appellant’s claims are vague, as she does not identify any individuals at the
Board that she spoke to, the contents of any such conversations or when these
conversations occurred, or the specific problems she had accessing the Board’s system
or when these issues happened. Id. Finally, the appellant does not explain how these
incidents prevented her from filing her petition for nearly 4 years. Njoku v. Department
of Homeland Security , 111 M.S.P.R. 469, ¶ 7 (2009) (finding that an appellant’s vague
statements regarding the filing of his petition for review did not establish good cause);
Glover v. Office of Personnel Management , 92 M.S.P.R. 48, ¶ 7 (2002) (same), aff’d,
66 F. App’x 201 (Fed. Cir. 2003). Accordingly, we find these claims insufficient to
establish good cause for waiving the time limit.
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
filing time limits and requirements. Failure to file within the applicable time
limit may result in the dismissal of your case by your chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the 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.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. 8
Contact information for the courts of appeals can be found at their
respective websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
FOR THE BOARD: ______________________________
Gina K. Grippando
Clerk of the Board
Washington, D.C.9 | Benton_Karla_P_DA-0432-17-0073-I-1_Final_Order.pdf | 2025-01-08 | KARLA P. BENTON v. DEPARTMENT OF HOMELAND SECURITY, MSPB Docket No. DA-0432-17-0073-I-1, January 8, 2025 | DA-0432-17-0073-I-1 | NP |
272 | https://www.mspb.gov/decisions/nonprecedential/Nurse_MarlonPH-315I-23-0346-I-1_Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
MARLON NURSE,
Appellant,
v.
DEPARTMENT OF HOMELAND
SECURITY,
Agency.DOCKET NUMBER
PH-315I-23-0346-I-1
DATE: January 8, 2025
THIS FINAL ORDER IS NONPRECEDENTIAL1
Marlon Nurse , Cranston, Rhode Island, pro se.
Helen E. Moore , Esquire, Boston, Massachusetts, for the agency.
BEFORE
Cathy A. Harris, Chairman
Raymond A. Limon, Vice Chairman
Henry J. Kerner, Member
FINAL ORDER
The appellant has filed a petition for review of the initial decision, which
dismissed this appeal of his demotion during his supervisory probationary period.
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).
On review, the appellant acknowledges that the Board lacks jurisdiction
over the merits of his demotion but asks the Board to rule on his allegations that
his subsequent removal from the agency is a violation of his due process rights
and is harmful procedural error. Petition for Review (PFR) File, Tab 1 at 3.
However, his removal is at issue in a separate pending Board appeal, Nurse v.
Department of Homeland Security , MSPB Docket No. PH-0752-24-0113-I-1.
These arguments are outside the scope of this appeal and are immaterial to the
question of the Board’s jurisdiction over his demotion appeal. The appellant also
argues that he should have been given notice of his right to appeal on the claim
that his demotion was based on preappointment reasons. PFR File, Tab 2 at 3
(citing 5 C.F.R. § 315.806(b), (c)). However, 5 C.F.R. § 315.806(b), (c) gives
appeal rights to individuals who have been terminated from an initial appointment
to Federal service during the probationary period. The demotion at issue in this
appeal is not such a termination. Accordingly, the Board lacks jurisdiction over
this appeal.2
NOTICE OF APPEAL RIGHTS2
You may obtain review of this final decision. 5 U.S.C. § 7703(a)(1). By
statute, the nature of your claims determines the time limit for seeking such
review and the appropriate forum with which to file. 5 U.S.C. § 7703(b).
Although we offer the following summary of available appeal rights, the Merit
Systems Protection Board does not provide legal advice on which option is most
appropriate for your situation and the rights described below do not represent a
statement of how courts will rule regarding which cases fall within their
jurisdiction. If you wish to seek review of this final decision, you should
immediately review the law applicable to your claims and carefully follow all
filing time limits and requirements. Failure to file within the applicable time
limit may result in the dismissal of your case by your chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(A).
2 Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise which option is most appropriate in any matter.3
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the following
address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. 420 (2017). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the district court no later than 30 calendar days after your representative
receives this decision. If the action involves a claim of discrimination based on4
race, color, religion, sex, national origin, or a disabling condition, you may be
entitled to representation by a court-appointed lawyer and to waiver of any
requirement of prepayment of fees, costs, or other security. See 42 U.S.C.
§ 2000e-5(f) and 29 U.S.C. § 794a.
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702(b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or5
other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
disposition of allegations of a prohibited personnel practice described in
section 2302(b) other than practices described in section 2302(b)(8), or 2302(b)
(9)(A)(i), (B), (C), or (D),” then you may file a petition for judicial review either
with the U.S. Court of Appeals for the Federal Circuit or any court of appeals of
competent jurisdiction.3 The court of appeals must receive your petition for
review within 60 days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(B).
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the following
address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
3 The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115-195,
132 Stat. 1510. 6
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
Contact information for the courts of appeals can be found at their
respective websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
FOR THE BOARD: ______________________________
Gina K. Grippando
Clerk of the Board
Washington, D.C.7 | Nurse_MarlonPH-315I-23-0346-I-1_Final_Order.pdf | 2025-01-08 | MARLON NURSE v. DEPARTMENT OF HOMELAND SECURITY, MSPB Docket No. PH-315I-23-0346-I-1, January 8, 2025 | PH-315I-23-0346-I-1 | NP |
273 | https://www.mspb.gov/decisions/nonprecedential/Harmeyer_Tobitha_K_CH-315H-23-0416-I-1_Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
TOBITHA KATHERINE HARMEYER,
Appellant,
v.
DEPARTMENT OF DEFENSE,
Agency.DOCKET NUMBER
CH-315H-23-0416-I-1
DATE: January 8, 2025
THIS FINAL ORDER IS NONPRECEDENTIAL1
Tobitha Katherine Harmeyer , Powder Springs, Georgia, pro se.
Brenna Coleman , Esquire, Biloxi, Mississippi, for the agency.
BEFORE
Cathy A. Harris, Chairman
Raymond A. Limon, Vice Chairman
Henry J. Kerner, Member
FINAL ORDER
The appellant has filed a petition for review of the initial decision, which
dismissed her probationary termination appeal for lack of jurisdiction. On
petition for review, the appellant continues to dispute the merits of the agency’s
termination action. Generally, we grant petitions such as this one only in the
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).
following circumstances: the initial decision contains erroneous findings of
material fact; the initial decision is based on an erroneous interpretation of statute
or regulation or the erroneous application of the law to the facts of the case; the
administrative judge’s rulings during either the course of the appeal or the initial
decision were not consistent with required procedures or involved an abuse of
discretion, and the resulting error affected the outcome of the case; or new and
material evidence or legal argument is available that, despite the petitioner’s due
diligence, was not available when the record closed. Title 5 of the Code of
Federal Regulations, section 1201.115 (5 C.F.R. § 1201.115). After fully
considering the filings in this appeal, we conclude that the petitioner has not
established any basis under section 1201.115 for granting the petition for review.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 the appellant’s petition for review, she submits her own medical records, her
performance plan, and other documents related to her performance and termination.
Petition for Review (PFR) File, Tab 1 at 14-30. The Board generally will not consider
evidence submitted for the first time with a petition for review absent a showing that it
was unavailable before the record closed before the administrative judge despite the
party’s due diligence. See Avansino v. U.S. Postal Service , 3 M.S.P.R. 211, 213-14
(1980). The appellant has not shown that any of the documents she submitted on review
were unavailable before that date, nor has she explained how they are of sufficient
weight to warrant an outcome different than that of the initial decision. Accordingly,
they do not provide a basis to grant the petition for review. See Russo v. Veterans
Administration, 3 M.S.P.R. 345, 349 (1980) (stating that the Board generally will not
grant a petition for review based on new evidence absent a showing that it is of
sufficient weight to warrant an outcome different from that of the initial decision).
3 In her petition for review, the appellant repeatedly mentions that her deceased husband
was a veteran and seemed to suggest that she was treated unfairly because of this. PFR
File, Tab 1 at 6-8. She also referenced the Uniformed Services Employment and
Reemployment Rights Act of 1994 (USERRA). Id. at 6. Although the appellant does
not make any clear argument in this regard, our reviewing court has held that merely
being the spouse of an individual who serves in a uniformed service does not entitle her
to the protections of USERRA. See Lourens v. Merit Systems Protection Board ,
193 F.3d 1369, 1370-71 (Fed. Cir. 1999). 2
NOTICE OF APPEAL RIGHTS4
You may obtain review of this final decision. 5 U.S.C. § 7703(a)(1). By
statute, the nature of your claims determines the time limit for seeking such
review and the appropriate forum with which to file. 5 U.S.C. § 7703(b).
Although we offer the following summary of available appeal rights, the Merit
Systems Protection Board does not provide legal advice on which option is most
appropriate for your situation and the rights described below do not represent a
statement of how courts will rule regarding which cases fall within their
jurisdiction. If you wish to seek review of this final decision, you should
immediately review the law applicable to your claims and carefully follow all
filing time limits and requirements. Failure to file within the applicable time
limit may result in the dismissal of your case by your chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(A).
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 | Harmeyer_Tobitha_K_CH-315H-23-0416-I-1_Final_Order.pdf | 2025-01-08 | TOBITHA KATHERINE HARMEYER v. DEPARTMENT OF DEFENSE, MSPB Docket No. CH-315H-23-0416-I-1, January 8, 2025 | CH-315H-23-0416-I-1 | NP |
274 | https://www.mspb.gov/decisions/nonprecedential/Edge-Vance_BrevonAT-0752-23-0628-I-1_Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
BREVON EDGE-VANCE,
Appellant,
v.
DEPARTMENT OF JUSTICE,
Agency.DOCKET NUMBER
AT-0752-23-0628-I-1
DATE: January 7, 2025
THIS FINAL ORDER IS NONPRECEDENTIAL1
Brevon Edge-Vance , Auburn, Georgia, pro se.
Adam Eisenstein , Esquire, and Candice Geller , Washington, D.C., for the
agency.
BEFORE
Cathy A. Harris, Chairman
Raymond A. Limon, Vice Chairman
Henry J. Kerner, Member
FINAL ORDER
The appellant has filed a petition for review of the initial decision, which
dismissed her removal appeal as untimely filed without good cause shown. On
petition for review, the appellant argues that her confusion regarding the Board’s
filing deadline was excusable and thus constitutes good cause for her filing delay.
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).
She also asserts, for the first time on review, that her medical conditions
interfered with her ability to meet the filing deadline.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 Generally, the Board will not consider an argument raised for the first time in a
petition for review absent a showing that it is based on new and material evidence not
previously available despite the party’s due diligence. Clay v. Department of the Army ,
123 M.S.P.R. 245, ¶ 6 (2016). The administrative judge specifically informed the
appellant regarding how to show that an illness caused her filing delay in a timeliness
order, and the appellant has not explained why this argument could not have been raised
before the administrative judge in response to the timeliness order or otherwise. Initial
Appeal File, Tab 4 at 3-4. Thus, the Board need not consider the argument and the
related evidence, also submitted for the first time on review. Petition for Review File,
Tab 1 at 3, 6-9. In any event, the appellant has not explained how her conditions
prevented her from filing a timely Board appeal.2
NOTICE OF APPEAL RIGHTS3
You may obtain review of this final decision. 5 U.S.C. § 7703(a)(1). By
statute, the nature of your claims determines the time limit for seeking such
review and the appropriate forum with which to file. 5 U.S.C. § 7703(b).
Although we offer the following summary of available appeal rights, the Merit
Systems Protection Board does not provide legal advice on which option is most
appropriate for your situation and the rights described below do not represent a
statement of how courts will rule regarding which cases fall within their
jurisdiction. If you wish to seek review of this final decision, you should
immediately review the law applicable to your claims and carefully follow all
filing time limits and requirements. Failure to file within the applicable time
limit may result in the dismissal of your case by your chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(A).
If you submit a petition for 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 | Edge-Vance_BrevonAT-0752-23-0628-I-1_Final_Order.pdf | 2025-01-07 | null | AT-0752-23-0628-I-1 | NP |
275 | https://www.mspb.gov/decisions/nonprecedential/Moreno_Victor_J_AT-0752-22-0337-I-2_Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
VICTOR MORENO,
Appellant,
v.
DEPARTMENT OF JUSTICE,
Agency.DOCKET NUMBER
AT-0752-22-0337-I-2
DATE: January 7, 2025
THIS FINAL ORDER IS NONPRECEDENTIAL1
Shaun C. Southworth , Esquire, and Lydia Taylor , Esquire,
Atlanta, Georgia, for the appellant.
Adam Eisenstein , Esquire, and Candice Geller , Washington, D.C.,
for the agency.
Colleen Berry , Stockton, California, for the agency.
BEFORE
Cathy A. Harris, Chairman
Raymond A. Limon, Vice Chairman
Henry J. Kerner, Member
FINAL ORDER
The agency has filed a petition for review of the initial decision, which
reversed the appellant’s suspension for 30 days without pay. On petition for
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).
review, the agency challenges the administrative judge’s due process analysis.
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 | Moreno_Victor_J_AT-0752-22-0337-I-2_Final_Order.pdf | 2025-01-07 | VICTOR MORENO v. DEPARTMENT OF JUSTICE, MSPB Docket No. AT-0752-22-0337-I-2, January 7, 2025 | AT-0752-22-0337-I-2 | NP |
276 | https://www.mspb.gov/decisions/nonprecedential/NeSmith_Cherie_R_DA-844E-20-0456-I-1__Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
CHERIE R NESMITH,
Appellant,
v.
OFFICE OF PERSONNEL
MANAGEMENT,
Agency.DOCKET NUMBER
DA-844E-20-0456-I-1
DATE: January 7, 2025
THIS FINAL ORDER IS NONPRECEDENTIAL1
Cherie R. NeSmith , McLoud, Oklahoma, pro se.
Linnette Scott , Washington, D.C., for the agency.
BEFORE
Cathy A. Harris, Chairman
Raymond A. Limon, Vice Chairman
Henry J. Kerner, Member
FINAL ORDER
The appellant has filed a petition for review of the initial decision, which
affirmed the final decision of the Office of Personnel Management (OPM)
dismissing the appellant’s reconsideration request as untimely received.
Generally, we grant petitions such as this one only in the following
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).
circumstances: the initial decision contains erroneous findings of material fact;
the initial decision is based on an erroneous interpretation of statute or regulation
or the erroneous application of the law to the facts of the case; the administrative
judge’s rulings during either the course of the appeal or the initial decision were
not consistent with required procedures or involved an abuse of discretion, and
the resulting error affected the outcome of the case; or new and material evidence
or legal argument is available that, despite the petitioner’s due diligence, was not
available when the record closed. Title 5 of the Code of Federal Regulations,
section 1201.115 (5 C.F.R. § 1201.115). After fully considering the filings in this
appeal, we conclude that the petitioner has not established any basis under section
1201.115 for granting the petition for review. Therefore, we DENY the petition
for review and AFFIRM the initial decision, which is now the Board’s final
decision.2 5 C.F.R. § 1201.113(b).
2 The administrative judge correctly indicated that the appellant’s reconsideration
request had to be received by OPM within 30 days of OPM’s January 16, 2020 initial
decision, but mistakenly identified that date as February 16, 2020. Initial Appeal File
(IAF), Tab 12 at 60, Tab 20, Initial Decision at 5; see 5 C.F.R. § 841.306(d)(1). In fact,
30 days after January 16, 2020, was February 15, 2020, which was the Saturday before
a Federal holiday. Under the governing regulatory scheme, that resulted in a
February 18, 2020 deadline for OPM to receive the appellant’s reconsideration request.
See 5 C.F.R. §§ 210.102(b)(5), 841.109. Nevertheless, because the appellant’s request
for reconsideration was not postmarked until February 21, 2020, the administrative
judge’s miscalculation did not impact the outcome of her timeliness analysis, providing
no basis to disturb the initial decision. IAF, Tab 12 at 2, 47; 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). We also observe that the appellant makes several arguments on review,
including arguments regarding her working conditions. Petition for Review File, Tab 1.
The appellant’s arguments on review do not show that OPM’s dismissal of her
reconsideration request was unreasonable or an abuse of discretion, and therefore
provide no basis to disturb the initial decision. See Kent v. Office of Personnel
Management, 123 M.S.P.R. 103, ¶ 7 (2015) (stating that the Board will reverse a
decision by OPM dismissing a reconsideration request on timeliness grounds only if it
finds that the dismissal was unreasonable or an abuse of discretion). 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 | NeSmith_Cherie_R_DA-844E-20-0456-I-1__Final_Order.pdf | 2025-01-07 | CHERIE R NESMITH v. OFFICE OF PERSONNEL MANAGEMENT, MSPB Docket No. DA-844E-20-0456-I-1, January 7, 2025 | DA-844E-20-0456-I-1 | NP |
277 | https://www.mspb.gov/decisions/nonprecedential/Ball_BarbaraCH-1221-23-0481-W-1_Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
BARBARA BALL,
Appellant,
v.
SOCIAL SECURITY
ADMINISTRATION,
Agency.DOCKET NUMBER
CH-1221-23-0481-W-1
DATE: January 6, 2025
THIS FINAL ORDER IS NONPRECEDENTIAL1
Barbara Ball , Whiting, Indiana, pro se.
Linda Januszyk , Esquire, Samantha Reppert , Esquire, and James Hail ,
Baltimore, Maryland, for the agency.
BEFORE
Cathy A. Harris , Chairman
Raymond A. Limon , Vice Chairman
Henry J. Kerner, Member*
*Member Kerner recused himself and
did not participate in the adjudication of this appeal.
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).
FINAL ORDER
The appellant has filed a petition for review of the initial decision, which
dismissed her individual right of action (IRA) appeal as untimely filed with no
basis to equitably toll the deadline. On petition for review, the appellant argues
that the administrative judge erred in limiting her consideration of the appellant’s
medical condition to her hospitalization in October 2023 because the appellant
has suffered these conditions since at least 2018. She also argues that increased
commuting and travel times that resulted from an involuntary relocation and her
limited English writing capabilities prevented her from filing her appeal on time.
Generally, we grant petitions such as this one only in the following
circumstances: the initial decision contains erroneous findings of material fact;
the initial decision is based on an erroneous interpretation of statute or regulation
or the erroneous application of the law to the facts of the case; the administrative
judge’s rulings during either the course of the appeal or the initial decision were
not consistent with required procedures or involved an abuse of discretion, and
the resulting error affected the outcome of the case; or new and material evidence
or legal argument is available that, despite the petitioner’s due diligence, was not
available when the record closed. Title 5 of the Code of Federal Regulations,
section 1201.115 (5 C.F.R. § 1201.115). After fully considering the filings in this
appeal, we conclude that the petitioner has not established any basis under
section 1201.115 for granting the petition for review. Therefore, we DENY the
petition for review and AFFIRM the initial decision, which is now the Board’s
final decision. 5 C.F.R. § 1201.113(b).
The appellant submitted over 300 pages of documents on review, which she
appears to be claiming are documents missing from the Board’s e-Appeal system.
Petition for Review (PFR) File, Tabs 1-2. As noted above, t he Board will not
consider evidence submitted for the first time with the petition for review absent
a showing that it was unavailable before the record was closed despite the party’s
due diligence. Avansino v. U.S. Postal Service , 3 M.S.P.R. 211, 214 (1980).2
By waiting until filing her petition for review to submit or resubmit this allegedly
missing documentation, the appellant has not shown due diligence here.
Therefore, we decline to consider this documentation further.
On April 15, 2024, the appellant filed a motion for leave to file a reply to
the agency’s response to her petition for review. Petition for Review (PFR) File,
Tab 8. We deny this motion. The Board’s regulations provide 10 days to file a
reply after the date of service of the agency’s response. 5 C.F.R. § 1201.114(e).
The Office of the Clerk of the Board clearly informed the appellant of the
deadline for filing a reply to a response to a petition for review. PFR File, Tab 3
at 1-2. The agency’s response to the petition for review was filed on
February 14, 2024. PFR File, Tab 8. Because February 24, 2024, was a
Saturday, the appellant’s reply was due on February 26, 2024, the first workday
after that date. 5 C.F.R. § 1201.23(a). It is undisputed that the appellant did not
file a timely reply.
To establish good cause for an untimely filing, a party must show that she
exercised due diligence or ordinary prudence under the particular circumstances
of the case. Alonzo v. Department of the Air Force , 4 M.S.P.R. 180, 184 (1980).
Here, the appellant alleges that she contacted the Board between February 19
and 23, 2024, and “asked [a] Board representative if she should respond” to the
agency’s response to her petition for review. PFR File, Tab 8 at 4. According to
the appellant, the representative told the appellant that “she could supplement
documentation at any time and to be patient since her case was on backlog.” Id.
We acknowledge the appellant’s pro se status. However, neither her question as
to the value of submitting a response nor the answer she alleges she received
regarding the submission of “documentation” address the deadline for submitting
her reply. Therefore, she has not shown that she exercised due diligence or
ordinary prudence by failing to seek an extension to reply until 7 weeks after the
deadline. Accordingly, we deny the appellant’s motion.3
NOTICE OF APPEAL RIGHTS2
You may obtain review of this final decision. 5 U.S.C. § 7703(a)(1). By
statute, the nature of your claims determines the time limit for seeking such
review and the appropriate forum with which to file. 5 U.S.C. § 7703(b).
Although we offer the following summary of available appeal rights, the Merit
Systems Protection Board does not provide legal advice on which option is most
appropriate for your situation and the rights described below do not represent a
statement of how courts will rule regarding which cases fall within their
jurisdiction. If you wish to seek review of this final decision, you should
immediately review the law applicable to your claims and carefully follow all
filing time limits and requirements. Failure to file within the applicable time
limit may result in the dismissal of your case by your chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(A).
2 Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise which option is most appropriate in any matter.4
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the following
address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. 420 (2017). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the district court no later than 30 calendar days after your representative
receives this decision. If the action involves a claim of discrimination based on5
race, color, religion, sex, national origin, or a disabling condition, you may be
entitled to representation by a court-appointed lawyer and to waiver of any
requirement of prepayment of fees, costs, or other security. See 42 U.S.C.
§ 2000e-5(f) and 29 U.S.C. § 794a.
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702(b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or6
other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
disposition of allegations of a prohibited personnel practice described in
section 2302(b) other than practices described in section 2302(b)(8), or
2302(b)(9)(A)(i), (B), (C), or (D),” then you may file a petition for judicial
review either with the U.S. Court of Appeals for the Federal Circuit or any court
of appeals of competent jurisdiction.3 The court of appeals must receive your
petition for review within 60 days of the date of issuance of this decision.
5 U.S.C. § 7703(b)(1)(B).
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the following
address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
3 The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115-195,
132 Stat. 1510. 7
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
Contact information for the courts of appeals can be found at their
respective websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
FOR THE BOARD: ______________________________
Gina K. Grippando
Clerk of the Board
Washington, D.C.8 | Ball_BarbaraCH-1221-23-0481-W-1_Final_Order.pdf | 2025-01-06 | BARBARA BALL v. SOCIAL SECURITY ADMINISTRATION, MSPB Docket No. CH-1221-23-0481-W-1, January 6, 2025 | CH-1221-23-0481-W-1 | NP |
278 | https://www.mspb.gov/decisions/nonprecedential/Dixon_LanceAT-315H-24-0187-I-1__Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
LANCE DIXON,
Appellant,
v.
DEPARTMENT OF THE TREASURY,
Agency.DOCKET NUMBER
AT-315H-24-0187-I-1
DATE: January 6, 2025
THIS FINAL ORDER IS NONPRECEDENTIAL1
Lance Dixon , Clarkston, Georgia, pro se.
Andrew Greene , Esquire, Javon Coatie , Esquire, and Sundrea Richardson ,
Atlanta, Georgia, for the agency.
BEFORE
Cathy A. Harris, Chairman
Raymond A. Limon, Vice Chairman
Henry J. Kerner, Member
FINAL ORDER
The appellant has filed a petition for review of the initial decision, which
dismissed his appeal as settled. 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).
DISCUSSION OF ARGUMENTS ON REVIEW
The settlement agreement reflects, among other things, that the agency
agreed to waive the entirety of the appellant’s bill for a negative leave balance
that was established at the time of his separation from the agency. Initial Appeal
File (IAF), Tab 21 at 4. On review, the appellant requests that the agency
produce evidence of the bill, or else he will consider the settlement agreement
invalid because it would show that the agency misled him into signing it under
false pretenses; in which case, he believes he should then either be granted a new
appeal or a new settlement. Petition for Review (PFR) File, Tab 1 at 3. The
appellant is essentially asking the Board to set aside the settlement agreement as
invalid and reinstate his appeal or grant him a new settlement if the agency does
not provide the relevant proof. Thus, as he is questioning the validity of the
settlement agreement, his arguments are properly considered as a petition for
review of the initial decision, which dismissed the appeal as settled. See
Weldon v. Department of Veterans Affairs , 119 M.S.P.R. 478, ¶ 5 (2013).2
A settlement agreement is a contract and may be set aside or voided only
based on certain limited grounds, including fraud, misrepresentation by the
agency, bad faith, or a mutual mistake of material fact under which both parties
acted. Vance v. Department of the Interior , 114 M.S.P.R. 679, ¶¶ 12-13 (2010);
Hazelton v. Department of Veterans Affairs , 112 M.S.P.R. 357, ¶ 11 (2009).
A mistake of fact is material if it involves a “basic assumption” underlying an
agreement. As’Salaam v. U.S. Postal Service , 65 M.S.P.R. 417, 421 (1994)
(quoting Hartle v. United States , 22 Cl. Ct. 843, 847 (1991)). To have an
enforceable contract, there must be consideration, i.e., a performance or a return
promise that must be bargained for and does not involve performance of a
preexisting duty. See Black v. Department of Transportation , 116 M.S.P.R. 87,
¶ 17 (2011).
On review, the agency has provided a copy of the bill for negative leave
balance, which is a demand notice for payment of $486.39 issued by the agency
to the appellant on March 1, 2024, just as the appellant described in his petition
for review.2 PFR File, Tab 1 at 3, Tab 3 at 27-31. This verifies that the parties
were not mistaken about a material fact in existence at the time of the settlement
agreement. See As’Salaam, 65 M.S.P.R. at 422. The parties entered into the
settlement agreement under the basic assumption that the appellant owed a debt
that the agency needed to waive.3 We find no mutual mistake was made
2 It appears that the agency untimely filed its response to the petition for review by
5 days. PFR File, Tabs 2-3. The issue of the untimeliness was not raised by the
appellant, nor has he replied in any way. The evidence attached to the agency’s
response to the petition for review responds to issues the appellant particularly raised
on review: he asked the Board to compel the agency to provide a copy of the bill at
issue and referenced email communications he had with an agency official concerning
the bill. In these circumstances, we have considered this evidence.
3 The agency’s representative has indicated that the debt itself may have been based on
a mistaken charge of leave. PFR File, Tab 3 at 6, 23. The basis of the debt is not a
material issue of fact. Even if the agency’s mistake led to an accrual of the debt, it was
still a bill that had accrued. Therefore, on this score, there has been no mutual mistake
of material fact. Additionally, there is no evidence of bad faith, fraud, or
misrepresentation involved here. See Vance, 114 M.S.P.R. 679, ¶¶ 12-13. 3
regarding this basic assumption. Further, there is no evidence that the parties
acted under fraud, misrepresentation, or bad faith. With the agency indicating
that by June 4, 2024, it would have waived the debt, PFR File, Tab 3 at 6, we
conclude that the appellant has not shown any reason for setting aside the
settlement agreement in this matter and that the settlement agreement is valid.
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 file5
with the district court no later than 30 calendar days after your representative
receives this decision. If the action involves a claim of discrimination based on
race, color, religion, sex, national origin, or a disabling condition, you may be
entitled to representation by a court-appointed lawyer and to waiver of any
requirement of prepayment of fees, costs, or other security. See 42 U.S.C.
§ 2000e-5(f) and 29 U.S.C. § 794a.
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702(b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 205076
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or
other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
disposition of allegations of a prohibited personnel practice described in
section 2302(b) other than practices described in section 2302(b)(8), or 2302(b)
(9)(A)(i), (B), (C), or (D),” then you may file a petition for judicial review either
with the U.S. Court of Appeals for the Federal Circuit or any court of appeals of
competent jurisdiction.5 The court of appeals must receive your petition for
review within 60 days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(B).
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the following
address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
5 The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115-195,
132 Stat. 1510. 7
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
Contact information for the courts of appeals can be found at their
respective websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
FOR THE BOARD: ______________________________
Gina K. Grippando
Clerk of the Board
Washington, D.C.8 | Dixon_LanceAT-315H-24-0187-I-1__Final_Order.pdf | 2025-01-06 | LANCE DIXON v. DEPARTMENT OF THE TREASURY, MSPB Docket No. AT-315H-24-0187-I-1, January 6, 2025 | AT-315H-24-0187-I-1 | NP |
279 | https://www.mspb.gov/decisions/nonprecedential/Solomon_ElizabethCH-0432-15-0471-B-1__Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
ELIZABETH SOLOMON,
Appellant,
v.
DEPARTMENT OF DEFENSE,
Agency.DOCKET NUMBER
CH-0432-15-0471-B-1
DATE: January 6, 2025
THIS FINAL ORDER IS NONPRECEDENTIAL1
Pearl Brown Hale , Ewa Beach, Hawaii, for the appellant.
Richard Todd , Esquire, Arlington Heights, Illinois, for the agency.
Sarah Jane Helbig , Esquire, Fort Gregg-Adams, Virginia, for the agency.
BEFORE
Cathy A. Harris, Chairman
Raymond A. Limon, Vice Chairman
Henry J. Kerner, Member
FINAL ORDER
The appellant has filed a petition for review of the remand initial decision,
which affirmed her removal for unacceptable performance under 5 U.S.C.
chapter 43. Generally, we grant petitions such as this one only in the following
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).
circumstances: the initial decision contains erroneous findings of material fact;
the initial decision is based on an erroneous interpretation of statute or regulation
or the erroneous application of the law to the facts of the case; the administrative
judge’s rulings during either the course of the appeal or the initial decision were
not consistent with required procedures or involved an abuse of discretion, and
the resulting error affected the outcome of the case; or new and material evidence
or legal argument is available that, despite the petitioner’s due diligence, was not
available when the record closed. Title 5 of the Code of Federal Regulations,
section 1201.115 (5 C.F.R. § 1201.115). After fully considering the filings in this
appeal, we conclude that the petitioner has not established any basis under
section 1201.115 for granting the petition for review. Therefore, we DENY the
petition for review and AFFIRM the remand initial decision, which is now the
Board’s final decision. 5 C.F.R. § 1201.113(b).
On review, the appellant submits two unsworn witness statements, which
she asserts constitute new and material evidence. Petition for Review (PFR) File,
Tab 1 at 1, Tab 3 at 4-5. The Board generally will not consider evidence
submitted for the first time with a petition for review absent a showing that it was
unavailable before the record closed before the administrative judge despite the
party’s due diligence. Avansino v. U.S. Postal Service , 3 M.S.P.R. 211, 213-14
(1980); 5 C.F.R. § 1201.115(d). To constitute new and material evidence, the
information contained in the documents, not just the documents themselves, must
have been previously unavailable despite due diligence. Grassell v. Department
of Transportation , 40 M.S.P.R. 554, 564 (1989). Although the witness statements
postdate the close of the record before the administrative judge, the appellant has
not proved that the information contained in the documents was unavailable
before the record closed. One of the statements refers to events that occurred
in 2017, and the other appears to refer to events that occurred prior to the
appellant’s removal. PFR File, Tab 3 at 4-5. Further, at least one of the
statements, id. at 4, contains information that is duplicative of other evidence in2
the record, Remand Appeal File (RAF), Tab 15 at 31-32, which was considered
by the administrative judge and discussed in the remand initial decision, RAF,
Tab 25, Remand Initial Decision (RID) at 19. The appellant’s conclusory
statement on review that the administrative judge did not allow the appellant to
submit evidence before rendering her decision is unsupported by the record.
RAF, Tab 9 at 1 (setting forth deadlines for the submission of evidence and
argument for consideration by the administrative judge). To the extent the
appellant asserts on review that she was retaliated against for engaging in
protected activity pursuant to 5 U.S.C. § 2302(b)(9), PFR File, Tab 3 at 2,
we find no reason to disturb the administrative judge’s finding that the appellant
was untimely in raising such a claim before the record closed or before the end of
the close of record conference. RAF, Tab 23; RID at 5; see 5 C.F.R. § 1201.24(b)
(stating that an appellant may not raise a claim or defense not included in the
appeal after the conference(s) held to define the issues in the case except for good
cause shown). In any event, the appellant has submitted no substantive argument
or evidence in support of such a claim, either before the administrative judge or
on review. Based on the foregoing, we deny the appellant’s petition for review
and affirm the remand initial decision.
NOTICE OF APPEAL RIGHTS2
You may obtain review of this final decision. 5 U.S.C. § 7703(a)(1). By
statute, the nature of your claims determines the time limit for seeking such
review and the appropriate forum with which to file. 5 U.S.C. § 7703(b).
Although we offer the following summary of available appeal rights, the Merit
Systems Protection Board does not provide legal advice on which option is most
appropriate for your situation and the rights described below do not represent a
statement of how courts will rule regarding which cases fall within their
2 Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise which option is most appropriate in any matter.3
jurisdiction. If you wish to seek review of this final decision, you should
immediately review the law applicable to your claims and carefully follow all
filing time limits and requirements. Failure to file within the applicable time
limit may result in the dismissal of your case by your chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the
U.S. Court of Appeals for the Federal Circuit, which must be received by
the court within 60 calendar days of the date of issuance of this decision.
5 U.S.C. § 7703(b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the following
address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The4
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. 420 (2017). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the district court no later than 30 calendar days after your representative
receives this decision. If the action involves a claim of discrimination based on
race, color, religion, sex, national origin, or a disabling condition, you may be
entitled to representation by a court-appointed lawyer and to waiver of
any requirement of prepayment of fees, costs, or other security. See
42 U.S.C. § 2000e-5(f) and 29 U.S.C. § 794a.
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702(b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file5
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or
other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
disposition of allegations of a prohibited personnel practice described in
section 2302(b) other than practices described in section 2302(b)(8), or 2302(b)
(9)(A)(i), (B), (C), or (D),” then you may file a petition for judicial review either
with the U.S. Court of Appeals for the Federal Circuit or any court of appeals of
competent jurisdiction.3 The court of appeals must receive your petition
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
for review within 60 days of the date of issuance of this decision.
5 U.S.C. § 7703(b)(1)(B).
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the following
address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.7
Contact information for the courts of appeals can be found at their
respective websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
FOR THE BOARD: ______________________________
Gina K. Grippando
Clerk of the Board
Washington, D.C.8 | Solomon_ElizabethCH-0432-15-0471-B-1__Final_Order.pdf | 2025-01-06 | ELIZABETH SOLOMON v. DEPARTMENT OF DEFENSE, MSPB Docket No. CH-0432-15-0471-B-1, January 6, 2025 | CH-0432-15-0471-B-1 | NP |
280 | https://www.mspb.gov/decisions/nonprecedential/Carvelli_Anthony_R_SF-3443-17-0504-B-1_Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
ANTHONY R. CARVELLI,
Appellant,
v.
UNITED STATES POSTAL SERVICE,
Agency.DOCKET NUMBER
SF-3443-17-0504-B-1
DATE: January 3, 2025
THIS FINAL ORDER IS NONPRECEDENTIAL1
Judy Martinez , Hercules, California, for the appellant.
Tanisha Locke , Esquire, Long Beach, California, for the agency.
BEFORE
Cathy A. Harris, Chairman
Raymond A. Limon, Vice Chairman
Henry J. Kerner, Member
FINAL ORDER
The appellant has filed a petition for review of the initial decision, which
dismissed his appeal of an alleged reduction in pay for lack of jurisdiction. On
petition for review, the appellant reasserts that he was entitled to the
5% promotional pay increase that he negotiated during the recruitment process for
the EAS-25, Manager, Customer Service Operations position he entered effective
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).
January 10, 2015. Additionally, the appellant argues on review that the agency
separately reduced his pay by failing to grant him an agency-wide pay increase in
January 2014. 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 Board lacks jurisdiction over the agency’s alleged failure to increase
his pay in January 2014 , we AFFIRM the initial decision.
On review, the appellant alleges that the agency’s failure to increase his
basic pay in January 2014 in accordance with an agency-wide increase effectively
reduced his pay. Remand Petition for Review (RPFR) File, Tab 1 at 1-3; Initial
Appeal File (IAF), Tab 1 at 20-21. He submits a one-page document in support
of his claim that the agency generally approved a pay increase for January 2014.
RPFR File, Tab 1 at 4. The Board has held that the failure to receive a pay
increase does not constitute a reduction in pay within the Board’s chapter 75
jurisdiction. Gaydar v. Department of the Navy , 121 M.S.P.R. 357, ¶¶ 7-8
(2014). The appellant alleges that in January 2014 his rate of basic pay should
have increased from $113,189.00 to $114,887.00. IAF, Tab 1 at 20; RPFR File,
Tab 1 at 1-2. However, the appellant does not allege that he suffered any actual
loss in pay, only that he did not receive the above increase. IAF, Tab 1 at 20;2
RPFR File, Tab 1 at 1-2. Therefore, we find that the Board lacks jurisdiction
over this claim. Otherwise, we affirm the initial decision.
NOTICE OF APPEAL RIGHTS2
The initial decision, as supplemented by this Final Order, constitutes the
Board’s final decision in this matter. 5 C.F.R. § 1201.113. You may obtain
review of this final decision. 5 U.S.C. § 7703(a)(1). By statute, the nature of
your claims determines the time limit for seeking such review and the appropriate
forum with which to file. 5 U.S.C. § 7703(b). Although we offer the following
summary of available appeal rights, the Merit Systems Protection Board does not
provide legal advice on which option is most appropriate for your situation and
the rights described below do not represent a statement of how courts will rule
regarding which cases fall within their jurisdiction. If you wish to seek review of
this final decision, you should immediately review the law applicable to your
claims and carefully follow all filing time limits and requirements. Failure to file
within the applicable time limit may result in the dismissal of your case by your
chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(A).
2 Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise which option is most appropriate in any matter.3
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the following
address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. 420 (2017). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the district court no later than 30 calendar days after your representative
receives this decision. If the action involves a claim of discrimination based on4
race, color, religion, sex, national origin, or a disabling condition, you may be
entitled to representation by a court-appointed lawyer and to waiver of any
requirement of prepayment of fees, costs, or other security. See 42 U.S.C.
§ 2000e-5(f) and 29 U.S.C. § 794a.
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702(b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or5
other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
disposition of allegations of a prohibited personnel practice described in section
2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i),
(B), (C), or (D),” then you may file a petition for judicial review either with the
U.S. Court of Appeals for the Federal Circuit or any court of appeals of
competent jurisdiction.3 The court of appeals must receive your petition for
review within 60 days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(B).
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the following
address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
3 The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115-195,
132 Stat. 1510.6
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
Contact information for the courts of appeals can be found at their
respective websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
FOR THE BOARD: ______________________________
Gina K. Grippando
Clerk of the Board
Washington, D.C.7 | Carvelli_Anthony_R_SF-3443-17-0504-B-1_Final_Order.pdf | 2025-01-03 | ANTHONY R. CARVELLI v. UNITED STATES POSTAL SERVICE, MSPB Docket No. SF-3443-17-0504-B-1, January 3, 2025 | SF-3443-17-0504-B-1 | NP |
281 | https://www.mspb.gov/decisions/nonprecedential/Semenza_BryantPH-0845-18-0448-C-1_and_PH-0845-18-0448-X-1_Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
BRYANT SEMENZA,
Appellant,
v.
OFFICE OF PERSONNEL
MANAGEMENT,
Agency.DOCKET NUMBER
PH-0845-18-0448-X-1
PH-0845-18-0448-C-1
DATE: January 3, 2025
THIS FINAL ORDER IS NONPRECEDENTIAL1
Andrew J. Race , Esquire, Lebanon, Pennsylvania, for the appellant.
Carla Robinson , Washington, D.C., for the agency.
BEFORE
Cathy A. Harris, Chairman
Raymond A. Limon, Vice Chairman
Henry J. Kerner, Member
FINAL ORDER
This case is before the Board pursuant to a June 27, 2024 Board Order, which
reversed the compliance initial decision and found the agency in noncompliance
with a settlement agreement. Semenza v. Office of Personnel Management , 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. PH-0845-18-0448-C-1, Order (Order) (June 27, 2024); Semenza v.
Office of Personnel Management , MSPB Docket No. PH-0845-18-0448-C-1,
Compliance Initial Decision (Nov. 23, 2020). For the reasons set forth below, we
find the agency in compliance and DISMISS the petition for enforcement.
DISCUSSION OF ARGUMENT AND EVIDENCE ON COMPLIANCE
On April 17, 2019, the appellant and the Office of Personnel Management
(OPM) entered into a settlement agreement resolving the appellant’s appeal from
OPM’s determination that the appellant had been overpaid annuity supplements.
Order at 2. The appellant filed the instant petition for enforcement alleging that
OPM had failed to comply with the parties’ settlement agreement by failing to
determine whether the appellant was eligible for an annuity supplement, and
accordingly to apply any unpaid annuity to an annuity overpayment debt. Id. at 3.
The administrative judge issued a compliance initial decision finding that the
agency had complied with the settlement agreement. Id. The appellant filed a
petition for review, and on June 27, 2024, the Board reversed the compliance initial
decision, holding that the settlement agreement required OPM to determine
whether the appellant was eligible for an annuity supplement. Order at 4-6. The
Board ordered OPM to submit satisfactory evidence of compliance within 45 days
of the decision. Id. at 8. The Board’s Order also included a statement that the
appellant could respond to OPM’s evidence of compliance within 20 days of the
date of service of OPM’s submission, and if he did not respond, “the Board may
assume he is satisfied with OPM’s actions and dismiss the petition for
enforcement.” Id. at 8-9.
On September 3, 2024, OPM submitted a statement that it had reviewed the
appellant’s eligibility for an annuity supplement and had determined that he was
eligible to have the supplement reinstated. OPM stated that it had issued the
appellant a payment of $23,616.30 on February 7, 2024, which represented annuity
supplement payments of $1,312.00 per month from July 1, 2018 through June 30,2
2019, and July 1, 2019 through December 30, 2019. Semenza v. Office of
Personnel Management , MSPB Docket No. PH-0845-18-0448-X-1, Compliance
Referral File (CRF), Tab 2 at 5. OPM also stated that the appellant had previously
paid back all of his annuity overpayment debt, so none of the unpaid annuity was
applied towards that debt. Id. OPM further submitted a February 7, 2024 letter
sent to the appellant informing him of the amount of the annuity supplement and the
calculation of his underpayment. CRF, Tab 3.
The appellant has not responded to OPM’s submission.
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. In a proceeding to enforce a settlement agreement, the party alleging
noncompliance with the agreement has the burden of proof. Modrowski v.
Department of Veterans Affairs , 97 M.S.P.R. 224, ¶ 7 (2004). However, when an
appellant makes specific allegations of noncompliance, as the appellant did here, it
is the agency’s burden to produce relevant evidence within its control showing
compliance with its agreement or showing good cause for its failure to comply. Id.
Here, OPM filed evidence of compliance and an explanation of its
calculations, to which the appellant did not respond, despite being apprised that the
Board might construe lack of response as satisfaction with OPM’s response.
Accordingly, in light of the appellant’s failure to respond, we find that OPM is now
in full compliance with the settlement agreement and the Board’s June 27, 2024
Order, and we dismiss the petition for enforcement.
This is the final decision of the Merit Systems Protection Board in these
compliance proceedings. Title 5 of the Code of Federal Regulations, section
1201.183(c)(1) (5 C.F.R. § 1201.183(c)(1)).3
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 about
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
whether a particular forum is the appropriate one to review your case, you should
contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to the
U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that any
attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of discrimination .
This option applies to you only if you have claimed that you were affected by an
action that is appealable to the Board and that such action was based, in whole or in
part, on unlawful discrimination. If so, you may obtain judicial review of this
decision—including a disposition of your discrimination claims —by filing a civil5
action with an appropriate U.S. district court ( not the U.S. Court of Appeals for the
Federal Circuit), within 30 calendar days after you receive this decision. 5 U.S.C.
§ 7703(b)(2); see Perry v. Merit Systems Protection Board , 582 U.S. 420 (2017).
If you have a representative in this case, and your representative receives this
decision before you do, then you must file with the district court no later than
30 calendar days after your representative receives this decision. If the action
involves a claim of discrimination based on race, color, religion, sex, national
origin, or a disabling condition, you may be entitled to representation by a
court-appointed lawyer and to waiver of any requirement of prepayment of fees,
costs, or other security. See 42 U.S.C. § 2000e-5(f) and 29 U.S.C. § 794a.
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding all
other issues . 5 U.S.C. § 7702(b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case, and
your representative receives this decision before you do, then you must file with the
EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to: 6
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or
other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D). If
so, and your judicial petition for review “raises no challenge to the Board’s
disposition of allegations of a prohibited personnel practice described in
section 2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)
(A)(i), (B), (C), or (D),” then you may file a petition for judicial review either with
the U.S. Court of Appeals for the Federal Circuit or any court of appeals of
competent jurisdiction.3 The court of appeals must receive your petition for review
within 60 days of the date of issuance of this decision. 5 U.S.C. § 7703(b)(1)(B).
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
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
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to the
U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the 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 | Semenza_BryantPH-0845-18-0448-C-1_and_PH-0845-18-0448-X-1_Final_Order.pdf | 2025-01-03 | BRYANT SEMENZA v. OFFICE OF PERSONNEL MANAGEMENT, MSPB Docket No. PH-0845-18-0448-X-1, January 3, 2025 | PH-0845-18-0448-X-1; PH-0845-18-0448-C-1 | NP |
282 | https://www.mspb.gov/decisions/nonprecedential/Rossmeissl_ThomasDE-0842-22-0256-I-1_Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
THOMAS ROSSMEISSL,
Appellant,
v.
OFFICE OF PERSONNEL
MANAGEMENT,
Agency.DOCKET NUMBER
DE-0842-22-0256-I-1
DATE: January 3, 2025
THIS FINAL ORDER IS NONPRECEDENTIAL1
Thomas Rossmeissl , Tucson, Arizona, pro se.
Carla Robinson , Washington, D.C., for the agency.
BEFORE
Cathy A. Harris, Chairman
Raymond A. Limon, Vice Chairman
Henry J. Kerner, Member
FINAL ORDER
The appellant has filed a petition for review of the initial decision, which
affirmed the final decision by the Office of Personnel Management finding that
he was ineligible to receive annuity benefits under the Federal Employees’
Retirement System (FERS) because he had applied for and received a refund of
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).
his retirement deductions. Generally, we grant petitions such as this one only in
the following circumstances: the initial decision contains erroneous findings of
material fact; the initial decision is based on an erroneous interpretation of statute
or regulation or the erroneous application of the law to the facts of the case; the
administrative judge’s rulings during either the course of the appeal or the initial
decision were not consistent with required procedures or involved an abuse of
discretion, and the resulting error affected the outcome of the case; or new and
material evidence or legal argument is available that, despite the petitioner’s due
diligence, was not available when the record closed. Title 5 of the Code of
Federal Regulations, section 1201.115 (5 C.F.R. § 1201.115). After fully
considering the filings in this appeal, we conclude that the petitioner has not
established any basis under section 1201.115 for granting the petition for review.
Therefore, we DENY the petition for review and AFFIRM the initial decision.
The administrative judge correctly found that, because the appellant
received a refund of his FERS deductions after separating from his employing
agency, the appellant was ineligible to receive a FERS deferred annuity. Initial
Appeal File (IAF), Tab 12, Initial Decision (ID) at 3; see 5 U.S.C. § 8424(a).
Further, the appellant has not been reemployed in a covered position since his
January 2001 resignation. IAF, Tab 10, Hearing Recording (testimony of
appellant); IAF, Tab 4 at 10, Tab 7 at 4. For all of these reasons, he is not
entitled to receive an annuity or redeposit his withdrawn deductions. See
5 U.S.C. §§ 8422(i), 8424(a).
The appellant’s arguments that he was misinformed about the consequences
of applying for a refund, that he could not read the fine-print warning of such
consequences in the Standard Form 3106, and that he had difficulty hearing the
conversation with the employer representative who discussed the refund with
him, do not provide a basis to disturb the initial decision. Petition for Review
(PFR) File, Tab 1 at 4-6. Federal retirement law does not provide an exception
based on insufficient or misleading information about the consequences of2
applying for and receiving a refund of retirement deductions, and the Board lacks
the authority to award an annuity based on such equitable considerations. See
Conway v. Office of Personnel Management , 59 M.S.P.R. 405, 412 (1993);
Danganan v. Office of Personnel Management , 55 M.S.P.R. 265, 269 (1992),
aff’d, 19 F.3d 40 (Fed. Cir. 1994) (Table)); Mahan v. Office of Personnel
Management, 47 M.S.P.R. 639, 641 (1991). Further, we have considered the
appellant’s assertions on review but find that he has not provided a persuasive
basis to disturb the administrative judge’s finding that he failed to prove his claim
that he was misinformed. ID at 4-5.
In addition, we find that the appellant’s arguments of adjudicatory bias,
prejudice, and improper professional association between the administrative judge
and the agency representative provide no basis for disturbing the initial decision.
PFR File, Tab 1 at 4-6. The appellant did not file a motion before the
administrative judge asking him to withdraw, as required by 5 C.F.R.
§ 1201.42(b). Further, he has not established his claims on review. In particular,
the Board will not infer bias based on an administrative judge’s case -related
rulings, Vaughn v. Department of the Treasury , 119 M.S.P.R. 605, ¶ 18 (2013),
and we find that the appellant’s broad allegation of bias is insufficient to rebut
the presumption of the administrative judge’s honesty and integrity, see Oliver v.
Department of Transportation , 1 M.S.P.R. 382, 386 (1980). We find that the
administrative judge considered the pertinent evidence in the record in finding
that the appellant failed to prove by preponderant evidence that he is entitled to
the FERS annuity. ID at 2-5; see Mithen v. Department of Veterans Affairs ,
122 M.S.P.R. 489, ¶ 14 (2015) (holding that an administrative judge’s failure to
mention all of the evidence of record does not mean that he did not consider it in
reaching his decision), aff’d, 652 F. App’x 971 (Fed. Cir. 2016). Additionally,
we see no reason to disturb the administrative judge’s findings on review because
the administrative judge evaluated the credibility of the evidence and argument
presented by the appellant concerning misinformation and the impact of his issues3
with his vision and hearing. ID at 4-5; see Crosby v. U.S. Postal Service ,
74 M.S.P.R. 98, 105-06 (1997) (finding no reason to disturb the administrative
judge’s findings when he considered the evidence as a whole, drew appropriate
inferences, and made reasoned conclusions); see also Haebe v. Department of
Justice, 288 F.3d 1288, 1302 (Fed. Cir. 2002).
Further, the appellant has not described or provided evidence of improper
comments or actions between the administrative judge and the agency
representative on the phone before the hearing started. PFR File, Tab 1 at 4. He
states that he picked up indications that they may have known each other or
worked with each other in the past. Id. We find that these assertions do not
provide a reasonable basis for questioning the administrative judge’s impartiality.
See 28 U.S.C. § 455; Department of Health and Human Services v. Jarboe ,
2023 MSPB 22, ¶ 12; Lee v. Environmental Protection Agency , 115 M.S.P.R. 533,
¶¶ 20-22 (2010).2 Nor do we find indication of “a deep-seated favoritism or
antagonism that would make fair judgment impossible.” See 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)).
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 To the extent that the appellant asserts that the administrative judge should have
referred this matter to a settlement judge and never responded to a phone call he made
after the issuance of the initial decision, PFR File, Tab 1 at 4-5, we find that these
assertions neither establish any material error in the processing of the appeal nor
suggest any bias or impartiality on the part of the administrative judge.
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
Systems Protection Board does not provide legal advice on which option is most
appropriate for your situation and the rights described below do not represent a
statement of how courts will rule regarding which cases fall within their
jurisdiction. If you wish to seek review of this final decision, you should
immediately review the law applicable to your claims and carefully follow all
filing time limits and requirements. Failure to file within the applicable time
limit may result in the dismissal of your case by your chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision.
5 U.S.C. § 7703(b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the following
address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at5
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. 420 (2017). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the district court no later than 30 calendar days after your representative
receives this decision. If the action involves a claim of discrimination based on
race, color, religion, sex, national origin, or a disabling condition, you may be
entitled to representation by a court-appointed lawyer and to waiver of any
requirement of prepayment of fees, costs, or other security. See 42 U.S.C.
§ 2000e-5(f) and 29 U.S.C. § 794a.
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702(b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case,6
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or
other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
disposition of allegations of a prohibited personnel practice described in
section 2302(b) other than practices described in section 2302(b)(8), or
2302(b)(9)(A)(i), (B), (C), or (D),” then you may file a petition for judicial
review either with the U.S. Court of Appeals for the Federal Circuit or any court7
of appeals of competent jurisdiction.4 The court of appeals must receive your
petition for review within 60 days of the date of issuance of this decision.
5 U.S.C. § 7703(b)(1)(B).
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the following
address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
4 The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115-195,
132 Stat. 1510. 8
Contact information for the courts of appeals can be found at their
respective websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
FOR THE BOARD: ______________________________
Gina K. Grippando
Clerk of the Board
Washington, D.C.9 | Rossmeissl_ThomasDE-0842-22-0256-I-1_Final_Order.pdf | 2025-01-03 | THOMAS ROSSMEISSL v. OFFICE OF PERSONNEL MANAGEMENT, MSPB Docket No. DE-0842-22-0256-I-1, January 3, 2025 | DE-0842-22-0256-I-1 | NP |
283 | https://www.mspb.gov/decisions/nonprecedential/Decenzo_Samantha_T_AT-1221-24-0156-W-1_Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
SAMANTHA TOBA DECENZO,
Appellant,
v.
OFFICE OF PERSONNEL
MANAGEMENT,
Agency.DOCKET NUMBER
AT-1221-24-0156-W-1
DATE: January 3, 2025
THIS FINAL ORDER IS NONPRECEDENTIAL1
Samantha Toba Decenzo , Sunrise, Florida, pro se.
Nadia Pluta and Amanda L. Jordan , Washington, D.C., for the agency.
BEFORE
Cathy A. Harris, Chairman
Raymond A. Limon, Vice Chairman
Henry J. Kerner, Member*
*Member Kerner recused himself and
did not participate in the adjudication of this appeal.
FINAL ORDER
The appellant has filed a petition for review of the initial decision, which
dismissed her individual right of action appeal for lack of jurisdiction because she
failed to make a nonfrivolous allegation that she was an agency “employee” 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).
5 U.S.C. § 2105(a). On petition for review, the appellant asserts, without
support, that she is an employee under 5 U.S.C. § 2105(a).2 Petition for Review
File, Tab 2 at 13-15. She also argues that, among other things, the administrative
judge violated her due process rights by denying her a hearing. Id. at 4-12, 32.
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 filed a motion for leave, wherein she requests to file a motion for
default judgment against the Office of Personnel Management for failing to respond to
her petition for review. Petition for Review File, Tab 6. We deny the appellant’s
motion because the Board lacks authority to issue such a judgment against an agency.
Burnett v. Department of Housing & Urban Development , 114 M.S.P.R. 1, ¶ 3 n.1
(2010); Hayes v. Department of the Treasury , 74 M.S.P.R. 613, 615 (1997).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 | Decenzo_Samantha_T_AT-1221-24-0156-W-1_Final_Order.pdf | 2025-01-03 | SAMANTHA TOBA DECENZO v. OFFICE OF PERSONNEL MANAGEMENT, MSPB Docket No. AT-1221-24-0156-W-1, January 3, 2025 | AT-1221-24-0156-W-1 | NP |
284 | https://www.mspb.gov/decisions/nonprecedential/Butlak_GeoffreyAT-0752-23-0120-I-1_Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
GEOFFREY BUTLAK,
Appellant,
v.
DEPARTMENT OF HOMELAND
SECURITY,
Agency.DOCKET NUMBER
AT-0752-23-0120-I-1
DATE: January 3, 2025
THIS FINAL ORDER IS NONPRECEDENTIAL1
Steven M. Cohen , Esquire, and Tyler J. Eckert , Esquire, Amherst,
New York, for the appellant.
Travlaus Clark , New Orleans, Louisiana, for the agency.
BEFORE
Cathy A. Harris, Chairman
Raymond A. Limon, Vice Chairman
Henry J. Kerner, Member
FINAL ORDER
The appellant has filed a petition for review of the initial decision, which
affirmed his removal from his Customs and Border Protection Officer position
based on the charges of conduct unbecoming a Customs and Border Protection
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).
Officer and lack of candor. On petition for review, the appellant argues, among
other things, that the administrative judge violated his due process rights by
reinterpreting the conduct unbecoming charge, erroneously conducted an
independent penalty review instead of a harmful error analysis after finding that
the agency deciding official failed to properly consider a mitigating factor in his
penalty assessment, and erred in the penalty analysis. 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).
Regarding the conduct unbecoming charge, the agency specification
explained that the appellant asked another Customs and Border Protection Officer
to relay false information to the office director regarding the reason the appellant
was tardy. Initial Appeal File (IAF), Tab 4 at 21-24, 37-40. The appellant argues
on review that the administrative judge misinterpreted the charge to include
allegations that he attempted to influence a coworker to lie, solicited a coworker
to further his deceit, and attempted to involve another law enforcement officer in
his deception. Petition for Review (PFR) File, Tab 1 at 7-12. There is no
material difference between the appellant “asking” a coworker to relay false2
information on his behalf to a manager and the administrative judge’s
characterization of the specification. Asking an individual to do something is an
attempt to influence, a solicitation, and an attempt to involve the individual in
whatever is being asked. Thus, contrary to the appellant’s arguments, the
administrative judge’s characterization is not outside the matters covered by the
proposal notice.2
2 The appellant also argues that the administrative judge’s purported misinterpretation
of the charge constituted a due process violation under the U.S. Court of Appeals for
the Federal Circuit’s decisions in Ward v. U.S. Postal Service , 634 F.3d 1274 (Fed. Cir.
2011), and Stone v. Federal Deposit Insurance Corporation , 179 F.3d 1368, 1378 (Fed.
Cir. 1999). Those cases address an agency deciding official considering material not
set forth in the proposal notice; they do not address the findings by a Board
administrative judge. Thus, the appellant’s argument is misplaced. The appellant also
argues that, pursuant to Ward, 634 F.3d. at 1274, having found that the agency deciding
official failed to properly consider a mitigating factor, the administrative judge was
precluded from assessing the reasonableness of the agency’s penalty, and instead should
have evaluated whether the agency’s actions constituted harmful error. PFR File, Tab 1
at 15-16. As the initial decision correctly explained, when the agency has failed to
consider a mitigating factor, the agency’s determination of an appropriate penalty is not
entitled to deference, and the Board may determine how the agency’s decision should be
corrected to bring the penalty within the parameters of reasonableness. IAF, Tab 28
at 7; see Thomas v. Department of the Army , 2022 MSPB 35, ¶ 19 (stating that the
Board will modify or mitigate an agency-imposed penalty only when it finds that the
agency failed to weigh the relevant factors or the penalty clearly exceeds the bounds of
reasonableness); Chin v. Department of Defense , 2022 MSPB 34, ¶¶ 24-32 (mitigating
the appellant’s removal to a 90-day suspension when the agency deciding official failed
to properly consider mitigating factors); Wynne v. Department of Veterans Affairs ,
75 M.S.P.R. 127, 133 (1997) (stating that, when the agency deciding official fails to
considered relevant mitigating factors, the Board will independently evaluate the
reasonableness of the penalty). Accordingly, we find no error in the administrative
judge assessing the reasonableness of the penalty. ID at 7-9. Regarding the penalty, we
have carefully considered the appellant’s arguments, including those related to his prior
discipline and potential Giglio-impairment, and we discern no basis to disturb the
administrative judge’s finding that removal was within the tolerable limits of
reasonableness. ID at 9-11.3
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 | Butlak_GeoffreyAT-0752-23-0120-I-1_Final_Order.pdf | 2025-01-03 | GEOFFREY BUTLAK v. DEPARTMENT OF HOMELAND SECURITY, MSPB Docket No. AT-0752-23-0120-I-1, January 3, 2025 | AT-0752-23-0120-I-1 | NP |
285 | https://www.mspb.gov/decisions/nonprecedential/Howard_AngelaDC-1221-23-0349-W-1_Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
ANGELA HOWARD,
Appellant,
v.
DEPARTMENT OF DEFENSE,
Agency.DOCKET NUMBER
DC-1221-23-0349-W-1
DATE: January 3, 2025
THIS FINAL ORDER IS NONPRECEDENTIAL1
Kristen Farr , Esquire, Washington, D.C., for the appellant.
Ashley Wilson , Esquire, and Michael Ludwig , Esquire,
Alexandria, Virginia, for the appellant.
Anette H. Veldhuyzen , Esquire, Fort Belvoir, Virginia, for the agency.
Rachael Orejana , Esquire, Bethesda, Maryland, for the agency.
BEFORE
Cathy A. Harris , Chairman
Raymond A. Limon , Vice Chairman
Henry J. Kerner, Member*
*Member Kerner recused himself and
did not participate in the adjudication of this appeal.
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and 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
found that the agency proved by clear and convincing evidence that it would have
terminated her during her probationary period in the absence of her
whistleblowing disclosures and denied her request for corrective action in this
individual right of action (IRA) appeal. On petition for review, the appellant
challenges some of the administrative judge’s factual findings, asserts that the
agency committed harmful procedural error, contends that the administrative
judge improperly limited the testimony of her former supervisor, and attaches
several documents. Petition for Review (PFR) File, Tab 1. Generally, we grant
petitions such as this one only in the following circumstances: the initial decision
contains erroneous findings of material fact; the initial decision is based on an
erroneous interpretation of statute or regulation or the erroneous application of
the law to the facts of the case; the administrative judge’s rulings during either
the course of the appeal or the initial decision were not consistent with required
procedures or involved an abuse of discretion, and the resulting error affected the
outcome of the case; or new and material evidence or legal argument is available
that, despite the petitioner’s due diligence, was not available when the record
closed. Title 5 of the Code of Federal Regulations, section 1201.115 (5 C.F.R.
§ 1201.115). After fully considering the filings in this appeal, we conclude that
the petitioner has not established any basis under section 1201.115 for granting
the petition for review. Therefore, we DENY the petition for review and
AFFIRM the initial decision, which is now the Board’s final decision. 5 C.F.R.
§ 1201.113(b).
Neither party challenges the administrative judge’s conclusion that the
appellant proved by preponderant evidence that she made whistleblowing
disclosures that were a contributing factor in the agency’s decision to terminate
her during her probationary period. Similarly, the appellant does not challenge
the administrative judge’s finding that her other allegations did not constitute a2
significant change in working conditions, duties, or responsibilities based on a
hostile work environment and did not constitute a personnel action under 5 U.S.C.
§ 2302(a)(2)(A)(xii). Initial Appeal File (IAF), Tab 39, Initial Decision (ID)
at 14-25 (discussing Skarada v. Department of Veterans Affairs , 2022 MSPB 17,
¶¶ 16, 23, 29). We affirm the initial decision in this regard.
On review, the appellant asserts that the administrative judge erred in her
findings related to a June 12, 2021 Quality Indicator Performance Report (QIPR)
form. PFR File, Tab 1 at 13-16; IAF, Tab 12 at 71-72. This argument relates to
the administrative judge’s evaluation of the strength of the agency’s evidence in
support of the termination action.2 ID at 32-35. The administrative judge stated
in the initial decision that the appellant wrote in the QIPR about a patient who
was admitted, tested, and cross-matched under an incorrect medical record
number, but she failed to take corrective action, and when questioned about it,
she said that she was not trained on how to complete the form. ID at 6-7, 32-35.
The agency asserted, among other things, that the appellant failed to follow
policy when she did not complete the corrective action portion of the form.
ID at 32; IAF, Tab 12 at 71.
The administrative judge considered the testimony of several agency
witnesses and the appellant, and she found that the appellant knew how to
complete the QIPR form because she had completed it previously (including the
corrective action section). ID at 32-35 (citing IAF, Tab 20 at 104-05). The
administrative judge noted that, at a minimum, the appellant should have spoken
with a supervisor if she believed further immediate action was necessary that she
was unable to address. ID at 33. Because having the wrong patient number could
potentially result in a risk to patient safety and the appellant’s failure to
immediately correct the error could have serious consequences, the administrative
2 The appellant does not challenge the administrative judge’s conclusion that the
relevant agency officials had some, albeit limited, motive to retaliate, and the limited
comparator evidence was not a strong factor in the agency’s favor. ID at 53-63.
We affirm the initial decision in this regard.3
judge found the appellant’s failure in this regard to be serious. ID at 34-35. The
Board will not disturb an administrative judge’s findings when she considered the
evidence as a whole, drew appropriate inferences, and made reasoned conclusions
on issues of credibility. Crosby v. U.S. Postal Service , 74 M.S.P.R. 98, 106
(1997); Broughton v. Department of Health and Human Services , 33 M.S.P.R.
357, 359 (1987).
Relatedly, the appellant asserts that the agency “withheld the entire
[Standard Operating Procedure (SOP)] [en]titled [Transfusion Services] 1.000 PR
Quality Program” from its submission, except for two pages, and that the full
SOP would have supported her defense regarding the roles and responsibilities of
personnel involved in completing the QIPR. PFR File, Tab 1 at 13-16. She also
includes the SOP with her petition for review.3 Id. at 36-62. 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 . Clay v. Department of the Army ,
123 M.S.P.R. 245, ¶ 6 (2016). Even if we consider this argument, a different
outcome is not warranted. The appellant acknowledges that her responsibilities
included “document[ing] corrective actions.” PFR File, Tab 1 at 14; IAF, Tab 12
at 68. Therefore, even if a supervisor was also responsible for documenting
corrective action, PFR File, Tab 1 at 14, she was not relieved of her obligation to
do so, particularly in an urgent situation. For these reasons, we discern no error
with the administrative judge’s evaluation of the QIPR issue. Moreover, we
3 In addition to the SOP, the appellant submits, among other things, her performance
standards for the 2021 and 2022 appraisal years, Department of Defense Instruction
1400.25, Administrative Instruction 8 relating to disciplinary and adverse actions, and
the agency’s Table of Offenses and Penalties. PFR File, Tab 1 at 26-155. Under
5 C.F.R. § 1201.115, the Board generally will not consider evidence submitted for the
first time with a petition for review absent a showing that it was unavailable before the
record was closed before the administrative judge despite the party’s due diligence.
Avansino v. U.S. Postal Service , 3 M.S.P.R. 211, 213-14 (1980). The appellant has not
made such a showing, and we do not consider these documents on review.4
affirm the administrative judge’s conclusion that the factor involving the strength
of the agency’s evidence favored the agency for the reasons stated in the initial
decision. ID at 26-53.
We have considered the appellant’s remaining arguments on review, but
none warrants a different outcome. For example, the appellant asserts that the
agency committed harmful procedural error because it did not follow proper
procedures for effecting her termination, including that the acting supervisor did
not have the authority to terminate her. See, e.g., PFR File, Tab 1 at 4-10, 21-25.
However, the Board lacks jurisdiction to hear a claim of harmful procedural error
in an IRA appeal. Salerno v. Department of the Interior , 123 M.S.P.R. 230, ¶ 15
(2016).
We also have considered the appellant’s argument regarding the
administrative judge’s decision to limit the testimony of her former supervisor,
who resigned in April 2021. PFR File, Tab 1 at 16-21; ID at 2. In pertinent part,
the appellant asserts that her former supervisor, among other things, “had
expertise in the field as an accredited blood bank supervisor,” and “extensive
knowledge of the department, procedures, and regulations,” and she “would have
given thoughtful expert information, insight, and opinion to all matter[s] related
to the department and the allegations [that were] put forth to remove [her].”
PFR File, Tab 1 at 16.
The record reflects that the agency objected to the former supervisor’s
testimony because it was not relevant, but the administrative judge determined
that the former supervisor had relevant testimony regarding interactions between
the appellant and her co-workers during the time that the former supervisor was a
supervisor in the office. IAF, Tab 24 at 2. The limits that the administrative
judge placed on the former supervisor’s testimony were within her broad5
discretion.4 See, e.g., Miller v. Department of Defense , 85 M.S.P.R. 310, ¶ 8
(2000) (stating that an administrative judge has wide discretion to control the
proceedings, including authority to exclude testimony that would be irrelevant);
5 C.F.R. §§ 1201.41(b)(3), (8).
NOTICE OF APPEAL RIGHTS5
You may obtain review of this final decision. 5 U.S.C. § 7703(a)(1). By
statute, the nature of your claims determines the time limit for seeking such
review and the appropriate forum with which to file. 5 U.S.C. § 7703(b).
Although we offer the following summary of available appeal rights, the Merit
Systems Protection Board does not provide legal advice on which option is most
appropriate for your situation and the rights described below do not represent a
statement of how courts will rule regarding which cases fall within their
jurisdiction. If you wish to seek review of this final decision, you should
immediately review the law applicable to your claims and carefully follow all
filing time limits and requirements. Failure to file within the applicable time
limit may result in the dismissal of your case by your chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
4 The appellant appears to have re-typed her former supervisor’s letter to the Office of
Special Counsel in her petition for review. PFR File, Tab 1 at 17-21. However, the
appellant included this letter with her prehearing submission, and it is not new
evidence. IAF, Tab 16 at 31-32; see Meier v. Department of the Interior , 3 M.S.P.R.
247, 256 (1980). Therefore, we need not consider it on review.
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
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the following
address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. 420 (2017). If you have a representative in this case,7
and your representative receives this decision before you do, then you must file
with the district court no later than 30 calendar days after your representative
receives this decision. If the action involves a claim of discrimination based on
race, color, religion, sex, national origin, or a disabling condition, you may be
entitled to representation by a court-appointed lawyer and to waiver of any
requirement of prepayment of fees, costs, or other security. See 42 U.S.C.
§ 2000e-5(f) and 29 U.S.C. § 794a.
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702(b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 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 | Howard_AngelaDC-1221-23-0349-W-1_Final_Order.pdf | 2025-01-03 | ANGELA HOWARD v. DEPARTMENT OF DEFENSE, MSPB Docket No. DC-1221-23-0349-W-1, January 3, 2025 | DC-1221-23-0349-W-1 | NP |
286 | https://www.mspb.gov/decisions/nonprecedential/Carpenter_Edward_W_PH-0752-15-0251-C-1_and_PH-0752-15-0251-X-1_Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
EDWARD W. CARPENTER,
Appellant,
v.
DEPARTMENT OF THE NAVY,
Agency.DOCKET NUMBER
PH-0752-15-0251-X-1
PH-0752-15-0251-C-1
DATE: January 2, 2025
THIS FINAL ORDER IS NONPRECEDENTIAL1
Edward W. Carpenter , East Lebanon, Maine, pro se.
Scott W. Flood , Esquire, and Jeffrey A. Epstein , Portsmouth, New
Hampshire, for the agency.
Cindee Carter , Kittery, Maine, for the agency.
BEFORE
Cathy A. Harris, Chairman
Raymond A. Limon, Vice Chairman
Henry J. Kerner, Member
FINAL ORDER
¶1This case is before the Board pursuant to a February 14, 2024 Board Order,
which reversed the compliance initial decision and found the agency in
1 A nonprecedential order is one that the Board has determined does not add significantly
to the body of MSPB case law. Parties may cite nonprecedential orders, but such orders
have no precedential value; the Board and administrative judges are not required to
follow or distinguish them in any future decisions. In contrast, a precedential decision
issued as an Opinion and Order has been identified by the Board as significantly
contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).
noncompliance with a settlement agreement. Carpenter v. Department of the Navy ,
MSPB Docket No. PH-0752-15-0251-X-1, Compliance Referral File (CRF), Order
(Order) (Feb. 14, 2024); Carpenter v. Department of the Navy , MSPB Docket No.
PH-0752-15-0251-C-1, Compliance Initial Decision (CID) (Apr. 16, 2019). 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 ON COMPLIANCE
¶2In August 2015, the parties entered into a settlement agreement resolving the
appellant’s removal appeal. See Order at 2. The administrative judge accordingly
dismissed the appeal as settled and entered the agreement into the record for
enforcement. See id.
¶3On December 13, 2018, the appellant timely filed a petition for enforcement,
asserting that the Department of the Navy (Navy) had violated the settlement
agreement because the Defense Finance and Accounting Services (DFAS) was
contending that the appellant had been overpaid for prepaid Federal Health
Employee Benefits premiums, and owed a debt of $1,712.99. Id. at 3. The
administrative judge denied the appellant’s petition for enforcement, holding that
the appellant received back pay under the Back Pay Act during the time periods at
issue, and had not shown that he elected to forego health insurance coverage during
that time period, or that the agency had already deducted the premiums owed from
the back pay amount. Id. at 3-4.
¶4The appellant timely filed a petition for review of the CID. On February 14,
2024, the Board found, based on new evidence submitted by the appellant, that the
appellant had elected not to have his health insurance reinstated during the back pay
period. Id. at 5-6. Accordingly, the Board held that the Navy was not in
compliance with the settlement agreement and docketed the instant compliance
referral matter to adjudicate the remaining compliance issue. Id. at 7-8. The Board
ordered the Navy to submit satisfactory evidence of compliance to the Clerk of the2
Board within 60 days of the date of the Order. Id. at 8. The Board also stated that
the appellant could respond to the Navy’s evidence of compliance within 20 days of
the date of service of the agency’s submissions, and that if he did not respond, the
Board “may assume that he is satisfied with the agency’s actions and dismiss the
petition for enforcement . Id. at 9.
¶5After two requests for extension of time, the Navy filed a response to the
Board’s February 14, 2024 Order on August 12, 2024. CRF, Tab 7. The agency
submitted a narrative statement asserting that DFAS had cancelled the $1,712.99
debt that the appellant paid to the agency, and processed a check, to be issued to the
appellant 10 days from the date of the Navy’s response, in the amount of $2,289.88.
Id. at 1-2. This amount included collection fees paid by the appellant to DFAS. Id.
at 5. The Navy attached to its submission an “Out of Service Cancellation
Request,” and an “Out of Service Debt Refund Request” cancelling the appellant’s
debt. Id. at 7-9.
¶6On August 22, 2024, the Navy filed a “Notice of Full Compliance,” stating
that it had issued full payment to the appellant, attaching a “Public Voucher for
Refunds” showing that a debt for the appellant in the amount of $2,289.88 had been
cancelled. CRF, Tab 8 at 4, 6.
¶7The appellant has not responded to the Navy’s submissions.
ANALYSIS
¶8A 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. In a proceeding to enforce a settlement agreement, the party alleging
noncompliance with the agreement has the burden of proof. Modrowski v.
Department of Veterans Affairs , 97 M.S.P.R. 224, ¶ 7 (2004). However, when an
appellant makes specific allegations of noncompliance, as appellant did here, it is3
the agency’s burden to produce relevant evidence within its control showing
compliance with its agreement or showing good cause for its failure to comply. Id.
¶9Here, the Navy has submitted evidence that the challenged debt was
cancelled, and payment issued to the appellant, along with additional costs. CRF,
Tabs 7, 8. The appellant did not respond to the Navy’s submissions, despite being
apprised that the Board might construe lack of response as satisfaction with the
Navy’s response. Accordingly, in light of the appellant’s failure to respond, we
find that the Navy is now in full compliance with the settlement agreement and the
Board’s February 14, 2024 Order, and dismiss the petition for enforcement.2 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 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.
2 Because we find the Navy in compliance with the settlement agreement, the Navy’s
motion to dismiss the appeal is moot. 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).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
3 Since the issuance of the initial decision in this matter, the Board may have updated the
notice 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
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to the
U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that any
attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of discrimination .
This option applies to you only if you have claimed that you were affected by
an action that is appealable to the Board and that such action was based, in whole or
in part, on unlawful discrimination. If so, you may obtain judicial review of this
decision—including a disposition of your discrimination claims —by filing a civil
action with an appropriate U.S. district court ( not the U.S. Court of Appeals for the
Federal Circuit), within 30 calendar days after you receive this decision. 5 U.S.C.
§ 7703(b)(2); see Perry v. Merit Systems Protection Board , 582 U.S. 420 (2017).
If you have a representative in this case, and your representative receives this
decision before you do, then you must file with the district court no later than
30 calendar days after your representative receives this decision. If the action
involves a claim of discrimination based on race, color, religion, sex, national
origin, or a disabling condition, you may be entitled to representation by a
court-appointed lawyer and to waiver of any requirement of prepayment of fees,
costs, or other security. See 42 U.S.C. § 2000e-5(f) and 29 U.S.C. § 794a.
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx . 6
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding all
other issues . 5 U.S.C. § 7702(b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case, and
your representative receives this decision before you do, then you must file with the
EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or
other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D). If
so, and your judicial petition for review “raises no challenge to the Board’s
disposition of allegations of a prohibited personnel practice described in
section 2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)
(A)(i), (B), (C), or (D),” then you may file a petition for judicial review either with
the U.S. Court of Appeals for the Federal Circuit or any court of appeals of7
competent jurisdiction.4 The court of appeals must receive your petition for review
within 60 days of the date of issuance of this decision. 5 U.S.C. § 7703(b)(1)(B).
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to the
U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that any
attorney will accept representation in a given case.
4 The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on July
7, 2018, permanently allows appellants to file petitions for judicial review of MSPB
decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals for the
Federal Circuit or any other circuit court of appeals of competent jurisdiction. The All
Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115-195, 132 Stat.
1510. 8
Contact information for the courts of appeals can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
FOR THE BOARD: ______________________________
Gina K. Grippando
Clerk of the Board
Washington, D.C.9 | Carpenter_Edward_W_PH-0752-15-0251-C-1_and_PH-0752-15-0251-X-1_Final_Order.pdf | 2025-01-02 | EDWARD W. CARPENTER v. DEPARTMENT OF THE NAVY, MSPB Docket No. PH-0752-15-0251-X-1, January 2, 2025 | PH-0752-15-0251-X-1; PH-0752-15-0251-C-1 | NP |
287 | https://www.mspb.gov/decisions/nonprecedential/Cameron_Tristan_E_SF-0752-21-0072-I-1_Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
TRISTAN E. CAMERON,
Appellant,
v.
DEPARTMENT OF THE NAVY,
Agency.DOCKET NUMBER
SF-0752-21-0072-I-1
DATE: January 2, 2025
THIS FINAL ORDER IS NONPRECEDENTIAL1
Tristan E. Cameron , Tamuning, Hawaii, pro se.
Jospeh P. Duenas , Esquire, FPO, Armed Forces Pacific, for the agency.
BEFORE
Cathy A. Harris , Chairman
Raymond A. Limon , Vice Chairman
Henry J. Kerner , Member
FINAL ORDER
The appellant has filed a petition for review of the initial decision, which
sustained his removal for testing positive for marijuana. On petition for review,
the appellant reiterates many of his arguments from below concerning, among
other things, his explanation for the positive drug test, a policy that purportedly
permits the conduct in which he allegedly engaged, an alleged due process
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).
violation, and the reasonableness of the penalty of removal. Petition for Review
(PFR) File, Tab 1. Generally, we grant petitions such as this one only in the
following circumstances: the initial decision contains erroneous findings of
material fact; the initial decision is based on an erroneous interpretation of statute
or regulation or the erroneous application of the law to the facts of the case; the
administrative judge’s rulings during either the course of the appeal or the initial
decision were not consistent with required procedures or involved an abuse of
discretion, and the resulting error affected the outcome of the case; or new and
material evidence or legal argument is available that, despite the petitioner’s due
diligence, was not available when the record closed. Title 5 of the Code of
Federal Regulations, section 1201.115 (5 C.F.R. § 1201.115). After fully
considering the filings in this appeal, we conclude that the petitioner has not
established any basis under section 1201.115 for granting the petition for review.
Therefore, we DENY the petition for review and AFFIRM the initial decision,
which is now the Board’s final decision. 5 C.F.R. § 1201.113(b).
We agree with the administrative judge that the agency proved its charge, a
nexus between the appellant’s removal for the misconduct at issue and the
efficiency of the service, and that the penalty of removal was reasonable. Initial
Appeal File (IAF), Tab 21, Initial Decision (ID) at 7-8, 13-15. We also agree that
the appellant failed to prove an affirmative defense of reprisal for grievance
activity.2 ID at 8-12.
2 On review, the appellant appears to raise a claim that his removal was taken in reprisal
for whistleblowing activity. PFR File, Tab 1 at 18-19, 21. The appellant did not raise
this claim below, and the Board will generally not consider an argument raised for the
first time on review absent a showing of new and material evidence not previously
available despite an appellant’s due diligence. See Clay v. Department of the Army ,
123 M.S.P.R. 245, ¶ 6 (2016). To the extent the appellant asserted facts below that
could have been construed as a claim of whistleblower reprisal, the administrative
judge’s summary and order of the close of record conference clearly defined the issues
of the case, and she explicitly informed the parties that, if they had any objections to
the rulings made therein, any objection must be submitted in writing by a certain date.
IAF, Tab 10 at 7. The appellant did not object to the administrative judge’s rulings
regarding the issues of the case. An appellant’s failure to timely object to an2
Regarding the appellant’s due process claim, he asserted below that the
deciding official considered information in the proposing official’s Douglas3
factor analysis that was not provided to him prior to the final decision. IAF,
Tab 1 at 5, Tab 8 at 4. In an order, the administrative judge explained that the
Douglas factors were discussed in a worksheet prepared by the proposing official
and that the worksheet was referenced in the proposal notice as being among the
materials relied upon. IAF, Tab 5 at 27, Tab 10 at 2-3. Observing that the
appellant did not request access to the relied-upon materials, despite being
informed that he could do so, she concluded that the appellant “did not state a
viable claim that he was denied due process.” IAF, Tab 5 at 29, Tab 10 at 2-3.
Accordingly, she did not accept the affirmative defense for adjudication. IAF,
Tab 10 at 3.
The appellant raises his due process claim again on review. PFR File,
Tab 1 at 12-15. In her order excluding this claim, the administrative judge
explicitly informed the parties that if they had any objections to the rulings made
therein, such an objection must be submitted in writing by a certain date. IAF,
Tab 10 at 7. The appellant did not object to any of the administrative judge’s
rulings. The Board has held that an appellant’s failure to timely object to an
administrative judge’s rulings precludes him from doing so on review. See
Gallegos v. Department of the Air Force , 121 M.S.P.R. 349, ¶ 16 (2014); Miller
v. U.S. Postal Service , 117 M.S.P.R. 557, ¶ 7 (2012) . Thus, we find that the
appellant waived this argument.
In any event, the Board has explained that an appellant cannot be heard to
claim that his due process rights were denied when the notice of proposed
administrative judge’s rulings precludes him from doing so on review. Gallegos v.
Department of the Air Force , 121 M.S.P.R. 349, ¶ 16 (2014); Miller v. U.S. Postal
Service, 117 M.S.P.R. 557, ¶ 7 (2012).
3 In Douglas v. Veterans Administration , 5 M.S.P.R. 280, 305-06 (1981), the Board set
forth a non-exhaustive list of factors relevant in determining the penalty for a sustained
act of misconduct.3
removal expressly advised him that the material relied upon to support the
proposed action was available for his review, directed the manner in which such
review could take place, and the appellant made no attempt to review the material
upon which the agency relied. Martel v. Department of Transportation ,
15 M.S.P.R. 141, 154-55 (1983), aff’d, 735 F.2d 504 (Fed. Cir. 1984). Here, the
proposal notice provided the appellant with the name, telephone number, and
email address of the agency official to contact should he “desire to review the
material upon which this notice is based.” IAF, Tab 5 at 29. The appellant did
not do so. Accordingly, we discern no error in the administrative judge’s
decision to exclude this claim.
NOTICE OF APPEAL RIGHTS4
You may obtain review of this final decision. 5 U.S.C. § 7703(a)(1). By
statute, the nature of your claims determines the time limit for seeking such
review and the appropriate forum with which to file. 5 U.S.C. § 7703(b).
Although we offer the following summary of available appeal rights, the Merit
Systems Protection Board does not provide legal advice on which option is most
appropriate for your situation and the rights described below do not represent a
statement of how courts will rule regarding which cases fall within their
jurisdiction. If you wish to seek review of this final decision, you should
immediately review the law applicable to your claims and carefully follow all
filing time limits and requirements. Failure to file within the applicable time
limit may result in the dismissal of your case by your chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
4 Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise which option is most appropriate in any matter.4
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you5
receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. 420 (2017). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the district court no later than 30 calendar days after your representative
receives this decision. If the action involves a claim of discrimination based on
race, color, religion, sex, national origin, or a disabling condition, you may be
entitled to representation by a court -appointed lawyer and to waiver of any
requirement of prepayment of fees, costs, or other security. See 42 U.S.C.
§ 2000e-5(f) and 29 U.S.C. § 794a.
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702(b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to: 6
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or
other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
disposition of allegations of a prohibited personnel practice described in section
2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i),
(B), (C), or (D),” then you may file a petition for judicial review either with the
U.S. Court of Appeals for the Federal Circuit or any court of appeals of
competent jurisdiction.5 The court of appeals must receive your petition for
review within 60 days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(B).
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
5 The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115-195,
132 Stat. 1510. 7
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
Contact information for the courts of appeals can be found at their
respective websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
FOR THE BOARD: ______________________________
Gina K. Grippando
Clerk of the Board
Washington, D.C.8 | Cameron_Tristan_E_SF-0752-21-0072-I-1_Final_Order.pdf | 2025-01-02 | TRISTAN E. CAMERON v. DEPARTMENT OF THE NAVY, MSPB Docket No. SF-0752-21-0072-I-1, January 2, 2025 | SF-0752-21-0072-I-1 | NP |
288 | https://www.mspb.gov/decisions/nonprecedential/Fallen_Di'OnnaDC-0432-19-0703-I-1_Remand_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
DI'ONNA FALLEN,
Appellant,
v.
DEPARTMENT OF HOMELAND
SECURITY,
Agency.DOCKET NUMBER
DC-0432-19-0703-I-1
DATE: December 31, 2024
THIS ORDER IS NONPRECEDENTIAL1
Clark Browne , Clinton, Maryland, for the appellant.
Aaron A. Kor and Jeb Harmon , Washington, D.C., for the agency.
BEFORE
Cathy A. Harris, Chairman
Raymond A. Limon, Vice Chairman
Henry J. Kerner, Member
REMAND ORDER
The appellant has filed a petition for review of the initial decision, which
sustained her performance-based removal. 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 appeal to the Washington Regional Office for further adjudication
consistent with Santos v. National Aeronautics and Space Administration ,
990 F.3d 1355 (Fed. Cir. 2021), and this remand order.
BACKGROUND
Effective July 10, 2019, the agency removed the appellant from her
position as a GS-8 Human Resources Assistant under 5 U.S.C. chapter 43 for
unacceptable performance. Initial Appeal File (IAF), Tab 27 at 10-12, 17-21,
Tab 28 at 54. Specifically, the agency charged that the appellant had failed to
achieve minimally acceptable performance in three core competencies of her
position, i.e., technical skills, professionalism, and working with others, and that
she had failed to improve during a 60-day employee proficiency plan (EPP),
which is apparently the agency’s term for what is commonly called a performance
improvement plan (PIP).2 IAF, Tab 27 at 17-21, Tab 28 at 55-59.
The appellant appealed her removal to the Board, raising several
affirmative defenses related to her alleged disability, including: (1) disparate
treatment disability discrimination; (2) failure to provide a reasonable
accommodation; and (3) reprisal for requesting a reasonable accommodation. She
also asserted that the agency removed her in reprisal for filing administrative
grievances unrelated to EEO activity protected under Title VII. IAF, Tab 1 at 3,
6, Tab 6 at 2, Tab 11 at 1-3, 33-34, 127-30, Tab 17 at 1-2, Tab 25 at 2, Tab 35
at 29-30.
Following a hearing, 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 under chapter 43.
IAF, Tab 42, Initial Decision (ID) at 1, 3-4, 19. He also concluded that the
appellant had failed to prove by preponderant evidence her affirmative defenses
2 Although the appellant was initially provided a 30-day improvement period, IAF,
Tab 28 at 55, her supervisor subsequently extended the EPP by an additional 30 days,
IAF, Tab 27 at 18. 2
of failure to provide a reasonable accommodation, disparate treatment disability
discrimination, and reprisal for having requested a reasonable accommodation.3
ID at 13, 15-19.
The appellant has filed a petition for review, and the agency has responded
in opposition. Petition for Review (PFR) File, Tabs 4, 6. In her petition for
review, the appellant alleges that the administrative judge misinterpreted a
portion of her testimony, erroneously disallowed certain witness testimony, and
erred in denying her motion to compel discovery. She argues that she was
prejudiced in the proceedings because she lacked the assistance of counsel before
the administrative judge. She also reraises her affirmative defenses related to her
alleged disability and her administrative grievance. PFR File, Tab 4 at 1-3.
DISCUSSION OF ARGUMENTS ON REVIEW
Consistent with the U.S. Court of Appeals for the Federal Circuit’s
decision in Santos, 990 F.3d 1355 at 1360-63, we are remanding this appeal for
further adjudication. In Santos, the court held for the first time that, in addition
to the elements of a chapter 43 case set forth by the administrative judge in the
initial decision, an agency must also show that the initiation of a PIP was justified
by the appellant’s unacceptable performance before the PIP. Id. Prior to
discussing the remand, however, we address the administrative judge’s findings
on the elements of a chapter 43 appeal as they existed at the time the initial
decision was issued and the appellant’s arguments on review regarding her
affirmative defenses and alleged adjudicatory errors on the part of the
3 Following the issuance of the initial decision but prior to filing her petition for review,
the appellant submitted a filing to the Board. IAF, Tab 44. In this filing, the appellant
accuses her first-line supervisor of harassment, and she provides documentation that,
the appellant alleges, shows that her first-line supervisor attempted to connect with her
on a social media platform. Id. at 2-3. Board regulations do not permit such a filing,
see 5 C.F.R. § 1201.114(a), and, in any event, the filing is not material to the outcome
of this appeal, and neither party references it on review. 3
administrative judge. As set forth below, we discern no basis to disturb those
findings.
We discern no error in the administrative judge’s findings regarding the chapter
43 performance-based removal action under pre- Santos law.
When the initial decision was issued, the Board’s case law provided that, in
a performance-based action under 5 U.S.C. chapter 43, an agency must establish
by substantial evidence that (1) the Office of Personnel Management (OPM)
approved its performance management system; (2) the agency communicated to
the appellant the performance standards and critical elements of her position;
(3) the appellant’s performance standards are valid under 5 U.S.C. § 4302(c)(1);
(4) the agency warned the appellant of the inadequacies of her performance
during the appraisal period and gave her a reasonable opportunity to improve; and
(5) the appellant’s performance remained unacceptable in at least one critical
element. Lee v. Department of Veterans Affairs , 2022 MSPB 11, ¶ 13; White v
Department of Veterans Affairs , 120 M.S.P.R. 405, ¶ 5 (2013); Lee v.
Environmental Protection Agency , 115 M.S.P.R. 533, ¶ 5 (2010).
In the initial decision, the administrative judge acknowledged that the
appellant was not disputing that her appraisal plan was approved by OPM. ID
at 4. He summarized the record evidence, including testimony from the
appellant’s first-line supervisor regarding the appellant’s performance standards,
the agency’s communication of those standards, the appellant’s performance
under those standards, and how the agency addressed the appellant’s performance
deficiencies. ID at 6-8. Based on that evidence, he concluded that the appellant’s
performance standards were valid, that they were communicated to the appellant,
that the appellant’s performance was unacceptable in at least one critical element,
and that the appellant was warned of her inadequacies. ID at 4-8. The
administrative judge also discussed the record evidence regarding the assistance
the agency provided during the EPP, including testimony from the appellant’s
first- and second-line supervisors, and concluded that despite being given a4
reasonable opportunity to improve, the appellant was still deficient in at least
three critical elements. ID at 8-13. Accordingly, he sustained the
performance-based removal action under the pre- Santos elements.
The appellant has not challenged any of these findings on review.4 We
have reviewed the record in conjunction with the administrative judge’s thorough
discussion of the evidence, and we discern no basis to disturb these findings. See
Crosby v. U.S. Postal Service , 74 M.S.P.R. 98, 105-06 (1997) (finding no reason
to disturb the administrative judge’s findings when she considered the evidence
as a whole, drew appropriate inferences, and made reasoned conclusions);
Broughton v. Department of Health and Human Services , 33 M.S.P.R. 357, 359
(1987) (same).
4 Many of the appellant’s duties at the time relevant to this appeal were related to a data
entry project to which she was assigned. ID at 6. In the initial decision, the
administrative judge discussed the appellant’s reply to the proposed removal, wherein
the appellant stated that she was “not interested in the data entry” and her testimony at
the hearing that she was unable to complete the data entry project due to carpal tunnel
syndrome and wanted a different position with the agency. ID at 2, 10 & n.2. On
review, the appellant asserts that the administrative judge misinterpreted her testimony
on this point and that what she meant was that she “would have preferred to have been
doing a job that allowed her to utilize some of her skills in order to be help[ful] with the
[a]gency’s mission.” PFR File, Tab 4 at 2. We do not believe that the administrative
judge misinterpreted this testimony, particularly in light of the fact that he
acknowledged that she would have preferred another position with the agency. ID at 10
n.2. Further, the administrative judge found that the data entry task “fell within the
appellant’s position description and as an employee, the appellant did not have the
discretion to pick and choose what assignments she wished to work on.” ID at 10. The
appellant has not challenged this conclusion on review, and we discern no basis to
disturb it. Her argument on review that the administrative judge misinterpreted
testimony in this regard does not provide a basis to disturb his conclusion that the
agency proved the elements as they existed at the time for a performance-based removal
taken pursuant to chapter 43. 5
We discern no basis to disturb the administrative judge’s findings that the
appellant failed to prove any affirmative defense related to her disability, but we
clarify some of those findings here. 5
As briefly set forth above, the appellant asserted that the agency failed to
accommodate her disability, treated her differently than other employees due to
her disability, and retaliated against her for prior EEO activity related to her
disability. IAF, Tab 25 at 2. The Board adjudicates claims of disability
discrimination raised in connection with an otherwise appealable action under the
substantive standards of section 501 of the Rehabilitation Act. Pridgen v. Office
of Management and Budget , 2022 MSPB 31, ¶ 35. The Rehabilitation Act has
incorporated the standards of the Americans with Disabilities Act (ADA), as
amended. Id. Therefore, we apply those standards here to determine if there has
been a Rehabilitation Act violation. Id. In particular, the ADA provides that it is
illegal for an employer to “discriminate against a qualified individual on the basis
of disability.” 42 U.S.C. § 12112(a); Haas v. Department of Homeland Security ,
2022 MSPB 36, ¶ 28. An employer is required to provide reasonable
accommodation for an otherwise qualified individual with a disability. 42 U.S.C.
§ 12112(b)(5); Haas, 2022 MSPB 36, ¶ 28. Thus, both a claim of disability
discrimination based on an individual’s status as disabled and a claim based on an
agency’s failure to reasonably accommodate that disability require that the
individual be disabled within the meaning of 42 U.S.C. § 12102(1) and 29 C.F.R.
§ 1630.2(g)(1) and that she be “qualified,” meaning that she can perform the
essential functions of the position she holds with or without a reasonable
accommodation. Haas, 2022 MSPB 36, ¶ 28.
5 Although one of the appellant’s early filings suggested that she was also claiming
disparate impact disability discrimination, IAF, Tab 11 at 1, she subsequently indicated
that she was pursuing disability discrimination only on the bases of disparate treatment
and failure to provide a reasonable accommodation, IAF, Tab 25 at 2. The
administrative judge did not discuss disparate impact in the initial decision. Because
the appellant, who is represented on review, does not raise any issues regarding
disparate impact on review, we conclude that this possible claim does not warrant
further discussion. See Thurman v. U.S. Postal Service , 2022 MSPB 21, ¶ 18. 6
In considering the both the appellant’s failure to accommodate claim and
her disparate treatment claim, the administrative judge stated that, because the
appellant “claimed that she suffered from lumbar disc disease[] and carpal tunnel
syndrome,” she met the “requirement for a ‘disability’” for purposes of this
claim. ID at 14. Nonetheless, he found that the appellant otherwise “failed to
make a prima facie case of discrimination on the basis of disparate treatment or
failure to accommodate.”6 Id. As explained below, we discern no basis to disturb
his ultimate conclusion that the appellant failed to prove these claims.
Failure to accommodate claim
In her petition for review, the appellant states that she suffers from carpal
tunnel syndrome, and she avers that this condition rendered her performance
standards unobtainable because it “severely hampered” her ability to perform.
PFR File, Tab 4 at 1-2. We construe this claim as a reassertion that the agency
engaged in disability discrimination by failing to provide her with reasonable
accommodation for her carpal tunnel syndrome.
In the initial decision, the administrative judge summarized the evidence
regarding the appellant’s efforts in securing reasonable accommodation for her
conditions. ID at 14-15. He ultimately concluded that the agency “did not
improperly deny the appellant reasonable accommodation.” ID at 15. The
6 As a threshold matter, 29 C.F.R. § 1630.2(g) explains that an appellant can show that
she has a disability by showing that (1) she has a physical or mental impairment that
substantially limits one or more major life activities; (2) she has a record of such
impairment; or (3) she is regarded as having such an impairment. 29 C.F.R. § 1630.2(g)
(1). To the extent the administrative judge concluded that the appellant was an
individual with a disability as defined by 29 C.F.R. § 1630.2(g) solely because she
alleged that she suffered from lumbar disc disease and carpal tunnel syndrome, such a
bare conclusion was without basis in the law. Nonetheless, as explained in the text, we
ultimately agree with his conclusion that the appellant otherwise failed to establish her
claims of failure to accommodate and disparate treatment disability discrimination. As
such, we need not resolve at this time whether the appellant was disabled within the
meaning of 29 C.F.R. § 1630.2(g). See Haas, 2022 MSPB 36, ¶ 29 n.9 (explaining that,
although a determination of whether the appellant proved that she is a qualified
individual with a disability is generally regarded as a threshold question, some
disability discrimination claims may be resolved without reaching that question).7
appellant’s vague references to this claim on review do not provide a basis to
disturb this conclusion. As set forth in the initial decision, although the appellant
submitted a request for reasonable accommodation, the basis of her request was
unclear, as it did not specifically mention carpal tunnel syndrome, and, following
her request, she informed both her supervisor and the reasonable accommodation
coordinator that she did not have any limitations that impacted her job
performance. IAF, Tab 14 at 10, 13. Further, as observed by the administrative
judge, the appellant admittedly failed to fulfill her obligations under the
interactive process by declining to provide medical documentation and
information requested by the agency. ID at 15 -16. Accordingly, we agree with
the administrative judge that the appellant failed to engage in the interactive
process and that she, therefore, failed to establish her affirmative defense of
failure to accommodate. See Miller v. Department of the Army , 121 M.S.P.R.
189, ¶¶ 19-21 (2014) (finding that the appellant failed to establish that the agency
violated its duty of reasonable accommodation when she, among other things,
failed to engage in good faith in the interactive process); White v. Department of
Veterans Affairs , 120 M.S.P.R. 405, ¶ 12 (2013) (explaining that, when the
existence or nature of a reasonable accommodation is not obvious, and the
employee fails to respond to the employer’s reasonable request for medical
information or documentation, an agency will not be found to have violated its
duty to provide a reasonable accommodation).
Disparate treatment disability discrimination
In analyzing the appellant’s disparate treatment disability discrimination
claim, the administrative judge cited and discussed the burden -shifting scheme set
forth in McDonnell Douglas Corp. v. Green , 411 U.S. 792 (1973). ID at 16-17.
In so doing, he concluded that the appellant failed to show that her removal was
based on discriminatory animus or that the removal action gave rise to the
inference of discrimination. Id. On review, the appellant does not raise any
discernible argument regarding the administrative judge’s findings. Nonetheless,8
subsequent to the initial decision, the Board issued Pridgen, wherein it clarified
that, when an appellant raises a disparate treatment disability discrimination
claim, she must prove that her status as disabled was at least a motivating factor
in the decision taken against her. Pridgen, 2022 MSPB 31, ¶¶ 40, 42.
Accordingly, we analyze her claim under this framework.
In the initial decision, the administrative judge credited the appellant’s
first- and second-line superiors’ testimony that the appellant’s status as a person
with a disability did not play a role in her removal over the appellant’s
inconsistent testimony on the issue. ID at 16. Additionally, he observed that
“[t]he appellant did not present any credible evidence to show that she was
removed based on her disability.” Id. Based on the administrative judge’s
credibility determinations and his observation of the lack of evidence from the
appellant on this claim, we conclude that the appellant failed to establish that her
status as disabled was at least a motivating factor in the agency’s decision to
remove her. See Pridgen, 2022 MSPB 31, ¶¶ 40, 42; Haebe v. Department of
Justice, 288 F.3d 1288, 1301 (Fed. Cir. 2002) (explaining that, when an
administrative judge has held a hearing and made credibility determinations, the
Board must defer to those credibility determinations and may overturn such
determinations only when it has sufficiently sound reasons for doing so). As
such, we discern no basis to disturb the administrative judge’s ultimate
conclusion that the appellant failed to establish her disparate treatment disability
discrimination claim.
Reprisal for engaging in protected activity regarding the appellant’s
disability claim
The appellant also argued below that the agency removed her in reprisal for
her protected activity regarding her disabled status. She reiterates this claim on
review, again asserting that she was removed in retaliation for requesting
reasonable accommodation. PFR File, Tab 4 at 2. In finding that the appellant
failed to prove her claim of reprisal, the administrative judge used the legal9
framework set forth in Savage v. Department of the Army , 122 M.S.P.R. 612
(2015), overruled in part by Pridgen , 2022 MSPB 31, ¶¶ 23-25. ID at 17. Under
Savage, the Board first inquires whether the appellant has shown by preponderant
evidence that the prohibited consideration was a motivating factor in the
contested personnel action, and, if so, the next inquiry is whether the agency has
shown by preponderant evidence that it would have taken the action absent the
discriminatory motive. Savage, 122 M.S.P.R. 612, ¶ 51. If the agency makes
such a showing, the Board will not reverse the contested personnel action. Id.
In Pridgen, however, which, again, was issued after the initial decision, the
Board clarified that in reprisal claims arising under the ADA, such as reprisal for
requesting a reasonable accommodation, the appellant must show that her
protected activity was a “but-for” cause in her removal. Pridgen, 2022 MSPB 31,
¶¶ 44-47. Although, as explained below, we still agree with the administrative
judge that the appellant failed to establish this claim, we nonetheless take the
opportunity to apply the analytical framework in Pridgen here.
In the initial decision, the administrative judge explained that the appellant
was “unable to produce any evidence, other than her own testimony, to indicate
that her removal was based on retaliation.” ID at 18. He found her testimony to
be “inconsistent” and further observed that she failed to produce any comparator
evidence to show that others without an alleged disability were treated differently
from her. Id. We agree with the administrative judge that, based on the
foregoing, the appellant failed to meet the motivating factor standard set forth in
Savage, and that she, therefore, necessarily fails to meet the more stringent legal
standard for reprisal claims related to a disability set forth in Pridgen. See, e.g.,
Haas, 2022 MSPB 36, ¶ 32 (concluding that, when an appellant fails to meet the
lesser motivating factor standard, she “necessarily” fails to meet the more
stringent but-for standard). The appellant’s assertion on review that she received
fully successful performance ratings up until the time she engaged in EEO
activity does not provide a sufficient basis to disturb that finding.10
Based on the foregoing, we agree with the administrative judge that the
appellant failed to establish any of her disability-related affirmative defenses.
The appellant failed to establish any other affirmative defense. 7
In the appellant’s petition for review, she reasserts that the agency
retaliated against her because she filed “a grievance.” PFR File, Tab 4 at 2; IAF,
Tab 1 at 3, 6, Tab 11 at 33-34, 127-30.8 Although the administrative judge
acknowledged in his initial decision that the appellant had filed a grievance, he
did not specifically address her claims of reprisal associated therewith.9 ID at 2.
Because the record is fully developed, we analyze this claim on review and, as
explained below, find that the appellant failed to prove that the agency retaliated
against her on this basis.10
7 The appellant also averred before the administrative judge that she had filed an Office
of Workers’ Compensation Programs (OWCP) claim, and she provided numerous
documents to this effect. IAF, Tab 6 at 2, Tab 17 at 2, 32, 40-42. Although her
arguments are unclear, it does not appear that she alleged reprisal for filing an OWCP
claim; rather, it appears that this information was included to illustrate the severity of
her alleged disabilities. Similarly, in one of the appellant’s filings before the
administrative judge, she briefly referenced a 2013 EEO complaint wherein she
apparently alleged both age and disability discrimination. IAF, Tab 34 at 1. Although
unclear, the appellant appears to raise this complaint again on review. PFR File, Tab 4
at 2. To the extent the appellant has alleged EEO reprisal on the basis of this 2013
complaint, we observe that the appellant received general notice of the elements of a
claim of reprisal but failed to adduce any credible evidence of the same. IAF, Tab 38
at 4-6; ID at 19.
8 Although the appellant references only one grievance on review, she alleged before
the administrative judge, and the record also reflects, that she filed two administrative
grievances with the agency, neither of which pertained to EEO-related matters. IAF,
Tab 11 at 1, 33-34, 127-30; PFR File, Tab 4 at 2.
9 The administrative judge provided the appellant with general notice regarding the
applicable burden for a Title VII status reprisal claim, as it existed at the time. IAF,
Tab 38 at 4-6 (citing Savage, 122 M.S.P.R. 612).
10 Although the appellant did not raise this affirmative defense in the parties’ prehearing
conference, insofar as she raises this issue on review, we conclude that she did not
intend to abandon this claim, and thus, consider it here. IAF, Tab 38 at 3; PFR File,
Tab 4 at 2-3; see Thurman, 2022 MSPB 21, ¶¶ 17-18.11
When, as here, an appellant alleges an affirmative defense of retaliation for
activity protected under 5 U.S.C. § 2302(b)(9)(A)(ii), if she does not allege
reprisal for EEO activity protected under Title VII, she must show that (1) she
engaged in protected activity; (2) the accused official knew of the activity; (3) the
adverse action under review could have been retaliation under the circumstances;
and (4) there was a genuine nexus between the alleged retaliation and the adverse
action. Mattison v. Department of Veterans Affairs , 123 M.S.P.R. 492, ¶ 8 (2016)
(citing Warren v. Department of the Army , 804 F.2d 654, 656-58 (Fed. Cir.
1986)). To establish a genuine nexus, an appellant must show that the adverse
action was taken because of her protected activity. Id.
We find that the appellant failed to show any nexus between her protected
grievance activity and her removal. As set forth in the initial decision, the only
evidence regarding any retaliation that the appellant adduced was her inconsistent
testimony regarding the same. ID at 19. Moreover, the administrative judge
ultimately concluded that “the undisputed evidence shows that the appellant
failed to meet the objectives outlined in her [employee proficiency plan].” Id.
Thus, we find that the appellant failed to prove that the agency removed her in
retaliation for filing a grievance.
The remainder of the appellant’s arguments on review are without merit.
In her petition for review, the appellant asserts that the administrative
judge “failed to allow all of [her] witnesses to testify,” and she avers that this
error “hampered [her] ability to prove her case.” PFR File, Tab 4 at 1. An
administrative judge has broad discretion to regulate the course of the hearing and
to exclude evidence and witnesses that have not been shown to be relevant,
material, and nonrepetitious. Thomas v. U.S. Postal Service , 116 M.S.P.R. 453,
¶ 4 (2011); Sanders v. Social Security Administration , 114 M.S.P.R. 487, ¶ 10
(2010); 5 C.F.R. § 1201.41(b)(8), (10) . To obtain reversal of an initial decision
on the basis of the exclusion of a witness, the appellant must show that a relevant
witness or evidence, which could have affected the outcome, was disallowed. See12
Thomas, 116 M.S.P.R. 453, ¶ 4 . Here, insofar as the administrative judge
approved the testimony of all of the appellant’s timely proffered witnesses, we
find no abuse of discretion. IAF, Tab 38 at 9. Moreover, the appellant does not
explain how the testimony of her late -proffered witnesses would have changed
the outcome of her appeal.
The appellant also contends that the administrative judge erroneously
denied her motion to compel discovery. PFR File, Tab 4 at 2. To this end, she
states that the administrative judge “failed to take in[to] consideration that [she]
suffers from [c]arpal [t]unnel [s]yndrome and was unable to write or produce any
documents in a timely manner in accordance with MSPB [p]olicy and
procedures.” Id. Administrative judges have broad discretion on discovery
matters. Markland v. Office of Personnel Management , 73 M.S.P.R. 349, 353
(1997), aff’d, 140 F.3d 1031 (Fed. Cir. 1998) ; see 5 C.F.R. § 1201.41(b)(4).
Absent an abuse of discretion, the Board will not find reversible error in an
administrative judge’s discovery rulings. Cassel v. Department of Agriculture ,
72 M.S.P.R. 542, 546 (1996) . Here, insofar as the appellant’s motion to compel
was both untimely and procedurally deficient, we find no such abuse of
discretion. IAF, Tab 26 at 2-4, Tab 30 at 1-3; see 5 C.F.R. § 1201.73(c)(1)
(explaining that a motion to compel must include a statement that the moving
party discussed or attempted to discuss the motion with the nonmoving party and
a copy of the nonmoving party’s response to the underlying discovery request).
To the extent the appellant contends that her carpal tunnel syndrome precluded
her from complying with Board regulations and/or from timely filing the subject
motion, her contention is unavailing given that she did not make such a claim
before the administrative judge. See Banks v. Department of the Air Force ,
4 M.S.P.R. 268, 271 (1980) (explaining 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). Moreover, the appellant fails to explain how she was prejudiced13
by the administrative judge’s denial of her discovery-related motion. See Vincent
v. Federal Deposit Insurance Corporation , 41 M.S.P.R. 637, 640 (1989) (finding
unavailing the appellant’s allegations of discovery -related adjudicatory errors
when the appellant neither clearly identified the evidence he was precluded from
obtaining nor explained how his rights were prejudiced by the alleged denial of
such evidence). Accordingly, we find no error in the administrative judge’s
denial of the appellant’s motion to compel.
Finaly, the appellant states in her petition for review that because she was
not represented by counsel before the administrative judge, she was taken
advantage of by both the administrative judge and agency counsel. PFR File,
Tab 4 at 2. To the extent the appellant alleges that she was prejudiced by her lack
of legal representation before the administrative judge, it was the appellant’s
obligation to secure legal representation if she desired it. Marsheck
v. Department of Transportation , 15 M.S.P.R. 423, 425 (1983). Indeed, the
Board is not required by law, rule, or regulation to appoint counsel for an
appellant. Id. To the extent the appellant alleges bias on the part of the
administrative judge, PFR File, Tab 4 at 2, her allegation is unavailing. The
Board consistently has held that, in making a claim of bias against an
administrative judge, the appellant must overcome the presumption of honesty
and integrity that accompanies all administrative adjudicators. Washington v.
Department of the Interior , 81 M.S.P.R. 101, ¶ 7 (1999) . This presumption can
be overcome only by a substantial showing of personal bias. Williams v. U.S.
Postal Service, 87 M.S.P.R. 313, ¶ 12 (2000) . Here, the record is devoid of any
indication of personal bias. Accordingly, we find this argument to be without
merit.14
Remand is necessary under Santos to afford the parties an opportunity to submit
evidence and argument regarding whether the appellant’s placement on a PIP was
proper.
Although the appellant has identified no basis for us to disturb the
administrative judge’s findings with respect to either the chapter 43 removal
action or her affirmative defenses, we nonetheless must remand this appeal for
another reason. As noted above, during the pendency of the petition for review in
this case, the Federal Circuit issued Santos, 990 F.3d at 1360-63, in which it held
that, in addition to the five elements of an agency’s chapter 43 removal case set
forth above, the agency must also justify the initiation of a PIP by proving by
substantial evidence that the employee’s performance was unacceptable prior to
the PIP. The Federal Circuit’s decision in Santos applies to all pending cases,
including this one, regardless of when the events took place. Lee, 2022 MSPB
11, ¶ 16.
Although the record in this case already contains evidence suggesting that
the appellant’s performance prior to the initiation of the PIP was unacceptable,
we remand the appeal to give the parties the opportunity to present argument and
additional evidence on whether the appellant’s performance during the period
leading up to the PIP was unacceptable in one or more critical elements. See id.,
¶¶ 15-17. On remand, the administrative judge shall accept argument and
evidence on this issue and shall hold a supplemental hearing if appropriate. Id.,
¶ 17.
The administrative judge shall then issue a new initial decision consistent
with Santos. See id. If the agency makes the additional showing required under
Santos on remand, the administrative judge may incorporate in the remand initial
decision his prior findings on the other elements of the agency’s case and the
appellant’s affirmative defenses, consistent with this Remand Order. See id.
However, regardless of whether the agency meets its burden, if the argument or
evidence on remand regarding the appellant’s pre-PIP performance affects the15
administrative judge’s analysis of the appellant’s affirmative defenses, the
administrative judge should address such argument or evidence in the remand
initial decision. See Spithaler v. Office of Personnel Management , 1 M.S.P.R.
587, 589 (1980) (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.16 | Fallen_Di'OnnaDC-0432-19-0703-I-1_Remand_Order.pdf | 2024-12-31 | null | DC-0432-19-0703-I-1 | NP |
289 | https://www.mspb.gov/decisions/nonprecedential/Jenkins_Jacquelyn_D_AT-0714-19-0779-I-1_Remand_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
JACQUELYN DORINDA JENKINS
JR.,
Appellant,
v.
DEPARTMENT OF VETERANS
AFFAIRS,
Agency.DOCKET NUMBER
AT-0714-19-0779-I-1
DATE: December 30, 2024
THIS ORDER IS NONPRECEDENTIAL1
Bobby Henderson , Tuskegee, Alabama, for the appellant.
Kimberly Kaye Ward , Esquire, Decatur, Georgia, for the agency.
BEFORE
Cathy A. Harris, Chairman
Raymond A. Limon, Vice Chairman
Henry J. Kerner, Member
REMAND ORDER
The appellant has filed a petition for review of the initial decision, which
affirmed her removal under 38 U.S.C. § 714 for failure to meet a condition of
employment. For the reasons discussed below, we GRANT the appellant’s
petition for review, VACATE the initial decision, and REMAND the appeal 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).
Atlanta Regional Office for further adjudication in accordance with this Remand
Order.
BACKGROUND
The appellant was a GS-0185-11 Social Worker for the agency.
Initial Appeal File (IAF), Tab 6 at 8. On August 22, 2019, the agency proposed
the appellant’s removal under 38 U.S.C. § 714 based on one charge of “Failure to
Obtain Licensure.” Id. at 13-14. Specifically, the agency alleged that as a
condition of employment, the appellant was required to obtain, within 3 years of
her August 9, 2015 appointment, a license or certification by a state to
independently practice social work, but she failed to do so. Id. at 13. After the
appellant responded, the agency issued a decision removing her effective
September 11, 2019. Id. at 8-12.
The appellant filed a Board appeal and requested a hearing. IAF, Tab 1
at 2, 4. She challenged the merits of the agency’s action, arguing that she had the
proper credentials for her position. IAF, Tab 1 at 6, Tab 4 at 15. She also raised
affirmative defenses of harmful procedural error and retaliation for filing a prior
Board appeal. IAF, Tab 1 at 6, Tab 4 at 6, Tab 10 at 4-5, Tab 12 at 2. After a
hearing, the administrative judge issued an initial decision affirming the
appellant’s removal. IAF, Tab 14, Initial Decision (ID). He found that the
agency proved its charge by substantial evidence and that the appellant failed to
prove her affirmative defenses. ID at 2-12. The administrative judge did not
address the issue of penalty. ID at 12.
The appellant has filed a petition for review, arguing that she has the
proper license required for her position. Petition for Review (PFR) File, Tab 1.
The agency has responded to the petition for review, and the appellant has filed a
reply to the agency’s response. PFR File, Tabs 3-4.2
DISCUSSION OF ARGUMENTS ON REVIEW
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). Further, the agency’s decision may not be sustained if the appellant shows
harmful error in the application of the agency’s procedures in arriving at such
decision or if the appellant shows that the decision was based on a prohibited
personnel practice described in 5 U.S.C. § 2302(b). 5 U.S.C. § 7701(c)(2)
(A)-(B).
The agency proved its charge before the Board by substantial evidence.
In this case, we agree with the administrative judge that the agency proved
its charge by substantial evidence. ID at 2-5. As he correctly found, the charge
“Failure to Obtain Licensure” is essentially a charge of failure to meet a condition
of employment, which requires the agency to show that (1) the requirement at
issue is a condition of employment, and (2) the appellant failed to meet that
condition. Gallegos v. Department of the Air Force , 121 M.S.P.R. 349, ¶ 6
(2014); ID at 3; IAF, Tab 6 at 13. The administrative judge also correctly found
that the agency proved both of these elements by substantial evidence. ID at 3-5.
Regarding the first element, the relevant agency handbook provides that
Social Workers appointed to positions in the agency “must be licensed or certified
by a state to independently practice social work at the master’s degree level,” and
that “social workers who are not licensed or certified at the time of appointment
must become licensed or certified at the independent, master’s level within
3 years of their appointment as a social worker.” IAF, Tab 6 at 29. This much
appears to be undisputed.3
The appellant’s chief contention throughout this appeal pertains to the
second element; she argues that she possessed the requisite license from the State
of Florida. PFR File, Tab 1 at 5; IAF, Tab 1 at 6, Tab 4 at 15, Tab 10 at 4-5.
However, the record shows that, at all times relevant to this appeal, the appellant
was a Registered Clinical Social Worker Intern. ID at 4; IAF, Tab 6 at 16. As
the appellant correctly asserts, this is a master’s-level certification. PFR File,
Tab 1 at 4. However, it is not a master’s-level certification that allows her to
“independently practice,” as required for Social Workers in the 0185 series and as
specifically alleged in the notice of proposed removal. IAF, Tab 6 at 13, 29. As
the administrative judge correctly found, under Florida law, a Registered Clinical
Social Worker Intern is not licensed to practice independently but instead “must
remain under supervision while practicing under registered intern status.” ID
at 14; Fla. Stat. § 491.0045(3). Florida regulation provides that an individual
who practices clinical social work must continue in supervision and use the term
“Registered Clinical Social Work Intern” until she receives a license to practice
the profession, even if the 2-year post -master’s supervision requirement has been
satisfied. Fla. Admin. Code R. 64B4-3.008(1). Although the appellant has a
license number, IAF, Tab 6 at 16, this is not incompatible with her status as a
Social Worker Intern, see Fla. Admin. Code R. 64B4-3.0085(3)(a), and we note
that the license number is prefaced with “ISW,” which we assume stands for
“Intern Social Worker,” IAF, Tab 6 at 16. The appellant asserts that she is not a
student intern. PFR File, Tab 1 at 4. It may be true that the appellant is no
longer a student, but there is no evidence that she has obtained the independent
practice license referenced in State statute or regulation. Fla. Stat.
§§ 491.005-.006; Fla. Admin. Code R. 64B4-3.001.
The appellant asserts that she has documentation from various individuals
that her Social Worker Intern license is acceptable for her 0185-series Social
Worker position. PFR File, Tab 1 at 4-5. However, she has not provided any
such documentation for the record. The appellant points out that the SF-504
documenting her initial GS-09 level appointment indicates that it was a temporary
appointment pending receipt of licensure, but that she was subsequently promoted
to a permanent GS-11 position, and there is no indication on the corresponding
SF-50 that further documentation of licensure was required. IAF, Tab 6 at 49-51.
However, it is well-settled that an SF-50 is not a legally operative document
controlling on its face an employee’s status and rights. Abdullah v. Department
of the Treasury , 113 M.S.P.R. 99, ¶ 13 (2009). We decline to read into this
evidence and assign it such weight as to override the licensure requirements that
are otherwise plainly set forth by agency regulation for this position. The
appellant further argues that the agency’s regulations provide that a GS-11 Social
Worker must be licensed at the time of appointment, and so her promotion to
GS-11 on August 7, 2016, proves that she was properly licensed. PFR File, Tab 1
at 5. This is inaccurate. According to the agency rules in effect at the time,
Social Workers above the full performance level are required to be licensed
immediately upon appointment; all others serving at or below the full
performance level have 3 years to obtain a license.2 IAF, Tab 6 at 29. GS-11 is
the full performance level. Id. at 33. Therefore, the appellant was still subject to
the 3-year grace period even after her promotion to GS-11, and we find that the
fact of her promotion fails to rebut the agency’s showing that she was not
properly licensed.
The appellant did not prove her affirmative defense of harmful procedural error
regarding written requirements for licensure or certification.
To prove that the agency committed harmful procedural error under
5 U.S.C. § 7701(c)(2)(A), the appellant must show both that the agency
committed procedural error and that the error was harmful. Parker v. Defense
Logistics Agency , 1 M.S.P.R. 505, 513 (1980). Harmful error cannot be
2 There is some evidence that the agency has since changed this rule because of the
appellant’s case and others like it so that, as of October 2019, GS-11 Social Workers
must, without exception, have an independent master’s-level license. Hearing
Recording, Track 1 at 47:15 (testimony of the proposing official).5
presumed; an agency error is harmful only where the record shows that the
procedural error was likely to have caused the agency to reach a conclusion
different from the one it would have reached in the absence or cure of the error.
Stephen v. Department of the Air Force , 47 M.S.P.R. 672, 681, 685 (1991).
In this case, the administrative judge found that the agency committed
procedural error when it failed to provide the appellant, at the time of her
appointment, “with the written requirements for licensure or certification,
including the time by which the license or certification must be obtained and the
consequences for not becoming licensed or certified by the deadline,” as required
by the applicable agency handbook. ID at 5-6; IAF, Tab 6 at 30. Nevertheless,
he found that the appellant’s substantive rights were not prejudiced because the
agency subsequently and repeatedly informed her that she did not have the
required license and of the need to obtain one or face removal. ID at 6-8.
On petition for review, the appellant appears to raise the issue of procedural error
again, but her argument amounts at most to mere disagreement with the
administrative judge’s reasoned and explained findings, which were grounded in
part on demeanor-based credibility determinations. PFR File, Tab 1 at 5; see
Weaver v. Department of the Navy , 2 M.S.P.R. 129, 133 -34 (1980) (finding that
mere disagreement with the administrative judge’s findings and credibility
determinations does not warrant full review of the record by the Board).
The appellant did not prove her affirmative defense of retaliation for filing a prior
Board appeal.
Under 5 U.S.C. § 2302(b)(9)(A), it is a prohibited personnel practice to
retaliate against an employee for her exercise of any appeal, complaint, or
grievance right either with or without regard to remedying a violation of 5 U.S.C.
§ 2302(b)(8). Appeals seeking to remedy violations of 5 U.S.C. § 2302(b)(8) are
protected under 5 U.S.C. § 2302(b)(9)(A)(i), and all other appeals are protected
under 5 U.S.C. § 2302(b)(9)(A)(ii). The analysis of the affirmative defense6
differs depending on the type of appeal at issue.3 Compare Elder v. Department
of the Air Force , 124 M.S.P.R. 12, ¶ 39 (2016) (analysis for a 5 U.S.C. § 2302(b)
(9)(A)(i) claim), with Mattison v. Department of Veterans Affairs , 123 M.S.P.R.
492, ¶ 8 (2016) (analysis for a 5 U.S.C. § 2302(b)(9)(A)(ii) claim).
In this case, the administrative judge applied the analysis for an affirmative
defense of retaliation for filing a prior Board appeal under 5 U.S.C. § 2302(b)(9)
(A)(i). ID at 9-12. However, the prior Board appeal underlying the appellant’s
affirmative defense contained no claim of whistleblower retaliation and was
therefore not seeking to remedy a violation of 5 U.S.C. § 2302(b)(8). Jenkins v.
Department of Veterans Affairs , MSPB Docket No. AT -0752-19-0089-I-1, Appeal
File (0089 AF). Therefore, the administrative judge should have applied the
analysis for an affirmative defense of retaliation under 5 U.S.C. § 2302(b)(9)(A)
(ii). Nevertheless, both analyses are based on the same general factual
considerations, and there is no reason to suppose that the appellant would have
prevailed under the more stringent standards applicable to a (b)(9)(A)(ii) defense
when she did not prevail under the less stringent standards of a (b)(9)(A)(i)
defense. See Joosten v. U.S. Postal Service , 52 M.S.P.R. 198, 201 -02 (1992); see
also Panter v. Department of the Air Force , 22 M.S.P.R. 281, 282 (1984) (finding
that an adjudicatory error that is not prejudicial to a party’s substantive rights
provides no basis to reverse an initial decision).
For an appellant to prevail on an affirmative defense of retaliation for
activity protected under 5 U.S.C. § 2302(b)(9)(A)(ii), she must show that (1) she
engaged in protected activity; (2) the accused official knew of the activity; (3) the
adverse action under review could have been retaliation under the circumstances;
3 A different analysis applies to prior appeals facially covered under 5 U.S.C. § 2302(b)
(9)(A)(ii) that involve claims of prohibited personnel practices under 5 U.S.C.
§ 2302(b)(1). Savage v. Department of the Army , 122 M.S.P.R. 612, ¶¶ 48–51 & n. 12
(2015), overruled in part by Pridgen v. Office of Management and Budget , 2022 MSPB
31, ¶¶ 23-25. The appellant’s prior Board appeal did not contain any such claim, so this
alternative analysis is inapplicable.7
and (4) there was a genuine nexus between the alleged retaliation and the adverse
action. Warren v. Department of the Army , 804 F.2d 654, 656 -58 (Fed.
Cir. 1986).
In this case, the appellant’s prior Board appeal, filed on November 7, 2018,
concerned her August 10, 2018 termination upon the expiration of a temporary
appointment. 0089 AF, Tab 1. By way of background, the agency initially
appointed the appellant to her Social Worker position on August 9, 2015, at the
GS-09 level, in a temporary appointment not to exceed September 9, 2016.
IAF, Tab 6 at 49. The SF-50 documented the reason for the temporary
appointment as “pending receipt of licensure.” Id. The following year, the
agency declined to award the appellant a career-ladder promotion to GS-11
because she had not yet obtained an independent practice license, but the
appellant filed a grievance, which resulted in the agency granting her the
promotion effective August 7, 2016. IAF, Tab 6 at 15; Hearing Recording,
Track 1 at 26:10, 32:20, 50:00 (testimony of the proposing official). The SF-50
documenting the promotion indicated that the appellant had been converted to a
permanent appointment in the excepted service. 0089 AF, Tab 4 at 11.
Two years later, on July 31, 2018, the agency provided the appellant written
notice that she must obtain an independent practice license within 10 days or face
possible termination. 0089 AF, Tab 5 at 35. On August 10, 2018, the agency
“corrected” the SF-50 documenting the appellant’s promotion to indicate that it
was not a conversion and “corrected” the SF-50 documenting her initial
appointment to indicate that it was not to exceed August 10, 2018. Id. at 8, 34.
The agency terminated the appellant the same day. Id. at 36. During the
pendency of the ensuing Board appeal, the agency cancelled the appellant’s
termination and restored her to her GS-11 Social Worker position.
0089 AF, Tab 18. The administrative judge dismissed the appeal as moot, and his
initial decision became the final decision of the Board. 0089 AF, Tab 24, Initial
Decision; see 5 C.F.R. § 1201.113.8
Based on these facts, it is clear that the appellant has established the first
element of the Warren test. Her November 7, 2018 Board appeal constituted
protected activity under 5 U.S.C. § 2302(b)(9)(A)(ii). See Mattison,
123 M.S.P.R. 492, ¶ 8. The record in the prior appeal shows that the second
element is satisfied as well because both the proposing and deciding officials in
this case were involved in restoring the appellant to the status quo ante during the
pendency of the prior action. 0089 AF, Tab 18 at 8, 10-11. Regarding the third
Warren element, we find that the removal could have been retaliation under the
circumstances based on its timing. The agency proposed the appellant’s removal
less than 4 months after her prior Board appeal was resolved. IAF, Tab 6
at 13-14; 0089 AF, Tab 24, Initial Decision; see Westmoreland v. Department of
Transportation, 49 M.S.P.R. 574, 576 (1991).
However, we find that the appellant has not established the fourth element
of her affirmative defense. To establish a genuine nexus, an appellant must show
that the adverse action was taken because of her protected activity. This requires
the Board to weigh the severity of the appellant’s alleged misconduct against the
intensity of the agency’s motive to retaliate. Mattison, 123 M.S.P.R. 492, ¶ 8.
Our review of the record in this appeal and the prior appeal gives no indication,
beyond the appellant’s unsubstantiated allegations, that either the proposing or
the deciding official were involved in her previous termination. Nor is there any
indication that either official faced adverse consequences as a result of the prior
appeal, apart from the extra administrative tasks that they undertook in restoring
her to employment. Notably, the appellant’s prior appeal did not result in any
adverse decision against the agency; the appeal was dismissed as moot after the
agency’s unilateral rescission of its action. Our finding is further supported,
at least as far as the proposing official is concerned, by the administrative judge’s
demeanor-based credibility determinations. ID at 11. We therefore find that the
proposing and deciding officials had little retaliatory motive. We also find that9
the reasons for the appellant’s removal are strong. The administrative judge aptly
explained as follows:
Here, the record reveals that agency management clearly warned the
appellant that she could be removed for failure to obtain licensure at
least several months prior to her first Board appeal in November
2018. Most specifically, the Statement of Understanding signed by
the appellant on July 31, 2018 addressed that possibility. In other
words, agency management contemplated removing the appellant
long before she filed her first Board appeal. There is no claim or
evidence that the proposing or deciding officials became more likely
to effect such action after the appellant filed her first Board appeal.
Id. Considering the strong reasons in support of the agency’s action in light of
the responsible agency officials’ relatively weak retaliatory motive, we find that
there is no genuine nexus between the appellant’s prior Board appeal and her
subsequent removal. Having thus applied the proper analytical framework to the
facts of this case, we agree with the administrative judge’s conclusion that the
appellant failed to prove her affirmative defense of retaliation.
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 agency proposed the appellant’s removal under
38 U.S.C. § 714 for her failure to obtain licensure. While deciding to sustain the
action, the deciding official stated that the charge “was supported by substantial
evidence.” IAF, Tab 6 at 9.
The Federal Circuit’s decision in Rodriguez applies to all pending cases,
regardless of when the events at issue took place. Semenov v. Department of10
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 whether the agency’s application of the substantial evidence
burden of proof, instead of the preponderant evidence burden, was harmful error.
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 must also remand this appeal on the issue of penalty. The
administrative judge issued the initial decision without any penalty analysis. ID
at 2, 12. In addition, we found no evidence showing that the agency considered
the relevant Douglas factors when deciding to remove the appellant. The
deciding official did not testify. Compare IAF, Tab 6 at 9-11, with IAF, Tab 16
at 2. Further, the proposal and decision letters are silent on the penalty, except to
describe it as a removal. IAF, Tab 6 at 9-11, 13-14.
Following the issuance of the initial decision, the Federal Circuit
issued Sayers, 954 F.3d 1370 (Fed. Cir. 2020), wherein it clarified that, while the
Board may not mitigate the penalty, 38 U.S.C. § 714 nevertheless “requires the
Board to review for substantial evidence the entirety of the [agency’s] removal
decision—including the penalty—rather than merely confirming that the record
contains substantial evidence that the alleged conduct leading to the adverse
action actually occurred.” Id. at 1379; see Semenov, 2023 MSPB 16, ¶ 45. The
Federal Circuit later explained in Brenner v. Department of Veterans Affairs ,
990 F.3d 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 apply11
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.
Because the administrative judge did not address the Douglas factors, and
it is unclear from the record to what extent, if any, the agency deciding official
considered them, those issues must be addressed on remand. On remand, the
administrative judge should permit the parties to submit additional evidence and
argument on the penalty issue. See id., ¶ 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 should remand the appellant’s
removal to the agency for a new decision on the appropriate penalty.4 Id.
(citing Connor, 8 F.4th at 1326-27; Sayers, 954 F.3d at 1375-76, 1379).
ORDER
For the reasons discussed above, we remand this case to the Atlanta
Regional Office for further adjudication in accordance with this Remand Order.5
As outlined above, the administrative judge shall address whether the agency’s
error in applying the substantial evidence burden of proof to its action was
harmful. See Semenov, 2023 MSPB 16, ¶ 24. If the administrative judge
determines that the agency’s error in applying the incorrect burden of proof was
not harmful, then he shall determine whether the agency proved by substantial
4 On remand 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 Act 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).
5 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). 12
evidence that it applied the relevant Douglas factors, and that the penalty was
reasonable. If he determines that the agency did not properly apply the relevant
Douglas factors and that the agency’s penalty was not reasonable, he 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 decision prior findings from his initial decision and this remand
order concerning the charge, the claim of harmful error regarding written
requirements for licensure or certification, and the claim of reprisal for filing a
prior Board appeal.
FOR THE BOARD: ______________________________
Gina K. Grippando
Clerk of the Board
Washington, D.C.13 | Jenkins_Jacquelyn_D_AT-0714-19-0779-I-1_Remand_Order.pdf | 2024-12-30 | JACQUELYN DORINDA JENKINS JR. v. DEPARTMENT OF VETERANS AFFAIRS, MSPB Docket No. AT-0714-19-0779-I-1, December 30, 2024 | AT-0714-19-0779-I-1 | NP |
290 | https://www.mspb.gov/decisions/nonprecedential/Stamps_PamalaAT-0714-20-0011-I-1_Remand_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
PAMALA STAMPS,
Appellant,
v.
DEPARTMENT OF VETERANS
AFFAIRS,
Agency.DOCKET NUMBER
AT-0714-20-0011-I-1
DATE: September 30, 2024
THIS ORDER IS NONPRECEDENTIAL1
Pamala Stamps , Atlanta, Georgia, pro se.
W. Robert Boulware , Esquire, Montgomery, Alabama, for the agency.
Glynneisha Bellamy , Decatur, Georgia, for the agency.
BEFORE
Cathy A. Harris , Chairman
Raymond A. Limon , Vice Chairman
Henry J. Kerner , Member*
*Member Kerner recused himself and
did not participate in the adjudication of this appeal.
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and 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
sustained her demotion under 38 U.S.C. § 714. For the reasons discussed below,
we GRANT the appellant’s petition for review, REVERSE the administrative
judge’s finding sustaining the misuse of a Government travel card charge and his
finding that the appellant did not establish contributing factor for her
whistleblower reprisal claim based on her Office of Special Counsel (OSC)
complaint, AFFIRM the administrative judge’s denials of the appellant’s other
affirmative defenses, 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 as a Supervisory Vocational
Rehabilitation Counselor, GS-13, in Atlanta, Georgia. Initial Appeal File (IAF),
Tab 5 at 79. Following complaints about the appellant’s conduct in
February 2018, the agency convened a fact-finding panel that substantiated some
of the allegations against her. Id. at 27-41. Thereafter, on August 2, 2018, the
agency proposed the appellant’s demotion and, after the appellant replied, issued
a decision demoting her to a GS-12 Vocational Rehabilitation Counselor effective
September 29, 2019, under the authority of 38 U.S.C. § 714. Id. at 9-26. The
agency action was based on two specifications of conduct unbecoming, one
specification of misuse of a Government travel card, and one specification of
failure to follow instructions.2 Id. at 9-12. The two specifications under the
conduct unbecoming charge originated from matters identified in the February
2018 investigation, the sole specification under the misuse of a Government
travel card charge was based on a March 29, 2017 incident in which the appellant
2 The agency’s proposal notice identified three specifications supporting the conduct
unbecoming charge and an additional charge of lack of candor. IAF, Tab 5 at 23-24.
However, the deciding official did not sustain either the additional specification or
charge. Id. at 9-10. Accordingly, the Board will not consider them. 2
used her Government travel card to purchase a meal for a subordinate employee
while on official travel, and the sole specification under the failure to follow
instructions charge was based on the appellant’s failure to schedule meetings as
instructed in June 2018. Id. at 9-12, 23-24.
The appellant appealed the demotion action to the Board, arguing that the
charges were not supported by substantial evidence, that the fact-finding
investigation related to the conduct unbecoming charge was flawed, that the
agency violated her due process rights when it failed to provide her with the full
fact-finding report, and that the penalty was excessive. IAF, Tab 1 at 6, Tab 18
at 4-5, 8-9. She also claimed that her demotion was the result of discrimination
on the basis of her sex, race, and religion, and in reprisal for her prior equal
employment opportunity (EEO) activity, protected whistleblowing activity, and
filing an Office of Workers’ Compensation Programs (OWCP) complaint. IAF,
Tab 1 at 6, Tab 18 at 5-9.
After holding the requested hearing, IAF, Tab 1 at 2, Tab 24-10, Hearing
Transcript (HT), the administrative judge issued an initial decision finding that
the agency proved the misuse of a Government travel card charge by substantial
evidence, IAF, Tab 26, Initial Decision (ID) at 2-4. However, he did not consider
whether the agency proved the conduct unbecoming or failure to follow
instructions charges. ID at 4. He also considered the appellant’s affirmative
defenses and concluded that she failed to prove a due process violation, that her
demotion was the result of discrimination based on sex, race, or religion, or that it
was in reprisal for prior EEO activity, protected whistleblowing activity, or filing
an OWCP complaint. ID at 4-11. Additionally, because he concluded that he
could not mitigate the agency’s chosen penalty under 38 U.S.C. § 714(d)(2)(B),
he sustained the appellant’s demotion. ID at 11-12.
The appellant has filed a petition for review wherein she argues, among
other things, that the administrative judge was barred from considering the misuse
of a Government travel card charge because its alleged underlying conduct3
predated the effective date of 38 U.S.C. § 714. Petition for Review (PFR) File,
Tab 5 at 6-7. She continues to assert that the underlying fact-finding
investigation was retaliatory and biased, and that the penalty of demotion was
unreasonable. Id. at 7-8, 14-17, 19. She also reasserts all of her affirmative
defenses. Id. at 9, 12-13, 18, 20, 24-25. She submits with her petition for review
hundreds of pages of documents, as well as what appear to be undated, personal
audio recordings. Id. at 29-116; PFR File, Tabs 6-17, 23. The agency has filed a
response to the appellant’s petition for review. PFR File, Tab 18.
DISCUSSION OF ARGUMENTS ON REVIEW
The misuse of a Government travel card charge cannot be sustained under
38 U.S.C. § 714, and the administrative judge must consider the remaining
charges on remand.
The Department of Veterans Affairs Accountability and Whistleblower
Protection Act of 2017, Pub. L. No. 115-41, 131 Stat. 862 (VA Accountability
Act), was signed into law on June 23, 2017. Sayers v. Department of Veterans
Affairs, 954 F.3d 1370, 1374 (Fed. Cir. 2020). Section 202 amended Title 38 of
the United States Code by creating section 714, which provided the agency with
an “expedited, less rigorous” process for removing, demoting, or suspending its
employees for inadequate performance or misconduct. Id. at 1374. Among other
things, section 714 created an expedited Board review process, lowered the
agency’s burden of proof at the Board from a preponderance of the evidence to
substantial evidence , and stripped the Board of its authority to mitigate the
agency-imposed penalty. Id. at 1372 n.1.
Dr. Sayers was a pharmacist who was removed, effective November 7,
2017, pursuant to 38 U.S.C. § 714, based on misconduct that entirely preceded
the effective date of the VA Accountability Act. Id. at 1373. He filed a Board
appeal challenging his removal, but the administrative judge sustained the
charges and upheld the removal. Id. On appeal to the U.S. Court of Appeals for
the Federal Circuit (Federal Circuit), Dr. Sayers argued that the Board erred in4
upholding his removal under section 714 because his alleged misconduct took
place before its enactment. Id. at 1374. The court agreed with Dr. Sayers. Id.
In pertinent part, the court noted that section 714 was silent on the question
of retroactivity and the VA Accountability Act did not include any indication that
the intent of the statute was for section 714 to be applied retroactively. Id.
at 1380. The court held that, “[i]f the statute attaches new legal consequences to
events before its enactment (and is otherwise silent about its retroactivity), the
statute must not apply to those prior events.” Id. By requiring the Board to apply
the substantial evidence standard in reviewing the removal decision (instead of
the preponderant evidence standard) and by preventing any mitigation of a
penalty that substantial evidence supports, the court concluded that “[section] 714
affects employees’ substantive rights to relief from improper removal” and
“unquestionably diminish[es] Dr. Sayers’s property right in continued
employment.” Id. at 1380-81. The court therefore concluded that section 714
could not be applied retroactively. Id. at 1372-73, 1382. Because all of Dr.
Sayers’s alleged conduct took place before its enactment, the court vacated the
removal and remanded the appeal to the Board for further proceedings. Id.
Here, as noted, the charged misconduct alleged by the agency and sustained
by the administrative judge is that the appellant misused her Government travel
card on March 29, 2017. IAF, Tab 5 at 24. Thus, like in Sayers, the charged
misconduct predated the June 23, 2017 effective date of the VA Accountability
Act.3 Accordingly, the court’s analysis of the retroactivity issue in Sayers is
dispositive on this charge. We therefore find that this charge cannot be sustained,
and we reverse the administrative judge’s finding in that regard.
3 The record reflects that the agency did not propose the appellant’s demotion until after
the effective date of 38 U.S.C. § 714. IAF, Tab 5 at 23. The Federal Circuit addressed
this same scenario in Sayers, noting that the fact that the agency did not propose Dr.
Sayers’s removal until after the passage of 38 U.S.C. § 714 did not eliminate “the
impermissible retroactive effect on [his] substantive employment rights.” Sayers,
954 F.3d at 1381. 5
As also noted above, however, the administrative judge did not consider
either of the conduct unbecoming or the failure to follow instructions charges. ID
at 4. For at least one of the specifications under the conduct unbecoming charge,
the underlying conduct is alleged to have occurred on February 14, 2018.4 IAF,
Tab 5 at 23. The underlying conduct at issue in the failure to follow instructions
charge is alleged to have occurred after June 20, 2018. Id. at 24. Therefore, the
VA Accountability Act’s lack of retroactive effective does not bar agency action
based on these charges. Moreover, the Board has held that an administrative
judge must identify all issues of fact and law, summarize the evidence, resolve
issues of credibility, and include his conclusions of law and legal reasoning in an
initial decision. See Spithaler v. Office of Personnel Management , 1 M.S.P.R.
587, 589 (1980). Because the initial decision lacks discussion and analysis of
these remaining charges, we remand this appeal to the administrative judge with
instruction to fully consider the conduct unbecoming and failure to follow
instructions charges. See Shibuya v. Department of Agriculture , 119 M.S.P.R.
537, ¶ 37 (2013) (finding that when the relevant evidence needs to be reweighed,
the administrative judge is in the best position to do so because he is the one who
heard the live testimony and made credibility determinations); Anderson
v. Department of Veterans Affairs , 113 M.S.P.R. 522, ¶ 8 (2010) (finding that the
administrative judge, who heard the testimony and observed the demeanor of the
witnesses, is in the best position to make credibility determinations).
We agree with the administrative judge that the appellant failed to establish her
due process, discrimination, and EEO and OWCP reprisal claims but remand her
whistleblower reprisal claim for further analysis.
Although the administrative judge erred in sustaining the misuse of a
Government travel card charge in light of the Federal Circuit’s decision in Sayers
4 Based on our review of the record, it is unclear when the purported misconduct that
formed the basis of the third specification of the conduct unbecoming charge occurred.
IAF, Tab 5 at 23-24. 6
and a remand is necessary for him to issue a new initial decision addressing the
remaining charges that he did not address in the initial decision, we discern no
basis not to address his findings regarding the appellant’s affirmative defenses.
We thus find that the administrative judge correctly determined that the appellant
failed to prove that she was denied due process,5 establish her discrimination and
EEO reprisal claims,6 or prove that her demotion was in reprisal for filing an
OWCP claim.7 However, as explained below, we conclude that the appellant
5 The appellant argues, for the first time on review, that the agency improperly replaced
the deciding official after she gave her oral reply to the official named in the proposal
notice. PFR File, Tab 5 at 11. The Board will not consider an argument raised for the
first time on review absent a showing of new and material evidence not previously
available despite the party’s due diligence. Clay v. Department of the Army ,
123 M.S.P.R. 245, ¶ 6 (2016 ). Because the appellant, who was represented by counsel
below, failed to raise this argument below, we have not considered it here. See
Valenzuela v. Department of the Army , 107 M.S.P.R. 549, ¶ 7 (2007 ) (declining to hear
a due process argument raised for the first time on review). Nonetheless, we are aware
of no prohibition rooted in due process principles of an agency’s decision to substitute a
deciding official when the ultimate deciding official considers the appellant’s reply to
the proposal notice and there is no evidence that the original deciding official would
have arrived at a more favorable conclusion. See generally Monroe v. Department of
the Treasury, 20 M.S.P.R. 620, 620-21 (1984 ) (concluding that an appellant failed to
show harmful error in the agency’s decision to change the deciding official after the
appellant made his oral reply because the new deciding official considered a summary
of the oral reply and the appellant’s written reply, and because the appellant presented
nothing to suggest that the original deciding official would not have disciplined the
appellant), aff’d, 770 F.2d 1044 (Fed. Cir. 1985). Here, the record establishes that the
ultimate deciding official considered the appellant’s reply, and there is no evidence that
the original deciding official would have imposed a penalty less than a demotion. IAF,
Tab 5 at 9.
6 Because the administrative judge correctly found that the appellant did not show that
Title VII discrimination or EEO reprisal were motivating factors in her demotion, we
need not determine whether they constituted but-for causes of her demotion—what the
appellant would have had to prove to obtain full relief for those claims. Pridgen v.
Office of Management and Budget , 2022 MSPB 31 , ¶¶ 22, 30; ID at 8-9; 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 stringent ‘but-for’ standard that applies to the appellant’s retaliation claim.”).
7 The appellant’s attempt on review to explain her failure to meet her burden on her
OWCP reprisal claim by laying blame on her prior representative is unpersuasive. The7
established a prima face case of whistleblower reprisal that should be considered
on remand.
In an adverse action appeal such as this, an appellant’s claim of
whistleblower reprisal is treated as an affirmative defense. See Ayers v.
Department of the Army , 123 M.S.P.R. 11, ¶ 12 (2015). Once the agency proves
its adverse action case, an appellant must show, by preponderant evidence, that
she made a protected disclosure pursuant to 5 U.S.C. § 2302(b)(8) or engaged in
protected activity as described under 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or
(D), and that the disclosure or activity was a contributing factor in the personnel
action(s). Id.; see also Alarid v. Department of the Army , 122 M.S.P.R. 600, ¶ 12
(2015). If an appellant meets her burden, then the Board shall order corrective
action unless the agency shows by clear and convincing evidence that it would
have taken the same personnel action in the absence of the whistleblowing
disclosure and/or protected activity. See Ayers, 123 M.S.P.R. 11, ¶¶ 12, 27.
At the hearing, the appellant testified that in early 2018, she informed her
supervisor, who was also the proposing official in her demotion, that she (her
supervisor) had included false information in the appellant’s annual performance
review, which was completed in late 2017. HT at 99-101. She also testified that
she filed a whistleblower complaint with OSC regarding the same allegation in
early 2018. Id.; IAF, Tab 18 at 288, 291. In the initial decision, the
Board has consistently held that an appellant is responsible for the action or inaction of
her chosen representative. See Smith v. U.S. Postal Service , 111 M.S.P.R. 341, ¶ 9
(2009); Sofio v. Internal Revenue Service , 7 M.S.P.R. 667, 670 (1981). Regarding her
attempt to submit evidence of her OWCP claim on review, under 5 C.F.R. § 1201.115,
the Board generally will not consider evidence submitted for the first time with a
petition for review absent a showing that it was unavailable before the record closed
before the administrative judge despite the party’s due diligence. See Avansino v. U.S.
Postal Service, 3 M.S.P.R. 211, 213 -14 (1980). Here, the appellant’s documentation is
dated September 9, 2019, and February 10, 2020. PFR File, Tab 15 at 16-17. The
record closed at the conclusion of the hearing on March 11, 2020. IAF, Tab 19 at 7; HT
at 130; ID at 1. Therefore, both of the documents submitted for the first time on review
were available before the record closed, and the appellant has not explained why she
was unable to submit them below. Therefore, we have not considered them.8
administrative judge found that the appellant’s complaint to her supervisor
concerning her performance review did not constitute a protected disclosure
under the whistleblower protection statutes because whistleblower protection
does not extend to an employee’s personal grievances about her job or to policy
disagreements with supervisors over how work should be performed. ID at 9-10
(citing 5 U.S.C. § 2302(a)(2)(D); Langer v. Department of the Treasury , 265 F.3d
1259, 1267 (Fed. Cir. 2001)).
The appellant has not challenged this finding on review, and, although we
agree with the administrative judge’s ultimate conclusion that the appellant failed
to prove that she made a protected disclosure, we clarify that the appellant’s
disclosure does not appear to constitute a policy disagreement or a personal
grievance with her job; rather, it includes an allegation that her supervisor
violated the law by falsifying an official document, the appellant’s annual
performance appraisal. IAF, Tab 18 at 6. Nonetheless, to constitute a protected
disclosure, an appellant must prove that such a disclosure includes the disclosure
of information which the employee reasonably believes evidences, among other
things, a violation of any law, rule, or regulation. 5 U.S.C. § 2302(b)(8)(B);
Ayers, 123 M.S.P.R. 11, ¶ 13. The test of a reasonable belief is whether a
disinterested observer with knowledge of the essential facts known to and readily
ascertainable by the employee could reasonably conclude that the actions
evidenced one of the types of wrongdoing listed above. Ayers, 123 M.S.P.R. 11,
¶ 13. Here, the appellant has failed to provide any additional detail surrounding
this alleged disclosure, such as precisely what was included in her performance
review, why it was objectively false, and how it constituted falsification of an
official document.8 IAF, Tab 18; HT at 21-29, 97-124. Therefore, we find that
8 The record includes the appellant’s OSC complaint, wherein she provides some greater
detail regarding this alleged disclosure. IAF, Tab 18 at 291-92. There, she claims that
her supervisor indicated in a performance appraisal that there were “challenges with
employee communication,” but she argues in the complaint that there were “no known
measurement[s] on how the rater defined the [] challenges with employee9
she failed to prove that a reasonable person with knowledge of the essential facts
could reasonably conclude that her supervisor’s actions violated a law, rule, or
regulation. Accordingly, we agree with the administrative judge that the
appellant failed to prove by preponderant evidence that she made a protected
disclosure.
Regarding the appellant’s OSC complaint, the administrative judge found
that the OSC complaint constituted protected activity under 5 U.S.C. § 2302(b)
(9). ID at 10. We agree. Under the broadly worded provision of 5 U.S.C.
§ 2302(b)(9)(C), disclosing information to OSC is protected regardless of its
content, as long as such disclosures are made “in accordance with applicable
provisions of law.” Fisher v. Department of the Interior , 2023 MSPB 11, ¶ 8. In
considering whether the protected activity was a contributing factor in the
appellant’s demotion, the administrative judge applied the knowledge/timing test.
ID at 10. Under this test, an employee may show that the protected 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 person could conclude that the disclosure was a contributing factor in
the personnel action. Hamilton v. Department of Veterans Affairs , 115 M.S.P.R.
673, ¶ 25 (2011).
In discussing the knowledge prong of this test, the administrative judge
considered whether the agency officials responsible for the appellant’s demotion
had either actual or constructive knowledge of the OSC complaint. ID at 10. He
found that there was no evidence that any management official involved in the
appellant’s demotion was aware of the appellant’s OSC complaint, and that the
appellant’s whistleblower reprisal affirmative defense must fail. ID at 10-11. On
communication.” Id. at 291. This additional context, however, does not change our
conclusion that the appellant failed to provide any detail as to why the performance
review was objectively false or how it constituted falsification of an official document.10
review, the appellant points to the deciding official’s hearing testimony, wherein
she stated that she was aware that the demotion action was “on hold due to a
whistleblower allegation.” PFR File, Tab 5 at 12. We have reviewed the
deciding official’s hearing testimony, and we agree with the appellant that the
testimony reflects some degree of knowledge of the OSC complaint prior to the
issuance of the decision to effect the demotion. HT at 79, 83-86. Further, the
deciding official’s testimony suggests that she became aware of the appellant’s
OSC complaint sometime between when the proposal notice was issued and when
she issued the final decision, which was a period of approximately 13 months.
Id.; IAF, Tab 5 at 9, 23. The Board has stated that a personnel action that occurs
within 1 to 2 years of the protected whistleblowing activity satisfies the timing
portion of the knowledge/timing test. See Mastrullo v. Department of Labor ,
123 M.S.P.R. 110, ¶ 21 (2015). Accordingly, we find that the appellant
established that her OSC complaint was a contributing factor in her demotion, and
that she, therefore, established a prima facie case of whistleblower reprisal.
However, as indicated above, a prima facie case of whistleblower reprisal
is not the end of the inquiry, as the burden of persuasion then shifts to the agency
to show by clear and convincing evidence that it would have taken the same
personnel action in the absence of any protected activity. See Ayers,
123 M.S.P.R. 11, ¶ 27. Below, the administrative judge did not consider this part
of the analysis because he did not find that the appellant made a prima facie case
of whistleblower reprisal. However, in light of our finding here to the contrary,
he should consider whether the agency established by clear and convincing
evidence that it would have demoted the appellant in the absence of her OSC
complaint. In making that determination, he should consider the following
factors: the strength of the agency’s evidence in support of its action; the
existence and strength of any motive to retaliate on the part of the agency
officials who were involved in the decision; and any evidence that the agency
takes similar actions against employees who are not whistleblowers but who are11
otherwise similarly situated. Id.; see Carr v. Social Security Administration ,
185 F.3d 1318, 1323 (Fed. Cir. 1999).
On remand, if the administrative judge concludes that the agency proved either of
the remaining charges by substantial evidence, further adjudication is required in
accordance with developments in the law since the initial decision.
In her decision notice, the deciding official applied the substantial evidence
standard to her review of the demotion action. IAF, Tab 5 at 9. After the
issuance of the initial decision in this matter, the Federal Circuit found in
Rodriguez v. Department of Veterans Affairs , 8 F.4th 1290, 1296-1301 (Fed. Cir.
2021), that the agency erred by applying the substantial evidence standard to its
internal review of a disciplinary action taken under 38 U.S.C. § 714. The court
found that substantial evidence is the standard of review to be applied by the
Board, not the agency, and that the agency’s deciding official must apply the
preponderance of the evidence burden of proof in determining whether the
appellant’s performance or misconduct warrants the action at issue. Id.
at 1298-1301. 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 . Thus, on remand, if the administrative
judge concludes that the agency proved either of the remaining charges by
substantial evidence, he must determine whether the agency’s application of the
substantial evidence standard constituted harmful error. See id., ¶ 23 (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).
The remand of this appeal may also reach the issue of penalty. As noted
above, the administrative judge did not consider whether the penalty of demotion
in this case was reasonable because he found that 38 U.S.C. § 714(d)(2)(B)
prohibits an administrative judge from mitigating the agency -selected penalty. ID
at 4, 12. The appellant dedicates a significant portion of her petition for review
to arguing that the penalty of demotion was not reasonable. PFR File, Tab 512
at 7-8, 21, 24. We have not considered the substance of the appellant’s
arguments here because none of the charges, at this point, have been properly
sustained by the Board. However, in Sayers, 954 F.3d at 1375-79, our reviewing
court found that the Board’s review authority or scope of review in cases arising
under 38 U.S.C. § 714 encompasses the penalty. The court held, “[section] 714
requires the Board to review for substantial evidence the entirety of the
[agency’s] removal decision—including the penalty—rather than merely
confirming that the record contains substantial evidence that the alleged conduct
leading to the adverse action actually occurred.” Id. at 1379.
Further, in Connor v. Department of Veterans Affairs , 8 F.4th 1319,
1325-26 (Fed. Cir. 2021) , which also was issued subsequent to the initial
decision, the Federal Circuit found that the Board must consider and apply the
factors set forth in Douglas v. Veterans Administration , 5 M.S.P.R. 280, 305-06
(1981), in its review of an agency’s penalty selection under an action taken
pursuant to section 714. The Federal Circuit found that, although section
714 precludes the Board from mitigating the agency’s chosen penalty, “[i]t does
not alter the penalty review with respect to the Douglas factors,” and that “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, 8 F.4th at 1326.
Because the administrative judge did not address the Douglas factors, and
it is unclear from the record to what extent, if any, the deciding official
considered them, those issues must be addressed on remand if the administrative
judge first sustains either of the remaining charges and then determines that the
agency’s application of the substantial evidence standard was not harmful error.
When, as here, the Board does not sustain all the charges, it will carefully
consider whether the sustained charges merit the penalty imposed by the agency.
Moncada v. Executive Office of the President , Office of Administration ,
2022 MSPB 25, ¶ 39. Thus, if the administrative judge reaches the issue of the13
penalty,9 he should determine whether the agency proved by substantial evidence
that it properly applied the Douglas factors and that the sustained charges merited
demotion and, if not, he should remand the appellant’s demotion to the agency for
a new decision on the appropriate penalty. The administrative judge should
adjudicate the appellant’s whistleblower reprisal affirmative defense after all
other issues.10
9 To the extent that documents submitted with the appellant’s petition for review
concern the penalty of demotion, PFR File, Tab 5 at 10, the Board generally will not
consider evidence submitted for the first time with a petition for review absent a
showing that it was unavailable before the record closed before the administrative judge
despite the party’s due diligence. See Avansino, 3 M.S.P.R. at 213-14. Here, it appears
that all of the documents submitted with the appellant’s petition for review and
supplement to her petition for review, including any relating to the penalty of demotion,
predate the close of the record below and are, therefore, not new. However, the
administrative judge informed the appellant below prior to the close of record that he
could not mitigate the penalty. IAF, Tab 19 at 2. Thus, the appellant presumably was
not aware that she could submit evidence concerning the penalty below. As such, in
light of Sayers, the administrative judge may consider these documents, as appropriate,
on remand.
10 If the penalty is remanded to the agency, the agency should be mindful of its
obligations to provide the appellant with the necessary due process. See Brenner v.
Department of Veterans Affairs , 990 F.3d 1313, 1324 (observing that the VA
Accountability Act maintains due process protections for employees) (Fed. Cir.
2021); Ward v. U.S. Postal Service , 634 F.3d 1274, 1279 -80 (Fed. Cir. 2011 ); Stone v.
Federal Deposit Insurance Corporation , 179 F.3d 1368, 1375-77 (Fed. Cir. 1999 ).
Further, if remanding the penalty, the administrative judge should consider dismissing
the appeal without prejudice during the remand period and addressing the whistleblower
reprisal affirmative defense upon refiling. We observe that evidence regarding the
penalty may be relevant to one or more of the Carr factors.14
ORDER
For the reasons discussed above, we remand this case to the Atlanta
Regional Office for further adjudication in accordance with this Remand Order.11
FOR THE BOARD: ______________________________
Gina K. Grippando
Clerk of the Board
Washington, D.C.
11 Although the appellant makes several arguments in her petition for review regarding
procedural concerns surrounding the hearing, we find no merit to those claims. For
example, the appellant argues in her petition for review that she was denied the right to
“effectively testify” at the hearing. PFR File, Tab 5 at 19. It is undisputed, however,
that the appellant testified at the hearing, and the Board has long held that an
administrative judge has wide discretion to control the proceedings in front of him,
including authority to exclude testimony he believes would be irrelevant or immaterial.
See McCauley v. Department of the Interior , 116 M.S.P.R. 484, ¶ 8 (2011 ). Moreover,
the appellant has not explained on review in what ways her testimony was limited, nor
has she set forth in her petition for review what testimony she would have otherwise
provided that was prohibited and would have affected the outcome of her case. She also
argues on review that the administrative judge improperly permitted the agency’s labor
relations specialist to be present at the hearing. PFR File, Tab 5 at 19, 27. However,
she has not explained how this constitutes error or how it affected the outcome of her
appeal. Nevertheless, the administrative judge shall provide the parties with an
opportunity to present evidence and argument addressing the issues on remand. He
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). Regardless of his findings on the matters for which this appeal is being
remanded, if any argument or evidence adduced on remand affects the administrative
judge’s prior analysis of any issue in this appeal, he should address such argument or
evidence in the remand decision.15 | Stamps_PamalaAT-0714-20-0011-I-1_Remand_Order.pdf | 2024-09-30 | PAMALA STAMPS v. DEPARTMENT OF VETERANS AFFAIRS, MSPB Docket No. AT-0714-20-0011-I-1, September 30, 2024 | AT-0714-20-0011-I-1 | NP |
291 | https://www.mspb.gov/decisions/nonprecedential/Stamps_PamalaAT-0752-21-0254-I-1_Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
PAMALA STAMPS,
Appellant,
v.
DEPARTMENT OF VETERANS
AFFAIRS,
Agency.DOCKET NUMBER
AT-0752-21-0254-I-1
DATE: December 30, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
Pamala Stamps , Atlanta, Georgia, pro se.
Mary Sellers , Montgomery, Alabama, for the agency.
BEFORE
Cathy A. Harris, Chairman
Raymond A. Limon, Vice Chairman
Henry J. Kerner, Member*
*Member Kerner recused himself and
did not participate in the adjudication of this appeal.
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and 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 demotion appeal on the grounds of adjudicatory efficiency.
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).
When an appellant files an appeal that raises claims raised in an earlier
appeal after the initial decision in the earlier appeal has been issued, but before
the full Board has acted on the appellant’s petition for review, it is appropriate to
dismiss the subsequent appeal on the grounds of adjudicatory efficiency. Bean v.
U.S. Postal Service , 120 M.S.P.R. 447, ¶ 5 (2013). In other words, the Board will
dismiss on the basis of adjudicatory efficiency when an identity of issues exists
and the controlling issues in the appeal will be determined in a prior appeal. Id.2
On review,2 the appellant does not challenge the administrative judge’s
dismissal of the instant appeal on the grounds of adjudicatory efficiency. Instead,
she disagrees with the administrative judge’s rulings on witnesses and his
findings in the initial decision in her prior appeal. Petition for Review (PFR)
File, Tab 1 at 4-6. She also argues that the administrative judge in her prior
appeal failed to consider her representative’s closing arguments. Id. at 6-8. Any
arguments regarding the administrative judge’s processing of her prior appeal and
the initial decision in that appeal are properly raised and resolved through the
petition for review process in the prior appeal.
Here, the appellant challenged the same alleged action—her demotion—in
both appeals. The controlling issue in the instant appeal will be resolved when
the Board issues its final decision in her prior appeal. We recognize that the
appellant may have filed this appeal pursuant to the notice that she received in a
final agency decision. However, this does not change the fact that both appeals
concern the same action. Further, at the time the administrative judge issued her
initial decision, the appellant’s petition for review in the prior appeal was
pending before the Board. We find, therefore, that dismissal on the grounds of
adjudicatory efficiency was appropriate here.3
2 For the first time on review, the appellant submits documents regarding her equal
employment opportunity (EEO) complaint against the agency. Petition for Review File,
Tab 1 at 10-11. 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 documents pre-date the close of the record below and they do not address the
administrative judge’s decision to dismiss this appeal on the grounds of adjudicatory
efficiency. Further, the appellant’s EEO matters are not before the Board. 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).
Thus, the appellant’s documents provide no basis to disturb the initial decision.
3 Prior to issuing the initial decision, the administrative judge did not provide the
appellant with notice of the impending dismissal of the appeal based on adjudicatory
efficiency. However, the administrative judge’s oversight was cured by the initial3
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).
decision, which explained the grounds for dismissal, affording the appellant the
opportunity to address this issue in her petition for review. Initial Appeal File, Tab 22,
Initial Decision at 3; see Easterling v. U.S. Postal Service , 110 M.S.P.R. 41, ¶ 11
(2008) (finding that an administrative judge’s failure to provide an appellant with
proper jurisdictional notice can be cured if the initial decision puts the appellant on
notice of what he must do to establish jurisdiction, thus affording him the opportunity
to meet his jurisdictional burden in the petition for review).
4 Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise which option is most appropriate in any matter.4
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the following
address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. 420 (2017). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the district court no later than 30 calendar days after your representative
receives this decision. If the action involves a claim of discrimination based on5
race, color, religion, sex, national origin, or a disabling condition, you may be
entitled to representation by a court-appointed lawyer and to waiver of any
requirement of prepayment of fees, costs, or other security. See 42 U.S.C.
§ 2000e-5(f) and 29 U.S.C. § 794a.
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702(b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or6
other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
disposition of allegations of a prohibited personnel practice described in section
2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i),
(B), (C), or (D),” then you may file a petition for judicial review either with the
U.S. Court of Appeals for the Federal Circuit or any court of appeals of
competent jurisdiction.5 The court of appeals must receive your petition for
review within 60 days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(B).
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the following
address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
5 The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115-195,
132 Stat. 1510.7
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
Contact information for the courts of appeals can be found at their
respective websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
FOR THE BOARD: ______________________________
Gina K. Grippando
Clerk of the Board
Washington, D.C.8 | Stamps_PamalaAT-0752-21-0254-I-1_Final_Order.pdf | 2024-12-30 | PAMALA STAMPS v. DEPARTMENT OF VETERANS AFFAIRS, MSPB Docket No. AT-0752-21-0254-I-1, December 30, 2024 | AT-0752-21-0254-I-1 | NP |
292 | https://www.mspb.gov/decisions/nonprecedential/Bradley_Wilma_J_AT-0432-20-0090-I-1_Remand_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
WILMA J. BRADLEY,
Appellant,
v.
DEPARTMENT OF EDUCATION,
Agency.DOCKET NUMBER
AT-0432-20-0090-I-1
DATE: December 30, 2024
THIS ORDER IS NONPRECEDENTIAL1
Danielle B. Obiorah , Esquire, Jonesboro, Georgia, for the appellant.
Michael S. Taylor , Esquire, Washington, D.C., for the agency.
BEFORE
Cathy A. Harris, Chairman
Raymond A. Limon, Vice Chairman
Henry J. Kerner, Member
REMAND ORDER
The appellant has filed a petition for review of the initial decision, which
sustained her removal for unacceptable performance under chapter 43. For the
reasons discussed below, we GRANT the appellant’s petition for review,
VACATE the initial decision, and REMAND the appeal to the Atlanta Regional
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).
Office for further adjudication consistent with Santos v. National Aeronautics
& Space Administration , 990 F.3d 1355 (Fed. Cir. 2021).
BACKGROUND
The appellant was previously employed as a GS-11 Loan Analyst with the
agency’s office of Federal Student Aid in Atlanta, Georgia. Initial Appeal File
(IAF), Tab 5 at 130. As a Loan Analyst, her primary duties included processing
refunds for student loan borrowers, providing oversight of student loan “vendors”
(such as Sallie Mae), and responding to borrower complaints against vendors.
IAF, Tab 4 at 106-08, Tab 27, Hearing Compact Disc (HCD) (testimony of the
appellant’s supervisor). The appellant’s fiscal year (FY) 2019 performance
standards included three critical elements, and each critical element had a number
of underlying components or sub-elements. IAF, Tab 4 at 106-08.
In a memorandum dated August 16, 2018, the agency informed the
appellant that her performance was not meeting the requirements at the “Results
Achieved” fully successful performance level for all three critical elements and
offered her the opportunity to complete a 60-day Informal Assistance Plan (IAP)2,
which is the agency’s voluntary precursor to a Performance Improvement Plan
(PIP). IAF, Tab 4 at 20, 40-41, 79-83. On November 14, 2018, the appellant
received a rating of “Unsatisfactory Results” for all three critical elements of her
FY 2018 performance plan, resulting in an Unsatisfactory Results summary
rating. Id. at 103-05. By a memorandum dated February 8, 2020, the appellant’s
first-line supervisor placed her on a 90-day PIP from February 9, 2020 through
May 9, 2020, noting that, despite the opportunity to improve her performance
during the IAP, the appellant’s performance remained unsatisfactory in all three
critical elements, identified as Call Reviews, Vendor Oversight, and Complaint
Resolutions. Id. at 109-13. The PIP noted that the three critical elements in the
2 At some locations in the record, an “IAP” is also referred to as an “Individual
Assistance Plan.” IAF, Tab 4 at 8, 20. There is no indication in the record that an
“Individual Assistance Plan” and an “Informal Assistance Plan” differ in any respect.2
appellant’s FY 2019 performance plan were carried over from the FY 2018
performance plan and identified a list of “performance issues” for each critical
element that contributed to the appellant’s inability to perform at the Results
Achieved performance level. Id. at 110-12. Additionally, the PIP letter included
bullet points under each critical element instructing the appellant of what she
must do in order to bring her performance up to the Results Achieved level by the
end of the PIP period. Id.
In a memorandum dated July 9, 2019, the agency informed the appellant
that she had failed to improve her performance to the Results Achieved level for
all three critical elements, and consequently, that it was proposing her removal
from Federal service. IAF, Tab 4 at 69-75. After considering the appellant’s
August 1, 2019 written response and supporting evidence, the deciding official
sustained the decision, removing the appellant effective September 13, 2019.
IAF, Tab 5, Tab 6 at 4-118, 127-34. The appellant timely appealed the removal
decision to the Board and raised affirmative defenses of discrimination on the
bases of disability, race, and sex, and reprisal for protected equal employment
opportunity (EEO) activity. IAF, Tab 1, Tab 25 at 2.
After holding the appellant’s requested hearing, the administrative judge
issued an initial decision affirming the removal action, IAF, Tab 34, Initial
Decision (ID) at 1, 29. Specifically, the administrative judge found that the
agency proved by substantial evidence that the appellant’s performance was
unacceptable for critical element 1 at the end of the PIP period. ID at 7-17. The
administrative judge also determined that, because the agency met its burden of
proving that the appellant’s performance was unacceptable for critical element 1,
he did not need to determine whether it met its burden of proving that her
performance remained unsuccessful under critical elements 2 and 3. ID at 8.
Finally, the administrative judge concluded that the appellant failed to prove her
affirmative defenses of discrimination on the bases of race, sex, and disability,
and reprisal for protected EEO activity. ID at 17-29. 3
The appellant timely filed a petition for review. Petition for Review (PFR)
File, Tab 1. The agency responded in opposition. PFR File, Tab 3.
DISCUSSION OF ARGUMENTS ON REVIEW
Consistent with the U.S. Court of Appeals for the Federal Circuit’s
decision in Santos, 990 F.3d 1355, 1360-63, we are remanding this appeal for
further adjudication. In Santos, the court held for the first time that, in addition
to the elements of a chapter 43 case set forth by the administrative judge, an
agency must also show that the initiation of a PIP was justified by the appellant’s
unacceptable performance before the PIP. Id. Prior to addressing the remand,
however, we address the administrative judge’s findings on the elements of a
chapter 43 appeal as they existed at the time of the initial decision and the
appellant’s arguments on review. As set forth below, we discern no basis to
disturb those findings.
When the initial decision was issued, the Board’s case law provided that, in
a performance-based action under 5 U.S.C. chapter 43, an agency must establish
by substantial evidence that: (1) the Office of Personnel Management (OPM)
approved its performance management system; (2) the agency communicated to
the appellant the performance standards and critical elements of her position;
(3) the appellant’s performance standards are valid under 5 U.S.C. § 4302(c)(1);
(4) the agency warned the appellant of the inadequacies of her performance
during the appraisal period and gave her a reasonable opportunity to improve; and
(5) the appellant’s performance remained unacceptable in at least one critical
element. Lee v. Department of Veterans Affairs , 2022 MSPB 11, ¶ 13; White v
Department of Veterans Affairs , 120 M.S.P.R. 405, ¶ 5 (2013); Lee v.
Environmental Protection Agency , 115 M.S.P.R. 533, ¶ 5 (2010).
Below, the administrative judge found that the agency proved that OPM
approved its performance appraisal system, that the pertinent performance
standards were valid and the agency communicated them to the appellant, that the4
agency warned the appellant of her unacceptable performance and provided her
with a reasonable opportunity to improve, and that, following that opportunity to
improve, the appellant’s performance remained unacceptable in at least one
critical element. ID at 8-16. Based on the foregoing, the administrative judge
concluded that the agency “justified its [c]hapter 43 removal by substantial
evidence.” ID at 16.
We discern no error in the administrative judge’s findings regarding the chapter
43 performance-based removal action under pre- Santos law.
On review, the appellant argues that the administrative judge erred in
concluding that the agency communicated her performance standards and critical
elements. PFR File, Tab 1 at 8-10. She also argues that the administrative judge
incorrectly concluded that the agency was not required to evaluate her
performance based on all of the underlying components or sub-elements of
critical element 1 in determining that her performance was unsatisfactory under
that critical element. Id. at 10-11. Consequently, she asserts that the
administrative judge erred in determining that the agency met its burden of
proving that her performance remained unacceptable in critical element 1 at the
end of the PIP period. Id. at 11. Similarly, the appellant alleges that the
administrative judge erred by failing to consider whether the agency met its
burden of proving that her performance was inadequate under critical elements
2 and 3. Id. at 9. Finally, she argues that the administrative judge failed to
consider whether the deciding official was required to take the appellant’s
medical condition into account in reaching his removal determination.
Id. at 11-12. Specifically, the appellant asserts that the administrative judge
misconstrued her argument that the deciding official was required to consider her
medical condition as a claim that her disability should have been a mitigating
factor in the agency’s removal determination, concluding that the Board does not
mitigate an agency’s penalty determination in an action taken under chapter 43,
when, instead, she was attempting to raise the claim as an affirmative defense.5
Id.; ID at 27 n.11. As set forth below, these arguments do not provide a basis to
disturb the administrative judge’s findings.
The administrative judge correctly concluded that the agency
communicated the appellant’s performance standards and critical
elements prior to, and during, the PIP period.
On review, the appellant alleges that the guiding language used in the PIP
for critical element 1 was vague, noting that the language instructing her to close
out “most if not all” of her current account activity inventory on any given day
did not provide her with a firm benchmark for acceptable performance. PFR File,
Tab 1 at 9-10. Acknowledging the administrative judge’s finding that there was
no evidence that the agency actually rated the appellant on this component of the
PIP, the appellant nevertheless argues that, because the agency included this
“vague, subjective, and less than clear” language in the PIP, she was unable to
determine how to improve her performance to an acceptable level during the PIP.
Id. at 10. The appellant’s argument is without merit. As an initial matter, we
agree with the administrative judge’s conclusion that the bulleted language under
critical element 1 in the PIP instructing the appellant to close out “most if not all”
of her current inventory of account activities on a given day was intended to serve
as guidance for the appellant on how to meet the requirements under
critical element 1, not as a standalone sub-element under the critical element.
ID at 11 n.1. We also agree with his conclusion that, based on the unrebutted
documentary and testimonial evidence, the agency did not rate the appellant’s
performance based on this cited language during the PIP period. ID at 11.
Nevertheless, even assuming that the cited language in the PIP was
impermissibly vague, the Board has held that when performance standards are
vague, an agency may cure the defect by “fleshing out the standards through
additional oral and written communication.” PFR File, Tab 3 at 8; see Towne v.
Department of the Air Force , 120 M.S.P.R. 239, ¶ 23 (2013). In addition to the
PIP letter, the appellant’s first-line supervisor provided her with regular email6
updates during the PIP period regarding the status of her untimely assignments,
held frequent in -person meetings with her concerning the status of her
assignments, and provided an alternative point of contact for the appellant to
direct questions to during his absences. IAF, Tab 4 at 154-75, 179-90; HCD
(appellant’s testimony). In these oral and written communications, the
appellant’s first-line supervisor provided detailed assessments of the appellant’s
workload completion rates and untimely assignments and gave her the
opportunity to ask clarifying questions. IAF, Tab 4 at 154-75, 179-90.
Accordingly, we conclude that the agency cured any defect caused by the
potentially vague language in the PIP letter by properly communicating the
appellant’s performance standards and critical elements to her and clearly
informing her of what she needed to do to raise her performance to an acceptable
level during the PIP period.
The administrative judge correctly determined that the appellant
failed to meet her performance requirements under critical element 1
as a whole.
Next, the appellant argues that the administrative judge erred in concluding
that the agency was not required to rate her on the work product quality
component of critical element 1. PFR File, Tab 1 at 10-11. Critical element 1 of
the appellant’s FY 2019 performance plan identified both a quantitative
component, requiring the appellant to process “[a] minimum of 95% of the
accounts assigned” within 2 business days, and a qualitative component, requiring
her to maintain a “quality control score of at least 95%.” IAF, Tab 4 at 107. By
contrast, the PIP notice informed the appellant only that she needed to complete
“95% of [her] account activities” within 3 business days. Id. at 110. Explaining
this discrepancy at the hearing, agency witnesses testified that, although the
agency included the quality control metric in the FY 2019 performance plan and
in prior years’ performance plans with the intention of rating Loan Analysts on
this metric, the agency had not yet been able to “effectively develop a quality7
[control] score system,” so Loan Analysts were not held accountable for this
component of the critical element. HCD (testimony of the appellant’s first- and
second-line supervisors).
Addressing the appellant’s argument that the agency’s failure to rate her on
the quality control component of the performance plan invalidated the
performance standards, the administrative judge cited Rogers v. Department of
Defense Dependents Schools , 814 F.2d 1549 (Fed. Cir. 1987), noting that an
agency can satisfy its burden of showing that an employee’s performance on
fewer than all of the components or sub-elements of a critical element still
warranted an unacceptable rating on the critical element as a whole if it can
provide evidence of the following: (1) the employee knew or should have known
the significance of the sub-element, and (2) the importance of the component or
sub-element in relation to the duties or responsibilities of the critical element as a
whole. ID at 12-13. Determining that the evidence in the record demonstrated
that the appellant was expressly placed on notice that her untimeliness was the
agency’s “primary and overriding concern,” the administrative judge concluded
that the agency proved by substantial evidence that the appellant’s performance
was unacceptable under critical element 1, as a whole, at the end of the PIP
period. ID at 13.
On review, the appellant reasserts that, had she been rated on the quality
control element during the PIP, her performance may have been assessed at the
Results Achieved performance level, and that the record does not support the
administrative judge’s finding that the agency relayed to her the preeminence of
the timeliness component of the critical element. PFR File, Tab 1 at 11.
We disagree. As the administrative judge correctly observed, an agency need not
show that an employee’s performance was unacceptable on a majority of
components of a critical element in order to prove unacceptable performance on
the critical element “as a whole.” See Rogers, 814 F.2d at 1554 (finding that
unsatisfactory performance on one of six components of one critical element and8
two of four components of another warranted an unacceptable rating on both
critical elements); Wallace v. Department of the Air Force , 879 F.2d 829, 834
(Fed. Cir. 1989) (recognizing that an appellant’s failure to meet a single
component of one critical element may be sufficient to justify removal for
unacceptable performance) ; Lee, 115 M.S.P.R. 533, ¶ 37 (finding that
unsatisfactory performance in two of six components of one critical element
warranted an unacceptable rating in that element).
Additionally, the administrative judge considered and rejected the
appellant’s argument that the agency did not inform her of the importance of the
timeliness component of critical element 1, noting that her first-line supervisor
reassigned all of her untimely work at the start of the PIP with the intention of
giving her a “fresh start” and the best opportunity to meet the timeliness metric,
and provided her with written and verbal feedback during the PIP period, making
clear that her untimeliness was his primary concern with regard to each of the
critical elements. ID at 13; IAF, Tab 4 at 154-75, 179 -90. Accordingly, we
discern no basis for disturbing the administrative judge’s well-reasoned finding
on review. See Clay v. Department of the Army , 123 M.S.P.R. 245, ¶ 6 (2016)
(finding no reason to disturb the administrative judge’s findings where the
administrative judge considered the evidence as a whole, drew appropriate
inferences, and made reasoned conclusions); Crosby v. U.S. Postal Service ,
74 M.S.P.R. 98, 105-06 (1997) (same).
Similarly, the appellant argues that the administrative judge erred by
failing to make findings regarding her performance under critical elements 2 and
3 during the PIP period. PFR File, Tab 1 at 9. However, it is well settled that
failure to demonstrate acceptable performance under even a single critical
element will support removal under chapter 43. Lovshin v. Department of the
Navy, 767 F.2d 826, 834 (Fed. Cir. 1985) (en banc); Towne, 120 M.S.P.R. 239,
¶ 29 n.12. We therefore agree that the administrative judge did not need to
decide whether the agency presented substantial evidence of unacceptable9
performance under the two remaining critical elements in order to sustain the
appellant’s removal under chapter 43. See Hancock v. Internal Revenue Service ,
24 M.S.P.R. 263, 265-66 (1984).
The administrative judge did not err in concluding that the
appellant’s performance under critical element 1 remained
unacceptable at the end of the PIP period.
The appellant also challenges the administrative judge’s finding that her
performance remained unacceptable at the end of the PIP period, stating that the
spreadsheet on which her first-line supervisor relied for evaluating her
performance did not identify date information and did not establish that her work
was untimely. PFR File, Tab 1 at 11. Additionally, she argues that the
administrative judge discounted testimony by her co-workers that they, like the
appellant, had computer issues that affected their ability to timely complete their
work. Id.
The record includes the spreadsheets that the appellant’s first-line
supervisor used to track her completed work, and relevant portions of
this spreadsheet were provided to the appellant throughout the PIP period. IAF,
Tab 4 at 114-75. Regarding the date issue, the spreadsheets identified the date
the work was assigned to the appellant and how many days it took her to
complete each assignment, allowing her to readily determine which of her
assignments were untimely. Id. at 115-21. The same is true of the spreadsheet
updates periodically provided to the appellant during the PIP period. Id.
at 155-57. Additionally, the appellant’s first-line supervisor provided extensive
testimony during the hearing explaining how he determined the timeliness of the
appellant’s assignments, which he explained to the appellant in person and by
email, both before and during the PIP period. HCD (testimony of the appellant’s
first-line supervisor); IAF, Tab 4 at 97-98, 161-62, 169. Instead, as the
administrative judge noted, the appellant appears to take issue with the manner in
which the timeliness component was calculated; she does not appear to materially10
dispute that the identified assignments were untimely based on the calculation
method used by the agency. ID at 13 n.4.
Regarding her claim that the administrative judge discounted testimony by
her co-workers that computer and connectivity issues impacted the timeliness of
their work, the administrative judge concluded that, despite this testimony, the
appellant failed to provide any specific instances of untimely assignments that
would have been considered timely if not for her computer issues. ID at 16.
Further, although both of the appellant’s co -workers testified that they also
experienced computer and connectivity issues, both also confirmed that they
received satisfactory performance ratings during the performance periods in
which they experienced the computer issues. HCD (testimony of the appellant’s
co-worker 1; testimony of the appellant’s co-worker 2). Thus, even if they
experienced disruption due to computer issues, there is no evidence in the record
that those issues affected either employee’s ability to perform at the successful
Results Achieved performance level. Accordingly, we find no error in the
administrative judge’s finding that the appellant’s performance remained
unacceptable at the end of the PIP period.
Based on the foregoing, we discern no basis to disturb the administrative
judge’s findings regarding the appellant’s performance-based removal under
pre-Santos law.
We clarify the legal standards applicable to the appellant’s affirmative defenses
but still conclude that she failed to prove any of them.
Title VII discrimination and retaliation claim
Regarding the appellant’s affirmative defenses of discrimination on the
bases of race, sex, and reprisal for protected EEO activity, the administrative
judge found that the appellant failed to prove these claims, and the appellant does
not challenge those findings on review. ID at 17-19. We ultimately agree with
the administrative judge’s finding that the appellant failed to prove any of her11
affirmative defenses, but we take this opportunity to clarify some of those
findings.
In analyzing the appellant’s Title VII claims, which include discrimination
based on race and sex and reprisal for prior EEO activity, the administrative
judge relied on the legal framework set forth in Savage v. Department of the
Army, 122 M.S.P.R. 612, ¶ 51 (2015). ID at 17-19. Subsequent to the initial
decision in this case, the Board issued Pridgen v. Office of Management and
Budget, 2022 MSPB 31, wherein it overruled Savage to the extent it held that the
framework set forth in McDonnell Douglas Corp. v. Green , 411 U.S. 792, 802-04
(1973), did not apply to Board proceedings. Pridgen, 2022 MSPB 31, ¶¶ 23-25.
We have reviewed this case under the standards set forth in Pridgen and Wilson v.
Small Business Administration , 2024 MSPB 3, ¶¶ 11-19. Because we agree with
the administrative judge that the appellant failed to meet the threshold motivating
factor standard, we need not examine whether she met the “but-for” standard
required for full relief.3 See, e.g., Haas v. Department of Homeland Security ,
2022 MSPB 36, ¶ 32.
Disparate treatment disability discrimination claim
Similarly, with respect to the appellant’s disparate treatment disability
discrimination claim, the administrative judge applied the burden -shifting
analysis of McDonnell Douglas in analyzing this claim. ID at 27-29. In Pridgen,
as with Title VII claims, as set forth above, the Board applied the motivating
factor causation standard for disparate treatment disability discrimination claims.
3 In Pridgen, the Board also clarified that the more stringent “but-for” standard applies
to claims of retaliation arising under the Rehabilitation Act. Pridgen, 2022 MSPB 31,
¶¶ 44-47. Because the appellant also raises affirmative defenses related to the
Rehabilitation Act, as set forth below, we have examined the record to determine
whether her EEO reprisal claim includes matters related to the Rehabilitation Act. The
record does not clearly establish that her prior EEO activity is related to her disability.
IAF, Tab 23 at 253-55. To the extent the appellant argued below that she was retaliated
against on the basis of her disability, she has not shown that such a consideration was a
but-for cause of her removal. See Pridgen, 2022 MSPB 31, ¶¶ 44-47.12
Pridgen, 2022 MSPB 31, ¶¶ 40, 42. Thus, under Pridgen, an appellant must show
by preponderant evidence that her status as a disabled person was at least a
motivating factor in the contested personnel action. Id., ¶¶ 40, 42. Here, the
administrative judge concluded that the appellant presented “no evidence to
support this affirmative defense” and noted that she did not make any arguments
regarding this claim in her closing brief. ID at 29. The appellant has not
challenged these conclusions on review. PFR File, Tab 1. Therefore, we
conclude here that, because the appellant failed to present any evidence of
causation, she necessarily failed to meet the motivating factor causation standard
for her disparate treatment disability discrimination claim.
Failure to accommodate claim
With respect to her failure to accommodate disability discrimination
affirmative defense, the appellant argued below that the agency erred by failing to
provide her with a reasonable accommodation for her severe allergies and back
and neck issues. IAF, Tab 5 at 75-79, Tab 29 at 10-11. In the initial decision, the
administrative judge concluded that, even assuming the appellant proved that she
was a qualified individual with a disability, she nevertheless failed to establish
that the agency did not accommodate her because she failed to fulfill her
obligations under the interactive accommodation process. ID at 22. On review,
the appellant reargues that the deciding official did not adequately consider her
claim that she required a reasonable accommodation in reaching his removal
determination, and states that the administrative judge misconstrued this
argument as a claim that the deciding official should have mitigated the removal
penalty, instead of as an affirmative defense claim. PFR File, Tab 1 at 11-12.
The appellant mischaracterizes the administrative judge’s findings. As an
initial matter, the administrative judge only addressed the issue of whether the
appellant’s medical condition should have been considered as a mitigating factor
in the agency’s removal determination in direct response to the appellant’s
closing brief, which cited a number of Board appeals of actions taken under13
chapter 75. IAF, Tab 29 at 10-11; ID at 27 n.11. As the administrative judge
noted, unlike in appeals of actions taken under chapter 75, the Board may not
mitigate an agency’s chosen penalty in appeals of actions taken under chapter 43,
so the appellant’s provided citations were inapposite. Lisiecki v. Merit Systems
Protection Board , 769 F.2d 1558, 1566-67 (Fed. Cir. 1985); ID at 27 n.11.
Additionally, the appellant mischaracterizes the deciding official’s
testimony, stating that he did not consider her reply to the proposed removal
“that asserted she needed a reasonable accommodation.” PFR File, Tab 1 at 11.
In direct testimony, the deciding official confirmed that the appellant raised
issues “of medical nature” in her response to the removal proposal and that he did
consider what she raised. HCD (testimony of the deciding official).
When pressed on cross-examination about the amount of weight he gave to the
appellant’s “medical issues,” the deciding official stated that he did not consider
the appellant’s assertion that she needed a reasonable accommodation in her
response to the proposal because it was his understanding that she had not been
granted a reasonable accommodation. HCD (testimony of the deciding official).
Regarding the merits of the appellant’s failure to accommodate claim, we
also find no error in the administrative judge’s finding that the agency was
justified in denying the appellant’s reasonable accommodation request because
she failed to engage in the interactive process. ID at 24-27. To prove a failure to
accommodate disability discrimination affirmative defense, the appellant must
prove that she is a disabled person,4 that the action appealed was based on her
disability, and, to the extent possible, she must articulate a reasonable
accommodation under which she believes she could perform the essential duties
of her position or a vacant funded position to which she could be reassigned.
Sanders v. Social Security Administration , 114 M.S.P.R. 487, ¶ 16 (2010).
4 Although the Board in Haas, 2022 MSPB 36, ¶ 29 & n.9, reiterated that whether the
appellant proved that she is a qualified individual with a disability is generally regarded
as a threshold determination, it also acknowledged some disability discrimination
claims may be resolved without reaching that question.14
In finding that the appellant failed to meet her burden, the administrative
judge noted that the appellant failed to provide adequate medical documentation
supporting her November 2017 reasonable accommodation request despite
repeated requests by agency managers for supporting medical documentation.
ID at 24-26. He also declined to credit the appellant’s testimony that she made a
subsequent reasonable accommodation request after her November 2017 request,
determining that it was at odds with the documentary record and her own
discovery responses stating otherwise. ID at 26 (citing Hillen v. Department
of the Army, 35 M.S.P.R. 453, 458 (1987)); see Haebe v. Department of Justice ,
288 F.3d 1288, 1301 (Fed. Cir. 2002) (observing that the Board generally must
give deference to an administrative judge’s credibility determinations when they
are based, explicitly or implicitly, on the observation of the demeanor of
witnesses testifying at a hearing). The appellant has not challenged these
findings on review.
Accordingly, we find no error in the administrative judge’s conclusions
that the agency was justified in denying the appellant’s reasonable
accommodation request based on her failure to engage in the interactive process,
and that she therefore failed to meet her burden of proving her affirmative
defense of disability discrimination based on a failure to accommodate. ID at 27;
see White v. Department of Veterans Affairs , 120 M.S.P.R. 405, ¶¶ 11-14 (2013)
(finding that the appellant failed to establish that the agency violated its duty of
reasonable accommodation when the appellant failed to fulfill his obligations in
the interactive accommodation process by not providing sufficient medical
documentation); see also Simpson v. U.S. Postal Service , 113 M.S.P.R. 346, ¶ 18
(2010) (finding that the appellant did not prove the denial of reasonable
accommodation when he was unresponsive to the agency’s good faith attempts to
engage in the interactive process). 15
Based on the foregoing, we discern no basis to disturb the administrative
judge’s conclusion that the appellant failed to establish any of her affirmative
defenses.
Remand is necessary under Santos to afford the parties an opportunity to submit
evidence and argument regarding whether the appellant’s placement on a PIP was
proper.
Although the appellant has identified no basis for us to disturb the
administrative judge’s findings either with respect to the chapter 43 removal
action or her affirmative defenses, we nonetheless must remand this appeal for
another reason. As noted above, during the pendency of the petition for review in
this case, the Federal Circuit issued Santos, 990 F.3d at 1360-63, in which it held
that, in addition to the five elements of an agency’s chapter 43 removal case set
forth above, the agency must also justify the initiation of a PIP by proving by
substantial evidence that the employee’s performance was unacceptable prior to
the PIP. The Federal Circuit’s decision in Santos applies to all pending
cases, including this one, regardless of when the events took place. Lee,
2022 MSPB 11, ¶ 16.
Although the record in this case already contains evidence suggesting that
the appellant’s performance prior to the initiation of the PIP was unacceptable,
we remand the appeal to give the parties the opportunity to present argument and
additional evidence on whether the appellant’s performance during the period
leading up to the PIP was unacceptable in one or more critical elements. See id.,
¶¶ 15-17. On remand, the administrative judge shall accept argument and
evidence on this issue and shall hold a supplemental hearing if appropriate. Id.,
¶ 17.
The administrative judge shall then issue a new initial decision consistent
with Santos. See id. If the agency makes the additional showing required under
Santos on remand, the administrative judge may incorporate in the remand initial
decision his prior findings on the other elements of the agency’s case and the16
appellant’s affirmative defenses, consistent with this Remand Order. See id.
However, regardless of whether the agency meets its burden, if the argument or
evidence on remand regarding the appellant’s pre-PIP performance affects the
administrative judge’s analysis of the appellant’s affirmative defenses, the
administrative judge should address such argument or evidence in the remand
initial decision. See Spithaler v, Office of Personnel Management , 1 M.S.P.R.
587, 589 (1980) (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 Atlanta
Regional Office for further adjudication in accordance with this Remand Order.
FOR THE BOARD: ______________________________
Gina K. Grippando
Clerk of the Board
Washington, D.C.17 | Bradley_Wilma_J_AT-0432-20-0090-I-1_Remand_Order.pdf | 2024-12-30 | WILMA J. BRADLEY v. DEPARTMENT OF EDUCATION, MSPB Docket No. AT-0432-20-0090-I-1, December 30, 2024 | AT-0432-20-0090-I-1 | NP |
293 | https://www.mspb.gov/decisions/nonprecedential/Baldwin_Allan_R_AT-0845-21-0302-I-1_Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
ALLAN R. BALDWIN,
Appellant,
v.
OFFICE OF PERSONNEL
MANAGEMENT,
Agency.DOCKET NUMBER
AT-0845-21-0302-I-1
DATE: December 23, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
Allan R. Baldwin , The Villages, Florida, pro se.
Alison Pastor , Washington, D.C., for the agency.
BEFORE
Cathy A. Harris , Chairman
Raymond A. Limon , Vice Chairman
Henry J. Kerner , Member
FINAL ORDER
The appellant has filed a petition for review of the initial decision, which
affirmed an Office of Personnel Management (OPM) reconsideration decision
finding him ineligible for a waiver of a $56,932 overpayment in retirement
benefits. On petition for review, the appellant claims he was inadequately
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).
represented in his appeal, OPM provided misinformation about the computation
of his annuity, he detrimentally relied on the overpayment, and recovery of the
overpayment would be unconscionable. 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. Except as expressly
MODIFIED to clarify the administrative judge’s analysis of the issue of waiver
based on detrimental reliance, we AFFIRM the initial decision.
The appellant argued on appeal that he was entitled to a waiver of recovery
of the overpayments due to his detrimental reliance on OPM’s advice and
omissions. Initial Appeal File (IAF), Tab 19 at 11-13. He asserted that, had he
been made aware that his annuity would be reduced at age 62 when he became
eligible for Social Security Administration (SSA) benefits, either through OPM
2 In his reply to the agency’s response to the petition for review, the appellant argues
that allowance should be made for Federal taxes withheld from his annuity in the
calculation of his overpayment. Petition for Review (PFR) File, Tab 6 at 4. OPM is
required by law to withhold Federal income taxes from the benefit it pays and to remit
that amount to the Internal Revenue Service (IRS). Cebzanov v. Office of Personnel
Management, 96 M.S.P.R. 562, ¶ 11 (2004). To the extent that an adjustment to the
appellant’s benefits and any resulting overpayment affect his tax liability for past years,
he must seek a remedy from the IRS. Id. OPM is thus not required to adjust its
overpayment calculations to account for taxes remitted to the IRS.2
advice or a timely annuity adjustment, he would have applied for SSA benefits at
age 62 to make up for the difference in his annuity. IAF, Tab 11 at 14, Tab 19
at 12. He claims that, instead, he has “sacrificed” 4 years of SSA payments.
IAF, Tab 11 at 14. The administrative judge failed to fully analyze this
argument, and accordingly we do so now.
To justify waiver of an overpayment due to detrimental reliance, the
recipient must show that “due to the notice that such payment would be made or
because of the incorrect payment” he has “relinquished a valuable right or
changed positions for the worse.” 5 C.F.R. § 831.1403(a)(2). In evaluating
detrimental reliance claims, the Board has applied section I.E.3 of the OPM
Policy Guidelines on the Disposition of Overpayments under the Civil Service
Retirement System and the Federal Employees’ Retirement System , which states
that to justify waiver, this “loss of a right or a change of position” must be:
(a) directly caused by the overpayment or notice that such payment
would be made ( i.e., loss or change would not have otherwise
occurred);
(b) detrimental to the overpayment recipient;
(c) material (i.e., significant enough to warrant the waiver); and
(d) irrevocable ( i.e., the forfeited right cannot be recovered, the
change in position cannot be reversed).
IAF, Tab 9 at 113; see Hunter v. Office of Personnel Management ,
109 M.S.P.R. 514, ¶ 12 (2008).
After review, we find that the appellant failed to establish, at the least, the
second and third criteria, i.e., detriment and materiality. The appellant’s
argument overlooks the fact that delaying receipt of SSA benefits until age 66
substantially increased his monthly SSA benefits, and may yield him a higher
total sum of such benefits over his lifetime than if he began drawing those
benefits at age 62. IAF, Tab 20 at 22-25. Accordingly, because there is no means
of determining the appellant’s net financial change, he failed to carry his burden
of showing that any change to his financial position was detrimental or material.3
King v. Office of Personnel Management , 730 F.3d 1342, 1349 (Fed. Cir. 2013)
(calculating change in financial position in terms of net loss). The appellant has
therefore failed to justify waiver of recovery of his overpayment due to
detrimental reliance.3
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.
3 The appellant’s claims of inadequate representation also fail to establish any basis for
granting the petition for review. Sofio v. Internal Revenue Service , 7 M.S.P.R. 667, 670
(1981) (the appellant is responsible for the errors of his chosen representative).
4 Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise which option is most appropriate in any matter.4
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you5
receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. 420 (2017). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the district court no later than 30 calendar days after your representative
receives this decision. If the action involves a claim of discrimination based on
race, color, religion, sex, national origin, or a disabling condition, you may be
entitled to representation by a court -appointed lawyer and to waiver of any
requirement of prepayment of fees, costs, or other security. See 42 U.S.C.
§ 2000e-5(f) and 29 U.S.C. § 794a.
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702(b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to: 6
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or
other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
disposition of allegations of a prohibited personnel practice described in section
2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i),
(B), (C), or (D),” then you may file a petition for judicial review either with the
U.S. Court of Appeals for the Federal Circuit or any court of appeals of
competent jurisdiction.5 The court of appeals must receive your petition for
review within 60 days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(B).
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
5 The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115-195,
132 Stat. 1510. 7
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
Contact information for the courts of appeals can be found at their
respective websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
FOR THE BOARD: ______________________________
Gina K. Grippando
Clerk of the Board
Washington, D.C.8 | Baldwin_Allan_R_AT-0845-21-0302-I-1_Final_Order.pdf | 2024-12-23 | ALLAN R. BALDWIN v. OFFICE OF PERSONNEL MANAGEMENT, MSPB Docket No. AT-0845-21-0302-I-1, December 23, 2024 | AT-0845-21-0302-I-1 | NP |
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