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4,094 | https://www.mspb.gov/decisions/nonprecedential/HAMMOND_SCHWANDA_G_DA_1221_19_0492_W_1_FINAL_ORDER_1963180.pdf | UNITED STATES OF AME RICA
MERIT SYSTEMS PROTEC TION BOARD
SCHWANDA G. HAMMOND,
Appellant,
v.
DEPARTMENT OF DEFENS E,
Agency.
DOCKET NUMBER
DA-1221 -19-0492 -W-1
DATE: September 23, 2022
THIS FINAL ORDER IS NONPRECEDENTIAL1
Schwanda G. Hammond , Fort Worth, Texas, pro se.
Susan L. Lovell , Esquire, Fort Belvoir, Virginia, for the agency.
BEFORE
Cathy A. Harris , Vice Chairman
Raymond A. Limon , Member
Tristan L. Leavitt , Member
FINAL ORDER
¶1 The appellant has petitioned for review of the December 12, 2019 initial
decision in this individual right of action appeal. Initial Appeal File, Tab 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1 A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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).
2
Initial Decision; Petition for Review (PFR) File, Tab 3. For the reasons set forth
below, we DISMISS the appeal as settled.
¶2 After the filing of the petition for review, the parties submitted a document
entitled “SETTLEMENT AGREEMENT” signed and dated by the appellant on
March 11, 2020, and by the agency on March 12, 2020. PFR File, Tab 10. The
document provides, among other things, that the appellant agreed to withdraw the
above -captioned appeal in exchange for the promises made by the agency. Id.
at 8.
¶3 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
Massey v. Office of Personnel Management , 91 M.S.P.R. 289 , ¶ 4 (2002) ,
overruled on other grounds by Delorme v. Department of the Interior ,
124 M.S.P.R. 123 , ¶¶ 11 -21 (2017) (holding that the Board may e nforce
settlement agreements that have been entered into the record, independent of any
prior finding of Board jurisdiction over the underlying matter being settled).
¶4 Here, we find that the parties have entered into a settlement agreement and
understand it s terms but, for the following reasons, that they did not intend the
settlement agreement to be entered into the record for enforcement by the Board
in this appeal.
¶5 The settlement agreement provides that the parties agreed it would be
entered into the re cord for enforcement in another Board appeal, MSPB Docket
3
No. DA -0752 -20-0103 -I-1.2 PFR File, Tab 10 at 11. However, in response to an
e-Appeal Online prompt when submitting the settlement agreement in this
appeal, the agency indicated that the parties a greed that the settlement agreement
would be entered into the record for enforcement. Id. at 3. Given the conflicting
statements, the Board informed the parties that, if they wanted the settlement
agreement to be entered into the record for enforcement i n this appeal, they must
submit a properly executed amendment to that effect. PFR File, Tab 11.
Although the parties responded to the Board’s order, they did not submit an
amendment or otherwise address their intent regarding enforcement. PFR File,
Tabs 12-14.3 Therefore, pursuant to the unambiguous term of the settlement
agreement, we find that the parties intended the settlement agreement to be
entered into the record for enforcement in MSPB Docket No. DA -0752 -20-0103 -
I-1, but not in this appeal. See Greco v. Department of the Army , 852 F.2d 558 ,
2 Pursuant to this term, in a March 19, 2020 initial decision, the administrative judge
entered the March 2020 settlement agreement into the record for enforcement by the
Board in MSPB Docket No. DA -0752 -20-0103 -I-1. Hammond v. Department of
Defense , MSPB Docket No. DA -0752 -20-0103 -I-1, Initial Appeal File, Tab 33, Initial
Decision. On August 12, 2020, the appellant petitioned for enforcement of the
settlement agreement. Hammond v. Department of Defense , MSPB Docket No.
DA-0752 -20-0103 -C-1, Compliance File ( 0103 CF), Tab 1. In an October 7, 2020
compliance initial decision, the administrative jud ge found that the appellant failed to
show that the agency breached the settlement agreement and denied her petition for
enforcement. 0103 CF, Tab 16, Compliance Initial Decision. On November 11, 2020,
the appellant petitioned for review of the complianc e initial decision. Hammond v.
Department of Defense , MSPB Docket No. DA -0752 -20-0103 -C-1, Compliance Petition
for Review File, Tab 1. The appellant’s petition for review of the compliance initial
decision remains pending before the Board.
3 On Septembe r 20, 2021, the appellant submitted a copy of a December 11, 2020
motion she had filed in MSPB Docket No. DA -0752 -20-0103 -C-1 regarding alleged
agency noncompliance with the March 2020 settlement agreement. PFR File, Tab 12.
The agency moved to dismiss t he appeal as settled pursuant to the March 2020
settlement agreement and resubmitted a copy of the agreement. PFR File, Tabs 13 -14.
To the extent the appellant’s resubmission of her December 11, 2020 motion is an
attempt to challenge in this appeal the a gency’s compliance with the March 2020
settlement agreement, it is not properly before the Board, and we therefore need not
address it.
4
560 (Fed. Cir. 1988) (in construing the terms of a written settlement agreement,
the words of the agreement itself are of paramount importance in determining the
intent of the parties at the time they contracted). As the parties do not intend for
the Board to enforce the settlement agreement in this appeal, we need not address
the additional consi derations regarding enforcement, and we do not enter the
settlement agreement into the record for enforcement by the Board.
¶6 In light of the foregoing, we find that dismissing the appeal “with prejudice
to refiling” (i.e., the parties normally may not refil e this appeal) is appropriate
under these circumstances.
¶7 This is the final decision of the Merit Systems Protection Board in this
appeal. Title 5 of the Code of Federal Regulations, section 1201.113 ( 5 C.F.R.
§ 1201.113 ).
NOTICE OF APPEAL RIG HTS4
You may obtain review of this final decision. 5 U.S.C. § 7703 (a)(1) . By
statute, the nature of your claims determines the time limit for seeking such
review and the appropriate forum with which to file. 5 U.S.C. § 7703 (b).
Although we offer the following summar y of available appeal rights, the Merit
Systems Protection Board does not provide legal advice on which option is most
appropriate for your situation and the rights described below do not represent a
statement of how courts will rule regarding which cases fall within their
jurisdiction. If you wish to seek review of this final decision, you should
immediately review the law applicable to your claims and carefully follow all
filing time limits and requirements. Failure to file within the applicable time
limit may result in the dismissal of your case by your chosen forum.
4 Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review rights in cluded in final decisions. As indicated in the notice, the
Board cannot advise which option is most appropriate in any matter.
5
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703 (b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional informatio n about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Prac tice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono re presentation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC revie w of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
6
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so , you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703 (b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. ____ , 137 S. Ct. 1975 (2017). If you have a
representative in this case, and your representative receives this decision before
you do, then you must file with the district court no later than 30 calendar days
after your representative receives this decision. If the action involves a claim of
discrimination based on race, color, religion, sex, national origin, or a disabling
condition, you may be entitled to representation by a court -appointed lawyer and
to waiver of any requirement of prepayment of fees, costs, or other security. See
42 U.S.C. § 2000e -5(f) and 29 U.S.C. § 794a .
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourt s.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702 (b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702 (b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC b y regular U.S. mail, the
address of the EEOC is:
7
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiri ng a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 201 2. This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302 (b)(8) or
other protected activities listed in 5 U.S.C. § 2302 (b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
disposition of allegations of a prohibited personnel practice described in section
2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i),
(B), (C), or (D),” then you may file a 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 case s with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115 -195,
132 Stat. 1510.
8
If you submit a petition for judicial review to t he U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the 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 appe als can be found at their
respective websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
FOR THE BOARD:
Washington, D.C. /s/ for
Jennifer Everling
Acting Clerk of the Board | HAMMOND_SCHWANDA_G_DA_1221_19_0492_W_1_FINAL_ORDER_1963180.pdf | 2022-09-23 | null | DA-1221-19-0492-W-1 | NP |
4,095 | https://www.mspb.gov/decisions/nonprecedential/HASLEM_PATRICK_SEAN_DC_3443_20_0614_I_1_FINAL_ORDER_1963182.pdf | UNITED STATES OF AME RICA
MERIT SYSTEMS PROTEC TION BOARD
PATRICK SEAN HASLEM,
Appellant,
v.
DEPARTMENT OF AGRICU LTURE,
Agency.
DOCKET NUMBER
DC-3443 -20-0614 -I-1
DATE: September 23, 2022
THIS FINAL ORDER IS NONPRECEDENTIAL1
Patrick Sean Haslem , Severn, Maryland, pro se.
Dora Malykin , Esquire, Riverdale, Maryland, for the agency.
BEFORE
Cathy A. Harris , Vice Chairman
Raymond A. Limon , Member
Tristan L. Leavitt , Member
FINAL ORDER
¶1 The appellant has petitioned for review of the May 29, 2020 initial decision
in this appeal. Initial Appeal File, Tab 6 , Initial Decision ; Petition for Review
(PFR) File, Tab 1. 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 dis tinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board's case law. See 5 C.F.R. § 1201.117 (c).
2
¶2 After the filing of the petition for review, the parties submitted a document
entitled “SETTLEMENT AGREEMENT AND RELEASE OF ALL CLAIMS ”
signed and dated by the appellant on September 16, 2020, and by the agency on
September 18, 2020. PFR File, Tab 5. The document provides, among other
things, for the withdrawal of the appe al. Id.
¶3 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 t he
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
Massey v. Office of Personnel Management , 91 M.S.P.R. 289 , ¶ 4 (2002) ,
overruled on other grounds by Delorme v. Department of the Interior ,
124 M.S.P.R. 123 , ¶¶ 11 -21 (2017) (holding that the Board may enforce
settlement agreements that have been entered into the record, independent of any
prior finding of Board jurisdiction over the underlying matter being settled).
¶4 Here, we find that the parties have entered into a settlement agreement,
understand its terms, and intend for the agreement to be entered into the record
for enforcement by the Board. PFR File, Tab 5. In addition, we find that th e
agreement is lawful on its face and that the parties freely entered into it. Id.
¶5 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
circumstan ces, 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 ).
3
NOTICE TO THE PARTIE S 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 sett lement 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 RIG HTS2
You may obtain review of this final decision. 5 U.S.C. § 7703 (a)(1). By
statute, the nature of your claims determines the time limit for seeking such
review and the appropriate forum with which to file. 5 U.S.C. § 7703 (b).
Although we offer the following summary of available appeal rights, the Merit
Systems Protection Board does not provide legal advice on which option is most
appropriate for your situation and the rights described below do not represent a
statement of how courts will rule regarding which cases fall within their
jurisdiction. If you wish to seek review of this final decision, you should
immediately review the law applicable to your claims an d carefully follow all
filing time limits and requirements. Failure to file within the applicable time
limit may result in the dismissal of your case by your chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
2 Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise which option is mos t 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 t he court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Prote ction Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
5
receive this decision. 5 U.S.C. § 7703 (b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. ____ , 137 S. Ct. 1975 (2017). If you have a
representative in this case, and your representative receives this decision before
you do, then you must file with the district court no later than 30 calendar days
after your representative receives this decision. If the action involves a claim of
discri mination based on race, color, religion, sex, national origin, or a disabling
condition, you may be entitled to representation by a court -appointed lawyer and
to waiver of any requirement of prepayment of fees, costs, or other security. See
42 U.S.C. § 2000e -5(f) and 29 U.S.C. § 794a .
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourt s.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702 (b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702 (b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for re view to the EEOC by regular U.S. mail, the
address of the EEOC is:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If 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
Enha ncement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302 (b)(8) or
other protected activities listed in 5 U.S.C. § 2302 (b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
disposition of allegations of a prohibited personne l practice described in
section 2302(b) other than practices described in section 2302(b)(8), or
2302(b)(9)(A)(i), (B), (C), or (D),” then you may file a petition for judicial
review either with the U.S. Court of Appeals for the Federal Circuit or any court
of appeals of compete nt 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 judi cial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
3 The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law b y the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of c ompetent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115 -195,
132 Stat. 1510.
7
Additional informatio n about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Prac tice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono re presentation
for Merit Systems Protection Board appellants before the 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 th e courts of appeals can be found at their
respective websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
FOR THE BOARD:
Washington, D.C. /s/ for
Jennifer Everling
Acting Clerk of the Board | HASLEM_PATRICK_SEAN_DC_3443_20_0614_I_1_FINAL_ORDER_1963182.pdf | 2022-09-23 | null | DC-3443-20-0614-I-1 | NP |
4,096 | https://www.mspb.gov/decisions/nonprecedential/KULKARNI_ABHIJIT_DE_1221_19_0232_W_1_FINAL_ORDER_1963200.pdf | UNITED STATES OF AME RICA
MERIT SYSTEMS PROTEC TION BOARD
ABHIJIT KULKARNI,
Appellant,
v.
DEPARTMENT OF VETERA NS
AFFAIRS,
Agency.
DOCKET NUMBER
DE-1221 -19-0232 -W-1
DATE: September 23, 2022
THIS FINAL ORDER IS NONPRECEDENTIAL1
Sayali Kulkarni , Salt Lake City, Utah, for the appellant.
Johnston B. Walker , Jackson, Mississippi, for the agency.
BEFORE
Cathy A. Harris , Vice Chairman
Raymond A. Limon , Member
Tristan L. Leavitt , Member
FINAL ORDER
¶1 The appellant has petitioned for review of the October 17, 2019 initial
decision in this appeal. Initial Appeal File, Tab 57, Initial Decision; 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 administra tive judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board's case law. See 5 C.F.R. § 1201.117 (c).
2
Review (PFR) File, Tab 1. For the reasons set forth below, we DISMISS the
appeal as settled.
¶2 After the filing of the petition for review, the parties submitted a document
entitled “SETTLEMENT AGREEMENT” signed and dated by the appellant on
May 7, 2020, and by the agency on May 8, 2020. PFR File, Tab 4. The
document provides, among other things, that the appellant agreed to withdraw the
above -captioned appeal in exchange for the promises made by the agency.2 Id.
at 4.
¶3 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 agr eement 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
Massey v. Office of Personnel Management , 91 M.S.P.R. 289 , ¶ 4 (2002) ,
overruled on other grounds by Delorme v. Department of the Interior ,
124 M.S.P.R. 123 , ¶¶ 11 -21 (2017) (holding that the Board may enforce
2 The waiver and withdrawal provision in this executed settlement agreement preserves
one issue for adjudication by the Board on petition for review:
The only exception to the waiver and withdrawal provisions in this
agreement are specific claims related to the determination that
Complainant belongs on Pay Table 1 that were not included in the EEO
cases referenced above. Complainant is not prohibited b y this agreement
from pursuing claims related to Pay Table determinations before the
MSPB, OSC, or any other forum. Therefore, MSPB case No. DE -1221 -
19-0158 -W-1 is dismissed except for the claim related to the pay table
demotion.
PFR File, Tab 4 at 4 -5. The Board will address the pay table retaliation demotion issue
in a separate order in Kulkarni v. Department of Veterans Affairs , MSPB Docket
No. DE-1221 -19-0158 -W-1.
3
settlement agreements that have been entered into the record, independe nt of any
prior finding of Board jurisdiction over the underlying matter being settled).
¶4 Here, we find that the parties have entered into a settlement agreement and
understand its terms. PFR File, Tab 4. We further find that the parties do not
intend t o enter the settlement agreement into the record for enforcement by the
Board, as the agreement instead provides for enforcement through the equal
employment opportunity procedures set forth at 29 C.F.R. § 1614.504 .3 Id. at 6;
see Grubb v. Department of the Interior , 76 M.S.P.R. 639 , 642 -43 (1997)
(finding that the p arties intended the Equal Employment Opportunity
Commission, not the Board, to enforce a settlement agreement that provided for
enforcement in accordance with 29 C.F.R. § 1614.504 ). As the parties do not
intend for the Board to enforce the settlement agreement, we need not address the
additional considerations regarding enforcement and do not enter the settlement
agreement into the record for enforcement by the Board.
¶5 In light of the foregoing, we find that dismissing the petition for appeal
“with prejudice to refiling” (i.e., the parties normally may not refile this appeal)
is appropriate under these circumstances. 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 In response to an e -Appeal prompt when submitting the settlement agreement in th is
appeal, the agency indicated that the parties agreed that the settlement agreement would
be entered into the record for enforcement by the Board. PFR File, Tab 4 at 3.
However, the settlement agreement itself provides that, if the appellant believes t he
agency has failed to comply with a term of the settlement agreement, he must notify the
agency in writing of the alleged breach within 30 days and then may file an appeal with
the Equal Employment Opportunity Commission pursuant to 29 C.F.R. § 1614.504 . Id.
at 6. As the words of the agreement itself are of paramount importance in determining
the intent of the parties at the time they contracted, we find that the parties did not
intend the settlement agreement to be entered into the record for enforcement by the
Board but instead for the appellant to pursue enforcement through the alternate process
specified in the agreement. See Greco v. Department of the Army , 852 F.2d 558 , 560
(Fed. Cir. 1988).
4
NOTICE OF APPEAL RIG HTS4
You may obtain review of this final decision. 5 U.S.C. § 7703 (a)(1). By
statute, the nature of your claims determines the time limit for seeking such
review and the appropriate forum with which to file. 5 U.S.C. § 7703 (b).
Although we offer the following summary of available appeal rights, the Merit
Systems Protection Board does not provide legal advice on which option is most
appropriate for your situation and the rights described below do not represent a
statement of how courts will rule regarding which cases fall within their
jurisdiction. If you wish to seek review of this final decision, you should
immediately review the law applicable to your claims and carefully follow all
filing time l imits and requirements. Failure to file within the applicable time
limit may result in the dismissal of your case by your chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your par ticular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703 (b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
4 Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise which option is most appropriate in any matter.
5
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioner s and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our websit e at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney wi ll accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision —including a disposition of you r discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703 (b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. ____ , 137 S. Ct. 1975 (2017). If you have a
representative in this case, and your repres entative receives this decision before
you do, then you must file with the district court no later than 30 calendar days
after your representative receives this decision. If the action involves a claim of
discrimination based on race, color, religion, sex, national origin, or a disabling
condition, you may be entitled to representation by a court -appointed lawyer and
6
to waiver of any requirement of prepayment of fees, costs, or other security. See
42 U.S.C. § 2000e -5(f) and 29 U.S.C. § 794a .
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702 (b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702 (b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial revi ew pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302 (b)(8 ) or
other protected activities listed in 5 U.S.C. § 2302 (b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
7
disposition of allegations of a prohibited personne l practice described in
section 2302(b) other than practices described in section 2302(b)(8), or
2302(b)(9)(A)(i), (B), (C), or (D),” then you may file a petition for judicial
review either with the U.S. Court of Appeals for the Fe deral 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.ms pb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
5 The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115 -195,
132 Stat. 1510.
8
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept represen tation in a given case.
Contact information for the courts of appeals can be found at their
respective websites, which can be accessed through the link below:
http://www.uscourts. gov/Court_Locator/CourtWebsites.aspx .
FOR THE BOARD:
Washington, D.C. /s/ for
Jennifer Everling
Acting Clerk of the Board | KULKARNI_ABHIJIT_DE_1221_19_0232_W_1_FINAL_ORDER_1963200.pdf | 2022-09-23 | null | DE-1221-19-0232-W-1 | NP |
4,097 | https://www.mspb.gov/decisions/nonprecedential/KULKARNI_SAYALI_DE_1221_19_0231_W_1_FINAL_ORDER_1963207.pdf | UNITED STATES OF AME RICA
MERIT SYSTEMS PROTEC TION BOARD
SAYALI KULKARNI,
Appellant,
v.
DEPARTMENT OF VETERA NS
AFFAIRS,
Agency.
DOCKET NUMBER
DE-1221 -19-0231 -W-1
DATE: September 23, 2022
THIS FINAL ORDER IS NONPRECEDENTIAL1
Abhijit Kulkarni , Salt Lake City, Utah, for the appellant.
Johnston B. Walker , Jackson, Mississippi, for the agency.
BEFORE
Cathy A. Harris , Vice Chairman
Raymond A. Limon , Member
Tristan L. Leavitt , Member
FINAL ORDER
¶1 The appellant has petitioned for review of the October 17, 2019 initial
decision in this appeal. Initial Appeal File, Tab 58, Initial Decision; 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).
2
Review (PFR) File, Tab 1. For the reasons set forth below, we DISMISS the
appeal as settled.
¶2 After the filing of the petition for review, the parties submitted a document
entitled “SETTLEMENT AGREEMENT” signed and dated by the appellant on
May 7, 2020, and by the agency on May 8, 2020. PFR File, Tab 4. The
document provides, among other things, that the appellant agreed to withdraw the
above -captioned appeal in exchange for the promises made by the agency.2 Id.
at 4.
¶3 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 agr eement 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
Massey v. Office of Personnel Management , 91 M.S.P.R. 289 , ¶ 4 (2002) ,
overruled on other grounds by Delorme v. Department of the Interior ,
124 M.S.P.R. 123 , ¶¶ 11 -21 (2017) (holding that the Board may enforce
2 The waiver and withdrawal provision in this executed settlement agreement preserves
one issue for adjudication by the Board on petition for review:
The only exception to the waiver and withdrawal provisions in this
agreement are specific claims related to the determination that
Complainant belongs on Pay Table 1 that were not included in the EEO
cases referenced above. Complainant is not prohibited by this agreement
from pursuing claims related to Pay Table determinations before the
MSPB, OSC, or any ot her forum. Therefore, MSPB case No. DE -1221 -
19-0157 -W-1 is dismissed except for the claim related to the pay table
demotion.
PFR File, Tab 4 at 4 -5. The Board will address the pay table retaliation demotion issue
in a separate order in Kulkarni v. Depa rtment of Veterans Affairs , MSPB Docket
No. DE-1221 -19-0157 -W-1.
3
settlement agreements that have been entered into the record, independe nt of any
prior finding of Board jurisdiction over the underlying matter being settled).
¶4 Here, we find that the parties have entered into a settlement agreement and
understand its terms. PFR File, Tab 4. We further find that the parties do not
intend t o enter the settlement agreement into the record for enforcement by the
Board, as the agreement instead provides for enforcement through the equal
employment opportunity procedures set forth at 29 C.F.R. § 1614.504 .3 Id. at 6;
see Grubb v. Department of the Interior , 76 M.S.P.R. 639 , 642 -43 (1997)
(finding that the parties intended the Equal Employment Opportunity
Commission, not the Board, to enforce a settlement agreement that provided for
enforcement in accordance with 29 C.F.R. § 1614.504 ). As the parties do not
intend for the Board to enforce the settlement agreement, we need not address the
additional considerations regarding enforcement and do not enter the settlement
agreement into the record for enforceme nt by the Board.
¶5 In light of the foregoing, we find that dismissing the petition for appeal
“with prejudice to refiling” (i.e., the parties normally may not refile this appeal)
is appropriate under these circumstances. This is the final decision of the M erit
Systems Protection Board in this appeal. Title 5 of the Code of Federal
Regulations, section 1201.113 ( 5 C.F.R. § 1201.113 ).
3 In response to an e -Appeal prompt when submitting the settlement agreement in this
appeal, the agency indicated that the parties agreed that the settlement agreement would
be entered into t he record for enforcement by the Board. PFR File, Tab 4 at 3.
However, the settlement agreement itself provides that, if the appellant believes the
agency has failed to comply with a term of the settlement agreement, she must notify
the agency in writing of the alleged breach within 30 days and then may file an appeal
with the Equal Employment Opportunity Commission pursuant to 29 C.F.R. § 1614.504 .
Id. at 6. As the words of the agre ement itself are of paramount importance in
determining the intent of the parties at the time they contracted, we find that the parties
did not intend the settlement agreement to be entered into the record for enforcement by
the Board but instead for the a ppellant to pursue enforcement through the alternate
process specified in the agreement. See Greco v. Department of the Army , 852 F.2d
558, 560 (Fed. Cir. 1988).
4
NOTICE OF APPEAL RIG HTS4
You may obtain review of thi s final decision. 5 U.S.C. § 7703 (a)(1). By
statute, the nature of your claims determines the time limit for seeking such
review and the appropriate forum with which to file. 5 U.S.C. § 7703 (b).
Although we offer the following summary of available appeal rights, the Merit
Systems Protection Board does not provide legal advice on which option is most
appropriate for your situation and the rights described below do not represent a
statement of how courts will rule regarding which cases fall within their
jurisdiction. If you wish to seek review of this final decision, you should
immediately review the law applicable to your claims and caref ully follow all
filing time limits and requirements. Failure to file within the applicable time
limit may result in the dismissal of your case by your chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appe llant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703 (b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
4 Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise which option is most appropriate in an y matter.
5
U.S. Court of Appeal s
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful d iscrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703 (b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. ____ , 137 S. Ct. 1975 (2017). If you have a
representative in this case, and your representative receives this decision before
you do, then you must file with the district court no later than 30 calendar days
after your representative receives this decision. If the action involves a claim of
discrimination based on race, color, religion, sex, national origin, or a disabling
condition, you may be entitled to representation by a court -appointed lawyer and
6
to waiver of any requirement of prepayment of fees, costs, or other security. See
42 U.S.C. § 2000e -5(f) and 29 U.S.C. § 794a .
Contact information for U.S. district courts can be found at their respective
websites, which can be accesse d through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702 (b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you r eceive
this decision. 5 U.S.C. § 7702 (b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later tha n 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302 (b)(8) or
other protected activities listed in 5 U.S.C. § 2302 (b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises n o challenge to the Board’s
7
disposition of allegations of a prohibited personne l practice described in
section 2302(b) other than practices described in section 2302(b)(8), or
2302(b)(9)(A)(i), (B), (C), or (D),” then you may file a 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
relev ance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals f or the Federal Circuit, you may visit our 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 jurisdicti on.
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 b y any attorney nor warrants that
any attorney will accept representation in a given case.
Contact information for the courts of appeals can be found at their
respective websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
FOR THE BOARD:
Washington, D.C. /s/ for
Jennifer Everling
Acting Clerk of the Board | KULKARNI_SAYALI_DE_1221_19_0231_W_1_FINAL_ORDER_1963207.pdf | 2022-09-23 | null | DE-1221-19-0231-W-1 | NP |
4,098 | https://www.mspb.gov/decisions/nonprecedential/BIHLER_PAUL_DE_0752_20_0393_I_1_FINAL_ORDER_1963238.pdf | UNITED STATES OF AME RICA
MERIT SYSTEMS PROTEC TION BOARD
PAUL BIHLER,
Appellant,
v.
DEPARTMENT OF THE AR MY,
Agency.
DOCKET NUMBER
DE-0752 -20-0393 -I-1
DATE: September 23, 2022
THIS FINAL ORDER IS NONPRECEDENTIAL1
Jennifer D. Isaacs , Esquire, Atlanta, Georgia, for the appellant.
Stephen Coutant , Fort Carson, Colorado, for the agency.
BEFORE
Cathy A. Harris , Vice Chairman
Raymond A. Limon , Member
Tristan L. Leavitt , Member
FINAL ORDER
¶1 After issuance of the initial decision in this appeal, the parties no tified the
Board that they had settled the appeal. Petition for Review (PFR) File, Tab 1;
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117 (c).
2
Initial Appeal File, Tab 21, Initial Decision.2 For the reasons set forth below, we
DISMISS the appeal as settled.
¶2 On April 8, 2021, the parties submitted a documen t entitled “Negotiated
Settlement Agreement for [this MSPB case]” signed and dated by the appellant
on April 6, 2021, and by the agency on April 7, 2021. PFR File, Tab 1. The
document provides, among other things, for the dismissal of the above -captioned
appeal. Id. at 5.
¶3 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
enfo rcement by the Board. See Mahoney v. U.S. Postal Service , 37 M.S.P.R.
146, 149 (1988). In addition, before accepting a settlement agree ment 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
Massey v. Office of Personnel Management , 91 M.S.P.R. 289 , ¶ 4 (2002) ,
overruled on other grounds by Delorme v. Department of the Interior ,
124 M.S.P.R. 123 , ¶¶ 11 -21 (2017) (holding that the Board may enforce
settlement agreements that have been entered into the record, independent of any
prior finding of Board jurisdiction over the underlying matter being settled).
¶4 Here, we find that the parties have entered into a settlement agreement,
understand its terms, and intend for the agreement to be entered into the record
for enforcement by the Board . PFR File, Tab 1. In addition, we find that the
agreement is lawful on its face and that the parties freely entered into it. Id.
Accordingly, we find that dismissing the appeal “with prejudice to refiling” (i.e.,
the parties normally may not refile th is appeal) is appropriate under these
2 As the initial decision had already been issued and become final by the time the
parties noti fied the Board of their settlement agreement, the submission was considered
and docketed as a petition for review of the initial decision. PFR File, Tabs 1 -2.
3
circumstances, and we accept the settlement agreement into the record for
enforcement purposes.
¶5 This is the final decision of the Merit Systems Protection Board in this
appeal. Title 5 of the Code of Federal Regulat ions, section 1201.113 ( 5 C.F.R.
§ 1201.113 ).
NOTICE TO THE PARTIE S OF THEIR
ENFORCEMENT RIGHTS
If the agency or the appellant has not fully carried out the terms of the
agreement, eit her 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 RIG HTS3
You may obtain review of this final decision. 5 U.S.C. § 7703 (a)(1). By
statute, the nature of your claims determines the time limit for seeking such
review and the appropriate forum with which to file. 5 U.S.C. § 7703 (b).
Although we offer the following summ ary of available appeal rights, the Merit
Systems Protection Board does not provide legal advice on which option is most
appropriate for your situation and the rights described below do not represent a
statement of how courts will rule regarding which case s fall within their
jurisdiction. 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 noti ce 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 foru m is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S .
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703 (b)(1)(A).
If you submit a petiti on for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the 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 d iscrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703 (b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. ____ , 137 S. Ct. 1975 (2017). If you have a
representative in this case, and your representative receives this decision before
you do, then you must file with the district court no later than 30 calendar days
after your representative receives this decision. If the action involves a claim of
discrimination based on race, color, religion, sex, national origin, or a disabling
condition, you may be entitled to representation by a court -appointed lawyer and
to waiver of any requirement of prepayme nt of fees, costs, or other security. See
42 U.S.C. § 2000e -5(f) and 29 U.S.C. § 794a .
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims onl y, excluding
all other issues . 5 U.S.C. § 7702 (b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702 (b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is:
6
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 2 0507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302 (b)(8) or
other protected activities listed in 5 U.S.C. § 2302 (b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
disposition of allegations of a prohibited personne l practice described in
section 2302(b) other than practices described in section 2302(b)(8), or
2302(b)(9)(A)(i), (B), (C), or (D),” then you may file a petition for judicial
review either with the U.S. Cour t of Appeals for the Federal Circuit or any court
of appeals of competent jurisdiction.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, 201 8, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
The Al l 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 Petitione rs and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our websi te at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney w ill accept representation in a given case.
Contact information for the courts of appeals can be found at their
respective websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
FOR THE BOARD:
Washington, D.C. /s/ for
Jennifer Everling
Acting Clerk of the Board | BIHLER_PAUL_DE_0752_20_0393_I_1_FINAL_ORDER_1963238.pdf | 2022-09-23 | null | DE-0752-20-0393-I-1 | NP |
4,099 | https://www.mspb.gov/decisions/nonprecedential/HUTCHINSON_DIANA_LEE_DC_3443_21_0072_I_1_FINAL_ORDER_1963257.pdf | UNITED STATES OF AME RICA
MERIT SYSTEMS PROTEC TION BOARD
DIANA LEE HUTCHINSON ,
Appellant,
v.
EXECUTIVE OFFICE OF THE
PRESIDENT, OFFICE OF
ADMINISTRATION,
Agency.
DOCKET NUMBER
DC-3443 -21-0072 -I-1
DATE: September 23, 2022
THIS FINAL ORDER IS NONPRECEDENTIAL1
Diana Lee Hutchinson , Arlington, Virginia, pro se.
John Kevin Fellin , Esquire, and Raheemah Abdulaleem , Esquire,
Washington, D.C., for the agency.
BEFORE
Cathy A. Harris , Vice Chairman
Raymond A. Limon , Member
Tristan L. Leavitt , Member
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been id entified by the Board
as significantly contributing to the Board's case law. See 5 C.F.R. § 1201.117 (c).
2
FINAL ORDER
¶1 The appellant has petitioned for review of the December 7, 2020 initial
decision in this appeal. Petition for Review ( PFR ) File, Tab 2. For the reasons
set forth below, we DISMI SS the appeal as settled.
¶2 After the filing of the petition for review, the parties submitted documents
captioned “Notice of Withdrawal and Request for Dismissal” and “Settlement
Agreement and Release” signed and dated by the appellant on April 9, 2021 , and
by the agency on April 23, 2021. PFR File, Tab 7. The document s provide,
among other things, for the dismissal of the appeal pursuant to a settlement
agreement. Id.
¶3 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
Massey v. Office of Personnel Management , 91 M.S.P.R. 289 , ¶ 4 (2002) ,
overruled on other grounds by Delorme v. Department of the Interior ,
124 M.S.P.R. 123 , ¶¶ 11 -21 (2017) (holding that the Board may enforce
settlement agreements that have been entered into the record, independent of any
prior finding of Board jurisdiction over the underlying matter being settled).
¶4 Here, we find that the parties have entered into a settlement agreement,
understand its terms, and do not intend for the agreement to be entered into the
record for enforcement by the Board. PFR File, Tab 7. Rather, any alleged
breach will be remedied via the procedur es set forth in 29 C.F.R. § 1614.504 . As
the parties do not intend for the Board to enforce the settlement agreement, we
need not address the additional considerations regarding enforc ement and do not
enter the settlement agreement into the record for enforcement by the Board.
3
¶5 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.
¶6 This is the final decision of the Merit Systems Protection Board in this
appeal. Title 5 of the Code of Federal Regulations, section 1201.113 ( 5 C.F.R.
§ 1201.113 ).
NOTICE OF APPEAL RIG HTS2
You may obtain review of this final decision. 5 U.S.C. § 7703 (a)(1). By
statute, the nature of your claims determines the time limit for seeking such
review and the appro priate forum with which to file. 5 U.S.C. § 7703 (b).
Although we offer the following summary of available appeal rights, the Merit
Systems Protection Board does not provide legal advice on which option is most
appropriate for your situation and the rights described below do not represent a
statement of how courts will rule regarding which cases fall within their
jurisdiction. If you wish to seek review of this final decision, you should
immediate ly review the law applicable to your claims and carefully follow all
filing time limits and requirements. Failure to file within the applicable time
limit may result in the dismissal of your case by your chosen forum.
Please read carefully each of the t hree main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
2 Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise which option is most appropriate in any matter.
4
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703 (b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the c ourt at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc. uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an app eal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neithe r endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed tha t you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703 (b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. ____ , 137 S. Ct. 1975 (2017). If you have a
representative in this case, and your representative receives this decision before
5
you do, then you must file with the district court no later than 30 calendar days
after your representative receives this decision. If the action involves a claim of
discrimination based on race, color, religion, sex, national origin, or a disabling
condition, you may be entitled to representation by a court -appointed lawyer and
to waiver of any requirement of prepayment of fees, costs, or other security. See
42 U.S.C. § 2000e -5(f) and 29 U.S.C. § 794a .
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourt s.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702 (b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702 (b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC b y regular U.S. mail, the
address of the EEOC is:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiri ng a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
6
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 201 2. This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302 (b)(8) or
other protected activities listed in 5 U.S.C. § 2302 (b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
disposition of allegations of a prohibited personnel practice descri bed in section
2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i),
(B), (C), or (D),” then you may file a 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 fo r judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional info rmation about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules o f Practice, and Forms 5, 6, 10, and 11.
3 The original statutory provision that provided for judicial review of certain
whistleblo wer claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court 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:
Washington, D.C. /s/ for
Jennifer Everling
Acting Clerk of the Board | HUTCHINSON_DIANA_LEE_DC_3443_21_0072_I_1_FINAL_ORDER_1963257.pdf | 2022-09-23 | null | DC-3443-21-0072-I-1 | NP |
4,100 | https://www.mspb.gov/decisions/nonprecedential/MARCUS_CHRISTOPHER_P_AT_0714_19_0656_I_1_FINAL_ORDER_1963259.pdf | UNITED STATES OF AME RICA
MERIT SYSTEMS PROTEC TION BOARD
CHRISTOPHER P. MARCU S,
Appellant,
v.
DEPARTMENT OF VETERA NS
AFFAIRS,
Agency.
DOCKET NUMBER
AT-0714 -19-0656 -I-1
DATE: September 23, 2022
THIS FINAL ORDER IS NONPRECEDENTIAL1
Adam Jerome Conti , Esquire, Atlanta, Georgia, for the appellant.
Dana C. Heck , Esquire, St. Petersburg, Florida, for the agency.
Lois F. Prince , Nashville, Tennessee, for the agency.
BEFORE
Cathy A. Harris , Vice Chairman
Raymond A. Limon , Member
Tristan L. Leavitt , Member
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117 (c).
2
FINAL ORDER
¶1 The agency has petitioned for review of the December 13, 2019 initial
decision in this appeal. Initial Appeal File, Tab 34, Initial Decision; Petition for
Review (PFR) File, Tab 1. For the reasons set forth below, we DISMISS the
petition for r eview as settled.
¶2 After the filing of the petition for review, the parties submitted a document
entitled “SETTLEMENT AGREEMENT” signed and dated by the appellant on
May 15, 2020, and by the agency on May 26, 2020. PFR File, Tab 9. The
document provides, among other things, for the withdrawal of the agency’s
petition for review in the above -captioned appeal. Id. at 4.
¶3 Before dismissing a matter as settled, the Board must decide whether the
parties have entered into a settlement agreement, whether they und erstand 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
Massey v. Office of Personnel Management , 91 M.S.P.R. 289 , ¶ 4 (2002) ,
overruled on other grounds by Delorme v. Department of the Interior ,
124 M.S.P.R. 123 , ¶¶ 11 -21 (2017) (holding that the Board may enforce
settlement agreements that have been entered into the record, independe nt of any
prior finding of Board jurisdiction over the underlying matter being settled).
¶4 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 enforce ment by the Board. PFR File, Tab 9. In addition, we find that the
agreement is lawful on its face and that the parties freely entered into it. Id.
Accordingly, we find that dismissal of the petition for review “with prejudice to
refiling” (i.e., the pa rties normally may not refile this appeal) is appropriate
3
under these circumstances, and we accept the settlement agreement into the
record for enforcement purposes.
¶5 This is the final decision of the Merit Systems Protection Board in this
appeal. Title 5 of the Code of Federal Regulations, section 1201.113 ( 5 C.F.R.
§ 1201.113 ).
NOTICE TO THE PARTIE S 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 RIG HTS2
You may obtain review of this final decision. 5 U.S.C. § 7703 (a)(1). By
statute, the nature of your claims determines the time limit for seeking such
review and the appropriate forum with which to file. 5 U.S.C. § 7703 (b).
Although we offer the following summ ary of available appeal rights, the Merit
Systems Protection Board does not provide legal advice on which option is most
appropriate for your situation and the rights described below do not represent a
statement of how courts will rule regarding which case s fall within their
jurisdiction. 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 not ice 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 foru m is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S .
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703 (b)(1)(A).
If you submit a petiti on for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the 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 d iscrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703 (b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. ____ , 137 S. Ct. 1975 (2017). If you have a
representative in this case, and your representative receives this decision before
you do, then you must file with the district court no later than 30 calendar days
after your representative receives this decision. If the action involves a claim of
discrimination based on race, color, religion, sex, national origin, or a disabling
condition, you may be entitled to representation by a court -appointed lawyer and
to waiver of any requirement of prepayme nt of fees, costs, or other security. See
42 U.S.C. § 2000e -5(f) and 29 U.S.C. § 794a .
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims onl y, excluding
all other issues . 5 U.S.C. § 7702 (b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702 (b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is:
6
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 2 0507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302 (b)(8) or
other protected activities listed in 5 U.S.C. § 2302 (b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
disposition of allegations of a prohibited personne l practice described in
section 2302(b) other than practices described in section 2302(b)(8), or
2302(b)(9)(A)(i), (B), (C), or (D),” then you may file a petition for judicial
review either with the U.S. Cour t of Appeals for the Federal Circuit or any court
of appeals of competent jurisdiction.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 a ny court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whis tleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court 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 Petitione rs and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our websi te at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney w ill accept representation in a given case.
Contact information for the courts of appeals can be found at their
respective websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
FOR THE BOARD:
Washington, D.C. /s/ for
Jennifer Everling
Acting Clerk of the Board | MARCUS_CHRISTOPHER_P_AT_0714_19_0656_I_1_FINAL_ORDER_1963259.pdf | 2022-09-23 | null | AT-0714-19-0656-I-1 | NP |
4,101 | https://www.mspb.gov/decisions/nonprecedential/AL_OBAIDI_RABEE_JASIM_AT_315H_22_0097_I_1_REMAND_ORDER_1962731.pdf | UNITED STATES OF AME RICA
MERIT SYSTEMS PROTEC TION BOARD
RABEE JASIM AL OBAID I,
Appellant,
v.
DEPARTMENT OF THE NA VY,
Agency.
DOCKET NUMBER
AT-315H -22-0097 -I-1
DATE: September 22, 2022
THIS ORDER IS NONPRECEDENTIAL1
Rabee Jasim Al Obaidi , Hanahan, South Carolina, pro se.
Steven P. Hester , Esquire, North Charleston, South Carolina, for the
agency.
BEFORE
Cathy A. Harris, Vice Chairman
Raymond A. Limon, Member
Tristan L. Leavitt, Member
REMAND ORDER
¶1 The appellant has filed a petition for review of the initial decision, which
dismissed his appeal from his separation for lack of jurisdiction . For the reasons
discussed below, we GRANT the appellant ’s petition for review , REVERSE the
administrative judge ’s finding that the Board lack s jurisdiction over the 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 dis tinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board ’s case law. See 5 C.F.R. § 1201.117 (c).
2
because the appellant ’s former position was subject to a 3 -year probationary
period, and REMAND the case to the Atlanta Regional Office for further
adjudication in accordance with this Remand Order.
BACKGROUND
¶2 The agency appointed the appellant to a position in the competitive service
as an Engineer with the Naval Information Warfare Center Atlantic2 (NIWC
Atlantic), effective January 22, 2019 . Initial Appeal File (IAF), Tab 1 at 8 -9.
On the Standard Form (SF) 50 documenting the appellant ’s appointment, the
agency identified that it appointed him to this position pursuant to its direct hire
authority and cited P.L. 103 -337 as the legal authority for the appointment. Id.
The remarks section of the appellant ’s SF -50 also stated that the appointment was
subject to the completion of a 3 -year initial probationary period beginning on
January 22, 2019. Id. at 9. The agency issued a letter dated December 1, 2021,
terminating the appellant approxi mately 2 years and 10 months after the
January 22, 2019 effective date of his appointment. Id. at 10 -13. The letter
informed the appellant that his termination was effective that day, concluding that
he failed to meet performance expectations during the c ourse of his 3 -year
probationary period. Id. at 10.
¶3 On December 3, 2021, the appellant filed a timely appeal with the Board
challenging the merits of the agency ’s action and alleg ing that it was the product
of discrimination. Id. at 1, 6. On his appea l form, the appellant indicated that he
was not serving a probationary period and that he was a permanent employee.
Id. at 1. He also requested a hearing on his appeal. Id. at 2. The administrative
judge issued an order informing the appellant of the l imited Board appeal rights
of probationary employees in the competitive service and instructing him to file
2 The agency subcomponent was previously known as the Space and Naval Warfare
Systems Center Atlantic (SSC Atlantic), as reflected on the appellant ’s appointment
Standard Form (SF) 50 and the agency ’s termination letter . Initial Appeal File (IAF),
Tab 1 at 8 -10.
3
evidence and argument establishing a nonfrivolous allegation of Board
jurisdiction over his appeal. IAF, Tab 2 at 1 -5. In a subsequent order, the
administrative judge noted that it appeared the agency was asserting that the
appellant ’s position was subject to a 3 -year probationary period instead of the
2-year probationary period for Department of Defense (DoD) employees set forth
under the general p rovisions of 10 U.S.C. § 1599e . IAF, Tab 6 at 1.
He nevertheless concluded that it was unclear from the record under what
authority the agency extended the appellant ’s probationary period, and
consequently ordered the agency to provide evidence of the applicable authority it
was relying on to extend the appellant ’s probationary period to 3 years. Id.
¶4 The agency provided its response, IAF, Tab 7, and the administrative judge
subsequently order ed the agency to provide additional information, including
specific citations to the U.S. Code and the Code of Federal Regulations regarding
the agency ’s authority to extend the appellant ’s probationary period, IAF, Tab 8.
After reviewing the agency ’s sec ond response, the administrative judge issued an
order noting that it appeared that the agency had the authority to set the
appellant ’s probationary period at 3 years and ordered the appellant to show cause
as to why his appeal should not be dismissed for lack of jurisdiction based on his
status as a probationer.
¶5 After the appellant failed to respond to the order, the administrative judge
issued an initial decision based on the written record dismissing the appeal for
lack of jurisdiction, finding that th e appellant failed to nonfrivolously allege that
the Board had jurisdiction over his appeal. IAF, Tab 11, Initial Decision (ID)
at 1-5. Specifically, the administrative judge found that the hiring authority for
the appellant ’s appointment permitted the a gency to extend the probationary
period to 3 years, and the agency terminated the appellant prior to his completion
of the 3 -year probationary period. ID at 3 -4. Consequently, he concluded that
the appellant failed to nonfrivolously allege that he was an “employee ” with
Board appeal rights under 5 U.S.C. § 7511 (a)(1)(A), and further, absent an
4
otherwise appealable action, the Board lacked jurisdiction over the appellant ’s
claim that his terminatio n was the product of unlawful discrimination based on
race. ID at 4.
¶6 The appellant has filed a petition for review once again challenging the
merits of the agency ’s termination decision and reasserting that his termination
was the result of discriminati on based on race. Petition for Review (PFR) File,
Tab 1 at 6 -7. The agency filed a response in opposition to the appellant ’s petition
for review and the appellant has not filed a reply. PFR File, Tab 3.
DISCUSSION OF ARGUME NTS ON REVIEW
¶7 The definition o f an employee with adverse action appeal rights to the
Board under chapter 75 is found at 5 U.S.C. § 7511 (a)(1). Calixto v. Department
of Defense , 120 M.S.P.R. 557 , ¶ 7 (2014). An individual appointed to a
competitive service position at the DoD ordinarily qualifies as an “employee ”
under 5 U.S.C. § 7511 (a)(1) if he is not serving a 2 -year probationary or trial
period under an initial appointment or he has completed 2 years of current
continuous service under other than a temporary appointment limited to 2 years or
less in the civilian service. 5 U.S.C. § 7511 (a)(1)(A)(i) -(ii); see 10 U.S.C.
§ 1599e (a), (b)(1)(A), (d).
¶8 Despite the general provision limiting probationary periods for DoD
employees to 2 years, 10 U.S.C. § 1599e (a) also notes that the “Secretary
concerned may extend a probationary period under this subsection at the
discretion of such Secretary. ” As relevant here, the hiring authority cited for the
appellant ’s appointment, P.L. 103 -337, references DoD ’s authority to set up
demonstration projects. National Defense Authorization Act for Fiscal Year
1995 , Pub. L. No. 103-337, 108 Stat 2663 (1994). Additionally, 5 U.S.C. § 4703
grants broad authority to the Office of Personnel Management and an employing
agency regarding how a demonstration pr oject is conducted . See Redditt v.
Department of the Army , 88 M.S.P.R. 41 , ¶ 8 (2001) . As the administrative judge
5
observed, the National Defense Authorization Act for Fiscal Year 2010 (2010
NDAA), Pub. L. No. 111 -84, § 1105 (a)(16) , 123 Stat. 2190, 2486 -87 (2009)
designated the Space and Naval Warfare Systems Center, Atlantic as a science
and technology reinvention laboratory (STRL), which permitted the DoD to set up
demonstration projects within the NIWC Atlantic. ID at 3 -4.
¶9 In the initial decision, the administ rative judge further observed that the
NDAA for 2010 “designat[ed] Naval Air Warfare Center Weapons Division
[(NAWCWD )] an STRL subject to the STRL demonstration project, ” and cited
76 Fed. Reg. 8530, 8546 -47, 8559 -61 (Feb. 14, 2011) , for the proposition t hat the
initial probationary period for career -conditional or career employees in the
competitive service in scientific and engineering positions under the
demonstration project would be extended to 3 years. ID at 4; see 76 Fed. Reg.
at 8546 (stating that the 1 -year probationary period will be extended to 3 years for
newly appointed career -conditional, career employees, and the 1 -year
probationary period will be extended to 3 years for newly appointed term
employees classified to a job series in the Scienc e and Engineering occupational
families, among others). He further noted that pursuant to the same Federal
Register notice, provisions of 5 U.S.C. chapter 75 and 5 C.F.R. part 315,
subpart H and part 752, were waived to allow a 3 -year probationary period in the
competitive service, consistent with 5 U.S.C. § 4703 (a) and (c), and, absent
veterans’ preference rights, to permit termination during the probationary period
without adverse action procedur es. ID at 4; see 76 Fed. Reg. at 8559-61.
The administrative judge determined that, because it was undisput ed that the
appellant was a nonpreference -eligible employee serving under a
career -conditional appointment to a position in the competitive se rvice under the
agency’s direct hire authority within this STRL demonstration project , and the
agency terminated the appellant while he was serving his 3 -year probationary
period, he failed to nonfrivolously allege that he was an “employee ” with Board
appeal ri ghts and dismissed the appeal for lack of jurisdiction. ID at 4.
6
¶10 However, the Federal Register notice the administrative judge relied on to
conclude that the Secretary of the Navy extended competitive service scientific
and engineering positions (includin g the one the appellant occupied) to 3 years
instead of 2 appears to apply to a different subcomponent of the Department of
the Navy than the one that formerly employed the appellant. Specifically, 76 Fed.
Reg. at 8530 -01 makes clear that it only applies to the Naval Air Warfare Center,
Aircraft Division (NAWCAD) and the NAWCWD , identifying that these
subcomponents were listed in the 2010 NDAA “as two of the newly designated
STRLs,” and that these two STRLs “will be the participants in the demonstration
project proposal described in this Federal Register Notice. ” By contrast, the
appellant ’s SF -50 and the termination letter clearly identify that his former
position was within the NIWC, not the NAWCWD or NAWCAD. IAF, Tab 1
at 8, 10.
¶11 Additionally, the F ederal Register notice the administrative judge relied on
also includes a response to commenters suggesting that the
NAWCAD/NAWCWD STRL demonstration project at issue was similar to an
existing demonstration project within the National Security Personnel S ystem .
76 Fed. Reg. at 8531. In response to the comments, the notice acknowledges that
there are conceptual similarities to the NAWCD/NAWCAD STLR and other
existing STLR demonstration projects, as well as the Navy Personnel
Management Demonstration Proje ct “that covered Space and Naval Warfare
Systems Command (SPAWAR) organizations as well as NAWCWD for more than
25 years. ” Id. This response, drawing a distinction between the NAWCWD
program and the Space and Naval Warfare Systems Command, which is the
subcomponent that formerly employed the appellant, further indicates that this
Federal Register notice is not applicable to the STRL demonstration project for
7
the appellant ’s agency.3 See IAF, Tab 1 at 8 (Boxes 22 and 46 of the appellant ’s
SF-50 identifyin g his employing department or agency as “SPAWARSYSCEN
ATLANTIC ” and “Space and Naval Warfare Systems Command, ” respectively),
and 10 (termination letter identifying the appellant ’s employing agency as the
“Space and Naval Warfare Systems Center (SPAWARSYSC EN) Atlantic ”).
¶12 Based on the foregoing, the record does not support the administrative
judge’s finding that the appellant was appointed to a position with a 3 -year
probationary period pursuant to the agency ’s direct hire authority as outlined in
10 U.S.C. § 15 99e(a) and 5 U.S.C. § 4703 (a). Because the agency failed to
establish that the appellant was serving in a probationary period at the time the
agency separated him , and it is undisputed that he had completed at least 2 years
of service at the time the agency terminated him, the appellant was an “employee ”
under 5 U.S.C. § 7511(a)(1)(A) with Board appeal rights under 5 U.S.C.
§ 7513 (d), and the Board has jurisdiction over his appeal. An agency ’s failure to
provide a tenured public employee with an opportunity to presen t 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, including prior notice and
an opportunity to respond . See, e.g. , Stephen v. Department of the Air Force ,
47 M.S.P.R. 672 , 681 (1991) (holding that an appealable agency action take n
without affording an appellant prior notice of the charges, an explanation of the
agency’s evidence, and an opportunity to respond, must be reversed because such
3 We note that it appears, pursuant to 76 F ed. Reg. 1924, 1932 (Jan. 11, 2011), that
candidates hired under the NWIC Atlantic/SSC Atlantic STRL demonstration project to
positions classified to the Scienc e and Engineering and Administrative
Specialist/Professional occupational families serve 3 -year probationary periods, while
personnel assigned to positions classified to the Science and Engineering
Technical/Technical and General Support occupational famil ies serve 1 -year
probationary periods. We make no findings as to whether the appellant ’s former
position was within these job series.
8
action violates his constitutional right to minimum due process under Cleveland
Board of Edu cation v. Loudermill , 470 U.S. 532 (1985)) .
¶13 On its face, t he agency ’s termination letter did not provide the appellant
with constitutional minimum due process because he was not given advance
notice and an opportunity to res pond prior to his termination. IAF, Tab 7
at 13-16. Consequently, the agency ’s action must be reversed. Claiborne v.
Department of Veterans Affairs , 118 M.S.P.R. 491 , ¶ 8 (2012) (reversing an
agency’s action whe n the appellant was not provided w ith an opportunity to
respond to the charges). Nevertheless , the appeal must be remanded because the
appellant alleged discrimination in connection with his removal. IAF, Tab 1 at 6.
He is entitled to have his discrimination claim adjudicated even thoug h the Bo ard
has not upheld the removal. Rivas v. U.S. Postal Service , 62 M.S.P.R. 480 , 483
(1994) .
ORDER
¶14 Accordingly, this appeal i s remanded for adjudication of the appellant ’s
discrimination claim . See Cowart v. U.S. Postal Service , 117 M.S.P.R. 572 , ¶ 11
(2012) ; Rivas , 62 M.S.P.R. at 483.
¶15 We ORDER the agency to cancel the appellant ’s termination and reinstate
him to his former position effective December 1, 2021. See Kerr v. National
Endowment for the Arts , 726 F.2d 730 (Fed. Cir. 1984). The agency must
complete this action no later than 20 days after the date of this decision.
¶16 We also ORDER the agency to pay the appellant the correct amount of back
pay, interest on back pay, and other benefits under the Office of Personnel
Management ’s regulations, no later than 60 calendar days after the date of this
decision. We ORDER the appellant to cooperate in good faith in the agency ’s
efforts to calcula te 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,
9
and/or other benefits, we ORDER t he agency to pay the appellant the undisputed
amount no later than 60 calendar days after the date of this decision.
¶17 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).
¶18 No later than 30 days a fter 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 c arry 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).
¶19 For agencies whose payroll is administered by either the National Finance
Center of the Department of Agriculture (NFC) or the Defense Finance and
Accounting Servic e (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 a nd 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.
FOR THE BOARD:
Washington, D.C. /s/ for
Jennifer Everling
Acting Clerk of the Board
DEFENSE FINANCE AND ACCOUNTING SERVICE
Civilian Pay Operations
DFAS BACK PAY CHECKLIST
The following documentation is required by DFAS Civilian Pay to compute and pay back pay
pursuant to 5 CFR § 550.805. Human resources/local payroll offices should use the following
checklist to ensure a request for payment of back pay is complete. Missin g documentation may
substantially delay the processing of a back pay award. More information may be found at:
https://wss.apan.org/public/DFASPayroll/Back%20Pay%20Process/Forms/AllItems.aspx.
NOTE: Attorneys ’ fees or other non -wage payments (such as d amages) 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 c ompleted “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 e arning 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 CEN TER CHECKLIST FOR BA CK PAY CASES
Below is the information/documentation required by National Finance Center to process
payments/adjustments agreed on in Back Pay Cases (settlements, restorations) or as ordered by
the Merit Systems Protection Board, EEOC, and courts .
1. Initiate and submit AD -343 (Payro ll/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 P ayment 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. Provid e 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. | AL_OBAIDI_RABEE_JASIM_AT_315H_22_0097_I_1_REMAND_ORDER_1962731.pdf | 2022-09-22 | null | AT-315H-22-0097-I-1 | NP |
4,102 | https://www.mspb.gov/decisions/nonprecedential/BARTA_MARK_B_CH_1221_13_0359_W_3_REMAND_ORDER_1962737.pdf | UNITED STATES OF AME RICA
MERIT SYSTEMS PROTEC TION BOARD
MARK B. BARTA,
Appellant,
v.
DEPARTMENT OF DEFENS E,
Agency.
DOCKET NUMBER
CH-1221 -13-0359 -W-3
DATE: September 22, 2022
THIS ORDER IS NONPRECEDENTIAL1
Mark B. Barta , Galena, Ohio, pro se.
Amanda J. Dinges , Indianapolis , Indiana , for the agency.
BEFORE
Cathy A. Harris, Vice Chairman
Raymond A. Limon, Member
Tristan L. Leavitt, Member
REMAND ORDER
¶1 The appellant has filed a petiti on for review of the initial decision, which
dismissed his individual right of action (IRA) appeal for lack of jurisdiction . For
the reasons discussed below, we GRANT the petition for review , VACATE the
1 A nonprecedential order is one that t he Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117 (c).
2
initial decision, and REMAND the case to the regiona l office for further
adjudication in accordance with this Remand Order.
BACKGROUND
¶2 The appellant served as a Supervisory Accountant in the agency’s Defense
Finance and Accounting Service (DFAS). Barta v. Department of Defense ,
MSPB Docket No. CH -1221 -13-0359 -W-1, Initial Appeal File (IAF), Tab 1 at 1.
On December 7, 2012, he filed a complaint with the Office of Special Counsel
(OSC) alleging that the agency retaliated against him for making protected
disclosures concerning hi s supervisor, the DFAS General Counsel (GC), during
the following proceedings: (1) a DFAS Internal Review (IR) Office investigation
of the GC; (2) a prior Board appeal; and (3) the equal employment opportunity
(EEO) complaints of two coworkers. Barta v. Department of Defense , MSPB
Docket No. CH -1221 -13-0359 -W-3, Appeal File (W -3 AF), Tab 5 at 8. OSC
issued the appellant a close -out letter informing him that it was closing the file on
his complaint and advising him of his right to file a Board appeal. IA F, Tab 1
at 9-10. This appeal followed. Id. at 1.
¶3 During the proceedings below, the administrative judge dismissed the
appeal without prejudice to refiling so that the appellant could exhaust additional
claims of retaliation with OSC that he raised befor e the administrative judge but
did not raise before OSC. Barta v. Department of Defense , MSPB Docket
No. CH-1221 -13-0359 -W-2, Initial Decision at 2 (Mar. 19, 2014). After the
appellant filed an additional complaint, OSC issued a second close -out letter, and
the administrative judge resumed the processing of the appeal. W -3 AF, Tab 1 at
1, 4-5.
¶4 Without holding the appellant’s requested hearing, IAF, Tab 1 at 2, the
administrative judge issued an initial decision dismissing the appeal for lack of
jurisdict ion. Barta v. Department of Defense , MSPB Docket
No. CH-1221 -13-0359 -W-3, Initial Decision (W -3 ID) at 2 (July 13, 2016). She
3
found that the appellant had exhausted his administrative remedies before OSC
concerning three sets of disclosures and that he a lleged he made those disclosures
in or before 2010, prior to the amendment of the Whistleblower Protection Act
(WPA) by the Whistleblower Protection Enhancement Act of 2012 (WPEA).
W-3 ID at 6. She then determined, applying pre -WPEA law, that the appella nt
failed to make a nonfrivolous allegation that he made a protected disclosure
because all of his alleged disclosures were made during the course of an agency
investigation or administrative proceeding and that, prior to the enactment of the
WPEA, whistle blower protection did not extend to disclosures made in such
proceedings. W -3 ID at 6 -8. She additionally found that, to the extent the
appellant raised the same disclosures outside the context of an investigation or
administrative proceeding, those disc losures were not protected under the WPA
because they were made to his supervisor about the supervisor’s own misconduct.
W-3 ID at 9 (citing Huffman v. Office of Personnel Management , 263 F.3d 1341 ,
1344 (Fed. Cir. 2001) , superseded by statute , WPEA , Pub. L. No. 112 -199,
126 Stat. 1465 ). As a result, the administrative judge dismissed the appeal.
¶5 The appellant has filed a petition for review that challenges the
administrative judge’s legal analysis of his claims. Petition for Review (PFR)
File, Tab 1.
DISCUSSION OF ARGUME NTS ON REVIEW
¶6 It is undisputed that all of the alleged protected disclosures and personnel
actions here took place prior to the enactment of the WPEA. Barta v. Department
of Defense , MSPB Docket No. CH -1221 -13-0359 -W-2, Appeal File (W -2 AF),
Tab 7, Exhibit (Ex.) L, Tab 8, Subtabs 4a, 4n, 4w. Therefore, we agree with the
administrative judge’s decision to apply the pre ‑WPEA s tandards concerning the
scope of an IRA appeal . W -3 ID at 6 ‑7; see Scoggins v. Department of the Army ,
123 M.S.P.R. 592, ¶ 7 (2016).
4
¶7 Under pre -WPEA law, t he Board has jurisdiction over an IRA appeal if the
appellant shows he has exhausted h is administrative remedies before OS C and
makes nonfrivolous allegations that he engaged in whistleblowing activity by
making a protected disclosure under 5 U.S.C. § 2302 (b)(8) and that the disclosure
was a co ntributing factor in the agency’ s decision to take or fail to take a
personnel action as defined by 5 U.S.C. § 2302 (a). Yunus v. Department of
Veterans Affairs , 242 F.3d 1367 , 1371 (Fe d. Cir. 2001). To meet the nonfrivolous
standard, an appellant need only plead allegations of fact that, if proven, could
show that he made a protected disclosure that was a contributing factor in the
agency’s decision to take or fail to take a personnel action. See Peterson v.
Department of Veterans Affairs , 116 M.S.P.R. 113 , ¶ 8 (2011). In cases involving
multiple alleged prot ected disclosures and multiple alleged personnel actions,
when an appellant makes a nonfrivolous allegation that at least one alleged
personnel action was taken in reprisal for at least one alleged protected
disclosure, he establishes Board jurisdiction ov er his IRA appeal. Id. Whether an
allegation is nonfrivolous is determined on the basis of the written record. Id. If
the appellant satisfies each of these jurisdictional requirements, he has the right to
a hearing on the merits. Id.
The appellant e xhausted his administrative remedies before OSC.
¶8 In the initial decision, the administrative judge found that the appellant
exhausted his administrative remedies before OSC concerning five alleged
disclosures that he made during the course of the IR Office investigation , one
alleged disclosure that he made during his prior Board appeal, and one series of
alleged disclosures that he made during the course of proceedings in the EEO
complaints of two coworkers . W -3 ID at 5. She also found that the appellant
exhausted his administrative remedies before OSC concerning the following
alleged personnel actions: (1) conversion from the National Security Personnel
System (NSPS) to the General Schedule (GS) as a GS -14 rather than as a GS -15;
(2) nonselection for the GS-14 position of Deputy Assistant GC; (3) nonselection
5
for the GS -15 position of Deputy GC; and (4) nonselection for the GS -15 position
of Assistant GC. W‑3 ID at 6. Neither party challenges these findings on
review , and we discern no basis to disturb them.
The appellant nonfrivolously alleged that he made protected disclosures under
5 U.S.C. § 2302 (b)(8).
¶9 Here, the administrative judge found, in interpreting the pre -WPEA version
of 5 U.S.C. § 2302 (b)(9), that disclosures made by an employee either in
prosecuting a prior Board appeal (activity covered under section 2302( b)(9)(A)),
or through testifying in an EEO proceeding filed by anoth er employee (activity
covered under section 2302( b)(9)(B)), were not protected and did not establish a
basis for finding Board jurisdiction. W -3 ID at 7 -8 (citing Ruffin v. Department
of the Army , 48 M.S.P.R. 74 , 78 (1991) , and Gonzales v. Department of Housing
& Urban Development , 64 M.S.P.R. 314 , 317 -18 (1994)). We agree with these
findings . See Colbert v. Department of Veterans Affairs , 121 M.S.P.R. 677, ¶ 7
(2014) ( finding that the WPEA did not apply retroactively to 5 U.S.C.
§ 2302 (b)(9)(A)(i)); Hooker v. Department of Veterans Affairs , 120 M.S.P.R. 629 ,
¶¶ 8-15 (2014) (concluding that the WPEA did not apply retroactively to 5 U.S.C.
§ 2302 (b)(9)(B)).2
¶10 Concerning the disclosures raised during the course of the IR Office
investigation , we disagree with the administrative judge ’s reasoning that these
2 The administrative judge also found that, to the extent the appellant raised the same
disclosures to his supervisor outside the context of his prior Board appeal or the EEO
proceedings, they were not protected under the WPA because they concerned his
supervisor’s own misconduct. W -3 ID at 9 (citing Huffman , 263 F.3d at 1344). The
WPEA, however, effectively abrogated this rule in Huffman , and the Board has found
that the WPEA provision pertaining to this rule should apply to all whistleblower
appeals pending before the Board regardless of when the alleged personnel actions took
place. Day v. Department of Homeland Security , 119 M.S.P.R. 589 , ¶¶ 18, 26 (2013).
Nevertheless, the administrative judge found that the appellant did not exhaust his
administrative remedies as to these disclosures, and the Board, therefore, lacks
jurisdiction over them on that basis. W -3 ID at 5; see Coufal v. Department of Justice ,
98 M.S.P.R. 31 , 38 (2004) (finding that the Board’s jurisdiction in an IRA appeal is
limited to issues raised before OSC).
6
disclosures are not protected solely because of the context in which they were
raised . Relying on Graves v. Department of Veterans Affairs , 123 M.S.P.R. 434
(2016) , the administrati ve judge determined that none of the appellant’s alleged
disclosures raised during the course of the IR Office investigation were protected
because giving testimony to agency investigators looking into alleged misconduct
by another employee does not give r ise to a claim of retaliation under the WPA or
the WPEA. W -3 ID at 8. We find , however, that the administrative judge’s
reliance on Graves is misplaced.
¶11 In Graves , the Board determined that the appellant’s testimony during an
agency’s internal investigat ion did not constitute protected activity under
5 U.S.C. § 2302 (b)(9) for jurisdictional purposes under the WPEA. Graves ,
123 M.S.P.R. 434, ¶ 15. However, the Board specifically noted that, because the
appellant did not contend that his testim ony contained disclosures protected under
5 U.S.C. § 2302 (b)(8), it had no occasion to consider whether the Board has
jurisdiction under the WPEA when an appellant raises protected disclosures unde r
5 U.S.C. § 2302 (b)(8) during the course of the investigation. Id., ¶ 15 n.2. Here,
the appellant specifically alleged that he disclosed during the IR Office
investigation that the GC violated v arious laws, rules, and regulations and that,
therefore, the disclosures were protected under section 2302(b)(8). IAF, Tab 1
at 11-13; W -2 AF, Tab 7, Ex. L; W -3 AF, Tab 5 at 3, 6. Moreover, prior to the
enactment of the WPEA, the Board explicitly found that an appellant’ s allegation
that he disclosed a violation of law, rule, or regulation to agency investigators
during an agency investigation constituted a nonfrivolous allegation that the
appellant made a disclosure protected under 5 U.S.C. § 2302 (b)(8) for
jurisdictional purposes under the WPA . Coons v. Department of the Treasury ,
85 M.S.P.R. 631, ¶ 14 (2000), overruled on other grounds by Arauz
v. Department of Justice , 89 M.S.P.R. 529 (2001). Therefore, because the
appellant claims that the disclosures he made during the course of the IR Office
investigation were protected under section 2302(b)(8), we find that they should
7
not be precluded from protection simply because they were raised in the context
of an agency internal investigation. See id.
¶12 Protected whistleblowing occurs when an appellant makes a disclosure that
he reasonably believes evidences a violation of law, rule, or regulation, gross
mismanagement, a gross waste of funds, an abuse of authori ty, or a substantial
and specific danger to public health or safety. Mason v. Department of Homeland
Security , 116 M.S.P.R. 135 , ¶ 17 (2011). The proper test for determining whether
an employee had a reasonable belief that his disclosures were protected is
whether a disinterested observer with knowledge of the essential facts known to,
and readily ascertainable by, the employee could reasonably conclude that the
actions evidenced a violation of a law, rule, or regulation, or one of the other
conditions set forth in 5 U.S.C. § 2302 (b)(8). Id.
¶13 During the IR Office investigation , the appellant, who is an attorney, made
five alleged protected disclosures. IAF, Tab 1 at 11 -15; W-3 AF, Tab 5 at 1-3,
Tab 18 at 5 . In the first disclosure, h e claimed that the GC , along with other
managers, rented a contractor’s beach house at the sam e time he caused a
personal services contract to be issued to that contractor in violation of
procurement integrity laws. IAF, Tab 1 at 11. In the second disclosure, the
appellant claimed that the GC used a consolidation of the Office of General
Counsel (OGC) offices as a way of eliminating older employees in violation of
discrimination laws. Id. at 13. In the third disclosure, he claimed that the GC
teleworked and allowed some employees to telework from homes outside the
commuting area but denied telew ork requests from other employees, including
him, in violation of discrimination laws. Id. at 12 -13. In the fourth disclosure,
the appellant claimed that the GC misused appropriated funds in excess of
$100,000 to travel from his home in Maryland to the O GC office in Indiana.
W-3 AF, Tab 5 at 3, 6. In the fifth disclosure, he claimed that the GC “shook
down” his employees for contributions to a “flower fund” in violation of ethics
8
rules and regulations that state that supervisors cannot solicit contribut ions from
employees within their chain of command. W-2 AF, Tab 7, Ex. L.
¶14 Concerning the first and fifth disclosures, we find that the appellant
presented a nonfrivolous allegation that he made protected disclosures of a
violation of a law, rule, or regula tion. The standard for establishing jurisdiction
is a nonfrivolous allegation of facts that, if proven, would show that the appellant
made a protected disclosure, i.e., that the matter disclosed was one that a
reasonable person in his position would belie ve evidenced a “violation of any
law, rule, or regulation.” Mudd v. Department of Veterans Affairs , 120 M.S.P.R.
365, ¶ 8 (2013). Any doubt or ambiguity as to whether an appellant raised a
nonfrivolous allegation of a reasonable belief should be resolved in favor of a
finding that jurisdiction exists. Id. At the jurisdictional stage in an IRA appeal,
an appellant is not required to prove that his disclosure is protected under
5 U.S.C. § 2302 (b)(8). Id. Here, as stated above, the appellant alleged that he
disclosed that the GC violated procurement integrity laws and ethi cs rules and
regulations when he engaged in the misconduct described in the first and fifth
disclosures . After reviewing the appellant’s submissions, including his sworn
affidavits and supporting materials, w e find that he has raised a nonfrivolous
allega tion that a person in his position could reasonably conclude that he
disclosed evidence of a violation of a law, rule, or regulation to the agency
investigators. See Czarkowski v. Department of the Navy , 87 M.S.P.R. 107 , ¶ 11
(2000). Accordingly, we find that he met his jurisdictional burden as to the first
and fifth disclosures .
¶15 Concerning the fourth disclosure, we find that the a ppellant presented a
nonfrivolous allegation that he made a protected disclosure of an abuse of
authority . For purposes of the WPA, an abuse of authority occurs when there is
an arbitrary or capricious exercise of power by a Federal official or employee t hat
adversely affects the rights of any person or that results in personal gain or
advantage to himself or to preferred other persons. Chavez v. Department of
9
Veterans Affairs , 120 M.S.P.R. 285 , ¶ 22 (2013). The appellant need not prove
that the condition reported established an abuse of authority under 5 U.S.C.
§ 2302 (b)(8) but must establish that the matter reported was one that a re asonable
person in his position would believe evidenced an abuse of authority. See White
v. Department of the Air Force , 63 M.S.P.R. 90 , 95 (1994). We find th at the
appellant’s disclosure during the IR Office investigation concerning the GC’s
misuse of appropriated funds for his personal gain in excess of $100,000
constitute s a nonfrivolous allegation that he engaged in whistleblowing by
disclosing a purported abuse of authority. See Frederick v. Department of
Veterans Affairs , 63 M.S.P.R. 563 , 570 (1994) ( finding that the appellant made a
nonfrivolous allegation of an abuse of authority when he reported instances of
time and attendance fraud). Therefore, we find that he met his jurisdictional
burden as to t he fourth disclosure.
¶16 Concerning the second and third disclosures, however, we find that the
appellant failed to nonfrivolously allege that h is disclosures were protected.
Specifically, the second and third disclosures contain allegations that the GC
comm itted misconduct in violation of discrimination laws . IAF, Tab 1 at 12-13;
W-3 AF, Tab 5 at 1 -2, Tab 18 at 5 . The Board has long held that disclosures that
are limited to EEO matters covered under 5 U.S.C. § 2302 (b)(1) are excluded
from coverage under section 2302(b)(8) . Applewhite v. Equal Employment
Opportunity Commission , 94 M.S.P.R. 300 , ¶ 13 (2003) ; see Edwards v.
Department of Labor , 2022 MSPB 9, ¶¶ 10-26 (reaffirming the longstanding
principle that disclosures protected under Title VII are not protected under
5 U.S.C. § 2302 (b)(8) because employees seeking to remedy reprisal for such
disclosures have the right to seek redress before the Equal Employment
Opportunity Commission ); see also Hill v. Merit Systems Protection Board ,
495 F. App’x 77 , 78-79 (Fed. Cir. 2012) (affirming the Board’s conclusion that
the appellant’s allegations of race, color, sex, and age discrimination under
10
5 U.S.C. § 2302 (b)(1) do not constitute protected disclosures under section
2302(b)(8) ).3
¶17 Accordingly, we find that the appellant nonfrivolously alleged that the first,
fourth, and fifth disclosures that he made during the IR Office investigation are
protected under 5 U.S.C. § 2302(b)(8) .
The appellant nonfrivolously alleged that he suffered a personnel action.
¶18 An employee may seek corrective action from the Board concerning any
“personnel action” taken, or proposed to be taken, against him as the result of a
prohibited person nel practice described in 5 U.S.C. § 2302 (b)(8). 5 U.S.C.
§ 1221 (a); Mattil v. Department of State , 118 M.S.P.R. 662 , ¶ 14 (2012). Under
pre-WPEA law, a “personnel action” was defined as follows: (i) an appointment;
(ii) a promotion ; (iii) an action under 5 U.S.C. chapter 75 or other disciplinary or
corrective action; (iv) a detail, transfer, or reassignment; (v) a reinstatement;
(vi) a restoration; (vii) a reemployment; (viii) a performance evaluation under
5 U.S.C. chapter 43; (ix) a decision concerning pay, benefits, or awards, or
concerning education or training if the education or training may reasonably be
expected to lead to an appointment, promotion, performance evaluation, or other
personnel action; (x) a decision to order ps ychiatric testing or examination; and
(xi) any other significant change in duties, responsibilities, or working
conditions. 5 U. S.C. § 2302 (a)(2)(A) (2011) ; Mattil , 118 M.S.P.R. 662 , ¶ 14 .
¶19 A nonselection for a promotion is a covered “personnel action” under
5 U.S.C. § 2302 (a)(2)(A)(ii). See Johnson v. Department of Health & Human
Services , 87 M.S.P.R. 204 , ¶ 9 (2000). Therefore, we find that the appellant made
a nonfrivolous allegation that he suffered a personnel action concerning the three
alleged nonselections. However, concerning the appellant’s conversion from the
NSPS to the GS, he has not nonfrivolously alleged that the agency took a
3 The Board may follow a nonprecedential decision of the U.S. Court of Appea ls for the
Federal Circuit when, as here, it finds its reasoning persuasive. Morris v. Department
of the Navy , 123 M.S.P.R. 662 , ¶ 13 n.9 (2016).
11
personnel action against him as defined by 5 U.S.C. § 2302 (a)(2). For instance,
he has not alleged that he suffered a reduction in pay or that he experienced any
significant change in duties, responsibilities, or working conditions when the
agency completed his conversion from the NSPS to the GS. Therefore, we find
that he has not nonfrivolously alleged that his conversion from the NSPS to the
GS constituted a personnel action against him. See, e.g., King v. Department of
Health & Human Services , 133 F.3d 1450 , 1452 -53 (Fed. Cir. 1998) (finding that
an action must have practical consequences for an employee to constitute a
“personnel action” under 5 U.S.C. § 2302 (a)(2)(A)).
The appellant has nonfrivolously alleged that h is protected disclosures were a
contributing factor in the agency’ s decision to take or fail to take a personnel
action .
¶20 To satisfy the contri buting factor criterion, an appellant need only raise a
nonfrivolous allegation that the fact or content of the protected disclosure was
one factor that tended to affect the personnel action in any way. Mason ,
116 M.S.P.R. 135 , ¶ 26. One way to establish this criterion is the
knowledge -timing test, under which an employee may nonfrivolously allege that
the disclosure was a cont ributin g 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 conclud e that the disclosure
was a contributing factor in the personnel action. Id.
¶21 Here, the appellant allege d that many of the officials who were involved in
the decisions concerning his nonselections knew of his protected disclosure s.
IAF, Tab 1 at 13 -15; W -3 AF, Tab 5 at 5 -8. Specifically, he allege d that the GC
and the Assistant GC, among others, were aware of his disclosures because they
were given a copy of the IR Office r eport. IAF, Tab 1 at 13. The appellant
claimed that the G C and the Assistant GC had significant motivation to retaliate
against him as a result of his disclosures containe d in the report. IAF, Tab 1
12
at 14-15; W -2 AF, Tab 7, Ex. L; W -3 AF, Tab 5. He also claimed that the GC
eventually resigned as a result of th e findings contained in the report. Id.
Concerning the selection for the Deputy Assistant GC position, which took place
in January 2012, the appellant alleged that the GC was the selecting official and
that the Assistant GC was a member of the selection panel. IAF, Tab 1 at 14;
W-2 AF, Tab 8, Subtab 4w. Concerning the selection for the Deputy GC
position, which took place in June 2012, the appellant alleged that the GC was a
member of the selection panel. IAF, Tab 1 at 15 ; W-2 AF, Tab 8, Subtab 4n.
Concerning the selection for the Assistant GC position, which took place in
October 2012, the appellant alleged that the Assistant GC was a member of the
selection panel. IAF, Tab 1 at 15; W -2 AF, Tab 8, Subtab 4a. Further , the
personnel actions at issue a re alleged to have taken place within 2 years of the
time that he allegedly made h is disclosures during the IR Office investigation,
which appear s to have been in late 2010 . IAF, Tab 1 at 11 -16; W-2 AF, Tab 7
at 1‑5, Tab 8, Subtabs 4a, 4n, 4w; W -3 AF, Tab 5 at 5 -7. Based on the foregoing,
we find that the appellant has nonfrivolously alleged that the nonselections
occurred within a period of time such that a reasonable person could conclude
that his disclosure s during the IR Office i nvestigation were a contributing factor
in the personnel action s under the knowledge -timing test. See Schnell v.
Department of the Army , 114 M.S.P.R. 8 3, ¶ 22 (2010) (finding that a personnel
action taken within approximatel y 1 to 2 years of the appellant’ s disclosures
satisfies the knowledge ‑timing test); see also Agoranos v. Department of Justice ,
119 M.S.P.R. 498 , ¶¶ 21-23 (2013) .
¶22 Although the agency argued below that the appellant failed to prove that the
GC, the Assistant GC, or any others involved in the selection decisions were
negatively influenced by the appellant’s whistleblowing activities, the appellant
need only make a nonfrivolous allegation that his disclosure s were a cont ributing
factor in the nonselections at this stage . W -3 AF, Tab 10 at 4 -6; see Mason ,
13
116 M.S.P.R. 135 , ¶ 26. We find that he has met this burden. Accordingly, the
appellant is entitled to a hearing on the merits of his IRA appeal. See Salerno
v. Department of the Interior , 123 M.S.P.R. 230 , ¶ 14 (2016).
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:
Washington, D.C. /s/ for
Jennifer Everling
Acting Clerk of the Board | BARTA_MARK_B_CH_1221_13_0359_W_3_REMAND_ORDER_1962737.pdf | 2022-09-22 | null | CH-1221-13-0359-W-3 | NP |
4,103 | https://www.mspb.gov/decisions/nonprecedential/ROLLINGS_WILLIAM_C_DC_0432_21_0099_I_1_FINAL_ORDER_1962750.pdf | UNITED STATES OF AME RICA
MERIT SYSTEMS PROTEC TION BOARD
WILLIAM C. ROLLINGS, JR.,
Appellant,
v.
GOVERNMENT PUBLISHIN G
OFFICE,
Agency.
DOCKET NUMBER
DC-0432 -21-0099 -I-1
DATE: September 22, 2022
THIS FINAL ORDER IS NONPRECEDENTIAL1
Joseph T. Mallon, Jr. , Esquire, and Marshall N. Perkins , Esquire,
Baltimore, Maryland, for the appellant.
Jacqueline Marie Ivey , Esquire, and Kerry Miller , Washington, D.C., for
the agency.
BEFORE
Cathy A. Harris , Vice Chairman
Raymond A. Limon , Member
Tristan L. Leavitt , Member
FINAL ORDER
¶1 The agency has petitioned for review of the July 7, 2021 initial decision in
this appeal , and the a ppellant has filed a “conditional” cross -petition for review .
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or dis tinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board's case law. See 5 C.F.R. § 1201.117 (c).
2
Petition for Review (PFR) File, Tabs 1, 16 ; Initial Appeal File, Tab 131 . For the
reasons set forth below, we DISMISS the petition for review and cross-petition
for review as settled.
¶2 After the filing of the petition s for review, the parties submitted a document
entitled “SETTLEMENT AGREEMENT AND RELEASE ” signed and dated by
the appellant on January 7, 2022, and signed and dated by the agency on
January 11, 2022. PFR File, Tab 19. The document provides, among other
things, that each party would withdraw its petition for review and that the instant
case would be dismissed with prejudice . Id. at 2, 3.
¶3 Before dismissing a matter as settled, the Board must decide whether the
parties have entered into a settlement agreem ent, 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 partie s freely entered into it . See
Massey v. Office of Personnel Management , 91 M.S.P.R. 289 , ¶ 4 (2002) ,
overruled on other grounds by Delorme v. Department of the Interior ,
124 M.S.P.R. 123 , ¶¶ 11 -21 (2017) ( holding that the Board may enforce
settlement agreements that have been entered into the record, independent of any
prior finding of Board jurisdiction over the underlying matter being settled).
¶4 Here, w e find here that the parties have entered into a settlement agreement,
that they understand its t erms, and that they intend for the agreement to be
entered into the record for enforcement by the Board. PFR File, Tab 19, at 2-3.
In addition, we find that the agreement is lawful on its face and that the parties
freely entered into it.
¶5 Accordingly, we find that dismissing the petition for review and
cross -petition for review “with prejudice to refiling” (i.e., the parties normally
3
may not refile this appeal) is appropriate under these circumstances, and we
accept the settlement agreement into the record for enforcement purposes.
¶6 This is the final decision of the Merit Systems Protection Board in this
appeal. Title 5 of the Code of Federal Regulations, section 1201.113 ( 5 C.F.R.
§ 1201.113 ).
NOTICE TO THE PARTIE S 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 petitio n 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 inclu de the dates and results of any
communications between the parties. 5 C.F.R. § 1201.182 (a).
NOTICE OF APPEAL RIG HTS2
You may obtain review of this final decision. 5 U.S.C. § 7703 (a)(1). By
statute, the nature of your claims determines the time limit for seeking such
review and the appropriate forum with which to file. 5 U.S.C. § 7703 (b).
Although we offer the following summary of available appeal rights, the Merit
Systems Protection Board does not provide legal advice on which option is most
appropriate for your situation and the rights described b elow do not represent a
statement of how courts will rule regarding which cases fall within their
jurisdiction. If you wish to seek review of this final decision, you should
immediately review the law applicable to your claims and carefully follow all
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 mos t 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 t o your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judic ial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703 (b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “G uide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit , you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor war rants 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 t he Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. distri ct court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703 (b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. ____ , 137 S. Ct. 1975 (2017). If you have a
representative in this case, and your representative receives this decision before
you do, then you must file with the district court no later than 30 calendar days
after your representative receives this decision. If the action involves a claim of
discrimination based on race, color, religion, sex, national origin, or a disabling
condition, you may be entitled to representation by a court -appointed lawyer and
to waiver of any requirement of prepayment of fees, costs, or other security. See
42 U.S.C. § 2000e -5(f) and 29 U.S.C. § 794a .
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702 (b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702 (b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for re view to the EEOC by regular U.S. mail, the
address of the EEOC is:
6
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enha ncement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302 (b)(8) or
other protected activities listed in 5 U.S.C. § 2302 (b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
disposition of allegations of a prohibited personnel practice described in section
2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i),
(B), (C), or (D),” then you may file a petition for judicial review either with the
U.S. Court of Appeals for the Federal Circuit or any court of appeals of
compete nt 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 b y the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of c ompetent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115 -195,
132 Stat. 1510.
7
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D .C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
Contact information for the courts of appeals can be found at their
respective websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/C ourtWebsites.aspx .
FOR THE BOARD:
Washington, D.C. /s/ for
Jennifer Everling
Acting Clerk of the Board | ROLLINGS_WILLIAM_C_DC_0432_21_0099_I_1_FINAL_ORDER_1962750.pdf | 2022-09-22 | null | DC-0432-21-0099-I-1 | NP |
4,104 | https://www.mspb.gov/decisions/nonprecedential/CONAWAY_ANGELA_R_CH_0752_16_0166_I_2_FINAL_ORDER_1962922.pdf | UNITED STATES OF AME RICA
MERIT SYSTEMS PROTEC TION BOARD
ANGELA R. CONAWAY,
Appellant,
v.
DEPARTMENT OF COMMER CE,
Agency.
DOCKET NUMBER
CH-0752 -16-0166 -I-2
DATE: September 22, 2022
THIS FINAL ORDER IS NONPRECEDENTIAL1
Angela R. Conaway , Piketon, Ohio, pro se.
Frances C. Silva , Esquire, Washington, D.C., for the agency.
BEFORE
Cathy A. Harris , Vice Chairman
Raymond A. Limon , Member
Tristan L. Leavitt , Member
FINAL ORDER
¶1 The appellant has filed a petition for review of the initial decision, which
affirmed the agency’s action removing her. For the reasons discussed below, we
GRANT the petition for review, REVERSE the initial decision in part , and DO
NOT SUSTAIN the appellant’s removal. However, we AFFIRM the initial
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
requi red to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117 (c).
2
decision in part to the extent it found that the appellant failed to establish
disability discrimination.
BACKGROUND
¶2 Prior to the removal at issue in this appeal, the appellant was employed by
the a gency’s Census Bureau as a GS -6 Field Supervisor. Conaway v. Department
of Commerce , MSPB Docket No. CH -0752 -16-0166-I-1, Initial Appeal F ile
(IAF), Tab 6, Subtab 4h . In addition to her supervisory duties, she occasionally
conducted interviews with surve y respondents. Id., Subtab 4y. The agency
reviewed several of the appellant’s cases in March 2014 as part of its routine
quality control measures and discovered discrepancies in three of her Current
Population Survey (CPS) cases .2 Id., Subtab 4r. On Ap ril 2, 2014, the
appellant’s second -level supervisor issued her a “5-day letter ” notifying her of the
discrepancies and permitting her an opportunity to respond. Id. In relevant part ,
the letter state d that the appellant submitted Case #1 as a completed interview but
that, upon reinterview, the respondent denied spe aking to the appellant on the
date in question . Id. The appellant responded to the 5 -day letter, stating that she
spoke to the Case #1 respondent at about 9:38 p.m. on that date and that it was the
household’s seventh intervie w. Id., Subtab 4q . She explained that the respondent
was angry that she had been called again and stated that “nothing had changed”
since her last interview . Id. She further explained that she entered so me
information based on her “previous knowledge of the case that [the respondent
and her spouse] both usually worked 50 hours a week and were at the same job
doing the same thing” and entered “refused” in other fields regarding the number
of hours worked i n the current week and a prior week. Id.
2 CPS surveys collect information regarding the labor force , such as where the
respondent and other household members work, their occupation, number of hours they
worked in the survey week, and how many hours they usually work per week . Conaway
v. Department of Commerce , MSPB Docket No. CH -0752 -16-0166-I-2, Refiled Appeal
File (RAF), Tab 14, Hearing Compact Disc (HCD) (testimony of a Field Supervisor ).
3
¶3 On June 19, 2014, the agency proposed to remove the appellant on the basis
of one charge of “Providing False Information Regarding Census Bureau
Questionnaires” supported by one specification alleging that, on Ma rch 22, 2014,
she provided false information in CPS Case #1.3 Id., Subtab 4 l. The background
section of the proposal notice stated that, upon reinterview of Case #1, the survey
respondent claimed that she did not speak to the appellant in March 2014 . Id. In
an apparent alternative, the background section further stated that the appellant
“submitted an interview as complete even though [she] did not ask the respondent
all survey questions as worded” pursuant to CPS Interviewer Manual,
Section 2.2.1, whic h requires that interviewers ask questions exactly as worded so
that they will yield comparable results. Id.
¶4 The appellant submitted a written response to the deciding official attesting
that she spoke to the Case #1 respondent in March 2014 and denying that she
falsified any data. IAF, Tab 6, Subtab 4j , part 1 . She stated that she had
conducted five prior interviews with this respondent, who had requested not to be
contacted further and who, on the date in question, was very angry at being called
again . Id. The appellant stated that she verified that the respondent and her
spouse still worked at the same place but did not ask what job they did or how
many hours they worked because she already knew that information from the
prior interview s and because the respondent had said that “nothing would change
unless [she or her spouse] died.” Id. The appellant stated that she put “refused”
on the number of hours the respondent and her husband had worked that week and
ended the interview. Id.
¶5 In a decision letter dated September 2, 2014, the deciding official observed
that the appellant admitted in her response to the proposal notice that she
3 The administrative judge determined that , although the proposal notice and other
references in the record indicate that the alleged misconduct occurred on March 22,
2014, the evidence and testimony established that the alleged misconduct actually
occu rred on March 25, 2014 . RAF , Tab 16 at 3 n.3 ; IAF, Tab 6, Subtab 4s . We agree.
4
submitted answers for Case #1 even though she did not ask the respondent the
questions as worded on the questionnaire , as requi red by agency policy. IAF,
Tab 6, Subtab 4i. Thus, she found that the reason for the proposed removal was
fully supported by the evidence and imposed the appellant’s removal , effective
September 5, 2014. Id. The appellant amended her pending equal employment
opportunity (EEO) complaint to include a claim relating to her removal , which
the agency’s Office of Civil Rights (OCR) accepted for investigation . Id.,
Subtab 4b, part 1 . On November 13, 2015, the OCR issued a final agency
decision find ing no discrimination. Id., parts 1 -2.
¶6 The appellant then appealed her removal to the Board, raising affirmative
defenses of harmful procedural erro r and disability discrimination .4 IAF, Tab 1.
The administrative judge dismissed the appeal without preju dice, and the appeal
was automatically refiled on November 21, 2016. IAF, Tab 13; Conaway v.
Department of Commerce , MSPB Docket No. CH -0752 -16-0166-I-2, Refiled
Appeal File (RAF), Tabs 1 -2. After holding the appellant’s requested hearing ,
the administrative judge issued an initial decision finding that the agency proved
the charge, nexus, and the reasonableness of the penalty and that the appellant
failed to prove her affirmative defenses. RAF, Tab 16, Initial Decision (ID)
at 6-23.
¶7 The appellant has filed a petition for review of the initial decision, and the
agency has responded in opposition. Petition for Review (PFR) File, Tab s 1, 3.
4 The appellant also appealed a n alleged constructive suspension and a reduction in pay.
The administrative judge issued an initial decision dismissing that appeal for lack o f
jurisdiction. Conaway v. Department of Commerce , MSPB Docket No. CH-0752 -16-
0165 -I-1, Initial Decision (Oct. 13, 2016). A petition for review of the decision in that
case is currently pending with the Board.
5
ANALYSIS
The agency did not prove the charge of providing false information regarding
census bureau questionnaires .
¶8 An agency is not required to affix a label to a charge but may simply
describe the actions that constitute the misbehavior in narr ative form in its charge
letter. Hollingsworth v. Department of the Air Force , 121 M.S.P.R. 397 , ¶ 4
(2014). If, however, t he agency chooses to label an act of alleged misconduct,
then it must prove the elements that make up the legal definition of the charge, if
any. Id. As noted above, the agency removed the appellant on the basis of one
charge of providing false information regarding census bureau questionnaires
supported by one specification allegi ng that she provided false information in
Case #1. IAF, Tab 6, Subtabs 4i , 4l. A charge of providing false information is
considered to be a charge of falsification. See, e.g. , Leatherbury v. Department of
the Army , 524 F.3d 1293 , 1297, 1300 (Fed. Cir. 2008) (construing charges of
“filing a false claim against the government” and “filing a false travel voucher ”
as charges of falsification); Rackers v. Department of Justice , 79 M.S.P.R. 262 ,
266, 278 (1998) (considering a charge of “provi ding false information in official
documents” as one of falsification) , aff’d , 194 F.3d 1336 (Fed. Cir. 1999) . To
establish a charge of falsification, the agency must prove the follo wing by
preponderant evidence: (1) the appellant supplied incorrect info rmation; and
(2) she did so knowingly with intent to defraud, deceive , or mislead the agency
for her own private material gain .5 Boo v. Department of Homeland Security ,
122 M.S.P.R. 100 , ¶¶ 10-12 (2014).
¶9 The administrative judge found that the appellant made contact with the
household in Case #1 on March 25, 2014, but that she failed to ask questions of
the respondent exactly as worded on the questionnaire in violation of agency
5 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).
6
policies. ID at 9 -10. He determined , however, that the appellant’s failure to ask
the questions as worded on the questionnaire was not dispositive in the
falsification charge because such conduct con stitutes failure to follow survey
procedures, which the agency explicitly distinguished from data falsification. ID
at 11. Nonetheless, he concluded that the appellant’s concession during cross
examination that she inputted data that she did not obtain during the March 25,
2014 interview —specifically, hours usually worked each week for the respondent
(42 hours) and her spouse (48 hours) —was sufficient to establish that she
knowingly provided false information with the intent to deceive the agency. ID
at 14-15. He further found that she did so for her own private material gain
because completing surveys affected her performance appraisal . ID at 15.
¶10 Although the agency did not provide a copy of the Case #1 survey
containing the alleged false data, the tr ace file6 reflects that the appellant entered
a value of “42” into the survey at 9:02:43 p.m. on March 25, 2014, and a value of
“48” at 9:02:53 p.m. IAF, Tab 6, Subtab 4r at 16. At the hearing, the appellant
testified that these amounts refer red to the n umber of hours the respondent and
her husband usually worked each week and that she obtained these numbers from
the previous interview and entered them into this survey based on the
respondent’s assertion that “nothing had changed .” RAF, Tab 14, Hearing
Compact Disc (HCD) (testimony of the appellant). Thus, although it is clear that
the appellant entered information into the survey for Case #1 that she did not
obtain from the March 25, 2014 interview, the agency has not provided any
evidence suggesting th at this information was incorrect, as required to prove a
charge of falsification. Boo, 122 M.S.P.R. 100 , ¶ 10. To the contr ary, it is likely
this information is correct given the appellant’s unrebutted testimony that the
respondent provided her this information during a previous interview and told her
6 A trace file is a record of each keystroke made by an interviewer during the course of
an interview, along with the date and time an interviewer spends on each screen. ID
at 4 n.4 (quoting RA F, Tab 14, HCD (testimony of a Field Supervisor) ).
7
that “nothing had changed” during her phone conversation with the respondent on
March 25, 2014. HCD (testimony of the appellant). Moreover, even if this
information was incorrect, we find that the appellant had a reasonable good faith
belief in the truth of the information, which precludes a finding that she acted
with deceptive intent. See Leatherbury , 524 F.3d at 1300 -01. Therefore, we find
that the agency has not proven a charge of falsification.
¶11 Although the appellant’s handling of the Case #1 survey may have been
contrary to established procedures or otherwise improper, th e agency did not
assert such a charge against her .7 Rather, as stated above, the agency charged her
with providing false inf ormation in Case #1. IAF, Tab 6 , Subtab 4l. The Board is
required to review the agency’s decision on an adverse action solely on the
grounds invoked by the agency and may not substitute what it considers to be a
more adequate or proper basis . Gottlieb v. Veterans Administration , 39 M.S.P.R.
606, 609 (1989). Therefore, we cannot sustain a charge of failure to follow
survey procedure against the appellant, and such failure cannot serve as a basis to
sustain a charge of falsification.
¶12 In light of the foregoing, we reverse the initial decision in part and do not
sustain the appellant’s removal.8
7 As noted above , the background section of the proposal notice stated that the appellant
“submitted an interview as complete even though [she] did not ask the respondent all
the survey questions as worded as required” and “entered data into the instrument for
CPS case [#1] that was not provided by the respondent.” IAF, Tab 6 , Subtab 4l. These
statements describe the conduct underlying the agency’s charge and do not state a
separate charge against the app ellant . Id.; see Atchley v. Department of the Army ,
46 M.S.P.R. 297 , 302 n.5 (1990) (finding that a description of the factual basis for the
charge was intended to support the charge and did not constitute a separate charge).
8 Because we do not sustain the charge, we need not address the appellant’s arguments
on review regarding penalty and harmful procedural error. PFR File, Tab 1 at 4-7. We
further do not address her arguments raised for the first time on re view that the agency
committed prohibited personnel practice s when it did the following: failed to inform
her of her rights and the processes, procedures, and remedies available to her; denied
her a hearing and an opportunity to speak with counsel; and failed to respond to her
voicemails, emails, and questions about health insurance . Id. at 6; see Banks v.
8
The administrative judge properly found that the appellant failed to prove her
disability discrimination claim .
¶13 To establish an affirmative defense of disability discrimination, an appellant
first must prove that she is an individual with a di sability as defined in the
Americans with Disabilities Act (ADA), as amended by the ADA Amendments
Act (ADAAA) , and Equal Employment Opportunity Commission (EEOC)
regulations . Thome v. Department of Homeland Security , 122 M.S.P.R. 315 , ¶ 24
(2015). 9 She may establish she has a disability by s howing one of the following:
(1) she has a physical or mental impairment that substantially limits one or m ore
major life activities; (2) she h as a record of such an impairment ; or (3) she is
regarded as having such an impairment . Id. An impairment is considered to be a
disability if it sub stantially limits an individual’ s ability to perform a major life
activity as compared to most people in the general population. Id.
¶14 Here, the appellant alleged that the agency discriminated against her on the
basis of her disability (deep vein thrombosis and post -thrombosis ) when it
removed her. RAF, Tab 10 at 4 -5, 12 -13, Tab 12 at 4. In her EEO declaration,
she stated that her doctor prescribed her pain medication to take as needed for this
condition , that s he had a “little bit of difficulty with stairs and walking long
distances ,” and that “[her condition] doesn’t really affect [her] walking but it
slows [her] down.” IAF, Tab 6, Subtab 4d . She alleg ed below that she has
trouble standing for long periods, w alking long distances, and climbing stairs, but
Department of the Air Force , 4 M.S.P.R. 268 , 271 (1980) (explaining that the Board
generally will not consider an argument raised for the first time in a petition for review
absent a showing that it is based on new and materi al evidence not previously available
despite the party’s due diligence). Even if we were to consider these arguments, we
would find that these alleged agency actions are not prohibited personnel practices. See
5 U.S.C. § 2302 (b).
9 As a Federal employee, the appellant’s disability discrimination claim arises under the
Rehabilitation Act of 1973. Thome , 122 M.S.P.R. 315 , ¶ 23. The EEOC regulations
implementing the ADA and ADAAA have been incorporated by reference into the
Rehabilitati on Act, and the Board applies them to determine whether there has been a
Rehabilitation Act violation. Id.; 29 C.F.R. § 1614 .203 (b).
9
that “[s]he did not let her disability limit her ability to do her job. ” RAF, Tab 10
at 12. In the initial decision, t he administrative judge found that the appellant did
not submit any medical records containing a diagnosis of deep vein thrombosis
and, therefore, concluded that she did not establish that she was an individual
with a disability or a record of a disability. ID at 17. He further found that she
was not regarded as having a disability based on the hearing testimonies of
multiple agency management officials, who all testified that they had no
knowledge of the appellant’s disability prior to her removal. Id.
¶15 The appellant generally challenges these finding on review and submits, for
the first time, the following two documents in support of her claim that she has a
disability and that the agency was aware of it : (1) a September 14, 1999 notice
from the Social Security Administration finding that she was not entitled to
disability benefits; and (2) a roster of Field Supervisors showing , among other
things, that the appell ant claimed a disability of non paralytic orthopedic
impairments. PFR File, Tab 1 at 3, 9 -13. Based on the m arkings on these
documents and reference s in OCR’s final agency decision , it appears that these
documents are part of the report of i nvestigation generated in connection with the
appellant’s EEO complaint. Id. at 9-13; IAF, Tab 6, Subtab 4, parts 1 -2. Because
the appellant has not shown that she could not have submitted these documents
before the record closed below, we do not consider them for the first time on
review. 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 generally will not consider evidence
submitted for t he first time with the petition for review absent a showing that it
was unavailable before the reco rd was closed despite the party’ s due diligence ).
¶16 Having considered the record and the appellant’s arguments on review, we
find no basis to disturb the administrative judge’s determination that the appellant
failed to establish her disability discrimination affirmative defense.
10
ORDER
¶17 We ORDER the agency to cancel the appellant’s removal and to reinstate
her effective Septembe r 5, 2014 . 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.
¶18 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 Ord er. 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.
¶19 We further ORDER the agency to te ll 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).
¶20 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 t hat 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).
¶21 For agencies whose payroll is administered by either the National Finan ce
Center of the Department of Agriculture (NFC) or the Defense Finance and
Accounting Service (DFAS), two lists of the information and documentation
necessary to process payments and adjustments resulting from a Board decision
11
are attached. The agency is ORDERED to timely provide DFAS or NFC with all
documentation necessary to process payments and adjustments resulting from the
Board’s decision in accordance with the attached lists so that payment can be
made within the 60 -day period set forth above.
NOTI CE TO THE APPELLANT REGARDING
YOUR RIGHT TO REQUES T
ATTORNEY FEES AND CO STS
You may be entitled to be paid by the agency for your reasonable attorney
fees and costs. To be paid, you must meet the requirements set forth at Title 5 of
the United States Code (5 U.S.C.), sections 7701(g), 1221(g), or 1214(g). The
regulations may be found at 5 C.F.R. §§ 1201.201 , 1201.202, and 1201.203. If
you believe you meet these requirements, you must f ile 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 RIGHTS10
You may obtain review of this final decision. 5 U.S.C. § 7703 (a)(1). By
statute, the nature of your claims determines the time limit for seeking such
review and the appropriate forum with which t o file. 5 U.S.C. § 7703 (b).
Although we offer the following summary of available appeal rights, the Merit
Systems Protection Board does not provide legal advice on which option is most
appropriat e for your situation and the rights described below do not represent a
statement of how courts will rule regarding which cases fall within their
jurisdiction. If you wish to seek review of this final decision, you should
immediately review the law applica ble to your claims and carefully follow all
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.
12
filing time limits and requirements. Failure to file within the applicable time
limit may result in the dismissal of your case by your chosen forum.
Please read carefully each of the three main possible choice s of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703 (b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of partic ular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
13
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by a n action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703 (b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. ____ , 137 S. Ct. 1975 (2017). If you have a
representative in this case, and your representative receives this decision before
you do, t hen you must file with the district court no later than 30 calendar days
after your representative receives this decision. If the action involves a claim of
discrimination based on race, color, religion, sex, national origin, or a disabling
condition, you may be entitled to representation by a court -appointed lawyer and
to waiver of any requirement of prepayment of fees, costs, or other security. See
42 U.S.C. § 2000e -5(f) and 29 U.S.C. § 794a .
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702 (b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702 (b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is:
14
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial revi ew pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302 (b)(8 ) or
other protected activities listed in 5 U.S.C. § 2302 (b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
disposition of allegations of a prohibited personne l practice described in
section 2302(b) other than practices described in section 2302(b)(8), or
2302(b)(9)(A)(i), (B), (C), or (D),” then you may file a petition for judicial
review either with the U.S. Court of Appeals for the Fe deral 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 origi nal statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permane ntly allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115 -195,
132 Stat. 1510.
15
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” whi ch is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.g ov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representati on in a given case.
Contact information for the courts of appeals can be found at their
respective websites, which can be accessed through the link below:
http://www.uscourts.gov/Co urt_Locator/CourtWebsites.aspx .
FOR THE BOARD:
Washington, D.C. /s/ for
Jennifer Everling
Acting Clerk of the Board
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 e nsure 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 ba ck pay period within the ticket comments.
Attach the following documentation to the Remedy Ticket, or prov ide a statement in the ticket
comments as to why the docume ntation is not applicable:
☐ 2) Settlement agreement, administrative dete rmination, arbitrator award, or order.
☐ 3) Signed and completed “Empl oyee 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 t he 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 separa te leave account pursuant to 5 CFR § 550.805(g).
NATIONAL FINANCE CEN TER CHECKLIST FOR BA CK PAY CASES
Below is the information/documentation required by National Finance Center to process
payments/adjustments agreed on in Back Pay Cases (settlements, restorations) or as ordered by the Merit
Systems Protection Board, EEOC, and courts .
1. Initiate and submit AD -343 (Payroll/Action Request) with clear and concise information
describing what to do in accordance with 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 Diffe rential, 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 agen cy.
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, certi fication 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/Personn el
Operations at 504 -255-4630. | CONAWAY_ANGELA_R_CH_0752_16_0166_I_2_FINAL_ORDER_1962922.pdf | 2022-09-22 | null | CH-0752-16-0166-I-2 | NP |
4,105 | https://www.mspb.gov/decisions/nonprecedential/CONAWAY_ANGELA_R_CH_0752_16_0165_I_1_FINAL_ORDER_1962929.pdf | UNITED STATES OF AME RICA
MERIT SYSTEMS PROTEC TION BOARD
ANGELA R. CONAWAY,
Appellant,
v.
DEPARTMENT OF COMMER CE,
Agency.
DOCKET NUMBER
CH-0752 -16-0165-I-1
DATE: September 22, 2022
THIS FINAL ORDER IS NONPRECEDENTIAL1
Angela R. Conaway , Piketon, Ohio, pro se.
Frances C. Silva , Esquire, Washington, D.C., for the agency.
BEFORE
Cathy A. Harris , Vice Chairman
Raymond A. Limon , Member
Tristan L. Leavitt , Member
FINAL ORDER
¶1 The appellant has filed a petition for review of the initial decision, which
dismissed her appeal challenging her placement on an intermittent work status for
lack of jurisdiction . Generally, we grant petitions such as this one only in the
following circumstances: the initial decision contains erroneous findings of
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
require d to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117 (c).
2
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 availabl e when the record closed. Title 5 of the Code of
Federal Regulations, section 1201.115 ( 5 C.F.R. § 1201.115 ). After fully
considering the filings in this appeal, we conclude that 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 ARGUME NTS ON REVIEW
¶2 In July 2012, t he agency appointed the appellant to a part-time position as a
GS-6 Field Supervisor with the agency’s Bureau of the Census . Initial Appeal
File (IAF), Tab 6, Subtab 4v at 5. According to the position description, a Field
Supervisor works a “mixed -tour work schedule,” which “provides for periods of
full-time, part -time, and/or intermittent work to accommodate fluctuating
workloads.” Id. at 6. By notice dated April 4, 2014, the agency relieved the
appellant of her duties and placed her in an intermittent work status pending an
inquiry into allegations that she falsified survey data. IAF, Tab 6, Subtab 4o.
The notice informed the appellant that, while she was on intermittent work status,
she would be paid administrative leave for 2 hours per pay period, which was her
minimum tour of duty. Id. The appellant remained in intermittent status,
receiving 2 hours of paid administrative leave per pay period, until the agency
removed her on September 5, 2014. Id., Subtab 4i; IAF, Tab 14.
3
¶3 In December 2015, the appellant filed a Board appeal challenging an
alleged suspension of more than 14 days.2 IAF, Tab 1 at 1-3. The administrative
judge construed the appellant’s filing as an appeal of her placement on
intermittent work status and, i n an order on jurisdiction, informed her that the
Board lacks jurisdiction over an intermitt ent employee’s period of unemployment
if the lack of work is consistent with the terms of her employment . IAF, Tab 11
at 3-4. He further informed her, however, that the Board may have jurisdiction if
her placement on intermittent work status was not in a ccordance with the terms
and conditions of her employment . Id. at 4. Thus , he ordered her to file evidence
and argument amounting to a nonfrivolous allegation that she was plac ed in a
nonduty, nonpay status and t hat such placement was not in accordance w ith the
terms and conditions of her employment. Id. Without holding the requested
hearing, the administrative judge issued an initial decision finding that the
appellant failed to nonfrivolously allege that her placement on intermittent work
status const ituted a constructive suspension or a reduction in pay over which the
Board has jurisdiction. IAF, Tab 16, Initial Decision (ID). Accordingly, he
dismissed the appeal for lack of jurisdiction . ID at 4.
2 Before filing the instant Board appeal, the appellant filed an equal employment
opportunity (EEO) complaint challenging her placement on an intermittent work
schedule and her removal. IAF, Tab 1 a t 9-11. In November 2015, the appellant
received the f inal agency d ecision (FAD) finding no discrimination in connection with
her removal . IAF, Tab 1 at 8 -32, Tab 4. Although the FAD decided only the
appellant’s removal complaint, she filed a Board appe al challenging both her removal ,
which the administrative judge docketed separately as MSPB Docket No. CH-0752 -16-
0166 -I-1, and a suspension of more than 14 days, which the administrative judge
interpreted as an appeal of her placement on intermittent work status and is the subject
of the current appeal. IAF, Tab 1 at 1 -3, Tab 11. The record reflects that the appellant
requested a hearing before the Equal Employment Opportunity Commission in
connection with her placement on intermittent work status, IAF, Tab 1 at 9 -10, but there
is no indication in the record that a hearing has been held or th at a decision has been
issued. In light of our finding that the Board lacks jurisdiction over the appellant’s
placement on intermittent work status, however, we need not address the impact on this
appeal of the appellant’s unresolved EEO appeal of the same agency action.
4
¶4 The appellant has filed a petition for review of the initial decision, and the
agency has responded in opposition. Petition for Review (PFR) File, Tabs 1, 3.
¶5 The Board does not have jurisdiction to address all matters that are alleged
to be incorrect or unfair. Miller v. Department of Homeland Securi ty,
111 M.S.P.R. 325 , ¶ 14 (2009), aff’d , 361 F. App’ x 134 (Fed. Cir. 2010). Rather,
the Board adjudicates only those actions for which a right of appeal has been
granted by law, rule, or regulation. Maddox v. Merit Systems Protection Board ,
759 F.2d 9 , 10 (Fed. Cir. 1985). Generally, the placement of an intermittent
employee in a nonduty, nonpay status in accordance with the conditions of her
employment is not an adver se action appealable to the Board . Drake v.
Department of the Army , 77 M.S.P.R. 424 , 426 (1998) ; 5 C.F.R.§ 752.401 (b)(14).
If, however, the agency’ s action is not in a ccordance with the terms and
conditions of the appellant’s employment, then her placement in a nonduty,
nonpay status for more than 14 days could constitute an appealable constructive
suspension. See Drake , 77 M.S.P.R. at 426.
¶6 As discussed above, the app ellant held a part-time position on a mixed -tour
work schedule with a minimum tour of duty of 2 hours per pay period. IAF,
Tab 6, Subtab 4v at 5. Additionally, she signed an employee agreement
specifically indicating that her mixed -tour work schedule may include “periods of
full-time, part -time, and intermittent work, as well as periods in a nonpay status,
depending on workload .” IAF, Tab 15 at 5. Thus, the agency did not violate the
terms and conditions of the appellant’s employment when it placed her in an
intermittent work status and provided her paid administrative leave for 2 hours
per pay period. Accordingly, we agree with the administrative judge’s finding
that the Board lacks jurisdiction over the appellant’s appeal as an alleged
constructive su spension of more than 14 days.
¶7 In addition, insofar as the appellant has alleged that the agency subjected
her to a reduction in pay, we agree with the administrative judge’s finding that a
loss in total salary due to a reduction in work hours is not an ap pealable adverse
5
action. ID at 4 ; see Wood v. Merit Sys tems Prot ection Board , 938 F.2d 1280 ,
1282 (Fed. Cir. 1991) ( finding that the employee did not suffer a reduction in pay
within the meaning of 5 U.S.C. § 7512 (4) when the agency reduced her number of
hours and, therefore, her annual salary, but did not chang e her rate of pay).
¶8 On review, the appellant challenges the merits of her removal, argues that
the agency committed a prohibited personnel practice by restricting her hours and
suspending her, alleges that the agency violated her right to minimum due pro cess
when it suspended her, and challenges the agency’s investigation into her alleged
misconduct. PFR File, Tab 1. None of these allegations pertain to the dispositive
jurisdictional issue before us, however, and provide no basis to disturb the initial
decision. See Sapla v. Department of the Navy , 118 M.S.P.R. 551 , ¶ 7 (2 012)
(finding that an appellant’ s arguments on review regardi ng the merits of an
agency action were not relevant to whether the Board had jurisdiction over an
appeal); Wren v. Department of the Army , 2 M.S.P.R. 1, 2 (1980) ( finding that
prohibited personnel practices are not an independent source of Board jurisdiction
and that, absent an otherwise appealable action, the Board lacks jurisdiction to
consider an ap pellant’s affirmative defenses), aff’d , 681 F.2d 867 , 871 -73 (D.C.
Cir. 1982).
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 summar y of available appeal rights, the Merit
Systems Protection Board does not provide legal advice on which option is most
appropriate for your situation and the rights described below do not represent a
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
statement of how courts will rule regarding which cases fall within their
jurisdiction. If you wish to seek review of this final decision, you should
immediately review the law applicable to your claims and carefully follow all
filing time limits and requirements. Failure to file within the applicable time
limit may result in the dismissal of your case by your chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703 (b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional informatio n about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Prac tice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Prote ction Board appellants before the Federal Circuit. The
7
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703 (b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. ____ , 137 S. Ct. 1975 (2017). If you have a
representative in this case, and your representative receives this decision before
you do, then you must file with the district court no later than 30 calendar days
after your representative receives this decision. If the action involves a claim of
discri mination based on race, color, religion, sex, national origin, or a disabling
condition, you may be entitled to representation by a court -appointed lawyer and
to waiver of any requirement of prepayment of fees, costs, or other security. See
42 U.S.C. § 2000e -5(f) and 29 U.S.C. § 794a .
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702 (b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702 (b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
8
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancem ent Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302 (b)(8) or
other protected activities listed in 5 U.S.C. § 2302 (b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
disposition of allegations of a prohibited personne l practice described in
section 2302(b) other than practices described in section 2302(b)(8), or
2302(b)(9)(A)(i), (B), (C), or (D),” then you may file a petition for judicial
review either with the U.S. Court of Appeals for the Federal Circuit or any court
of appeals of competent j urisdiction.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 Appeal s
for the Federal Circuit or any other circuit court 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/C ourtWebsites.aspx .
FOR THE BOARD:
Washington, D.C. /s/ for
Jennifer Everling
Acting Clerk of the Board | CONAWAY_ANGELA_R_CH_0752_16_0165_I_1_FINAL_ORDER_1962929.pdf | 2022-09-22 | null | CH-0752-16-0165-I-1 | NP |
4,106 | https://www.mspb.gov/decisions/nonprecedential/NEESE_DANNY_J_NY_0845_15_0316_I_1_FINAL_ORDER_1962323.pdf | UNITED STATES OF AME RICA
MERIT SYSTEMS PROTEC TION BOARD
DANNY J. NEESE,
Appellant,
v.
OFFICE OF PERSONNEL
MANAGEMENT,
Agency.
DOCKET NUMBER
NY-0845 -15-0316 -I-1
DATE: September 21, 2022
THIS FINAL ORDER IS NONPRECEDENTIAL1
Danny J. Neese , Mastic, New Y ork, pro se.
Tanisha Elliott Evans , Washington, D.C., for the agency.
BEFORE
Cathy A. Harris , Vice Chairman
Raymond A. Limon , Member
Tristan L. Leavitt , Member
FINAL ORDER
¶1 The appellant has filed a petition for review of the initial decision, which
affirm ed as modified a decision of the Office of Personnel Management (OPM)
finding that the appellant was overpaid $8,299 in disability 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 Boar d and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117 (c).
2
For the reasons set forth below, the appellant’s petition for review is DISMISSED
as untimely filed wit hout good cause shown. 5 C.F.R. § 1201.114 (e), (g).
BACKGROUND
¶2 The appellant filed an appeal of an OPM reconsideration decision finding
that he had been overpaid annuity benefits in t he amount of $8,299 as a result of
his receipt of disability benefits from the Social S ecurity Administration (SSA) .
Initial Appeal File ( IAF), Tab 1 at 9 -12. In its reconsideration decision, OPM
found that the appellant was not entitled to a waiver of t he overpayment but
reduced the repayment schedule to 165 monthly installments of $50 and one final
installment of $49. Id. at 11 -12.
¶3 After holding a telephonic hearing, the administrative judge issued an initial
decision, affirming OPM’s reconsideration decision as modified to adjust the
repayment schedule to $35 per month. IAF, Tab 15, Initial Decision (ID). She
found that OPM proved the existence and amount of the overpayment. ID at 5 -6.
She also found that the appellant was not entitled to a waive r of the overpayment
because , although he was without fault in creating the overpayment, OPM had
advised him that his annuity must be reduced for any SSA disability benefits.
ID at 6-10. Thus, she found that the set -aside rule applied and the appellant
failed to establish exceptional circ umstances existed to warrant a waiver. Id.
However, she found that the appellant demonstrated financial hardship warranting
an adjustment of the repayment schedule, and she reduced the repayment schedule
to 237 payments of $35 per month and one final payment of $4. ID at 10 -11.
¶4 The appellant has filed an untimely petition for review. Petition for Review
(PFR) File, Tab 1. The agency has moved to dismiss the appellant’s petition for
review as untimely. PFR File, Tab 4 .
DISCUSSION OF ARGUME NTS ON REVIEW
¶5 The Board’s regulations provide that a petition for review must be filed
within 35 days of the date of issuance of the initial decision or , if the party filing
3
the petition shows that the initial decision was received mo re than 5 days after it
was issued, within 30 days after the party received the initial decision. 5 C.F.R.
§ 1201.114 (e). Here, t he initial decision was issued on September 26 , 2016, and
the deadline for filing a petition for review was October 31, 2016 . Thus, the
appellant’s December 5, 2016 petition for review was 35 days untimely.2
¶6 The Board will waive the time limit for filing a petition for review only
upon a showing of good caus e for the delay in filing. 5 C.F.R. §§ 1201.113 (d),
1201.114(g ). To establish good cause for the untimely filing, a party must show
that he exercised due diligence or ordinary prudenc e under the particular
circumstances of the case. Alonzo v. Department of the Air Force , 4 M.S.P.R.
180, 184 (1980). To establish good cause base d upon illness, the party must
identify the time period during which he suffered from the illness, support his
allegation with corroborating medical or other evidence, and explain how the
illness prevented him from timely filing his petition or requesting an extension of
time. Sanders v. Department of the Treasury , 88 M.S.P.R. 370 , ¶ 7 (2001).
¶7 On review, the appellant explain s that hi s petition for review was untimely
due to many health issues he has been experiencing. PFR File, Tab 1 at 2. He
also contends that he was in the emergency room due to psychological issues on
June 20, September 12, and October 6, 2016 , and provides medica l statements
documenting his visits on these dates. Id. at 2, 6, 8 -9. However, i t is unclear
how the appellant’s emergency room visits on June 20 and September 12, 2016,
impacted his ability to file his petition for review following the issuance of the
initial decision on September 26, 2016. Further, the appellant has not adequately
explained how his medical conditions prevented him from timely filing his
petition for review prior to or following his October 6, 2016 emergency room
visit. See, e.g. , Miller v. Department of the Army , 112 M.S.P.R. 689 , ¶ 15 (2009)
(finding that the appellant failed to establish good cause for her un timely petition
2 The appellant does not contend that he received the initial decision more than 5 days
after it was issued.
4
for review when she provided evidence that she was examined at a hospital,
recommended 4 days of bed rest , and out of work for a few days during the filing
period but failed to explain her illness or how it prevented her from filing a
timel y petition for review).
¶8 In his motion to waive the time limit , the appellant asserts that he has been
suffering from mental illness for several years . PFR File, Tab 5 at 2. He also
attaches a copy of a December 6, 2016 report from a visit with his doctor ,
identifying several medical conditions, including, among other things, anxiety,
recurrent major depressive disorder, and insomnia. Id. at 4. The appellant has
not explained , though, how any of these conditions prevented him from filing his
petition for review, especially given that this report is dated 1 day after he filed
his petition for review on December 5, 2016.
¶9 Accordingly, we dismiss the petition for review as untimely filed. Although
we dismiss the petition as untimely, we acknowledge the app ellant’s contention
on review that the current repayment schedule will create severe financial
hardship for him. PFR File, Tab 1 at 3. To the extent the appellant’s expenses
prove overwhelming, he may submit a mid -collection request to OPM , at which
time his living expenses may be reexamined. IAF, Tab 5 at 111 (Policy
Guidelines on the Disposition of Overpayments under the Civil Service
Retirement System and Federal Employees’ Retirement System, § V.F.5 ).
¶10 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 regard ing the merits of this appeal.3
3 The appellant is notified that OPM has advis ed the Board that it may seek recovery
from the appellant’s estate or other responsible party of any debt remaining upon his or
her death. A party responsible for any debt remaining upon an annuitant’s death may
include an heir (spouse, child , or other) w ho derives a benefit from the annuitant’s
Federal benefits, an heir or other person acting as the representative of his or her estate
if, for example, the representative fai ls to pay the United States before paying the
claims of other creditors in accordan ce with 31 U.S.C. § 3713 (b), or transferees or
5
NOTICE OF APPEAL RIGHTS4
You may obtain review of this final decision. 5 U.S.C. § 7703 (a)(1). By
statute, the nature of your claims determines the time limit for seeking such
review and the appropriate forum with which to file. 5 U.S.C. § 7703 (b).
Although we offer the following summary of available appeal rights, the Merit
Systems Protection Board does not provide legal advice on which option is most
appropriate for your situation and the rights described below do not represent a
statement of how courts will rule regarding which cases fall within their
jurisdiction. If you wish to seek review of this final decision, you should
immediately review the law applicable to your claims and carefully follow all
filing time limits and requ irements. Failure to file within the applicable time
limit may result in the dismissal of your case by your chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general. As a general rule, an appellant seeking
judicial review of a final Bo ard order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703 (b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
distributers of the annuitant’s estate. Pierotti v. Office of Personnel Management ,
124 M.S.P.R. 103 , ¶ 13 (2016).
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 indic ated in the notice, the
Board cannot advise which option is most appropriate in any matter.
6
U.S. Court of Appeals
for the Federal Circuit
717 Madison Pl ace, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appella nts,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://w ww.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept rep resentation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based , in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703 (b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. ____ , 137 S. Ct. 1975 (2017). If you have a
representative in this case, and your representative receives this decision before
you do, then you must file with the district court no later than 30 calendar days
after your representative receives this decision. If the action involves a claim of
discrimination based on race , color, religion, sex, national origin, or a disabling
condition, you may be entitled to representation by a court -appointed lawyer and
to waiver of any requirement of prepayment of fees, costs, or other security. See
42 U.S.C. § 2000e -5(f) and 29 U.S.C. § 794a.
7
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/Cou rtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702 (b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702 (b)(1). If you have a representative in t his case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it m ust be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option appl ies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302 (b)(8) or
other protected activities listed in 5 U.S.C. § 2302 (b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
disposition of allegations of a prohibited personnel practice described in section
2302(b) other than practice s described in section 2302(b)(8), or 2302(b)(9)(A)(i),
8
(B), (C), or (D),” then you may file a 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 appe als must 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 Ap peals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals f or the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Prot ection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
5 The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115 -195,
132 Stat. 1510.
9
Contact information for the courts of appeals can be found a t their
respective websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
FOR THE BOARD:
Washington, D.C. /s/ for
Jenni fer Everling
Acting Clerk of the Board | NEESE_DANNY_J_NY_0845_15_0316_I_1_FINAL_ORDER_1962323.pdf | 2022-09-21 | null | NY-0845-15-0316-I-1 | NP |
4,107 | https://www.mspb.gov/decisions/nonprecedential/GONZALEZ_HOMER_PATRICK_AT_0752_15_0228_I_1_FINAL_ORDER_1962391.pdf | UNITED STATES OF AME RICA
MERIT SYSTEMS PROTEC TION BOARD
HOMER PATRICK GONZAL EZ,
Appellant,
v.
DEPARTMENT OF THE NA VY,
Agency.
DOCKET NUMBER
AT-0752 -15-0228 -I-1
DATE: September 21, 2022
THIS FINAL ORDER IS NONPRECEDENTIAL1
Homer Patrick Gonzalez , Summerville, South Carolina, pro se.
Stephen M. Rodgers , Yorktown, Virginia, for the agency.
BEFORE
Cathy A. Harris , Vice Chairman
Raymond A. Limon , Member
Tristan L. Leavitt , Member
FINAL ORDER
¶1 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 fac t; 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 dis tinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117 (c).
2
or regulation or the erroneous application of the law to the facts of the case; the
administrative judge’s rulings during either the course of the appeal or the initial
decision wer e not consistent with required procedures or involved an abuse of
discretion, and the resulting error affected the outcome of the case; or new and
material evidence or legal argument is available that, despite the petitioner’s due
diligence, was not availa ble when the record closed. Title 5 of the Code of
Federal Regulations, section 1201.115 ( 5 C.F.R. § 1201.115 ). After fully
considering the filings in this appeal, we conclude that 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).
DISCUSSION OF ARGUME NTS ON REVIEW
¶2 On October 1, 2014, the agency proposed to remove the appellant from his
Materials Handler Inspector position at the Navy Munitions Command Unit on
the basis of three charges: (1) failure to follow instructions (3 specifications) ;
(2) failure to maintain a condition of employment (2 specifications) ; and
(3) leaving his job during worki ng hours without proper authorization (absent
without leave) . Initial Appeal File (IAF), Tab 5 at 29-36. The first charge
alleged that, on May 28, 2014, the appellant failed to perform an assigned task
(retrieving caulk from a paint locker) and instead switched the brake lines to the
reverse position on an explosives -hauling truck . Id. at 31 -32. The second charge
alleged that , because the appellant’s explosive s certification was decertified and
later revoked, he failed to meet a condition of his employment and was un able to
2 The appellant also filed a motion for leave to file additional pleadings. Petition for
Review (PFR) File, Tab 6. In this motion, the appellant is seeking leave to submit a
letter describing documents already conta ined in the record and is asking that the Board
review the described documents. Id. at 4. The appellant has failed to explain how the
additional evidence is new because 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). Accordingly,
the appellant’s motion for leave to submit additional evidence is denied.
3
perform his duties . Id. at 32-33. The third charge alleged that, on August 5,
2014, the appellant left work early without proper authorization. Id. at 33. The
appellant responded to the proposed removal orally and in writin g, arguing,
among other things, that he had “never done an unsafe act ” and that switching of
brake lines was not “unsafe” under the standard operating procedures because “a
properly operating spring brake chassis . . . will not move with the lines crossed. ”
Id. at 24 -28. The deciding official imposed the removal effective November 24,
2014 . Id. at 20 -23.
¶3 The appellant filed a timely Board appeal challenging his removal. IAF,
Tab 1. In an order and summary of the prehearing conference , the administrative
judge set forth the law and burdens o f proof applicable to a chapter 75 removal
appeal and indicated that the only affirmative defense s raised by the appellant
were harmful procedural error and disparate penalt ies.3 IAF, Tab 20 at 2-4, 6.
The administrative judge ordered the parties to submit any objections or
exceptions to the summary within 7 days of the order. Id. at 1. Neither party
objected to the summary .
¶4 After holding the appellant’s requested hearing, the administrative ju dge
issued an initial decision sustaining the charges of failure to follow instructions
and failure to maintain a condition of employment and finding nexus between the
charges and the efficiency of the service. IAF, Tab 32, Initial Decision (ID)
at 3-19. The administrative judge did not sustain the absent without leave charge
but found that the deciding official would have imposed the removal penalty on
3 In an April 30, 2015 order, the administrative judge observed that the appellant
appeared to raise a number of affirmative defenses, including racial discrimination,
gender discrimination, equal employment opportunity retaliation, and whistleblower
retali ation, and ordered him to clarify his affirmative defenses no later than the
prehearing conference. IAF, Tab 10 at 2 -3. In the prehearing conference order and
summary, the administrative judge stated that, during the prehearing conference, the
appellant confirmed that he did not intend to raise an affirmative defense of
whistleblower retaliation or discrimination and that he only intended to raise disparate
penalty and harmful error affirmative defenses. IAF, Tab 20 at 5 -6. The appellant did
not object to this finding below and does not challenge it on review. P FR File, Tab 1.
4
the basis of the two sustain ed charges and that removal was n ot an excessive
penalty for those char ges. ID at 20-21. The administrative judge further found
that the appellant failed to establish his disparate penalty claim and failed to
prove that the agency commi tted harmful procedural error concerning the charges
or the penalty. ID at 21-25. Accor dingly, the administrative judge affirmed the
appellant’s removal. ID at 26.
¶5 The appellant has filed a petition for review of the initial decision , and the
agency has responded in opposition. Petition for Review (PFR) File, Tabs 1, 3.
On review, the a ppellant challenges the administrative judge’s findings regarding
the failure to follow instructions charge and submits new evidence purported ly
showing that the fac tual allegations underlying that charge are untrue. PFR File,
Tab 1 at 3 -4. The appellant further argues that the agency failed to produce scan
sheets , which he argues also would show that the agency’s allegations underlying
the failure to follow instructions charge are untrue. Id. at 3-9.
¶6 As noted above, the first charge of failure to foll ow instructions is
supported by three specifications arising from an alleged incident on May 28,
2014. IAF, T ab 5 at 29, 31-32. The first specification alleges that on that date ,
the appellant was assigned to work in Bay 1 with Work Leader F.C. but that he
failed to follow F.C.’s instruction to obtain caulk from a paint locker located near
another bay and instead was seen switching the brake lines on an
explosives -hauling truck . Id. The second specification alleges that, by switching
the brake lines to the reverse position, the appellant made it unsafe for the truck
to transport the explosives and that he violated Navy rules by switching the brake
lines when he was not tasked to do so and had no reason to be on, near, or
performing any maintena nce on the trucks. Id. at 32. The third specification
alleges again that the appellant had no reason to be on, near, or in the truck in
question and that his actions violat ed safety protocols . Id.
¶7 At the hearing, the appellant testified that he did not switch the brake lines
as alleged in the first charge . IAF, Tab 28, Hearing Compact Disc (HCD) 4
5
(testimony of the appellant) . He also argued that F.C. fabricated the factual
allegations underlying the charge and that he was not even assigned to work wit h
F.C. in Bay 1 on the date of the alleged brake -switching incident . Id.; IAF,
Tab 16 at 25 -26. Rather, he asserted that he had worked with another Work
Leader, M.M. , in Bay 2 . IAF, Tab 16 at 25-26; HCD 4 (testimony of the
appellant) . To support this contention, the appellant submitted a signed statement
by his supervisor , dated January 13, 2015, asserting that the appellant “did not
report to Team Leader [F.C.] on May 28, 2014,” and that, “since the week of
May 19th, 2014, [the appellant] was re assigned to Bay 2 from Bay 1 at building
940.” IAF, Tab 9 at 5.
¶8 In the initial decision, the administrative judge considered the hearing
testimony and record evidence and concluded that the agency proved the factual
allegations as set forth in the failure to follow instructions charge , including its
allegation that the appellant was assigned to work with F.C. in Bay 1 on May 28,
2014 . ID at 3-16. In reaching this determination, t he administrative judge found
that F.C.’s testimony that the appellant was a ssigned to work with him on the day
in question was more credible than the appellant’s denial, explaining that F.C .’s
testimony was very detailed and consistent with his prior contemporaneous
statement , while the appellant’s testimony about where he was wo rking that day
was “notably vague .” ID at 9 (citing IAF, Tab 12 at 19) . The administrative
judge also found that F.C.’s version of events was c orroborated by an April 29,
2015 statement written by the appellant’s supervisor , in which he stated that he
had assigned the appellant to work with F.C. in Bay 1 on May 28, 2014, because
F.C.’s regular work partner was having a “Phase II (physical )” on that day. Id.;
IAF, Tab 12 at 47. The administrative judge further found probati ve the fact that
the appellant declined to call his supervisor as a witness to challenge his
statement that he assigned the appellant to Bay 1 on May 28, 2014, and observed
that the appellant’s lengthy cross -examination of F.C. did not erode F.C.’s
certain ty that the appellant was assigned to work with him that day. ID at 9 . The
6
administrative judge noted , moreover, that none of the appellant’s witnesses were
able to recall where the appellant had worked on the day in question or otherwise
discredit F.C.’ s testimony on that point. Id. Thus, the administrative judge
concluded that the appellant was assigned to work with F.C. in Bay 1 on May 28,
2014. ID at 9 -10.
¶9 On review, the appellant challenges this finding and submits new evidence
to support his cont ention that he was not assigned to Bay 1 with F.C. on May 28,
2014. PFR File, Tab 1. Specifically, he has provided : (1) an unsworn , signed
statement by a now -retired individual named M.M. stating that he was the
appellant’s assigned Work Leader on May 2 8, 2014 ; and (2) two screenshot s
showing the results of search es on the Department of Transportation (DOT)
website for DOT -certified physicians within 25 miles of the agency’s facility .4
Id. at 7-9.
¶10 The Board generally will not consider evidence submitted for the first time
on review absent a showing that: (1) the documents and the information
contained in the documents were unavailable before the record closed despite due
diligence; and (2) the evidence is of sufficient weight to warrant an outc ome
different from that of the initial decision. Cleaton v. Department of Justice ,
122 M.S.P.R. 296 , ¶ 7 (2015); 5 C.F.R. § 1201.115 (d). Here, although M.M.’s
statement and the screenshots postdate the close of the record below, the
4 According to the appellant, the screenshots prove that his supervisor’s April 29, 2015
statement is false. As noted above, the parties submitted contradictory unsworn
statement s by the appellant’s supervisor. IAF, Tab 9 at 5, Tab 12 at 47. The
supervisor’s first statement, dated January 13, 2015, states that the appellant did not
report to F.C. on May 28, 2014. IAF, Tab 9 at 5. His second statement, dated April 29,
2015, sta tes that he assigned the appellant to work with F.C. in Bay 1 on May 28, 2014,
because F.C.’s regular work partner was out that day having a phase II physical. IAF,
Tab 12 at 47. The appellant contends that the screenshots establish that the only
DOT -certified physician who could have performed a phase II physical on F.C.’s
regular work partner was Dr. Combs but that, because Dr. Combs only worked on
Tuesdays, it was impossible that F.C. ’s regular work partner received a phase II
physical on May 28, 2014 —a Wednesday . PFR File, Tab 1 at 4, 8-9; IAF, Tab 23 at 8.
7
information contained in both documents was clearly ava ilable before the record
closed. The appellant asserts, however, that he could not have provided M.M.’s
statement below because “many employees at the time of discovery feared losing
their jobs and did not want to give a statement on my behalf.” PFR File, Tab 1
at 4-6. Regardin g the screenshots of the DOT -certified physician search results,
the appellant contends that he was “unaware of the DOT website at the time of
the hearing.” Id. at 4. The appellant has failed to show, however, that he
undertook any efforts below , much le ss exercised due diligence, to obtain the
information presented for the first time on review. His mere assertions that
employees were too fearful to provide statements in support of his appeal and that
he was unaware of a Government website containing publicly available
information are insufficient to meet his burden of showing that he exercised due
diligence. In addition, the appellant specifically withdrew his request for his
supervisor and M.M. to testify at the hearing. IAF, Ta b 20 at 5. Accordingly, we
decline to consider this evidence presented for the first time on review.5
¶11 The appellant also argues on review that the agency failed to produce all of
the May 28, 2014 scan sheets for Building 940 during discovery and that th ese
5 The appellant’s new evidence is also insufficient to warrant an outcome different than
that of the initial decision . See Cleaton , 122 M.S.P.R. 296 , ¶ 7. The screenshots, one
of which is partially covered by a post -it note that obscures the search criteria , do not
prove that F.C.’s regular work partner could not have obtained a phase II physical on
the day in question from someone other than Dr. Combs. PFR File, Tab 1 at 8 -9. The
screenshots also do not preclude the possibility that Dr. Combs was available on the day
in question, even though he typically did not work on Wednesdays. Id. Furthermore,
even if the appellant proved that F.C.’s regular work partner did not obtain a phase II
physical on the day in question, that detail on its own would be insufficie nt to warrant a
different finding than that reached by the administrative judge on the dispositive issues.
Likewise , M.M.’s unsworn statement, which conflicts with the other evidence of record
and hearing testimony found to be credible by the administrati ve judge, does not
warrant a different outcome than that of the initial decision. See Haebe v. Department
of Justice , 288 F.3d 1288 , 1301 (Fed. Cir. 2002) ( holding that the Board must defer to
an administrative judge ’s credibility determinations when they are based on observing
the demeanor of witnesses testifying at a hearing unless there are “sufficiently sound”
reasons to overturn such determinations).
8
documents would show that he scanned material in Bay 2 on May 28, 2014, and
prove that he was not assigned to Bay 1 on that date , as alleged by the agency .
PFR File, Tab 1 at 3, 5. As noted by the agency, the appellant raised this same
argument in hi s June 10, 2015 motion for sanctions . PFR File, Tab 3 at 7; IAF,
Tab 21. The agency responded to the appellant’s motion for sanctions below ,
asserting that it had provided the appellant with copies of all of the scan sheets
for Building 940 from May 28, 2014, and attaching copies of those documents,
which became part of the record. IAF, Tab 22. During the hearing, the
administrative judge denied the appellant’s motion for sanctions, finding that the
agency had not failed to produce discoverable scan she ets. HCD 4 (ruling of the
administrative judge) . In so finding , the administrative judge credited the hearing
testimony of J.H., the Ordnance Operations Manager, who testified that the
agency had produced all of the scan sheets from Bay 1, Bay 2, and Bay 3 of
Building 940 that were created on May 28, 2014, and explained their contents .
HCD 4 (testimony of J.H.) ; IAF, Tab 30 at 74-92, 103 . The appellant has
provided no reason on review to disturb the administrative judge’s decision to
deny his motion for sanctions or his finding that the agency produced the
discoverable scan sheets. Defense Intelligence Agency v. Department of Defense ,
122 M.S.P.R. 444 , ¶ 16 (2015) (stating that administrative judges have broad
discretion to regulate the proceedings before them, including the authority to rule
on discovery motions and to impose sanctions a s necessary to serve the ends of
justice ); 5 C.F.R. § 1201.43 (a).
¶12 Furthermore, contrary to the appellant’s argument below and on review that
the purported additional scan sheets would pro vide information regarding which
bay and work leader he was assigned to on May 28, 2014, both F.C. and J.H.
testified that scan sheets do not contain that type of information. HCD 4
(testimony of F.C. and J.H.) ; IAF, Tab 30 at 55, 103. As noted above, th e
administrative judge found both of these agency witnesses to be credible , and the
appellant has provided no reason to disturb this finding or to suspect that there
9
are additional scan sheets with information different than those already provided
by the a gency . See Haebe , 288 F.3d at 1301 ; ID at 9; HCD 4.
¶13 The appellant’s remaining arguments concern ing the administrative judge’s
findings regarding the failure to follow instructions and failure to maintain a
condition of employment charges constitute mere disagreement with the
administrative judge’ s well -reasoned findings and credibility determinations and
provide no basis to disturb the initial decision. See Forte v. Department of the
Navy , 123 M.S.P.R. 124 , ¶ 16 (2016) (finding that mere disagreemen t with the
administrative judge’ s implied credibility findings provides no basis for
disturbing the initial decision); Davison v. Department of Veterans Affairs ,
115 M.S.P.R. 640 , ¶ 9 (2011) (finding that mere disagreeme nt with an
administrative judge’ s explained findings is not a basis t o grant a petition for
review).
¶14 Finally , the appellant has not challenged the administrative judge’s findings
regarding nexus between the sustained charges and the efficiency of the service ,
the reasonableness of the penalty, or the appellant’s affirmative defenses,
PFR File, Tab 1, and we discern no reason to disturb them.6 See Crosby v. U.S.
Postal Service , 74 M.S.P.R. 98 , 106-07 (1997) (finding no reason to d isturb the
administrative judge’s findings when she considered the evidence as a whole,
drew appropriate inferences, and made reasoned conclusions on issues of
credibility).
6 In finding that the penalty was reasonable, the administrative judge determined that
the appellant failed to prove his disparate penalties claim. ID at 21-23. Our decision in
Singh v. U.S. Postal Service , 2022 MSPB 15, ¶¶ 10, 13 -14, issued after the initial
decision in this appeal, clarifies that, in assessing a claim of disparate penalty, the
relev ant inquiry is whether the agency knowingly and unjustifiably treated employees
who engaged in the same or similar offenses differently. There is no evidence in the
record to indicate that the agency did so in this case.
10
NOTICE OF APPEAL RIGHTS7
You may obtain review of this final decision. 5 U.S.C. § 7703 (a)(1). By
statute, the nature of your claims determines the time limit for seeking such
review and the appropriate for um with which to file. 5 U.S.C. § 7703 (b).
Although we offer the following summary of available appeal rights, the Merit
Systems Protection Board does not provide legal advice on which option is most
appropriate for your situation and the rights described below do not represent a
statement of how courts will rule regarding which cases fall within their
jurisdiction. If you wish to seek review of this final decision, you should
immediately review the law applicable to your claims and carefully follow all
filing time limits and requirements. Failure to file within the applicable time
limit may result in the dismissal of your case by your chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial rev iew in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703 (b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at th e
following address:
7 Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise which option is most appropriate in any matter.
11
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.g ov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703 (b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. ____ , 137 S. Ct. 1975 (2017). If you have a
representative in this case, and your representative receives this decision before
you do, then you must file with the district court no later than 30 calendar days
after your representative receives this decision. If the action involves a claim of
discrimination based on race, color, religion, sex, national origin, or a disabling
condition, you may be entitled to representation by a court -appointed lawyer and
12
to waiver of any requirement of prepayment of fees, costs, or other security. See
42 U.S.C. § 2000e -5(f) and 29 U.S.C. § 794a .
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other is sues . 5 U.S.C. § 7702 (b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702 (b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 2001 3
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302 (b)(8) or
other protected activities listed in 5 U.S.C. § 2302 (b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Boar d’s
13
disposition of allegations of a prohibited personnel practice described in section
2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i),
(B), (C), or (D),” then you may file a 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 Ci rcuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Pe titioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit ou r website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any att orney 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.
14
Contact information for the courts of appeals can be found at their
respective websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
FOR THE BOARD:
Washington, D.C. /s/ for
Jennifer Everling
Acting Clerk of the Board | GONZALEZ_HOMER_PATRICK_AT_0752_15_0228_I_1_FINAL_ORDER_1962391.pdf | 2022-09-21 | null | AT-0752-15-0228-I-1 | NP |
4,108 | https://www.mspb.gov/decisions/nonprecedential/DOWELL_SHANNON_DC_0752_14_0673_I_3_FINAL_ORDER_1962472.pdf | UNITED STATES OF AME RICA
MERIT SYSTEMS PROTEC TION BOARD
SHANNON DOWELL,
Appellant,
v.
DEPARTMENT OF DEFENS E,
Agency.
DOCKET NUMBER
DC-0752 -14-0673 -I-3
DATE: September 21, 2022
THIS FINAL ORDER IS NONPRECEDENTIAL1
David A. Karman , Esquire , Kevin L. Owen , Esquire, and Renn C. Fowler ,
Esquire, Silver Spring , Maryland, for the appellant.
William Di Iorio , Esq uire, Washington, D.C., for the agency.
BEFORE
Cathy A. Harris , Vice Chairman
Raymond A. Limon , Member
Tristan L. Leavitt , Member
FINAL ORDER
¶1 The appellant has petitioned for review of the initial decision in this appeal.
Petition for Review (PFR) File, Tab 1. For the reasons set forth below, we
DISMISS the petition for review a s 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 dis tinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board's case law. See 5 C.F.R. § 1201.117 (c).
2
¶2 After the filing of the petition for review, the parties submitted a document
entitled “ Voluntary Stipulation of Settlement and Dismissal With Prejudice”
signed and dated by the appellant on April 2, 2020 , and by the agency on April 3,
2020. PFR File, Tab 5. The document provides, among other things, for the
withdrawal of the petition for review. Id.
¶3 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
Massey v. Office of Personnel Management , 91 M.S.P.R. 289 , ¶ 4 (2002) ,
overruled on other grounds by Delorme v. Department of the Interior ,
124 M.S.P.R. 123 , ¶¶ 11 -21 (2017) ( holding that the Board may enforce
settlement agreements that have been entered into the record, independent of any
prior finding of Board jurisdiction over the underlying matter being settled).
¶4 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 enforceme nt by the Board. PFR File, Tab 5. In addition, we find that the
agreement i s lawful on its face and that the parties freely entered into it. Id.
¶5 Accordingly, we find that dismissing the petition for review “with prejudice
to refiling” (i.e., the parties normally may not refile this appeal) is appropriate
under these circumstan ces, and we accept the settlement agreement into the
record for enforcement purposes.
¶6 This is the final decision of the Merit Systems Protection Board in this
appeal. Title 5 of the Code of Federal Regulations, section 1201.113 ( 5 C.F.R.
§ 1201.113 ).
3
NOTICE TO THE PARTIE S 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 a ppeal. 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 RIG HTS2
You may obtain review of this final decision. 5 U.S.C. § 7703 (a)(1). By
statute, the nature of your claims determines the time limit for seeking such
review and the appropriate forum with which to file. 5 U.S.C. § 7703 (b).
Although we offer the following summary of available appeal rights, the Merit
Systems Protection Board does not provide legal advice on which option is most
appropriate for your situation and the rights described below do not represent a
statement of how courts will rule regarding which cases fall within their
jurisdiction. If you wish to seek review of this final decision, you should
immediately review the law applicable to your claims and carefully follow all
filing time limits and requirements. Failu re to file within the applicable time
limit may result in the dismissal of your case by your chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have que stions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
2 Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise which option is mos t 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 f ile a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703 (b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washin gton, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probo no for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
5
receive this decision. 5 U.S.C. § 7703 (b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. ____ , 137 S. Ct. 1975 (2017). If you have a
representative in this case, and your rep resentative receives this decision before
you do, then you must file with the district court no later than 30 calendar days
after your representative receives this decision. If the action involves a claim of
discrimination based on race, color, religion, sex, national origin, or a disabling
condition, you may be entitled to representation by a court -appointed lawyer and
to waiver of any requirement of prepayment of fees, costs, or other security. See
42 U.S.C. § 2000e -5(f) and 29 U.S.C. § 794a .
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebs ites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702 (b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702 (b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
addr ess of the EEOC is:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be ad dressed to:
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 yo u only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302 (b)(8) or
other protected activities listed in 5 U.S.C. § 2302 (b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
disposition of allegations of a prohibited personnel practice described in section
2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i),
(B), (C), or (D),” then you may file a petition for judicial review either with the
U.S. Court of Appeals for the Federal Circuit or any court of appeals of
competent jurisdiction.3 The court of appeals must receive your petition for
review within 60 days of the date of issuance of this decision. 5 U.S.C.
§ 7703 (b)(1)(B).
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D .C. 20439
3 The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law b y the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of c ompetent 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:
Washington, D.C. /s/ for
Jennifer Everling
Acting Clerk of the Board | DOWELL_SHANNON_DC_0752_14_0673_I_3_FINAL_ORDER_1962472.pdf | 2022-09-21 | null | DC-0752-14-0673-I-3 | NP |
4,109 | https://www.mspb.gov/decisions/nonprecedential/WOODWARD_JASON_R_DC_0752_18_0048_I_1_FINAL_ORDER_1962477.pdf | UNITED STATES OF AME RICA
MERIT SYSTEMS PROTEC TION BOARD
JASON R. WOODWARD,
Appellant,
v.
DEPARTMENT OF VETERA NS
AFFAIRS,
Agency.
DOCKET NUMBER
DC-0752 -18-0048 -I-1
DATE: September 21, 2022
THIS FINAL ORDER IS NONPRECEDENTIAL1
Christopher J. Keeven , Esquire , Washington, D.C., for the appellant.
Christopher Wilber , Victoria Coleman , and Michael Soybel , Washington,
D.C., for the agency.
BEFORE
Cathy A. Harris, Vice Chair man
Raymond A. Limon, Member
Tristan L. Leavitt, Member
FINAL ORDER
¶1 The agency has filed a petition for review of the initial decision, which
reversed the appellant’s removal . Generally, we grant petitions such as this one
only in the following circumstances: the ini tial 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
requir ed to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117 (c).
2
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 ei ther the course of
the appeal or the initial decision were not consistent with required procedures or
involved an abuse of discretion, and the resulting error affected the outcome of
the case; or new and material evidence or legal argument is available tha t, despite
the petitioner’s due diligence, was not available when the record closed. Title 5
of the Code of Federal Regulations, section 1201.115 ( 5 C.F.R. § 1201.115 ).
After fully con sidering the filings in this appeal, we conclude that 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 Bo ard’s final decision. 5 C.F.R. § 1201.113 (b).
BACKGROUND
¶2 The appellant was formerly employed by the agency as an Assistant
Inspector General in the Office of Management and Administration (OMA) ,
ES-0340 -00, until the agen cy removed him , effective September 29, 2017. Initial
Appeal File (IAF), Ta b 6 at 42 .2 The agency’s removal act ion was based on two
charges: neglect of duty and d iscrimination.3 Id. at 151 -65. The negle ct of duty
charge was supported by three specifications , and the discrimination charge was
supported by two specifications. Id. All of the specifications related to the
appellant’s conduct after he learned that an applicant for employment , who
suffered f rom a disability (hearing impairment ), was not selected for a vacant
information technology (IT) position in the Office of Audit and Evaluations
(OAE) because of his disability. Id. In particular, t he agency charged the
2 Prior to this, and during the time of the events at issue in this appeal, however, the
appellant was employed as the Deputy Assistant Inspector General in OMA. IAF, Tab 6
at 174.
3 The agency’s n otice of proposed removal a lso included a third charge of lack of
candor, which the deciding official did not sustain. IAF, Tab 6 at 43, 165 -67.
3
appellant with violating internal directives by failing to report or investigate the
alleged discrimination, recommending that the position be transferred to the
Office of Information Technology Data Analysis Division (ITDAD), a
subordinate office of OMA , and improperly tolerating the disc rimination and
considering the applicant’s disability in deciding how to fill the position. Id.
¶3 After holding the appellant’s requested hearing, the administrative judge
issued an initial decision, finding that the age ncy failed to prove any of its
charge s or specifications and reversing the a ppellant’s removal . IAF, Tab 62,
Initial Decision (ID). Regarding the neglect of duty charge, the administrative
judge found that the appellant had properly reported the discrimination allegation
to his supervisor, the acting Inspector General (IG) , and the counselor to the IG
and that he was not responsible for initiating an investigation into the alleged
discrimination . ID at 8 -9. The administrative judge f urther found that it was not
the appellant’s duty to ensu re compliance with the Department of Veterans
Affairs ( VA) Office of Inspector General ( OIG ) Directive 350 or to approve of
the hiring decision , and the failings of other individuals in the agency’s senior
leadership should not be attributed to the appellant. ID at 11 -12. Finally, the
administrative judge found that the appellant acted in good faith and in
consultation with other senior agency officials , including his supervisor and th e
acting IG , to select a qualified candidate after moving the position. ID at 12 -15.
¶4 Regarding the discrimination charge, the administrative judge found that the
agency failed to prove that the appellant tolerated discrimination in hiring
because he was not obligated to ensure that an investigation occurred, the transfer
of the position was authorized by the acting IG, and , following the transfer , the
appellant sought to ensure compliance with agency directives by restricting the
hiring process to evalua ting candidates solely on their technical qualifications.
ID at 16 -19.
¶5 The agency has filed a petition for review in which it challenges solely the
administrative judge’s findings c oncerning specification 2 of its discrimination
4
charge. Petition for Revi ew (PFR) File, Tab 1 at 5, 7 -20. The appellant has
opposed the agency’s petition , and the agency has filed a reply. PFR File,
Tabs 3-4.
DISCUSSION OF ARGUME NTS ON REVIEW
The administrative judge properly found that the agency failed to prove
specification 2 of its discrimination charge.
¶6 In this specification, the agency charged the appellant with violating
VA OIG Directive 350 by considering the applicant’s disab ility when making the
decision to move the vacant position from OAE to ITDAD . IAF, Tab 6 at 165.
As the administrative judge found, however, the decision to move the position
was made by the acting IG with the consensus of a number of individuals
following reports that the applicant had not been selected for the position in OAE
due to his disability. ID at 3, 19. The interviewing panel in OAE determined tha t
this applicant was the second -best qualified and the selecting official intended to
select him after the panel’s first-choice candidate declined the position . IAF,
Tab 6 at 175. However, a Deputy Assistant Inspector General (DAIG) in OAE
approached the selecting official and informed her that management and/ or
someone above him4 was not keen on hiring this individual. Id. As a result of the
DAIG’s comments, the selecting official did not select the applicant , and no
individual was hired for t he position. Id.
¶7 When the appellant learned of the alleged discrimination , he raised the issue
to the a cting IG , among other s. ID at 2-3, 8-9. According to t he appellant , he
had previously recommended that IT posit ions be consolidated in ITDAD. IAF,
Tab 7 at 422 -23; Hearing Transcript at 180 -85 (May 14, 2018) (testimony of the
appellant) . Following the alleged discriminatory incident, during a discussion
with the acting IG, the appellant asserts that he stated that, if they had not
announced the position in OAE and had transferred it to ITDAD like he
4 This refers to the acting IG to whom the DA IG reported. IAF, Tab 6 at 174, 181, 189.
5
recommended , then they would not have this problem. IAF, Tab 7 at 428.
Thereafter, the acting IG convened a meeting and approved the transfer of the
position , with the consensus of the appellant and individuals in OAE and ITDAD .
IAF, Tab 7 at 8, 428, Tab 8 at 41. According to the acting IG , she relied on the
appellant’s recommendation to transfer the position. IAF, Tab 8 at 41 -42.
Ultimately, however, the acting IG approved the transfer. ID at 3, 19; IAF, Tab 8
at 41.
¶8 The administrative judge found that the agency failed to prove this
specification because it failed to prove that discrimination was a motivating
factor in the appellant’s decision or that the appellant had any discriminatory
animus agains t the applicant. ID at 19 -21. On review, the agency argues that the
administrative judge erred in applying a discriminatory animus standard because
it did not charge the appellant with violating anti -discrimination laws but rather
its own internal directive. PFR File, Tab 1. Accordin g to the agency, the proper
standard is whether the appellant violated the directive by considering the
applicant’s disability without regard to discriminatory animus or motivation.
PFR File, Tab 4 at 5 -6. Such a distinction, however, does not alter the outcome
of the appeal because , even accepting the agency’s standard, we find that it has
not proven this specification.
¶9 The agency’s internal policy prohibits discrimination on the basis of
disability in the hiring process. In relevant part, it states, “ [v]acant OIG positions
within the competitive service will be filled from among the best qualified
candidates available based on the application of merit principles [,] without regard
to . . . non -disqualifying physical handicaps [,] . . . and will be based solely on
job-related criteria. ” IAF, Tab 6 at 233. The agency alleged that the appellant
violated this directive when he recommended moving the vacant position to
ITDAD and cited the appella nt’s testimony during the OIG investigation
concerning the alle ged discrimination that part of the reason he wanted to move
the position was to focus on the technical aspects of the position and get away
6
from “personal aspects.” Id. at 165. The agency c ontended that personal aspects
referred to the applicant’s disab ility and, thus, showed that the appellant
considered the applicant’s dis ability in filling the position . Id.
¶10 The administrative judge , however, found that the agency’s charge
misconstrued the appellant’s testimony and that what the appellant meant was that
he could not fix the discriminatory conduct that had already occurred in OAE but
that he could ensure that the reconstructed process used to fil l the position in
ITDAD only considered the candidates’ technical qualifications. ID at 19. Thus,
the administrative judge found that, contrary to the agency’s charge, the record
reflected that the appellant was attempting to comply with the agency directive
and to remedy allege d discriminatory action s committed by other employees in
the hiring process.5
¶11 On review, the agency also asserts generally that the appellant failed to
properly remedy the discrimination and criticizes the hiring process utilized to fill
the po sition after it was transferred to ITDAD . PFR File, Tab 4 at 7-8, 10 n.7.
Such allegatio ns, however, are not part of the charges in specification 2 of the
discrimination charge , and the Board is required to review the agency’s decision
solely on the grounds invoked by the agency and may not substitute what it
considers to be a more adequate o r proper basis. Fargnoli v. Department of
Commerce , 123 M.S.P.R. 33 0, ¶ 7 (2016) . Further, the administrative judge
considered and rejected these arguments when he found that the agency failed to
5 Because we agree w ith the administrative judge that the agency has failed to prove
that the appellant’s actions violated VA Directive 350 as charged , we do not reach the
agency’s inconsistent alternative argument s that t he appellant’s actions were motived
by discriminatory intent. PFR File, Tab 1 at 9 -20. Therefore, we need not consider the
evidence relied on by the agency in supp ort of such arguments , and we deny the
appellant’s motion to strike the agency’s references to the appellant’s deposition
transcript, which we ha ve n ot considered. PFR File, Tab 3 at 14 n.13 , Tab 8. We also
have not considered the agency’s response to the appellant’s motion to strike, PFR File,
Tab 11, which was untimely filed, 5 C.F.R. § 1201. 55(b) (providing that a pa rty may
object to another party’s motion within 10 days from the date of service of the motion ).
7
prove its remaining charges and specifications, and the agency has chosen not to
challenge such findings. PFR File, Tab 1 at 5.
¶12 Accordingly, we affirm the initial decision, r eversing the appellant’s
removal.
ORDER
¶13 We ORDER the agency to cancel the appellant’ s removal and retroactively
restore him effective September 29, 2017. 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.
¶14 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 am ount 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.
¶15 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 actio ns 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).
¶16 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
8
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).
¶17 For agencies whose payroll is administered by either the National Finance
Center of the Department of Agriculture (NFC) or the Defense Finance and
Accounting Serv ice (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 APPELL ANT REGARDING
YOUR RIGHT TO REQUES T
ATTORNEY FEES AND CO STS
You may be ent itled 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 DECIS ION.
You must file your motion for attorney fees and costs with the office that issued
the initial decision on your appeal.
NOTICE OF APPEAL RIG HTS6
You may obtain review of this final decision. 5 U.S.C. § 7703 (a)(1). By
statute, the nature of your claims determines the time limit for seeking such
review and the appropriate forum with which to file. 5 U.S.C. § 7703 (b).
Although we offer the following summary of available appeal rights, the Merit
6 Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise which option is most appropriate in any matter.
9
Systems Protection Board does not provide legal advice on which option is most
appropriate for your situation and the rights described below do not represent a
statement of how courts will rule r egarding which cases fall within their
jurisdiction. If you wish to seek review of this final decision, you should
immediately review the law applicable to your claims and carefully follow all
filing time limits and requirements. Failure to file within t he applicable time
limit may result in the dismissal of your case by your chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for re view with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703 (b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 2043 9
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within t he court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
10
http://www.mspb.gov/probono for informati on regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawfu l discrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703 (b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. ____ , 137 S. Ct. 1975 (2017). If you have a
representative in this case, and your representative receives this decision before
you do, then you must file with the district court no later than 30 calendar days
after your representative receives this decision. If the action involves a claim of
discrimination based on race, color, religion, sex, national origin, or a disabling
condition, you may be entitled to representation by a court -appointed lawyer and
to waiver of any requirement of prepayment of fees, costs, or other security. See
42 U.S.C. § 2000e -5(f) and 29 U.S.C. § 794a .
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscou rts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702 (b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702 (b)(1). If you have a representative in this case,
11
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requi ring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302 (b)(8) or
other protected activities listed in 5 U.S.C. § 2302 (b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
disposition of allegations of a prohibited personnel practice described in section
2302(b ) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i),
(B), (C), or (D),” then you may file a petition for judicial review either with the
U.S. Court of Appeals for the Federal Circuit or any court of appeals of
competent jurisdiction .7 The court of appeals must receive your petition for
7 The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal c ases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
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 t he U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
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 ap peals can be found at their
respective websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
FOR THE BOARD:
Washington, D.C. /s/ for
Jennifer Everling
Acting Clerk of the Board
DEFENSE FINANCE AND ACCOUNTING SERVICE
Civilian Pay Operations
DFAS BACK PAY CHECKLIST
The following documentation is required by DFAS Civilian Pay to compute and pay back pay
pursuant to 5 CFR § 550.805. Human resources/local payroll offices should use the following
checklist to ensure a request for payment of back pay is complete. Missin g documentation may
substantially delay the processing of a back pay award. More information may be found at:
https://wss.apan.org/public/DFASPayroll/Back%20Pay%20Process/Forms/AllItems.aspx.
NOTE: Attorneys’ fees or other non -wage payments (such as d amages) 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 Remed y 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 DF AS 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 severan ce pay received by the employee upon separation.
Lump Sum Leave Payment Debts: When a separation is later reversed, there is no authority
under 5 U.S.C. § 5551 for the reinstated employee to keep the lump sum annual leave payment
they may have received. The payroll office must collect the debt from the back pay award. The
annual leave will be restored to the employee. Annual leave that exceeds the annual leav e
ceiling will be restored to a separate leave account pursuant to 5 CFR § 550.805(g).
NATIONAL FINANCE CEN TER CHECKLIST FOR BA CK PAY CASES
Below is the information/documentation required by National Finance Center to process
payments/adjustments agreed on in Back Pay Cases (settlements, restorations) or as ordered by
the Merit Systems Protection Board, EEOC, and courts .
1. Initiate and submit AD -343 (Payroll/Action Request) with clear and concise information
describing what to do in accordance with decisi on.
2. The following information must be included on AD -343 for Restoration:
a. Employee name and social security number.
b. Detailed explanation of request.
c. Valid agency accounting.
d. Authorized signature (Table 63).
e. If interest is to be included.
f. Check mailing address.
g. Indicate if case is prior to conversion. Computations must be attached.
h. Indicate the amount of Severance and Lump Sum Annual Leave Payment to be
collected (if applicable).
Attachments to AD -343
1. Provide pay entitlement to include O vertime, 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 pe riod 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. | WOODWARD_JASON_R_DC_0752_18_0048_I_1_FINAL_ORDER_1962477.pdf | 2022-09-21 | null | DC-0752-18-0048-I-1 | NP |
4,110 | https://www.mspb.gov/decisions/nonprecedential/WEBSTER_LISA_Y_PH_1221_21_0330_W_1_FINAL_ORDER_1962035.pdf | UNITED STATES OF AME RICA
MERIT SYSTEMS PROTEC TION BOARD
LISA Y. WEBSTER,
Appellant,
v.
DEPARTMENT OF VETERA NS
AFFAIRS,
Agency.
DOCKET NUMBER S
PH-1221 -21-0330 -W-1
PH-0714 -22-0005 -I-1
DATE: September 20, 2022
THIS FINAL ORDER IS NONPRECEDENTIAL1
Lisa Y. Webster , Kenova, West Virginia, pro se.
Shelly S. Glenn , Baltimore, Maryland, for the agency.
BEFORE
Cathy A. Harris, Vice Chairman
Raymond A. Limon, Member
Tristan L. Leavitt, Member
FINAL ORDER
¶1 After issuance of the February 2 and February 18, 2022 initial decision s in
these appeal s, the parties notified the Board that they had settled the appeal s.
Initial Appeal File (IAF), Tab 15 , Initial Decision ; Petition for Review (PFR)
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or dis tinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117 (c).
2
File, Tab 2.2 We now JOIN these appeals for processing3 and, f or the reasons set
forth below, we DISMISS the appeal s as settled.
¶2 The settlement agreement was signed and dated by the appellant on
March 31, 2022, and by the agency on April 1, 2022. PFR File, Tab 2. In
pertinent part, it provides that in exchange for certain promises by the agency,
the appellant agree s to withdraw with prejudice her pending appeal in Webster v.
Department of Veterans Affairs , MSPB Docket No. PH -1221 -21-0330 -P-1, and to
withdraw w ith prejudice the instant appeal s pending on petition for review .
Id. at 8-9. The settlement agreement further provides that the parties agreed that
the initial decisions in the instant appeal s would be vacated . Id. at 9.
¶3 On May 5, 2022, the agency file d a motion requesting that the Board, nunc
pro tunc , docket its March 1, 2022 Motion for Expedited Settlement Conference
—which had been returned undocketed pursuant to the Clerk’s Office’s
understanding that the agency did not intend it as a petition for review , see PFR
File, Tab 1 —as a request for an extension of time to file a petition for review;
vacate the initial decisions in th e instant appeals ; and di rect that the settlement
agreement be accepted in th e instant appeals and in MSPB Docket No. PH-1221 -
21-0330 -P-1, which the administrative judge had dismissed without prejudice
pending the outcome of the instant appeals . PFR File, Tab 4 at 11.
¶4 Before dism issing 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 Maho ney v. U.S. Postal Service , 37 M.S.P.R.
2 As the initial decision s had already been issued and become final by the time the
parties notified the Board of their settlement agreement, the submission s were
considered and docketed as petition s for review of the initial decision s. PFR File,
Tab 3.
3 Citations herein will be to the lead case, MSPB Docket No. PH -1221 -21-0330 -W-1.
The record in both petitions for review is identical, however.
3
146, 149 (1988). In addition, before accepting a settlement agreement into the
record for enforc ement purposes, the Board must determine whether the
agreement is lawful on its face and whether the parties freely entered into it. See
Massey v. Office of Personnel Management , 91 M.S.P.R. 289 , ¶ 4 (2002),
overruled on other grounds by Delorme v. Department of the Interior ,
124 M.S.P.R. 123 , ¶¶ 11 -21 (2017) (holding that the Board may enforce
settlement agreements that have been entered into the record, independent of any
prior finding of Board jurisdiction over the underlying matter being settled).
¶5 Here, we find that the parties have entered into a settlement agreement,
understand its terms, and intend for the agreement to be entered into the record
for enforcement by the Board. PFR File, Tab 2 at 10. In addition, we find that
the agreement is lawf ul on its face and that the parties freely entered into it. Id.
Accordingly, pursuant to the terms of the settlement agreement, we vacate the
February 2 and February 18, 2022 initial decisions, dismiss the appeals as
settled, and accept the settlement ag reement into the record of both cases for
enforcement by the Board.4
¶6 We deny as moot the agency’s nunc pro tunc motion, as we are granting the
agency’s requested relief in the instant appeals on the basis of the settlement
agreement. Regarding the effect of the settlement agreement on MSPB Docket
No. PH -1221 -21-0330 -P-1, which was dismissed without prejudice, the parties
should follow the instructions provided in the initial decision to refile the appeal
and petition the administrative judge fo r acceptance of the settlement agreement.
¶7 This is the final decision of the Merit Systems Protection Board in these
appeals . Title 5 of the Code of Federal Regulations, section 1201.113 ( 5 C.F.R.
§ 1201.113 ).
4 Although the parties request that the initial decisions be “rescinded an d removed from
the case file and on the MSPB’s e -Appeal website,” PFR File, Tab 2 at 9, our
regulations do not provide for such relief. The initial decisions are vacated by way of
this Order and have no legal effect, but they cannot be removed from the re cord.
4
NOTICE TO THE PARTIE S 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 petitio n 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 inclu de the dates and results of any
communications between the parties. 5 C.F.R. § 1201.182 (a).
NOTICE OF APPEAL RIG HTS5
You may obtain review of this final decision. 5 U.S.C. § 7703 (a)(1). By
statute, the nature of your claims determines the time limit for seeking such
review and the appropriate forum with which to file. 5 U.S.C. § 7703 (b).
Although we offer the following summary of available appeal rights, the Merit
Systems Protection Board does not provide legal advice on which option is most
appropriate for your situation and the rights described below do not represe nt a
statement of how courts will rule regarding which cases fall within their
jurisdiction. If you wish to seek review of this final decision, you should
immediately review the law applicable to your claims and carefully follow all
filing time limits and requirements. Failure to file within the applicable time
limit may result in the dismissal of your case by your chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that f orum for more information.
5 Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise which option is most appropriate in any matter.
5
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703 (b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit , you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is avai lable at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in secu ring pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option appl ies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision —including a dis position of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
6
receive this decision. 5 U.S.C. § 7703 (b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. ____ , 137 S. Ct. 1975 (2017). If you have a
representative in this case, and your representative receives this decision before
you do, then you must file with the district court no later than 30 calendar days
after your representative receives this decision. If the action involves a claim of
discrimination based on race, color , religion, sex, national origin, or a disabling
condition, you may be entitled to representation by a court -appointed lawyer and
to waiver of any requirement of prepayment of fees, costs, or other security. See
42 U.S.C. § 2000e -5(f) and 29 U.S.C. § 794a .
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http:/ /www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702 (b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702 (b)(1). I f you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review t o the EEOC by regular U.S. mail, the
address of the EEOC is:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a met hod requiring a signature, it must be addressed to:
7
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302 (b)(8) or
other protected activities listed in 5 U.S.C. § 2302 (b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
disposition of allegations of a prohibited personnel practice described in
section 2302(b) other than practices described in section 2302(b)(8), or
2302(b)(9)(A)(i), (B), (C), or (D),” then you may file a petition for judicial
review either with the U.S. Court of Appeals for the Federal Circuit or any court
of appeals of competent j urisdiction.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, 201 8, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
The Al l Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115 -195,
132 Stat. 1510.
8
Additional information abo ut the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono represe ntation
for Merit Systems Protection Board appellants before the 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 cou rts of appeals can be found at their
respective websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
FOR THE BOARD:
Washington, D.C. /s/ for
Jennifer Everling
Acting Clerk of the Board | WEBSTER_LISA_Y_PH_1221_21_0330_W_1_FINAL_ORDER_1962035.pdf | 2022-09-20 | null | S | NP |
4,111 | https://www.mspb.gov/decisions/nonprecedential/HARRIS_ANGELA_AT_0752_21_0572_I_1_FINAL_ORDER_1962056.pdf | UNITED STATES OF AME RICA
MERIT SYSTEMS PROTEC TION BOARD
ANGELA HARRIS,
Appellant,
v.
DEPARTMENT OF HOMELA ND
SECURITY,
Agency.
DOCKET NUMBER
AT-0752 -21-0572 -I-1
DATE: September 20, 2022
THIS FINAL ORDER IS NONPRECEDENTIAL1
Mark J. Berkowitz , Esquire, Ft. Lauderdale, Florida, for the appellant.
Peter D. Gregory , Washington, D.C., for the agency.
Sylvia N. Caballero -Nieves , Esquire, Miami, Florida, for the agency.
BEFORE
Cathy A. Harris, Vice Chairman
Raymond A. Limon, Member
Tristan L. Leavitt, Member
FINAL ORDER
¶1 The appellant has petitioned for review of the December 8, 2021 initial
decision in this appeal.2 Petition for Review (PFR) File, Tab 5; Initial 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).
2
File, Tab 10, Initial Decision. For the reasons set forth below, we DISMISS the
petition for review as settled.
¶2 After the filing of the petition for review, the parties submitted a document
entitled “ NEGOTIATED SETTLEMENT AGREEMENT” signed and dated by
the appellant on May 19, 2022, and by the agency on May 20, 2022. PFR File,
Tab 8 at 8. The document provides, among other things, for the withdrawal and
dismissal of the petition for review. Id. at 3.
¶3 Before dismissing a matter as settled, the Board must decide whether the
parties have entered into a settlement agreement, whether they underst and 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
Massey v. Office of Personnel Management , 91 M.S.P.R. 289 , ¶ 4 (2002),
overruled on other grounds by Delorme v. Depa rtment of the Interior ,
124 M.S.P.R. 123 , ¶¶ 11 -21 (2017) (holding that the Board may enforce
settlement agreements that have been entered into the record, independent of any
prior finding of Board jurisdiction over the underlying matter being settled).
¶4 Here, we find that the parties have entered into a settlement agreement,
understand its terms, and agree that the agreement will n ot be entered into the
record for enforcement by the Board. PFR File, Tab 8 at 7 -8 (providing for
enforcement under the procedures of the Equal Employment Opportunity
Commission) . Accordingly, we find that dismissing the petition for review with
2 Although the petition for review was untimely filed, see PFR File, Tab 6, because we
are dismissing the petition for review as settled, we need not determine whether the
appellant established good cause for the untimely filing. Cf. Eaglehart v. U.S. Postal
Service , 102 M.S.P.R. 672 (2006) (setting forth standard for excusing untimely filing of
a petition for review).
3
prejudic e to refiling (i.e., the parties normally may not refile this appeal) is
appropriate under these circumstances. As the parties do not intend for the
Board to enforce the terms of the settlement agreement, we do not enter the
settlement agreement into the record for enforcement.
¶5 This is the final decision of the Merit Systems Protection Board in this
appeal. Title 5 of the Code of Federal Regulations, section 1201.113 ( 5 C.F.R.
§ 1201.113 ).
NOTICE OF APPEAL RIG HTS3
You may obtain review of this final decision. 5 U.S.C. § 7703 (a)(1). By
statute, the nature of your claims determines the time limit for seeking such
review and the appropriate forum with which to file. 5 U.S.C. § 7703 (b).
Although we offer the following summ ary of available appeal rights, the Merit
Systems Protection Board does not provide legal advice on which option is most
appropriate for your situation and the rights described below do not represent a
statement of how courts will rule regarding which case s fall within their
jurisdiction. If you wish to seek review of this final decision, you should
immediately review the law applicable to your claims and carefully follow all
filing time limits and requirements. Failure to file within the applicable time
limit may result in the dismissal of your case by your chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular foru m is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S .
3 Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise which option is most appropriate in any matter.
4
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703 (b)(1)(A).
If you submit a petiti on for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional informati on about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Pra ctice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono r epresentation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC revi ew of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If s o, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703 (b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. ____ , 137 S. Ct. 1975 (2017). If you have a
5
representative in this case, and your representative receives this decision before
you do, then you must file with the district court no later than 30 calendar days
after your representative receives this decision. I f the action involves a claim of
discrimination based on race, color, religion, sex, national origin, or a disabling
condition, you may be entitled to representation by a court -appointed lawyer and
to waiver of any requirement of prepayment of fees, costs, or other security. See
42 U.S.C. § 2000e -5(f) and 29 U.S.C. § 794a .
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702 (b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702 (b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you su bmit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C . 20507
6
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302 (b)(8) or
other protected activities listed in 5 U.S.C. § 2302 (b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petit ion for review “raises no challenge to the Board’s
disposition of allegations of a prohibited personne l practice described in
section 2302(b) other than practices described in section 2302(b)(8), or
2302(b)(9)(A)(i), (B), (C), or (D),” then you may file a 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 decisi on.
5 U.S.C. § 7703 (b)(1)(B).
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following addre ss:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
4 The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 201 8, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
The Al l 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 App eals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services prov ided by any attorney nor warrants that
any attorney will accept representation in a given case.
Contact information for the courts of appeals can be found at their
respective websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
FOR THE BOARD:
Washington, D.C. /s/ for
Jennifer Everling
Acting Clerk of the Board | HARRIS_ANGELA_AT_0752_21_0572_I_1_FINAL_ORDER_1962056.pdf | 2022-09-20 | null | AT-0752-21-0572-I-1 | NP |
4,112 | https://www.mspb.gov/decisions/nonprecedential/PADILLA_ABIGAIL_L_DE_1221_18_0214_W_1_FINAL_ORDER_1962211.pdf | UNITED STATES OF AME RICA
MERIT SYSTEMS PROTEC TION BOARD
ABIGAIL L. PADILLA,
Appellant,
v.
DEPARTMENT OF THE TR EASURY,
Agency.
DOCKET NUMBER
DE-1221 -18-0214 -W-1
DATE: September 20, 2022
THIS FINAL ORDER IS NONPRECEDENTIAL1
Abigail L. Padilla , Denver, Colorado, pro se.
Emily Urban , Esquire, San Francisco, California, for the agency.
BEFORE
Cathy A. Harris , Vice Chairman
Raymond A. Limon , Member
Tristan L. Leavitt , Member
FINAL ORDER
¶1 The appellant has filed a petition for review of the initial decision, which
dismissed her appeal for lack of jurisdiction and on the grounds of judicial
efficiency. On petition for review, the appellant continues to raise arguments
regarding the merits of her claims against the agency , but she does not contest 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
require d to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117 (c).
2
administrative judge’s rationale for dismissing those 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 a pplication of
the law to the facts of the case; the administrative judge’s rulings during either
the course of the appeal or the initial decision were not consistent with required
procedures or involved an abuse of discretion, and the resulting error affec ted the
outcome of the case; or new and material evidence or legal argument is available
that, despite the petitioner’s due diligence, was not available when the record
closed. Title 5 of the Code of Federal Regulations, section 1201.115 ( 5 C.F.R.
§ 1201.115 ). After fully considering the filings in this appeal, we conclude that
the petitioner has not established any basis under section 1201.115 for granting
the petition for review.2 Therefore, we DENY the petition for review and
AFFIRM the initial decision, which is now the Board’s final decision. 5 C.F.R.
§ 1201.113 (b).
NOTICE OF APPEAL RIGHTS3
You may obtain rev iew of this final decision. 5 U.S.C. § 7703 (a)(1). By
statute, the nature of your claims determines the time limit for seeking such
review and the appropriate forum with which to file. 5 U.S.C. § 7703 (b).
Although we offer the following summary of available appeal rights, the Merit
Systems Protection Board does not provide legal advice on which option is most
appropriate for your situati on and the rights described below do not represent a
statement of how courts will rule regarding which cases fall within their
2 We have reviewed the appellant’s alleged new evidence submitted on review and have
determined that it is contained in the record below. Therefore, it provides no basis to
disturb the initial decision. Meier v. Department of the Interior , 3 M.S.P.R. 247 , 256
(1980) (finding that evidence that is already a part of the record is not new).
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
jurisdiction. If you wish to seek review of this final decision, you should
immediately review the law applicable to your claims and carefully follow all
filing time limits and requirements. Failure to file within the applicable time
limit may result in the dismissal of your case by your chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rul e, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703 (b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is t he court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Fe deral Circuit, you may visit our 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
Board neither endorses the services provided by any att orney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision —including a disposition of you r discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703 (b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. ____ , 137 S. Ct. 1975 (2017). If you have a
representative in this case, and your representative receives this decision before
you do, then you must file with the district court no later than 30 calendar days
after your representative receives this decisi on. If the action involves a claim of
discrimination based on race, color, religion, sex, national origin, or a disabling
condition, you may be entitled to representation by a court -appointed lawyer and
to waiver of any requirement of prepayment of fees, costs, or other security. See
42 U.S.C. § 2000e -5(f) and 29 U.S.C. § 794a .
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702 (b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702 (b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
5
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC v ia commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Wh istleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302 (b)(8) or
other protected activities listed in 5 U.S.C. § 2302 (b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
disposition of allegations of a prohibited personnel practice described in section
2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i),
(B), (C), or (D),” then you may file a petition for judicial review either with the
U.S. Court of Appeals for the Fed eral 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 ce rtain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 11 5-195,
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,” whic h is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.go v/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representatio n in a given case.
Contact information for the courts of appeals can be found at their
respective websites, which can be accessed through the link below:
http://www.uscourts.gov/C ourt_Locator/CourtWebsites.aspx .
FOR THE BOARD:
Washington, D.C. /s/ for
Jennifer Everling
Acting Clerk of the Board | PADILLA_ABIGAIL_L_DE_1221_18_0214_W_1_FINAL_ORDER_1962211.pdf | 2022-09-20 | null | DE-1221-18-0214-W-1 | NP |
4,113 | https://www.mspb.gov/decisions/nonprecedential/PADILLA_ABIGAIL_L_DE_3443_17_0346_I_1_FINAL_ORDER_1961166.pdf | UNITED STATES OF AME RICA
MERIT SYSTEMS PROTEC TION BOARD
ABIGAIL L. PADILLA,
Appellant,
v.
DEPARTMENT OF THE TR EASURY,
Agency .
DOCKET NUMBER
DE-3443 -17-0346 -I-1
DATE: September 16, 2022
THIS FINAL ORDER IS NONPRECEDENTIAL1
Abigail L. Padilla , Denver, Colorado, pro se .
Emily Urban , Esquire, San Francisco, California, for the agency .
BEFORE
Cathy A. Harris , Vice Chairman
Raymond A. Limon , Member
Tristan L. Leavit t, Member
FINAL ORDER
¶1 The appellant has filed a petition for review of the initial decision, which
dismissed this nonselection appeal for lack of jurisdiction. Generally, we grant
petitions such as this one only in the following circumstances: the initial decision
contains erroneous findings of material fact; the initial decision is based on an
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
require d to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117 (c).
2
erroneous interpretation of statute or regulation or the erroneous application of
the law to the facts of the case; the administrative judge’s rulings during either
the cour se of the appeal or the initial decision were not consistent with required
procedures or involved an abuse of discretion, and the resulting error affected the
outcome of the case; or new and material evidence or legal argument is available
that, despite th e petitioner’s due diligence, was not available when the record
closed. Title 5 of the Code of Federal Regulations, section 1201.115 ( 5 C.F.R.
§ 1201.115 ). After fully considering the filings in this appeal, we conclude that
the petitioner has not established any basis under section 1201.115 for granting
the petition for review. Therefore, we DENY the petition f or review . Except as
expressly MODIFIED by this Final Order to DISMISS the appeal without
prejudice to the filing of a new individual right of action (IRA) appeal , we
AFFIRM the initial decision.
BACKGROUND
¶2 The appellant has appealed her nonselection for the position of Statistician,
GS-1530 -09. Initial Appeal File (IAF), Tab 1. She received notice by email that
she had been de termined to be eligible for the position based on her responses to
an online questionnaire during the application process but that she was “not found
to be among the Best Qualified for the position” and was not referred to the
selecting o fficial. Id. at 6-7. Because it appeared the Board might lack
jurisdiction over the appeal, t he administrative judge issued a jurisdictional notice
within the acknowledgment o rder, outlining possible bases for the Board ’s
jurisdiction and ordering the appellant to present relevant evidence and argument
as to the possible bases for jurisdiction . IAF, Tab 2 at 2-6. T he appellant and the
agency filed timely responses. IAF, Tabs 3, 7. The initial decision followed.
IAF, Tab 9, Initial Decision (ID).
¶3 The administrative judge found that the appellant failed to nonfrivolously
allege any basis for the Board’s jurisdiction and issued an initial decision that
3
dismissed the appeal . ID at 2-5. The administrative judge found the agency’s
action to be a simple nonselection that did not fall within the Board’s jurisdiction
over suitability actions. ID at 2-4. He also found that, despite having been given
notice and an opportunity to respond, the appellant failed to nonfrivolou sly allege
any other basis for Board jurisdiction, such as whistleblower retaliation, and to
the extent she made any jurisdictional allegations at all, they were insufficient to
meet the nonfrivolous standard. ID at 4-5. The appellant has filed a petitio n for
review. Petition for Review (PFR) File, Tab 1. The agency has filed an
opposition to the petition. PFR File, Tab 3.
ANALYSIS
¶4 The administrative judge correct ly concluded that the appellant failed to
nonfrivolously allege the Board’s jurisdiction over this appeal . 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 bears the burden of establishing that her
appeal is within the Board’s jurisdiction . 5 C.F.R. §§ 1201.56 (b)(2)(i)(A) , .57(b).
Generally, an appellant is entitled to a hearing on the jurisdictional question if
she makes a nonfrivolous allegation that the Board has jurisdiction. Tarr v.
Department of Veterans Affairs , 115 M.S.P.R. 216 , ¶ 13 (2010) . “Nonfrivolous
allegations” of the Board’s jurisdiction are allegations of fact that, if proven,
could establish that the Board has j urisdiction over the matter at issue. Id.; see
5 C.F.R. § 1201.4 (s).
¶5 Generally, an unsuccessful candidate for a Federal civil service position has
no right to appeal h er nonselection. Tines v. Department of the Air Force ,
56 M.S.P.R. 90, 93 (1992). “Suitability action s” may be appealed to the Board .2
Kazan v. Departm ent of Justice , 112 M.S.P.R. 390, ¶ 6 (2009); 5 C.F.R.
2 A “suitability action” is defined as a cancellation of eligibility, a removal, a
cancellation of reinstatement eligibility, and a debarment. 5 C.F.R. § 731.203 (a).
4
§ 731.501 (a). Nonselection for a specific position , however, is not a “suitability
action,” even whe n it is based on the criteria for making a suitability
determination set forth in 5 C.F.R. § 731.2 02. Rodriguez v. Department of
Homeland Security , 112 M.S.P.R. 446 , ¶ 9 (2009); Kazan , 112 M.S.P.R. 390 , ¶ 6;
5 C.F.R. § 731.203 (b).
¶6 The record shows that the agency email dated June 12, 2017 , that is the
basis for this appeal merely informed the appellant that her application had been
received under Vacancy Announcement No. 16CE2 -CAX0064 -1530 -7T11 and
that she had been determined to be eligible for a Statistician position at the GS -09
level based on her responses to an online question naire. IAF, Tab 1 at 7. The
email further stated that, “according to Merit Promotion procedures [, she was] not
found to be among the Best Qualified for the position . . . and [was] not . . .
referred to the Selecting Official. ”3 Id. The appellant has not made a
nonfrivolous allegation , however, that the agency took any action related to her
overall eligibility for Federal employment , such as debarment or cancellation of
eligibility on any exist ing competitive register, which would bring this appeal
within the scope of suitability actions. See 5 C.F.R. § 731.203 (a). Instead, the
action was a simple nonselection and does not fall within the Board’s jurisdiction.
See K azan , 112 M.S.P.R. 390, ¶ 6; 5 C.F.R. § 731.203 (b).
¶7 On review, the appellant argues that the administrative judge failed to
consider her allegations that her nonselection was in retaliation for
whistleblowing. PFR File, Tab 1 at 5-6. She argues that the administrative jud ge
should have considered do cuments she submitted for her other appeals that are
pending before the Board. Id. The appellant , at one point, had four IRA appeals
before the Board , among them Padilla v. Department of the Treasury , MSPB
Docket No. DE-0752 -15-0483 -B-1, and Padilla v. Department of the Treasu ry,
3 The agency found the appellant lacked the requisite year of specialized experience
at the GS -09 grade level and thus did not qualify f or the G S-11 Statistician position.
IAF, Tab 7 at 19-20.
5
MSPB Docket No. DE-1221 -16-0081 -W-1.4 Her jurisdictional submission
directly reference d these appeals and some of the allegations she made therein .
IAF, Tab 3 at 4-7.
¶8 Under the Whistleblower Protection Enhancement Act of 2012 , the Board
has jurisdiction over an IRA appeal if the appellant has exhausted h er
administrative remedies before the Office of Special Counsel ( OSC ), and makes
nonfrivolous allegations that : (1) she made a protected disclosure under 5 U.S.C.
§ 2302 (b)(8) or engaged in protected activity under 5 U.S.C. § 2302 (b)(9)(A)(i),
(B), (C), o r (D) ; and (2) the protected disclosure or activity was a co ntributing
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. Depar tment of Interior , 123 M.S.P.R. 230, ¶ 5
(201 6). The Board has recently clarified the substantive requirements of
exhaustion. Chambers v. Department of Homeland Security , 2022 MSPB 8 ,
¶¶ 10-11. The requirements are met when an appellant has provided OSC wi th
sufficient basis to pursue an investigation. The Board’s jurisdiction is limited to
those issues that have been previously raised with OSC. However, an appellant
may give a more detailed account of his whistleblowing activities before the
Board than h e did to OSC. An appellant may demonstrate exhaustion through his
initial OSC complaint, evidence that he amended the original complaint,
including but not limited to OSC’s determination letter and other letters from
OSC referencing any amended allegation s, and his written responses to OSC
referencing the amended allegations . An appellant may also establish exhaustion
through other sufficiently reliable evidence, such as an affidavit or a declaration
attesting that he raised with OSC the substance of the facts in the Board
appeal. Id.
¶9 Even if we were to consider her submissions in her other appeals , the
appellant has not shown that she exhausted her administrative remedies before
4 The Board has issued separate decisions on the petitions for review in those matters .
6
OSC regarding the nonselection at issue . Her pleadings do not include a c opy or
description of any complaint she made to OSC after she received the June 12,
2017 email informing her that she had not been selected for the Statistician
position , and , as of her initial pleading, she had not filed such a complaint. IAF,
Tab 1 at 4. She has not alleged that she has filed a complaint since that time .
Because she has not shown she exhausted her remedies with OSC, the Board
cannot exerci se jurisdiction over this matter as an IRA appeal .5 In the event that
the appellant has filed or intends to file an OSC complaint regarding he r
nonselection, she may file a new IRA appeal based on the nonselection .6
¶10 Finally, t he appellant argues that the administrative judge “seemed to hold
[her] to a higher standard” and that, as a pro se appellan t who was also injured in
the line of duty, she was unable to plead her case with the s ame precision as an
attorney. PFR File, Tab 1 at 7. She has not offered any examples from the record
in support o f th is allegation , and we were unable to find any. We have
considered her pro se status by broadly interpreting her pleadings in reaching our
decision . See G oodnight v. Office of Personnel Management , 49 M.S.P.R. 184,
187 (1991) (explaining that, although a pro se appellant may not escape the
consequences of inadequate representation, she will not be required to plead
issues with the precision of an attorney in a judicial proceeding ).
5 Because the Board does not have jurisdiction over this matter as an IRA appeal, we
deny the appellant’s motion for consequential damages . IAF, Tab 8.
6 A new appeal will allow t he administrative judge to give the appellant full
jurisdictional notice regarding IRA appeal s, as he d id not do so in the acknowledgment
order. IAF, Tab 2 at 6. However, s uch an appeal must be timely filed. Under 5 U.S.C.
§ 1214 (a)(3), an appellant may file an IRA appeal with the Board once OSC closes its
investigation into he r complaint and no more than 60 days have elapsed since
notification of the clo sure was provided to her or 120 days has elapsed since she sought
corrective action from OSC and she has not been notified by OSC that it shall seek
corrective action on her behalf. Wells v. Department of Homeland Security ,
102 M.S.P.R. 36, ¶ 6 (2006).
7
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 t o file. 5 U.S.C. § 7703 (b). Although we offer the following
summary of available appeal rights, the Meri t Systems Protection Board does not
provide legal advice on which option is most appropriat e for your situation an d
the rights described below do not represent a statement of how courts will rule
regarding which cases fall within their jurisdiction. If you wish to seek review of
this final decision, you should immediately review the law applica ble to your
claims and carefully follow all filing time limits and requirements. Failure to file
within the applicable time limit may result in the dismissal of your case by your
chosen forum.
Please read carefully each of the three main possible choice s of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be 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 t he notice, the
Board cannot advise which option is most appropriate in any matter.
8
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particu lar
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website
at http://www.mspb.gov/probono for information regarding pro bono
representation for Merit Systems Protection Board appellants before the Federal
Circuit. The Board neither endorses the services p rovided by any attorney nor
warrants that any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703 (b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. ____ , 137 S. Ct. 1975 (2017). If you have a
representative in this case, and your representative rec eives this decision before
you do, then you must file with the district court no later than 30 calendar days
after your representative receives this decision. If the action involves a claim of
9
discrimination based on race, color, religion, sex, national o rigin, or a disabling
condition, you may be entitled to representation by a court -appointed lawyer and
to waiver of any requirement of prepayment of fees, costs, or other security. See
42 U.S.C. § 2000e -5(f) and 29 U.S.C. § 794a .
Contact information for U.S . district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702 (b)(1). You must file an y such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702 (b)(1). If you have a representative in this case,
and your rep resentative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EE OC is:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302 (b)(8) or
10
other protected activities listed in 5 U.S.C. § 2302 (b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
disposition of allegations of a prohibited personnel practice described in
section 2302(b) other than practices described in section 2302(b)(8), or
2302(b)(9)(A)(i), (B), (C), or (D),” then you may file a petition for judicial
review either with the U.S. Court of Appeals for the Federal Circuit or any court
of appeals of competent jurisdiction.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 appellant s before the Federal
8 The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent j urisdiction expired on
December 27, 2017. The All Circuit Review Act, signed in to law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Fede ral Circuit or any other circuit court 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
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 webs ites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
FOR THE BOARD:
Washington, D.C. /s/ for
Jennifer Everling
Acting C lerk of the Board | PADILLA_ABIGAIL_L_DE_3443_17_0346_I_1_FINAL_ORDER_1961166.pdf | 2022-09-16 | null | DE-3443-17-0346-I-1 | NP |
4,114 | https://www.mspb.gov/decisions/nonprecedential/COOK_SEVGI_N_DE_0752_16_0285_I_1_FINAL_ORDER_1961239.pdf | UNITED STATES OF AME RICA
MERIT SYSTEMS PROTEC TION BOARD
SEVGI COOK,
Appellant,
v.
DEPARTMENT OF THE AR MY,
Agency.
DOCKET NUMBER
DE-0752 -16-0285- I-1
DATE: September 16, 2022
THIS FINAL ORDER IS NONPRECEDENTIAL1
Sevgi Cook , Colorado Springs, Colorado, pro se.
Laura A. Smith , Esquire, Fort Carson, Colorado, for the agency.
BEFORE
Cathy A. Harris, Vice Chairman
Raymond A. Limon, Member
Tristan L. Leavitt, Member
Vice Chairman Harris recused herself and
did not participate in the adjudication of this appeal.
FINAL ORDER
¶1 The appellant has filed a petition for review of the initial decision, which
dismissed her 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 dis tinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117
(c).
2
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 wer e not consistent with required procedures or
involved an abuse of discretion, and the resulting error affected the outcome of
the case; or new and material evidence or legal argument is available that, despite
the petitioner’s due diligence, was not available when the record closed. Title 5
of the Code of Federal Regulations, section 1201.115 ( 5 C.F.R. § 1201.115
).
After fully considering the filings in this appeal, we conclude that 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).
However, we FORWARD the appellant’s claims of agency noncompliance with
the terms of the parties’ agreements to the Board’s Denver Field Office for
docketing as a petition for enforcement.
BACKG ROUND
¶2 The appellant appealed the agency’s action removing her from her position
as a Dental Hygienist, GS- 0682- 06, effective April 22, 2016. Initial Appeal File
(IAF), Tab 1, Tab 4 at 21, 26- 30. During the pendency of the appeal, the parties
entered into a settlement agreement, which was fully executed on August 4, 2016.
IAF, Tab 14. On August 5, 2016, t he administrative judge issued an initial
decision incorporating the settlement agreement into the record and dismissing
the appeal. IAF, Tab 17 , Initial Decision (ID). In dismissing the appeal, the
administrative judge found: (1) the Board h ad jurisdiction over the appeal;
(2) the settlement agreement appeared lawful and freely reached, and the parties
fully understood the terms of the agreement ; and (3) the parties moved that the
agreement be included in the record for enforcement purposes; thus, the
3
agreement was incorporated into the record, and the Board retained jurisdiction to
enforce the agreement. ID at 1 -2.
¶3 On September 1, 2016, the parties executed a document entitled Correction
to Settlement Agreement that provided for the correction of p aragraph 7c of the
August 4, 2016 settlement agreement, which pertained to a lump sum payment to
be made to the appellant. Petition for Review (PFR) File, Tab 2 at 13- 14. The
parties did not submit this document for incorporation into the record.
¶4 On September 7, 2016, the appellant timely filed a petition for review. PFR
File, Tab 1. She alleges that the agency misled her into believing that she would
receive the payment and new Standard Form 50 (SF-50) set forth in the August 4,
2016 Settlement Agreement (Agreement) by September 2, 2016, if she signed the
September 1, 2016 Correction to Settlement Agreement (Correction). Id. at 4- 5.
She further alleges that the agency has not yet made payment or issued the new
SF-50 and thus has not adhered to the agreements. Id. The agency has filed a
response opposing the petition for review, to which the appellant has filed a
reply. PFR File, Tabs 2, 8.
DISCUSSION OF ARGUME NTS ON REVIEW
¶5 A settlement agreement is a contract between the parties and its terms are to
be interpreted as a question of contract law. Wofford v. Department of Justice,
115 M.S.P.R. 468 , ¶ 6 (2010). An appellant may challenge the validity of a
settlement agreement if she believes it was unlawful, involuntary, or the result of
fraud or mutual mistake. Id. Even if the alleged invalidity was not apparent at the time of settlement, the agreement must be set aside if it is subsequently shown
by new evidence that the agreement was tainted with invalidity by fraud or
misrepresentation. Id. T he party challenging the validity of a settlement
agreement bears a heavy burden of showing a basis for invalidation. Id.
¶6 If, however, a party is not challenging the validity of the settlement
agreement, but believes that the other party has failed to comply with a term of
4
the agreement, she may file a petition for enforcement with the regional or field
office that issued the initial decision. McKinney v. Department of Agriculture,
70 M.S.P.R. 165 , 166 -67 (1996). While the appellant alleges nonc ompliance with
the agreement in question, she also seeks to have the agreement set aside on the
basis of fraud. PFR File, Tab 1 at 4-5. Thus, the appellant has stated a ground
for the Board to review her submission as a petition for review. McKinney,
70 M.S.P.R. at 167.
¶7 The Correction was not entered into the record below, nor has either party
requested that the Correction be entered into the record. Nevertheless, a party
may challenge the validity of a settlement agreement, regardless of whether it has
been entered into the record for enforcement, if the party believes that the
agreement is unlawful, involuntary, or the result of fraud or mutual mistake.
Wade v. Department of Veterans Affairs, 61 M.S.P.R. 580 , 583 (1994).
¶8 Here, the appellant alleges fraud on the part of the agency in obtaining her
consent to the Correction , which modified the original Agreement. PFR File,
Tab 1 at 4- 5. “ Fraud in the inducement” is defined as “occurring when a
misrepresentation leads another to enter into a transaction with a false impression
of the risks, duties, or obligations involved; an intentional misrepresentation of a
material risk or duty reasonab ly relied on, thereby injuring the other party without
vitiating the contract itself.” Wofford , 115 M.S.P.R. 468 , ¶ 7 (quoting Black’s
Law Dictionary 671 (7th ed. 1999)). To establish that a settlement agreement
resulted from fraud in the inducement, the appellant must show that the agency
knowingly concealed a material fact or intentionally misled her. Id.
¶9 Having considered the appellant’s allegations on review, we find that the
arguments she raised present no basis for setting aside the Agreement or the
Correction. The appellant has not presented any evidence to suggest that the
agency knowingly concealed facts or intentionall y misled her about the nature of
the Correction or the completion of the agency’s obligations under the Agreement and subsequent Correction.
5
¶10 The appellant appears to allege that the agency’s timing in contact ing her to
request that she sign the Correction shortly before the 30 -day period following
the execution of the Agreement ended is circumspect, but she offers no evidence
to show that the agency’s contact was intentional or concealed facts about the
Correction or Agreement . PFR File, Tab 1 at 5. It is undisputed that the agency
contacted the appellant to sign the Correction to correct an error in p aragraph 7c
of the Agreement regarding the recipient of the payment set forth in the
paragraph. PFR File, Tab 1 at 5, T ab 2 at 4-5. The record reflects that, although
a representative for the appellant is listed in this matter, the appellant was not
represented by an attorney during the pendency of the appeal. IAF, Tab 7. The
Correction modified paragraph 7c of the Agreement to pay a lump sum to the
appellant, rather than to an attorney. PFR File, Tab 2 at 13- 14. The appellant has
not provided any evidence to show that the agency contacted her to sign the
Correction for any reason other than to r ectify the error in the Agreement as set
forth in the Correction. PFR File, Tabs 1, 8.
¶11 The appellant also asserts that the agency led her to believe that the
Correction changed the recipient of the payment but not the date of payment
(purportedly Septem ber 2, 2016) set forth in p aragraph 7c of the Agreement, but
it did not intend to provide payment by the agreed- upon date . PFR File, Tab 1
at 4-5. The appellant has not provided any evidence to establish that the agency
made such a representation. PFR File, Tabs 1, 8. Moreover, the terms of the Correction are unambiguous in modifying the time frame in the Agreement with
respect to payment in paragr aph 7c. PFR File, Tab 2 at 14. In construing a
settlement agreement, the Board will first consider the terms of the agreement
itself, which are of paramount importance in determining the intent of the parties
at the time they contracted. Harris v. Department of Veterans Affairs,
99 M.S.P.R. 609
, ¶ 4 (2005). The Board will only examine extrinsic evidence if
the terms of the agreement are ambiguous, meaning they are susceptible to more
than one reasonable interpretation. Id. The Correction sets forth that the
6
agency’s obligations under paragraph 7c of the Agreement are corrected to:
“[w]ithin 30 calendar days of this Correction to the Settlement Agreement,
initiate paperwork to pay the Appellant a lump su m of $15,000[.]” PFR File,
Tab 2 at 13-14. The Correction further provides that all other terms of the
Agreement remain in effect. Id. at 13. Accordingly, the Correction is
unambiguous in providing for 30 days following the date of the Correction to
initiate paperwork to make the payment, and we cannot find that the appellant
was misled when she executed the Correction providing for such a time frame for
payment.
¶12 The appellant’s argument is also based on the premise that the agency was
to complete payment and issuance of a new SF -50 within 30 days of the date of
the Agreement; however, the language of the Agreement does not support this interpretation. IAF, Tab 14 ; PFR File, Tab 1 at 5. The Agreement plainly states
that the agency was obligated to take the following actions as to payment and
issuance of a new SF- 50: (1) “[w]ithin 30 calendar days of this agreement,
initiate paper work to cancel the Appellant’s Removal SF- 50 . . . and issue a new
SF-50”; (2) “[w]ithin 30 calendar days of this agreement, initiate paperwork to
pay the Appellant all wage payments from date of cancelled removal to date of
voluntary resignation”; and (3) “[w]ithin 30 calendar days of this agreement,
initiate paperwork to pay the appellant a lump sum of $15,000[.]” IAF, Tab 14, at 2-3. The U.S. Court of Appeals for the Federal Circuit (Federal Circuit) in
Brown v. General Services Administration, No. 2021- 1996, 2022 WL 2354499,
at *2 (Fed. Cir. June 30, 2022), recently agreed with the Board’s interpretation of
the word “initiate ,” finding that a provis ion in a settlement agreement requiring
the agency to “initiate payment” required the agency to take steps to initiate
payment, not complete it. Relying on the Merriam Webster Collegiate Dictionary
definition of the term “initiate,” the Federal Circuit ex plained that “[t]he normal
meaning of initiate is to begin, not to complete.” Brown, 2022 WL 2354499,
at *2. Thus, because the agency had taken steps to initiate the payment, the
7
Federal Circuit agreed with the Board that the agency had not materially breached
the settlement agreement by failing to complete the payment within the
proscribed timeframe .2 Id. at *2- 3.
¶13 Similarly, here we find that the unambiguous terms of the Agr eement do not
mandate completing payment or issuing the SF -50 by the date specified by the
appellant.3 Id.; PFR File, Tabs 1, 8. Accordingly, the appellant cannot show that
the agency induced her to sign the Correction based on a misrepresentation that
the agency would still complete its obligations under the Agreement when she
was not entitled to completion by September 2, 2016, under the original
Agreement. Brown , 2022 WL 2354499, at *2-3; PFR File, Tabs 1, 8.
¶14 Finally, the appellant asserts that the delay in the agency’s compliance with
the agreements shows that the agency induced her to sign the Correction when it
did not intend to adhere to the time frames for compliance. PFR File, Tab 1 at 5.
As set forth above, the appellant’s understanding of the time frame for the
agency’s compliance with the Agreement and Correction is faulty. A ssuming,
however, that the agency did not comply with the time frames in the Agreement
and Correction, and thus may have breached the agreements, the mere fact of noncompliance is insufficient on its own to establish that the agency did not
intend to comply with the time frames and that it knowingly concealed a material
fact or intentionally misled the appellant. Wofford, 115 M.S.P.R. 468
, ¶ 8.
Therefore, the appellant has not presented sufficient evidence or argument to support her assertion that the agency fraudulently induced her to sign the Correction.
2 The Board may follow a nonprecedential decision of the Federal Circuit when it finds
its reasoning persuasive. Morris v. Department of the Navy , 123 M.S.P.R. 662 , ¶ 13 n.9
(2016).
3 To the extent the appellant misunderstood the terms of completion of the agency’s
obligations under the Agreement, the mistake appears to be one -sided. Unilateral
mistakes are not a basis for finding a settlement agreement invalid. Pawlowski v.
Department of Veterans Affairs , 96 M.S.P.R. 353 , ¶ 15 (2004).
8
¶15 In her reply to the agency’s response, the appellant also raises new
allegations that she did not fully understand the language of the Agreement and
that she was under a doctor’s care and under physical and emotional stress when
she executed the Agreement. PFR File, Tab 8 at 5 -6. However, our regulations
provide that a party may not raise new allegations of error in a reply; thus, we do
not consider any new allegations first raised in the appellant’s reply . 5 C.F.R.
§ 1201.114 (a)(4); see Boston v. Department of the Army, 122 M.S.P.R. 577 , 580
n.3 (2015) (declining to consider new arguments first raised in a reply brief).
¶16 Accordingly, we find no basis on which to invalidate the Correction or
Agreement, and we deny the petition for review and affirm the initial decision.
We forward the appellant’s allegations of noncompliance with the parties’
agreements to the field office for docketing as a petition for enforcement.
McKinney, 70 M.S.P.R. at 167.
NOTICE OF APPEAL RIG HTS4
You may obtain review of this final decision. 5 U.S.C. § 7703 (a)(1). By
statute, the nature of your claims determines the time limit for seeking such
review and the appropriate forum with which to file. 5 U.S.C. § 7703 (b).
Although we offer the following summary of available appeal rights, the Merit
Systems Protection Board does not provide legal advice on which option is most
appropriate for your situation and the rights described below do not represent a
statement of how courts will rule regarding which cases fall within their jurisdiction. If you wish to seek review of this final decision, you should immediately review the law applicable to your claims and carefully follow all
filing time limits and requirements. Failure to file within the applicable time
limit may result in the dismissal of your case by your chosen forum.
4 Since the issuance of the initial decision in this matter, the Board may have up dated
the notice 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
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S. Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703 (b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services p rovided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
10
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court (not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703 (b)(2); see Perry v. Merit Systems
Protection Board, 582 U.S. ____ , 137 S. Ct. 1975 (2017). If you have a
representative in this case, and your representative receives this decision before
you do, then you must file with the district court no later than 30 calendar days
after your representative receives this decision. If the action involves a claim of
discrimination based on race, color, religion, sex, national origin, or a disabling
condition, you may be entitled to representation by a court- appointed lawyer and
to waiver of any requirement of prepayment of fees, costs, or other security. See
42 U.S.C. § 2000e -5(f) and 29 U.S.C. § 794a .
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx.
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues. 5 U.S.C. § 7702 (b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702 (b)(1). If you have a representative in this cas e,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is:
11
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302 (b)(8) or
other protected activities listed in 5 U.S.C. § 2302 (b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial pet ition for review “raises no challenge to the Board’s
disposition of allegations of a prohibited personnel practice described in section
2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i),
(B), (C), or (D),” then you may file a 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
whistleblowe r claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction. The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115 -195,
132 Stat. 1 510.
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 p rovided by any attorney nor warrants that
any attorney will accept representation in a given case.
Contact information for the courts of appeals can be found at their
respective websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx
.
FOR THE BOARD:
Washington, D.C. /s/ for
Jennifer Everling
Acting Clerk of the Board | COOK_SEVGI_N_DE_0752_16_0285_I_1_FINAL_ORDER_1961239.pdf | 2022-09-16 | null | DE-0752-16-0285-I-1 | NP |
4,115 | https://www.mspb.gov/decisions/nonprecedential/PADILLA_ABIGAIL_L_DE_1221_18_0180_W_1_FINAL_ORDER_1961289.pdf | UNITED STATES OF AME RICA
MERIT SYSTEMS PROTEC TION BOARD
ABIGAIL L. PADILLA,
Appellant,
v.
DEPARTMENT OF THE TR EASURY,
Agency.
DOCKET NUMBER
DE-1221 -18-0180 -W-1
DATE: September 16, 2022
THIS FINAL ORDER IS NONPRECEDENTIAL1
Abigail L. Padilla , Denver, Colorado, pro se.
Emily Urban , Esquire, San Francisco, California, for the agency.
BEFORE
Cathy A. Harris , Vice Chairman
Raymond A. Limon, Member
Tristan L. Leavitt , Member
FINAL ORDER
¶1 The appellant has filed a petition for review of the initial decision, which
dismissed her individual right of action (IRA) appeal for lack of jurisdiction. On
petition f or review, the appellant argues the merits of her whistleblowing claim ,
but she does not contest the administrative judge’s finding that she failed to
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but su ch orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as signi ficantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117 (c).
2
demonstrate that she exhausted her administrative remedies with the Office of
Special Counsel’s (OSC’s) prohibited personnel practice investigators.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 a pplication of the law to the facts of the case; the administrative
judge’s rulings during either the course of the appeal or the initial decision
were not consistent with required procedures or involved an abuse of discretion,
and the resulting error affec ted the outcome of the case; or new and material
evidence or legal argument is available that, despite the petitioner’s due
diligence, was not available when the record closed. Title 5 of the Code of
Federal Regulations, section 1201.115 ( 5 C.F.R. § 1201.115 ). After fully
considering the 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).
2 The initial decision refers to OSC’s Complaints Examining Unit. At the beginning of
fiscal year 2019 , OSC combined its Complaints Examining Unit with its Investigations
and Prosecutions Division , generally consolidating its prohibited personnel practice
investigations into a single unit . See OSC Fiscal Year 2020 Congressional Budget
Justification and Perform ance Budget Goals at 4, available at
https://osc.gov/Documents/Resources/Congressiona l%20Matters/Congressional%20Bud
get%20Justifications/FY%202020%20Congressional%20Budget%20Justification.pdf
(last visited Sept. 16, 2022) .
3 We have reviewed the appellant’s alleged new evidence submitted on review and have
determined that it is neither n ew nor material to her appeal. Therefore, it provides no
basis to disturb the initial decision. Russo v. Veterans Administration , 3 M.S.P.R. 345 ,
349 (1980) (holding that the Board will not grant a petition for review based on new
evidence absent a showing that it is of sufficient weight to warrant an outcome different
from that of the initial decision) ; Avansino v. U.S. Postal Service , 3 M.S.P.R. 211 , 214
(1980) (finding that the Board generally will not consider evidence submitted for the
first time with the petition for review absent a show ing that it was unavailable before
the record was closed despite the party’s due diligence).
3
NOTICE OF APPEAL RIGHTS4
You may obtain revi ew of this final decision. 5 U.S.C. § 7703 (a)(1). By
statute, the nature of your claims determines the time limit for seeking such
review and the appropriate forum with which to file. 5 U.S.C. § 7703 (b).
Although we offer the following summary of available appeal rights, the Merit
Systems Protection Board does not provide legal advice on which option is most
appropriate for your situatio n and the rights described below do not represent a
statement of how courts will rule regarding which cases fall within their
jurisdiction. If you wish to seek review of this final decision, you should
immediately review the law applicable to your claims and carefully follow all
filing time limits and requirements. Failure to file within the applicable time
limit may result in the dismissal of your case by your chosen forum.
Please read carefully each of the three main possible choices of review
below t o decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule , an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
4 Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise which option is most appropriate in any matter.
4
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitione rs and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our websi te at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney w ill accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision —including a disposition of you r discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703 (b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. ____ , 137 S. Ct. 1975 (2017). If you have a
represe ntative in this case, and your representative receives this decision before
you do, then you must file with the district court no later than 30 calendar days
after your representative receives this decision. If the action involves a claim of
discriminatio n based on race, color, religion, sex, national origin, or a disabling
condition, you may be entitled to representation by a court -appointed lawyer and
5
to waiver of any requirement of prepayment of fees, costs, or other security. See
42 U.S.C. § 2000e -5(f) and 29 U.S.C. § 794a .
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/C ourt_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702 (b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702 (b)(1). If you have a repres entative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regul ar U.S. mail, the
address of the EEOC is:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a si gnature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . Thi s option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302 (b)(8) or
other protected activities listed in 5 U.S.C. § 2302 (b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
6
disposition of allegations of a prohibited personnel practice described in
section 2302(b) other th an practices described in section 2302(b)(8), or
2302(b)(9)(A)(i), (B), (C), or (D),” then you may file a 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 co urt of appeals must 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. C ourt of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Sy stems Protection Board appellants before the 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 j urisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Fe deral Circuit or any other circuit court 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 b e found at their
respective websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
FOR THE BOARD:
Washington, D.C. /s/ for
Jennifer Everling
Acting Clerk of the Board | PADILLA_ABIGAIL_L_DE_1221_18_0180_W_1_FINAL_ORDER_1961289.pdf | 2022-09-16 | null | DE-1221-18-0180-W-1 | NP |
4,116 | https://www.mspb.gov/decisions/nonprecedential/CHAMBERS_CARL_A_SF_831M_21_0376_I_1_REMAND_ORDER_1961344.pdf | UNITED STATES OF AME RICA
MERIT SYSTEMS PROTEC TION BOARD
CARL A. CHAMBERS,
Appellant,
v.
OFFICE OF PERSONNEL
MANAGEMENT,
Agency.
DOCKET NUMBER
SF-831M -21-0376 -I-1
DATE: September 16, 2022
THIS ORDER IS NONPRECEDENTIAL1
Carl A. Chambers , Stockton, California, pro se.
Jane Bancroft , Washington, D.C., for the agency.
BEFORE
Cathy A. Harris, Vice Chairman
Raymond A. Limon, Member
Tristan L. Leavitt, Member
REMAND ORDER
¶1 The appellant has filed a petition for review of the initial decision, which
affirmed an Office of Personnel Management (OPM) reconsideration decision
finding the appellant ineligible for a waiver of a claimed $3,426 overpayment in
Civil Service Retirement System (CSRS) death benefits based on the service 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).
2
his father (the decedent). For the reasons discussed below, we GRANT the
appellant’s petition for review, VACATE the initial decision, and REMAND the
case to the Western R egional Office for further adj udication in accordance with
this Remand Order.
DISCUSSION OF ARGUME NTS ON REVIEW
¶2 The decedent retired based on a disability under the CSRS on April 12,
1985, Initial Appeal File (IAF), Tab 11 at 88, and died on May 28, 2017, id.
at 59. His spouse, whom h e married in 1955, id. at 81, predeceased him in 2013,
id. at 60. Before her death, the decedent had designated his spouse as his
beneficiary for lump -sum benefits payable under the CSRS upon his death. Id.
at 61. The decedent did not remarry after his spouse’s death. Id. at 59. At the
time of his death in 2017, the decedent had three children, all sons, id. at 37, two
of whom —including the appellant —were over 18 years of age, id. at 44, 73, and
one born on S eptember 7, 2001, id. at 30. The mother of the decedent’s youngest
son was not the decedent’s spouse. Id. at 30, 81.
¶3 The appellant filed an application with OPM in 2019 for death benefits
based on the service of the decedent. Id. at 44 -47. In response to OPM’s
requests, the appellant notified OPM that the decedent had two other sons and
provided their names and home addresses. Id. at 37 -39. OPM accordingly paid
the appellant a lump -sum benefit of $3,426.83, one -third of the decedent’s
$10,280.49 in c ontributions to the Civil Service Retirement and Disability Fund
(Retirement Fund), reserving the remaining two -thirds for the decedent’s other
sons. Id. at 23, 35 -36.
¶4 In a June 24, 2020 initial decision, OPM informed the appellant that,
because lump -sum benefits are not payable if a child of a deceased annuitant is
eligible for monthly benefits, and the decedent’s youngest son was a minor child
eligible for monthly benefits, it was seeking a return of the $3,426.83 paid to the
appellant in error. Id. at 23-24. The appellant asked for a waiver of recovery of
3
the overpayment in a request for reconsideration, citing his lack of fault in
creating the overpayment. Id. at 20 -21. In an April 13, 2021 reconsideration
decision, OPM affirmed its initial decision and denied the appellant’s request for
a waiver.2 Id. at 11 -13. The appellant appealed the reconsideration decision to
the Board. IAF, Tab 1.
¶5 After holding the appellant’s requested hearing, the administrative judge
found that OPM established the exist ence and amount of the overpayment, based
on his finding that it was undisputed that the appellant was not entitled to the
death benefits he received . IAF, Tab 18, Initial Decision (ID) at 3. The
administrative judge further found that the appellant was not entitled to a waiver
of recovery of the overpayment despite his lack of fault, or to an adjustment of
the repayment schedule. ID at 3 -8. On review, the appellant claims the
administrative judge failed to consider that he was without fault in creating the
overpayment, and that OPM’s “position is unconscionable.” Petition for Review
(PFR) File, Tab 2 at 3 -4. OPM filed a response in opposition. PFR File, Tab 5.
The evidence is ambiguous as to the decedent’s third son’s entitlement to a
survivor annuit y.
¶6 The appellant bears the burden of establishing his entitlement to a waiver of
recovery of an overpayment by substantial evidence. Cool v. Office of Personnel
Management , 31 M.S.P.R. 270 , 273 (1985); 5 C.F.R. § 831.1407 (b). The burden
of proof does not shift to the appellant, however, until OPM has first proven the
exist ence and amount of an overpayment by a preponderance of the evidence.
2 OPM affirmed its initial decision in an earlier reconsideration decision, which the
appellant also appealed to the Board. Chambers v. Office of Personnel Management ,
MSPB Docket No. SF -831M -21-0020 -I-1, Initial Appeal File (0020 IAF), Tab 1. OPM
subsequently rescinded this reconsideration decision on the grounds that it failed to
address the app ellant’s request for a waiver of recovery of the overpayment, and moved
to dismiss the appeal for lack of jurisdiction. 0020 IAF, Tab 10 at 4 -5. The
administrative judge dismissed the appeal pursuant to OPM’s motion. 0020 IAF,
Tab 15, Initial Decision at 1-3.
4
Sansom v. Office of Personnel Management , 62 M.S.P.R. 560 , 567 (1994 ); see
5 C.F.R. § 831.1407 (a).
¶7 The applicable law governing claims for CSRS benefits based on the
decedent’s service —the law in effect when the decedent retired in 1985 , Jackson
v. Office of Personnel Management , 81 M.S.P.R. 107 , ¶ 4 (1999) —is, in relevant
part, unchanged. Under 5 U.S.C. § 8341 (e)(2),3 a surviving child of an employee
who dies after retiring is entitled to a survivor annuity. Meanwhile, 5 C.F.R.
§ 831.2003 (a), which t he agency asserts to support its position, IAF, Tab 15,
Hearing Recording ( HR) (agency closing argument), states that “ [i]f there is no
survivor who is entitled to monthly survivor annuity benefits on the death” of a
former employee or annuitant , the total lump -sum to the former employee ’s
credit in the Retirement Fund “is payable to the person(s) entitled in the normal
order of precedence” described in 5 U.S.C. § 8342 (c). In turn, 5 U.S.C.
§ 8342 (c) provides , in relevant part, that lump -sum benefits are paid to an
employee’s survivors “alive at the date title to the payment arises,” in an order of
precedence that lists the deceased employee’s designated beneficiary first, t he
deceased employee’s widow second, and the deceased employee’s children third.
¶8 OPM thus asserts that, because the decedent’s third son is entitled to a
survivor annuity, the appellant was not entitled to payment of a share of the
decedent’s lump -sum death benefits. IAF, Tab 11 at 6. However, under
5 U.S.C. § 8341 (a)(4), eligibility for a surviving child’s annuity under
subsection (e) is limited to an unmarried dependent child under age 18, an
unmarried dependent child incapable of self -support because of a mental or
physical disability incurred before age 18, or an unmarried dependent child
between ages 18 and 22 pursuing a full -time course of study at a recognized
educational institution. In addition to the requirement that the child be
3 The statute codified in 5 U.S.C. § 8341 (e)(1) when the decedent retired was
redesignated as section 8341(e)(2) in 1986, Pub. L. No. 99-251, § 205(a)(1), 100 Stat.
25 (1986), and remains s o designated at present.
5
unmarried, common to each of these ca tegories is the requirement that the child
be a “dependent,” which 5 U.S.C. § 8341 (a)(3) defines to mean that the
annuitant4 was, at the time of his death, either living with or contributing to the
support of the child.
¶9 The only evidence OPM submitted of the decedent’s third son’s eligibility
for a child’s annuity under 5 U.S.C. § 8341 (e) was his birth certificate and
Standard Form (SF) 2800 , Application for Death Benefits, which established that
he was under age 18 at the time of the decedent’s death and that the decedent
was his father.5 IAF, Tab 11 at 30, Tab 14 at 11 -14. This evidence does not
4 Title 5, United States Code, s ection 8341(a)(3) defines “dependent ” only in re lation to
an involved employee or Member of Congress, apparently omitting any child of a n
annuitant from its purview. However, excluding a child of an annuitant from th is
definition of “dependent” would result in a scenario in which an “employee” who “dies
after retiring,” meaning an annuitant such as the d ecedent can leave a surviving child
entitled to an annuity under 5 U.S.C. § 8341 (e)(2), who could never qualify for that
annuity because he is excluded from the definitions of a qualifying “dependent” or
“child” under section 8341(a)(3) and (a)(4) . Because provisions of a statute should be
read in harmony , leaving no provision inoperative, superfluous, redundant, or
contradictory, Foret v. Department of the Army , 105 M.S.P.R. 437 , ¶ 9 (2007), w e
interpret the definitions of “dependent” and “child” in 5 U.S.C. § 8341 (a)(3) and (a)(4) ,
respectively, to apply to an annuitant , as doing so is necessary for the entitlement to a
child’s survivor annuity under 5 U.S.C. § 8341 (e)(2) for th e surviving child of an
employee who “dies after retiring” to have any operative effect. This interpretation is
consistent with Board precedent . Seth -Morris v. Office of Personnel Management ,
94 M.S.P.R. 166 , ¶ 4 (2003); Rajbhandary v. Office of Personnel Management ,
91 M.S.P.R. 192, ¶ 4 (2002).
5 The administrative jud ge excluded the decedent’s third son’s SF -2800 —in which he
lists himself under “Section E,” which covers a decedent’s unmarried dependent
children, IAF, Tab 14 at 12 —from admission into evidence as untimely, while also
noting that the exhibit did not appea r relevant. HR (administrative judge’s discussion
of exhibits) . Though the exhibit may have been relevant to the issue of whether an
overpayment existed, it was indeed untimely filed , as OPM filed it with an amended
prehearing submission 5 days after the deadline for prehearing submissions provided in
the administrative judge’s order , without demonstrating good cause . IAF, Tab 9 at 1 ,
Tab 14 . We thus find no basis to disturb the administrative judge ’s exclusion o f the
exhibit. However, even if the exhibit were to have been admitted, the decedent’s
youngest son’s listing of himself under “Section E” as an unmarried dependent child of
the decedent is contradicted by his listing of himself as an “other heir” of the decedent
under “Section F,” IAF, Tab 14 at 13, a category which the instructions to SF -2800
6
establish that the decedent’s third son sat isfied the other requirements for
eligibility for a child’s survivor annuity, including that he was unmarried, either
of the conditions that would qualify him as a “dependent” under 5 U.S.C.
§ 8341 (a)(3), or that after he turned 18, he was incapable of self -support because
of a mental or physical disability incurred before age 18, or pursuing a full -time
course of study at a recognized educational institution. OPM’s evidence of the
decedent’s third son’s entitlement to a survivor annuity , and consequently, its
evidence of the existence and amount of the claimed overpayment to the
appellant, is therefore ambiguous . Although the administrative judge based his
finding that OPM established the existenc e and amount of the overpayment on
his finding that they were not disputed,6 ID at 3, this was an error , as OPM’s
burden of proof is not met simply based upon the absence of an objection from
the appellant, Sansom , 62 M.S.P.R. at 567 (citing 5 C.F.R. § 831.1407 (a)). The
Board will require OPM to meet its burden of proof, regardless of whether the
appellant objects specifically to elements of that proof, and to produce all of the
relevant, material, and credible evidence bearing on the amount and existence of
the overpayment. Id.
The administrative judge erred in denying OPM’s request to notify the decedent’s
non-party children of their rights to intervene in the appeal.
¶10 The Board ’s regulation s provide that administrative judges have the
authority to require that persons who can be identified from the record as being
“clearly and directly affected ” by a pending retirement -related case be notified of
state include “[c]hildren of the deceased not included in Section E,” IAF, Tab 11 at 49.
These inconsisten t representations render the SF -2800 non -probative as to the
decedent’s third son’s eligibilit y for a survivor annuity under 5 U.S.C. § 8341 (e).
6 There is no indication in the record that the appellant was aware of the detailed
eligibility requirements for a child’s survivor annuity under 5 U.S.C. § 8341 (e) to
knowingly concede or dispute the overpayment. On the contrary, the appellant testified
at the hearing that he did not know what government entitlements the decedent’s third
son was eligible for. HR (testimony of the appellant). The appellant made the same
assertion in his reconsideration request to OPM. IAF, Tab 11 at 20.
7
their right to request inter vention in the appeal so that their interests can be
considered in the adjudication. 5 C.F.R. § 1201.41 (b)(13). The Board has stated
that an administrative judge must invite any person or organization directly
affected by an appeal to intervene . Holser v. Office of Personnel Management ,
72 M.S.P.R. 247 , 250 (1996) .
¶11 During the appeal, OPM requested that the administrative judge notify the
decedent’s non -party children of their rights to intervene in the appeal under
5 C.F.R. § 1201.34 . IAF, Tab 11 a t 10. The administrative judge denied this
request, finding that the decedent’s non -party children’s rights were not
potentially implicated by his decision in the appeal. HR (administrative judge’s
summary of prehearing discussion).
¶12 As indicated in the r econsideration decision, OPM determined the appellant
was paid lump -sum death benefits erroneously based on its finding that the
decedent’s third son was entitled to a child’s survivor annuity , IAF, Tab 11 at 11,
and thus, whether the decedent’s third son was in fact entitled to a survivor
annuity was placed directly at issue in this appeal . The decedent’s third son is
therefore “clearly and directly affected” by this appeal . The rights of the
decedent’s other non -party child to CSRS benefits based on the decedent’s
service appear to be equivalent to those of the appellant, and the effect of this
appeal on those rights are therefore also clear and direct . Accordingly, the
interests of justice would be served by allowing the decedent’s non -party
children the opportunity to intervene in this proceeding , and t he administrative
judge’s denial of OPM’s request to notify them of their rights to intervene was
an error. See Alexander v. Office of Personnel Management, 58 M.S.P.R. 358 ,
368 (1993) (finding that an administrative judge should have afforded a deceased
employee’s former spouse an opportunity to intervene in an appeal when her
entitlement to a lump -sum survivor benefit could have been directly affected by
the outcome of the appeal). We therefore remand this appeal to the Western
Regional O ffice for further adjudication and order that attempts be made to
8
afford the decedent’s n on-party children an opportunity to intervene. On
remand, all parties shall be permitted to introduce additional evidence and
argument on the issues relevant to this case.
ORDER
¶13 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:
Washington, D.C. /s/ for
Jennifer Everling
Acting Clerk of the Board | CHAMBERS_CARL_A_SF_831M_21_0376_I_1_REMAND_ORDER_1961344.pdf | 2022-09-16 | null | SF-831M-21-0376-I-1 | NP |
4,117 | https://www.mspb.gov/decisions/nonprecedential/COOK_SEVGI_N_DE_0752_16_0285_C_2_FINAL_ORDER_1961779.pdf | UNITED STATES OF AME RICA
MERIT SYSTEMS PROTEC TION BOARD
SEVGI COOK,
Appellant,
v.
DEPARTMENT OF THE AR MY,
Agency.
DOCKET NUMBER
DE-0752 -16-0285- I-1
DATE: September 16, 2022
THIS FINAL ORDER IS NONPRECEDENTIAL1
Sevgi Cook , Colorado Springs, Colorado, pro se.
Laura A. Smith , Esquire, Fort Carson, Colorado, for the agency.
BEFORE
Cathy A. Harris, Vice Chairman
Raymond A. Limon, Member
Tristan L. Leavitt, Member
Vice Chairman Harris recused herself and
did not participate in the adjudication of this appeal.
FINAL ORDER
¶1 The appellant has filed a petition for review of the initial decision, which
dismissed her 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 dis tinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117
(c).
2
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 wer e not consistent with required procedures or
involved an abuse of discretion, and the resulting error affected the outcome of
the case; or new and material evidence or legal argument is available that, despite
the petitioner’s due diligence, was not available when the record closed. Title 5
of the Code of Federal Regulations, section 1201.115 ( 5 C.F.R. § 1201.115
).
After fully considering the filings in this appeal, we conclude that 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).
However, we FORWARD the appellant’s claims of agency noncompliance with
the terms of the parties’ agreements to the Board’s Denver Field Office for
docketing as a petition for enforcement.
BACKG ROUND
¶2 The appellant appealed the agency’s action removing her from her position
as a Dental Hygienist, GS- 0682- 06, effective April 22, 2016. Initial Appeal File
(IAF), Tab 1, Tab 4 at 21, 26- 30. During the pendency of the appeal, the parties
entered into a settlement agreement, which was fully executed on August 4, 2016.
IAF, Tab 14. On August 5, 2016, t he administrative judge issued an initial
decision incorporating the settlement agreement into the record and dismissing
the appeal. IAF, Tab 17 , Initial Decision (ID). In dismissing the appeal, the
administrative judge found: (1) the Board h ad jurisdiction over the appeal;
(2) the settlement agreement appeared lawful and freely reached, and the parties
fully understood the terms of the agreement ; and (3) the parties moved that the
agreement be included in the record for enforcement purposes; thus, the
3
agreement was incorporated into the record, and the Board retained jurisdiction to
enforce the agreement. ID at 1 -2.
¶3 On September 1, 2016, the parties executed a document entitled Correction
to Settlement Agreement that provided for the correction of p aragraph 7c of the
August 4, 2016 settlement agreement, which pertained to a lump sum payment to
be made to the appellant. Petition for Review (PFR) File, Tab 2 at 13- 14. The
parties did not submit this document for incorporation into the record.
¶4 On September 7, 2016, the appellant timely filed a petition for review. PFR
File, Tab 1. She alleges that the agency misled her into believing that she would
receive the payment and new Standard Form 50 (SF-50) set forth in the August 4,
2016 Settlement Agreement (Agreement) by September 2, 2016, if she signed the
September 1, 2016 Correction to Settlement Agreement (Correction). Id. at 4- 5.
She further alleges that the agency has not yet made payment or issued the new
SF-50 and thus has not adhered to the agreements. Id. The agency has filed a
response opposing the petition for review, to which the appellant has filed a
reply. PFR File, Tabs 2, 8.
DISCUSSION OF ARGUME NTS ON REVIEW
¶5 A settlement agreement is a contract between the parties and its terms are to
be interpreted as a question of contract law. Wofford v. Department of Justice,
115 M.S.P.R. 468 , ¶ 6 (2010). An appellant may challenge the validity of a
settlement agreement if she believes it was unlawful, involuntary, or the result of
fraud or mutual mistake. Id. Even if the alleged invalidity was not apparent at the time of settlement, the agreement must be set aside if it is subsequently shown
by new evidence that the agreement was tainted with invalidity by fraud or
misrepresentation. Id. T he party challenging the validity of a settlement
agreement bears a heavy burden of showing a basis for invalidation. Id.
¶6 If, however, a party is not challenging the validity of the settlement
agreement, but believes that the other party has failed to comply with a term of
4
the agreement, she may file a petition for enforcement with the regional or field
office that issued the initial decision. McKinney v. Department of Agriculture,
70 M.S.P.R. 165 , 166 -67 (1996). While the appellant alleges nonc ompliance with
the agreement in question, she also seeks to have the agreement set aside on the
basis of fraud. PFR File, Tab 1 at 4-5. Thus, the appellant has stated a ground
for the Board to review her submission as a petition for review. McKinney,
70 M.S.P.R. at 167.
¶7 The Correction was not entered into the record below, nor has either party
requested that the Correction be entered into the record. Nevertheless, a party
may challenge the validity of a settlement agreement, regardless of whether it has
been entered into the record for enforcement, if the party believes that the
agreement is unlawful, involuntary, or the result of fraud or mutual mistake.
Wade v. Department of Veterans Affairs, 61 M.S.P.R. 580 , 583 (1994).
¶8 Here, the appellant alleges fraud on the part of the agency in obtaining her
consent to the Correction , which modified the original Agreement. PFR File,
Tab 1 at 4- 5. “ Fraud in the inducement” is defined as “occurring when a
misrepresentation leads another to enter into a transaction with a false impression
of the risks, duties, or obligations involved; an intentional misrepresentation of a
material risk or duty reasonab ly relied on, thereby injuring the other party without
vitiating the contract itself.” Wofford , 115 M.S.P.R. 468 , ¶ 7 (quoting Black’s
Law Dictionary 671 (7th ed. 1999)). To establish that a settlement agreement
resulted from fraud in the inducement, the appellant must show that the agency
knowingly concealed a material fact or intentionally misled her. Id.
¶9 Having considered the appellant’s allegations on review, we find that the
arguments she raised present no basis for setting aside the Agreement or the
Correction. The appellant has not presented any evidence to suggest that the
agency knowingly concealed facts or intentionall y misled her about the nature of
the Correction or the completion of the agency’s obligations under the Agreement and subsequent Correction.
5
¶10 The appellant appears to allege that the agency’s timing in contact ing her to
request that she sign the Correction shortly before the 30 -day period following
the execution of the Agreement ended is circumspect, but she offers no evidence
to show that the agency’s contact was intentional or concealed facts about the
Correction or Agreement . PFR File, Tab 1 at 5. It is undisputed that the agency
contacted the appellant to sign the Correction to correct an error in p aragraph 7c
of the Agreement regarding the recipient of the payment set forth in the
paragraph. PFR File, Tab 1 at 5, T ab 2 at 4-5. The record reflects that, although
a representative for the appellant is listed in this matter, the appellant was not
represented by an attorney during the pendency of the appeal. IAF, Tab 7. The
Correction modified paragraph 7c of the Agreement to pay a lump sum to the
appellant, rather than to an attorney. PFR File, Tab 2 at 13- 14. The appellant has
not provided any evidence to show that the agency contacted her to sign the
Correction for any reason other than to r ectify the error in the Agreement as set
forth in the Correction. PFR File, Tabs 1, 8.
¶11 The appellant also asserts that the agency led her to believe that the
Correction changed the recipient of the payment but not the date of payment
(purportedly Septem ber 2, 2016) set forth in p aragraph 7c of the Agreement, but
it did not intend to provide payment by the agreed- upon date . PFR File, Tab 1
at 4-5. The appellant has not provided any evidence to establish that the agency
made such a representation. PFR File, Tabs 1, 8. Moreover, the terms of the Correction are unambiguous in modifying the time frame in the Agreement with
respect to payment in paragr aph 7c. PFR File, Tab 2 at 14. In construing a
settlement agreement, the Board will first consider the terms of the agreement
itself, which are of paramount importance in determining the intent of the parties
at the time they contracted. Harris v. Department of Veterans Affairs,
99 M.S.P.R. 609
, ¶ 4 (2005). The Board will only examine extrinsic evidence if
the terms of the agreement are ambiguous, meaning they are susceptible to more
than one reasonable interpretation. Id. The Correction sets forth that the
6
agency’s obligations under paragraph 7c of the Agreement are corrected to:
“[w]ithin 30 calendar days of this Correction to the Settlement Agreement,
initiate paperwork to pay the Appellant a lump su m of $15,000[.]” PFR File,
Tab 2 at 13-14. The Correction further provides that all other terms of the
Agreement remain in effect. Id. at 13. Accordingly, the Correction is
unambiguous in providing for 30 days following the date of the Correction to
initiate paperwork to make the payment, and we cannot find that the appellant
was misled when she executed the Correction providing for such a time frame for
payment.
¶12 The appellant’s argument is also based on the premise that the agency was
to complete payment and issuance of a new SF -50 within 30 days of the date of
the Agreement; however, the language of the Agreement does not support this interpretation. IAF, Tab 14 ; PFR File, Tab 1 at 5. The Agreement plainly states
that the agency was obligated to take the following actions as to payment and
issuance of a new SF- 50: (1) “[w]ithin 30 calendar days of this agreement,
initiate paper work to cancel the Appellant’s Removal SF- 50 . . . and issue a new
SF-50”; (2) “[w]ithin 30 calendar days of this agreement, initiate paperwork to
pay the Appellant all wage payments from date of cancelled removal to date of
voluntary resignation”; and (3) “[w]ithin 30 calendar days of this agreement,
initiate paperwork to pay the appellant a lump sum of $15,000[.]” IAF, Tab 14, at 2-3. The U.S. Court of Appeals for the Federal Circuit (Federal Circuit) in
Brown v. General Services Administration, No. 2021- 1996, 2022 WL 2354499,
at *2 (Fed. Cir. June 30, 2022), recently agreed with the Board’s interpretation of
the word “initiate ,” finding that a provis ion in a settlement agreement requiring
the agency to “initiate payment” required the agency to take steps to initiate
payment, not complete it. Relying on the Merriam Webster Collegiate Dictionary
definition of the term “initiate,” the Federal Circuit ex plained that “[t]he normal
meaning of initiate is to begin, not to complete.” Brown, 2022 WL 2354499,
at *2. Thus, because the agency had taken steps to initiate the payment, the
7
Federal Circuit agreed with the Board that the agency had not materially breached
the settlement agreement by failing to complete the payment within the
proscribed timeframe .2 Id. at *2- 3.
¶13 Similarly, here we find that the unambiguous terms of the Agr eement do not
mandate completing payment or issuing the SF -50 by the date specified by the
appellant.3 Id.; PFR File, Tabs 1, 8. Accordingly, the appellant cannot show that
the agency induced her to sign the Correction based on a misrepresentation that
the agency would still complete its obligations under the Agreement when she
was not entitled to completion by September 2, 2016, under the original
Agreement. Brown , 2022 WL 2354499, at *2-3; PFR File, Tabs 1, 8.
¶14 Finally, the appellant asserts that the delay in the agency’s compliance with
the agreements shows that the agency induced her to sign the Correction when it
did not intend to adhere to the time frames for compliance. PFR File, Tab 1 at 5.
As set forth above, the appellant’s understanding of the time frame for the
agency’s compliance with the Agreement and Correction is faulty. A ssuming,
however, that the agency did not comply with the time frames in the Agreement
and Correction, and thus may have breached the agreements, the mere fact of noncompliance is insufficient on its own to establish that the agency did not
intend to comply with the time frames and that it knowingly concealed a material
fact or intentionally misled the appellant. Wofford, 115 M.S.P.R. 468
, ¶ 8.
Therefore, the appellant has not presented sufficient evidence or argument to support her assertion that the agency fraudulently induced her to sign the Correction.
2 The Board may follow a nonprecedential decision of the Federal Circuit when it finds
its reasoning persuasive. Morris v. Department of the Navy , 123 M.S.P.R. 662 , ¶ 13 n.9
(2016).
3 To the extent the appellant misunderstood the terms of completion of the agency’s
obligations under the Agreement, the mistake appears to be one -sided. Unilateral
mistakes are not a basis for finding a settlement agreement invalid. Pawlowski v.
Department of Veterans Affairs , 96 M.S.P.R. 353 , ¶ 15 (2004).
8
¶15 In her reply to the agency’s response, the appellant also raises new
allegations that she did not fully understand the language of the Agreement and
that she was under a doctor’s care and under physical and emotional stress when
she executed the Agreement. PFR File, Tab 8 at 5 -6. However, our regulations
provide that a party may not raise new allegations of error in a reply; thus, we do
not consider any new allegations first raised in the appellant’s reply . 5 C.F.R.
§ 1201.114 (a)(4); see Boston v. Department of the Army, 122 M.S.P.R. 577 , 580
n.3 (2015) (declining to consider new arguments first raised in a reply brief).
¶16 Accordingly, we find no basis on which to invalidate the Correction or
Agreement, and we deny the petition for review and affirm the initial decision.
We forward the appellant’s allegations of noncompliance with the parties’
agreements to the field office for docketing as a petition for enforcement.
McKinney, 70 M.S.P.R. at 167.
NOTICE OF APPEAL RIG HTS4
You may obtain review of this final decision. 5 U.S.C. § 7703 (a)(1). By
statute, the nature of your claims determines the time limit for seeking such
review and the appropriate forum with which to file. 5 U.S.C. § 7703 (b).
Although we offer the following summary of available appeal rights, the Merit
Systems Protection Board does not provide legal advice on which option is most
appropriate for your situation and the rights described below do not represent a
statement of how courts will rule regarding which cases fall within their jurisdiction. If you wish to seek review of this final decision, you should immediately review the law applicable to your claims and carefully follow all
filing time limits and requirements. Failure to file within the applicable time
limit may result in the dismissal of your case by your chosen forum.
4 Since the issuance of the initial decision in this matter, the Board may have up dated
the notice 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
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S. Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703 (b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services p rovided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
10
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court (not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703 (b)(2); see Perry v. Merit Systems
Protection Board, 582 U.S. ____ , 137 S. Ct. 1975 (2017). If you have a
representative in this case, and your representative receives this decision before
you do, then you must file with the district court no later than 30 calendar days
after your representative receives this decision. If the action involves a claim of
discrimination based on race, color, religion, sex, national origin, or a disabling
condition, you may be entitled to representation by a court- appointed lawyer and
to waiver of any requirement of prepayment of fees, costs, or other security. See
42 U.S.C. § 2000e -5(f) and 29 U.S.C. § 794a .
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx.
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues. 5 U.S.C. § 7702 (b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702 (b)(1). If you have a representative in this cas e,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is:
11
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302 (b)(8) or
other protected activities listed in 5 U.S.C. § 2302 (b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial pet ition for review “raises no challenge to the Board’s
disposition of allegations of a prohibited personnel practice described in section
2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i),
(B), (C), or (D),” then you may file a 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
whistleblowe r claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction. The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115 -195,
132 Stat. 1 510.
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 p rovided by any attorney nor warrants that
any attorney will accept representation in a given case.
Contact information for the courts of appeals can be found at their
respective websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx
.
FOR THE BOARD:
Washington, D.C. /s/ for
Jennifer Everling
Acting Clerk of the Board | COOK_SEVGI_N_DE_0752_16_0285_C_2_FINAL_ORDER_1961779.pdf | 2022-09-16 | null | DE-0752-16-0285-I-1 | NP |
4,118 | https://www.mspb.gov/decisions/nonprecedential/CHEATHAM_JEMAL_A_DC_3330_15_0027_P_2_FINAL_ORDER_1960693.pdf | UNITED STATES OF AME RICA
MERIT SYSTEMS PROTEC TION BOARD
JEMAL A. CHEATHAM,
Appellant,
v.
DEPARTMENT OF THE AI R FORCE,
Agency.
DOCKET NUMBER
DC-3330 -15-0027 -P-2
DATE: September 15, 2022
THIS FINAL ORDER IS NONPRECEDENTIAL1
Jemal A. Cheatham , Ruther Gle n, Virginia, pro se.
Jason A. VanWagner , Andrews Air Force Base , Maryland, for the agency.
BEFORE
Cathy A. Harris , Vice Chairman
Raymond A. Limon , Member
Tristan L. Leavitt , Member
FINAL ORDER
¶1 The appellant has filed a petition for review of the initial d ecision, which
denied his motion for damages. Generally, we grant petitions such as this one
only in the following circumstances: the initial decision contains erroneous
findings of material fact; the initial decision is based on an erroneous
1 A nonprecedential order is one that the Bo ard has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any futu re decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117 (c).
2
interpretat ion of statute or regulation or the erroneous application of the law to
the facts of the case; the administrative judge’s rulings during either the course of
the appeal or the initial decision were not consistent with required procedures or
involved an abu se of discretion, and the resulting error affected the outcome of
the case; or new and material evidence or legal argument is available that, despite
the petitioner’s due diligence, was not available when the record closed. Title 5
of the Code of Federal Regulations, section 1201.115 ( 5 C.F.R. § 1201.115 ).
After fully considering the filings in this appeal, we conclude that the petitioner
has not established any basis under section 120 1.115 for granting the petition for
review. Therefore, we DENY the petition for review and AFFIRM the initial
decision, which is now the Board’s final decision. 5 C.F.R. § 1201.113 (b).
BACKGROUND
¶2 In an initial decision dated October 31, 2014, the Board found that the
agency had violated the appellant’s rights under the Veterans Employment
Opportunities Act of 1998 (VEOA) after the agency conceded that it had
improperly failed to consider his application for a Supervisory Financial
Administration Specialist position. Cheatham v. Department of the Air Force ,
MSPB Docket No. DC -3330 -15-0027 -I-1, Initial Decision (Oct. 31, 2014).2 The
Board ordered the agency to reconstruct the hiring process. Id. at 4. The Board
subsequently granted the appellant’s petition for enforcement o f this order and,
again, ordered the agency to reconstruct the hiring process. Cheatham v.
Department of the Air Force , MSPB Docket No. DC -3330 -15-0027 -C-1, Init ial
Decision (Sept. 4, 2015). By final order dated March 16, 2016, the Board found
the agency in compliance based on new evidence it submitted on petition for
review of the compliance initial decision. Cheatham v. Department of the Air
2 This initial decision became the Board’s final decision on the merits after the Board
dismissed the appellant’s petition for review as withdrawn. Cheatham v. Department of
the Air Force , MSPB Docket No. DC -3330 -15-0027 -I-1, Final Order (D ec. 23, 2014).
3
Force , MSPB Docket Nos. DC-3330 -15-0027 -C-1, DC-3330 -15-0027 -X-1, Final
Order (Mar. 16, 2016). The Board found that the agency established compliance
based on evidence that it had cancelled the initial certificate of eligible s which
had erroneously excluded the appellant w ithout making a selection from it and
issued a new certificate including the appellant’s name which was sent to the
selecting official f or consideration. Id. at 6. Another VEOA -eligible individual
was selected over the appellant. Id. at 4, 6; Cheatham v . Department of the Air
Force , MSPB Docket No. DC -3330 -15-0027 -C-1, Compl iance Petition for
Review File, Tab 3 at 6.
¶3 On March 16, 2016, the appellant filed a motion for damages. Cheatham v.
Department of the Air Force , MSPB Docket No. DC -3330 -15-0027 -P-2, Damages
File (P-2 DF), Tab 1.3 The administrative judge denied the appellant’s motion.
P-2 DF , Tab 8, Initial Decision (ID). The administrative judge found that the
appellant had not shown that he was entitled to lost wages or benefits because the
Board previously found that the agency properly reconstructed the hiring process,
but that even after allowing the appellant an opportunity to compete, he was not
selected. ID at 2. The administrative judge further found that the appellant was
not entitled to liquidated damages because it had never been determined that the
agency’s VEOA violation was willful. ID at 3.
¶4 The appellant has filed a petition for review of the initial decision in which
he contends that he was denied discovery and a hearing at which to prove his
entitlement to damages. Cheatham v. Department of the Air Force , MSPB Docket
No. DC -3330 -15-0027 -P-2, Petition for Review (P -2 PFR) File , Tab 1. The
agency has opposed the appellant’s petition. P -2 PFR File, Tab 3.
3 The appellant’s initial motion for damages was dismissed without prejudice pending
the Board’s decision on petition for review in the compliance case. Cheatham v.
Department of the Air Force , MSPB Docket No. DC -3330 -15-0027-P-1, Initial D ecision
(Jan. 15, 2016).
4
DISCUSSION OF ARGUM ENTS ON REVIEW
¶5 The VEOA provision regarding damages states: “[i]f the Merit Systems
Protection Board . . . determines that an agency has violated a right described in
section 3330a, the Board . . . shall order the agency to comply with such
provisions and award compensation for any loss of wages or benefits suffered by
the individual by reason of the violation involved. If the Board . . . determines
that such violation was willful, it shall award an amount equal to backpay as
liquidated damages. ” 5 U.S.C. § 3330c (a); see 5 C.F.R. § 1208.25 (a) (containing
virtually identical language).
¶6 As the administrative judge properly foun d, the appellant did not suffer any
lost wages or benefits as a result of the agency’s VEOA violation because he wa s
not selected for the position during the reconstructed hiring process. ID at 2-3.
On review, the appellant argues that the administrative judge improperly
determined that the agency’s action s were not willful without allowing discovery
or holding a hearing. P -2 PFR File, Tab 1 at 4. However, the Board has held that
for an appellant to prevail on his request for liquidated damages under VEO A, he
must prove that he is entitled to an award of lost wages or benefits because the
statutory language provides no means of awarding liquidated damages absent an
award of lost wages or benefits. See Williams v. Department of the Air Force ,
116 M.S.P.R. 245 , ¶ 12 (2011), overruled on other grounds by Weed v. Social
Security Administration , 124 M.S.P.R. 71 , ¶ 14 (2016); see also Dow v. General
Services Administration , 116 M.S.P.R. 369 , ¶ 14 (2011). Thus, to the extent the
administrative judge failed to provide the appellant an opportunity to prove the
agency’s actions were willful, any error does not provide a basis for reversal. 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 subs tantive rights
provides no basis for reversal of an initial decision).
5
NOTICE OF APPEAL RIG HTS4
You may obtain review of this final decision. 5 U.S.C. § 7703 (a)(1). By
statute, the nature of you r claims determines the time limit for seeking such
review and the appropriate forum with which to file. 5 U.S.C. § 7703 (b).
Although we offer the following summary of available appeal rights, t he Merit
Systems Protection Board does not provide legal advice on which option is most
appropriate for your situation and the rights described below do not represent a
statement of how courts will rule regarding which cases fall within their
jurisdiction. If you wish to seek review of this final decision, you should
immediately review the law applicable to your claims and carefully follow all
filing time limits and requirements. Failure to file within the applicable time
limit may result in the dismissal of your case by your chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to revie w your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federa l Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703 (b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
4 Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise which option is most appropriate in any matter.
6
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appe als for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim o f
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial revi ew of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703 (b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. ____ , 137 S. Ct. 1975 (2017). If you have a
representative in this case, and your representative receives this decision before
you do, then you must file with the district court no later than 30 calendar days
after your representative receives this decision. If the action involves a claim of
discrimination based on race, color, religion, sex, national origin, or a disabling
condition, you may be entitled to representation by a court -appointed lawyer and
7
to waiver of any requirement of prepayment of fees, costs, or other security. See
42 U.S.C. § 2000e -5(f) and 29 U.S.C. § 794a .
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702 (b)(1). You must file any such request with the
EEOC’s Office of Federal Operations with in 30 calendar days after you receive
this decision. 5 U.S.C. § 7702 (b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is:
Office of Federal Operations
Equal Employment Opportu nity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Com mission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302 (b)(8) or
other protected activities listed in 5 U.S.C. § 2302 (b)(9)(A)(i), (B), (C), or (D).
If so, and your judi cial petition for review “raises no challenge to the Board’s
8
disposition of allegations of a prohibited personnel practice described in section
2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i),
(B), (C), or (D),” then you m ay file a 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 t his decision. 5 U.S.C.
§ 7703 (b)(1)(B).
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. O f particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the s ervices 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 Presiden t on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent juris diction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115 -195,
132 Stat. 1510.
9
Contact information for the courts of appeals can be found at their
respective websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
FOR THE BOARD:
Washington, D.C. /s/ for
Jennifer Everling
Acting Clerk of the Board | CHEATHAM_JEMAL_A_DC_3330_15_0027_P_2_FINAL_ORDER_1960693.pdf | 2022-09-15 | null | DC-3330-15-0027-P-2 | NP |
4,119 | https://www.mspb.gov/decisions/nonprecedential/PADILLA_ABIGAIL_L_DE_1221_16_0081_W_1_FINAL_ORDER_1960732.pdf | UNITED STATES OF AME RICA
MERIT SYSTEMS PROTEC TION BOARD
ABIGAIL L. PADILLA,
Appellant,
v.
DEPARTMENT OF THE TR EASURY,
Agency.
DOCKET NUMBER
DE-1221 -16-0081 -W-1
DATE: September 15, 2022
THIS FINAL ORDER IS NONPRECEDENTIAL1
Abigail L. Padilla , Denver, Colorado, pro se.
Emily Urban , Esquire, San Francisco, California, for the agency.
BEFORE
Cathy A. Harris , Vice Chairman
Raymond A. Limon , Member
Tristan L. Leavitt , Member
FINAL ORDER
¶1 The appellant has filed a petition for review of the initial decision , which
dismiss ed this individual right of action (IRA) appeal for lack of jurisdiction
because the appellant failed to make a nonfrivolous allegation that she engaged in
protected whistleblowing or was perceived as a whistleblower . Generally, we
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
require d to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117 (c).
2
grant such petitions 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 Regula tions, section 1201.115 ( 5 C.F.R.
§ 1201.115 ). After fully considering the filings in this appeal, we conclude that
the petitioner has not established any basis under section 1201.115 f or 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).
BACK GROUND
¶2 The appellant filed this IRA appeal alleging that the agency took several
personnel actions against her in retaliation for making protected disclosures.
Initial Appeal File (IAF), Tabs 1-3, 6. On January 19, 2017, t he ad ministrative
judge issued an initial decision that dismiss ed the appeal for lack of jurisdiction,
finding that the appellant failed to make a nonfrivolous allegation that she
engaged in protected whistleblowing . IAF, Tab 45, Initial Decision (ID) at 9-11.
In the initial decision, the administrative judge explained that he had issued a
December 28, 2016 order regarding protected disclosures, which provided the
appellant with specific notice and an opportunity to address this particular
jurisdictional issue. ID at 11. He consider ed her response s to that order , but he
ultimately conclud ed that she failed to make a nonfrivolous allegation of a
protected disclosure , generally because her allegations were vague and
conclusory . ID at 9-13. He also found that, despite notice and opportunity, she
3
failed to make any nonfrivolous allegation that the agency perceived her as a
whistleblower. ID at 3 n.4 . Thus , the administrative judge dismissed the IRA
appeal for lack of jurisdiction . ID at 14.
¶3 The appellant has filed a petition for review of the initial decision , and the
agency has filed an opposition to the petition . Petition for Review (PFR) File,
Tabs 1, 3.
ANALYSIS
¶4 We understand the appellant to be raising four main arguments on review :
(1) the administrative judge failed to provide her with adequate notice of her
jurisdictional burden, considering that she is a pro se appellant ; (2) she i s entitled
to certain discovery before the Board resolves the jurisdictional issue; (3) she
made a nonfrivolous allegation that she made protected whistleblowing
disclosures ; and (4) the administrative judge should have considered her to be a
perceived whistleblower. PFR File, Tab 1. For the following reasons, we find
that her petition does no t provide a persuasive reason to disturb the
initial decision .
The administrative judge adequately advised the appellant of her
jurisdictional burden.
¶5 The appellant alleges that the administrative judge gave her inadequate
notice of her jurisdictional burden , particularly because she is a pro se appellant.
PFR File, Tab 1 at 8. An administrative judge must inform a pro se appella nt
how to establish Board jurisdiction. O’Keefe v. U.S. Postal Service , 95 M.S.P.R.
248, ¶ 6 (2003); see Burgess v. Merit Systems Protection Board , 758 F.2d 641 ,
643-44 (Fed. Cir. 1985). To ensure fairness when a pro se appellant has the
burden of proof, an administrative judge should advise her that she has not
provided the evidence to prove h er claim prior to the close of the record .
O’Keefe , 95 M.S.P.R. 248, ¶ 6. This duty derives in part from the provision of
the Boar d’s regulations requiring administrative judges to exercise the authority
4
necessary to ensure that the record is fully developed and to see that there is a fair
and just adjudication of the appeal. Id.; see 5 C.F.R. § 1201.41 (b)(5) .
¶6 Here, the administrative judge issued a detailed jurisdictional order that set
forth the appellant’s burden s of proof at the jurisdictional and merits stage s of an
IRA appeal and described the allegations and evidence she needed to submit .
IAF, Tab 5. Thereafter, the appellant filed a number of jurisdictional pleadings .
IAF, Tabs 6, 10 -15, 17 -21, 27-28, 31 -32, 36, 38. The administrative judge
subsequently issued an Order Regarding Protected Disclosures Exhausted with
Office of Special Counsel . IAF, Tab 41. Therein, he set forth at length the
appellant’s jurisdictional burden and her burden of proof on the merits, including
citations to relevant case law, statutes, and regulations. Id. at 1-6. He also
addressed in detail he r submissions to date, id. at 6-10, and opin ed that she had
not yet nonfrivolously alleged a protected disclosure that had been exhausted with
Office of Special Counsel (OSC) , id. at 6. To further assist the appellant, he cited
statutes and numerous cases explaining the types of allegations that would allow
her to meet her jurisdictional burden . Id. at 6-10. He set the close of the record
and ordered the parties to submit ev idence and argument by that date regarding
whether the appellant had nonfrivolously alleged a protected disclosure that she
had exhausted with OSC. Id. at 10. Both the appellant and the agency responded.
IAF, Tabs 42-44.
¶7 Given these facts, we find that the administrative judge ga ve this pro se
appellant sufficient notice of her jurisdictional burden . The administrative judge
issued multiple orders that were calculated to apprise the appellant of what she
needed to do to establish the Board’s jurisdicti on in her appeal and proceed to the
merits . Additionally, he specifically advised he r, prior to the close of record , that
she ha d not yet nonfrivolously alleged a protected disclosure that had been
exhausted with OSC. See O’Keefe , 95 M.S.P.R. 248, ¶ 6. Accordingly, we find
that her notice argument is unavailing.
5
The administrative judge did not abuse his disc retion in discovery matters.
¶8 In her petition for review, the a ppellant asserts that she was denied
necessary discovery by which she would have obtained proof regarding potential
violations o f the Taxpayer Browsing Protection Plan , Pub. L. No. 105-35,
111 Stat. 1104 (1997) (codified as amended in scattered sections of Title 26 of the
U.S. Code ). PFR File, Tab 1 at 8. She does not, however, identify any ruling by
the administrative judge denying her discovery requests. She also does not
explain how any information she might have gained from discovery at this stage
of the proceedings would have helped her meet her jurisdictional burden , which
was only to set forth nonfrivolous allegations . The jurisdictional issue is what the
appellant reasonably belie ved at the time of her alleged disclosures , and all of the
information she needed to make nonfrivolous allegations should have been within
her knowledge and control without the need for discovery. See Sobczak v.
Environmental Protection Agency , 64 M.S.P.R. 118, 122 (1994) ( holding that an
appellant was not entitled to discovery in an IRA appeal because he had failed to
plead facts suf ficient to set forth a nonfrivolous jurisdictional allegation) ; see
also Briscoe v. Department of Veterans Affairs , 55 F.3d 1571 , 1574 (Fed. Cir.
1995) . Accordingly, we find that her discovery argument is not a b asis for
disturbing the initial decision.
The appellant has not shown that the administrative judge erred in finding that
she failed to m ake a nonfrivolous allegation that she made a pro tected
whistleblowing disclosure.
¶9 To the extent that the appellant’s petition for review represents a general
challenge to the administrative judge’s finding s that she failed to nonfrivolously
allege that she made a protected disclosure, we find no basis to disturb the initial
decision . The Board does not require a pro se appellant to litigate matters with
the precision of an attorney, but a party whose submissions lack clarity risks
being found to have failed to meet her burden on a part icular matter. See
Luecht v. Department of the Navy , 87 M.S.P.R. 297, ¶ 8 (2000). Such is the case
6
here. Despite numerous opp ortunities to clarify her claims, the appellant’s
pleadings remain difficult to decipher , and her allegations primarily c onsist of
conclusory assertions lacking the necessary specifics. When she has provided
details, the presentation is often convoluted a nd, even when comprehensible,
insuffic ient to meet her jurisdictional burden.
¶10 As described in the initial decision, t he appellant’s first alleged protected
disclosure is her alleged January 3, 2011 verbal report to a superior. ID at 9;
IAF, Tab 14 at 77. The administrative judge found that the appellant failed to
clarify the specifics of her alleged report in a way that would constitute a
nonfrivolous allegation that she reasonably believed she was disclosing
information evidencing the types of wrongdoi ng that would trigger whistleblower
protection. ID at 9.
¶11 The appellant’s second alleged protected disclosure is her alleged
February 1, 2011 verbal report to a training coordinator about an apparent
confrontation and harassment by a commanding office r while she was deployed in
St. Louis, Missouri. ID at 9; IAF, Tab 14 at 13-14. The administrative judge
found that these assertions were purely allegations of unlawful discrimination
covered by 5 U.S.C. § 2302 (b)(1) and (b)(9), which generally cannot be the
subject of an IRA appeal, and, in any event, she failed to make a nonfrivolous
allegation that she disclosed information that a reasonable person would have
believed evidenced any wrongdoin g of the types described in 5 U.S.C.
§ 2302 (b)(8), which prohibits whistleblower reprisal. ID at 9-10.
¶12 The appellant’s thi rd disclosure is that, on April 22, 2014, she reported in
writing to a s uperior that an officer and his deputies created a workplace
disturbance, engaged in discourteous and unprofessional behavior, failed to
observe Internal Revenue Service regulations or procedures, engaged in
“fighting/physical assaults/threats/battery,” an d were insubordinate in failing to
follow a management directive. ID at 10; IAF, Tab 4 at 39. The administrative
judge found that the appellant’s third alleged disclosure was too vague and
7
imprecise to qu alify as a protected disclosure and that she faile d to make a
nonfrivolous allegation that she disclose d information that a reasonable person
would have believed evidence d any wrongdoing of the types described in
section 2302(b)( 8). ID at 10.
¶13 The appellant’s fourth alleged disclosure is that, on an unspecified date, she
made a “formal complaint” regarding an acting manager who allegedly refused to
serve a taxpayer. ID at 10-11; IAF, Tab 36 at 9. The administrative judge found
that the appellant’s allegations were too vague to qualify as a protected disclosure
and, based on the limited details provided, she had disclosed nothing m ore than a
debatable or de minimis allegation of mismanagement. ID at 11.
¶14 We have considered the appellant’s arguments on review, and it is unclear
whether she is even di scussing matters that she purports to have disclosed on
January 3, 2011. In any event, we find that she has not demonstrated any error in
the administrative judge’s conclusion that she failed to make a nonfrivolous
allegation that her first alleged disclo sure was a protected whistleblowing
disclosure. See, e.g. , McCorcle v. Department of Agriculture , 98 M.S.P.R. 363,
¶ 21 (2005) (holding that v ague and conclusory assertions did not constitute
nonfrivolous allegations of protected whistleblowing ). Her petition for review
appear s to be supplementing her second, third, and fourth alleged protected
disclosures by citing a few examples of what she perceived to be misconduc t by
agency employees. PFR File, Tab 1 at 6-7. Even if we were to consider these
additional examples supplied on review ,2 we would find that they are not a
sufficient reason to change the outcome on the dispo sitive jurisdictional issue .3
2 Generally, the Board will not consider evidence or argument submitted for the first
time with the petition for review absent a showing that it was unavailable before the
record was closed despite the party’s due diligence. See Banks v. Department of the
Air Force , 4 M.S.P.R. 268 , 271 (1980).
3 Pursuant to the Whistleblower Protection Enhancement Act of 2012, Pub. L.
No. 112-199, 125 Stat. 1465, a covered individual may bring an IRA appeal seeking
corrective action for reprisal based not only on whistleblowing disclosures described in
8
The appellant failed to nonfrivolous ly alleg e that the agency perceived her to be
a whistleblower.
¶15 The appellant also argues that the administrative judge failed to consider
that the agency perceived her as a w histleblower. PFR File, Tab 1 at 9-10. In
such a case, it is immaterial whether the appellant actually made protected
disclosures; instead, to establish jurisdiction, she must nonfrivolously allege that
agency officials appeared to believe that she engaged or intended t o engage in
whistleblowing. King v. Department of the Army , 116 M.S.P.R. 689, ¶ 8 (2011).
The other jurisdictional elements remain the same. Id., ¶ 9. In particular, the
appellant must establish that she exhausted her remedies with OSC on the issue of
whether the agency perceived her as a whistleblower. Id. She also must
nonfrivolously allege t hat the agency ’s perception of her as a whistleblower
contributed to its decision to take or not take the personnel action at issue . Id.,
¶¶ 9-10.
¶16 We disagree that t he administrative judge ignore d the appellant ’s conten tion
she was perceived to have been a whistleblower . Instead, he found that she failed
to make a nonfrivolous allegation of the Board’s jurisdiction in that respect,
despite having received notice of her jurisdictional burden and an opportunity to
respond . ID at 3 n.4; IAF, Tab 41 at 3 n.4 . On review, t he appellant does not
provide any particular information to support her claim that she was perceived as
a whistleblower, except to state that a n agency official to whom she allegedly
made the first protected disclosure asked her to document the matters she
disclosed and that a coworker noticed that she frequently documented the events
5 U.S.C. § 2302 (b)(8) but also on certain other protected activity described in 5 U.S.C.
§ 2302 (b)(9)(A)(i), (B), (C), or (D). See 5 U.S.C. § 1221 (a). The administrative judge
found that the appellant did not assert protected activity under 5 U.S.C.
§ 2302 (b)(9)(A)(i), (B), (C), or (D). ID at 2 n.3. Her petition for review contain s a
statement that she was a victim of prohibited personnel practices described in 5 U.S.C.
§ 2302 (b)(8) and (b)(9)(A)(i), (B), (C), and (D). PFR File, Tab 1 at 4. Her arguments
on review , however, do not further explain the basis of any reprisal claim based on
alleged activity protected under the relevant provisions of section 2302(b)(9), and we
will not distu rb the initial decision in this regard.
9
occurring around her . PFR File, Tab 1 at 9-10. She also produced a copy of a
performance appraisal for the period ending January 31, 2013, which state s that
she “let[ ]her manager know when positive and negative employee issues need to
be addressed. ” IAF, Tab 42 at 65-66. These facts alone, however, would not be
sufficient to support a nonfrivolous allegation that the agency perceived her as a
whistleblower or that she exhausted such an allegation with OSC.4
¶17 Accordingly, the administrative judge correctly found that the appellant did
not establish the Board’s jurisdiction over her whistleblower appeal , and we thus
affirm the administrative judge ’s dismissal .
NOTICE OF APPEAL RIG HTS5
You ma y obtain review of this final decision. 5 U.S.C. § 7703 (a)(1) . By
statute, the nature of your claims determines the time limit for seeking such
review and the appropriate forum with which to file. 5 U.S.C. § 7703 (b).
Although we offer the following summar y of available appeal rights, the Merit
Systems Protection Board does not provide legal advice on which option is most
appropriate for your situation and the rights described below do not represent a
statement of how courts will rule regarding which cases fall within their
jurisdiction. If you wish to seek review of this final decision, you should
immediately review the law applicable to your claims and carefully follow all
filing time limits and requirements. Failure to file within the applicable time
limit may result in the dismissal of your case by your chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
4 Because we find that the appellant f ailed to make a nonfrivolous allegation under a
perceived whistleblower theory, we find it unnecessary to resolve the question, raised
by the agency, of whether she proved that she exhausted such a claim with OSC. PFR
File, Tab 3 at 17.
5 Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise which option is most appropriate in any matter.
10
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703 (b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful d iscrimination. If so, you may obtain
11
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703 (b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. ____ , 137 S. Ct. 1975 (2017). If you have a
representative in this case, and your representative receives this decision before
you do, then you must file with the district court no later than 30 calendar da ys
after your representative receives this decision. If the action involves a claim of
discrimination based on race, color, religion, sex, national origin, or a disabling
condition, you may be entitled to representation by a court -appointed lawyer and
to waiver of any requirement of prepayment of fees, costs, or other security. See
42 U.S.C. § 2000e -5(f) and 29 U.S.C. § 794a .
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed thr ough the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702 (b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receiv e
this decision. 5 U.S.C. § 7702 (b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Wash ington, D.C. 20013
12
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5S W12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302 (b)(8) or
other protected activities listed in 5 U.S.C. § 2302 (b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no cha llenge to the Board’s
disposition of allegations of a prohibited personnel practice described in
section 2302(b) other than practices described in section 2302(b)(8), or
2302(b)(9)(A)(i), (B), (C), or (D),” then you may file a petition for judicial
review either with the U.S. Court of Appeals for the Federal Circuit or any court
of appeals of competent jurisdiction.6 The court of appeals must receive your
petition for review within 60 days of the date of issuance of this decision.
5 U.S.C. § 7703 (b)(1)(B).
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
6 The original statuto ry provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent j urisdiction expired on
December 27, 2017. The All Circuit Review Act, signed in to law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court 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
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appea ls for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provid ed by any attorney nor warrants that
any attorney will accept representation in a given case.
Contact information for the courts of appeals can be found at their
respective websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
FOR THE BOARD:
Washington, D.C. /s/ for
Jennifer Everling
Acting Clerk of the Board | PADILLA_ABIGAIL_L_DE_1221_16_0081_W_1_FINAL_ORDER_1960732.pdf | 2022-09-15 | null | DE-1221-16-0081-W-1 | NP |
4,120 | https://www.mspb.gov/decisions/nonprecedential/PADILLA_ABIGAIL_L_DE_0752_15_0483_B_1_REMAND_ORDER_1960894.pdf | UNITED STATES OF AME RICA
MERIT SYSTEMS PROTEC TION BOARD
ABIGAIL L. PADILLA,
Appellant,
v.
DEPARTMENT OF THE TR EASURY,
Agency.
DOCKET NUMBER
DE-0752 -15-0483 -B-1
DATE: September 15, 2022
THIS ORDER IS NONPRECEDENTIAL
Abigail L. Padilla , Denver, Colorado, pro se.
Emily Urban , Esquire, San Francisco, California, for the agency.
BEFORE
Cathy A. Harris , Vice Chairman
Raymond A. Limon , Member
Tristan L. Leavitt , Member
REMAND ORDER
¶1 The appellant has filed a petition for review of the remand initial decision,
which dismissed her appeal for lack of jurisdiction . For the reasons discussed
below, we GRANT the appellant’s petition for re view and REMAND the case to
A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
require d to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117 (c).
2
the Denver Field Office for further adjudication in accordance with this Remand
Order.
BACKGROUND
¶2 The appellant filed a Board appeal on July 10, 2015, challenging her
removal from Federal service , effective June 26, 2015, and raising several
affirmative defenses, including whistleblower reprisal, disability discrimination,
and retaliation for engaging in protected equal employment opportunity (EEO)
activity. Padilla v. Department of the Treasury , MSPB Docket No. DE -0752 -15-
0483 -I-1, Initial Appeal File (IAF), Tab 1 at 3, 5. The administrative judge
issued an initial decision dismissing the appeal without prejudice subject to
automatic refiling within 120 days of the date of th e initial decision, finding that,
because the a ppellant previously elected to challenge her removal before the
Office of Special Counsel (OSC), her Board appeal was an individual right of
action (IRA) appeal that she filed prematurely . Padilla v. Department of the
Treasury , MSPB Docket No. DE-0752 -15-0483 -I-1, Initial Decision ( Sept . 2,
2015).
¶3 The appellant petitioned for review of the initia l decision, and the Board
granted her petition and vacated the initial decision. Padilla v. Department of the
Treasury , MSPB Docket No. DE -0752 -15-0483 -I-1, Re mand Order (Feb. 8,
2016). The Board found that the record was unclear as to whether the appellant
filed a complaint with OSC regarding her removal prior to filing her Board appeal
and that furth er adjudication was necessary . Id., ¶¶ 8 -11. The Board ord ered the
administrative judge to determine in which forum the appellant first challenged
her removal. Id., ¶ 11 . If the administrative judge determined that she first filed
at OSC, the Board instructed him to adjudicate her appeal under its procedures
governing IRA appeals. Id. If he determined that she filed her Board appeal first,
the Board instructed him to adjudicate the appellant’s removal under chapter 75
3
and to consider any affirmative defenses that she raised in response to the
removal. Id.
¶4 On remand, the administrative judge issued an El ection of Remedies Order,
finding that the appellant challenge d her removal with OSC pr ior to filing her
Board appeal but that she did not make a knowing election of remedies because
the agency fai led to provide her with notice of the applicable consequences of her
election. Padilla v. Department of the Treasury , MSPB Docket No. DE -0752 -15-
0483 -B-1, Remand File ( RF), Tab 12 at 2. As a result, he gave the appellant a
choice of either pursuing her a ppeal with the Board as an IRA appeal that
challenges her removal based on alleged whistleblower retaliation or as a removal
appeal under chapter 75 with an opportunity to assert her affirmative defenses.
Id. The appellant replied, asking the Board to re view her appeal as an IRA appeal
but also challenging the merits of the removal by attaching the agency’s table of
penalties and reasserting her claims of disability discrimination and EEO
retaliation. RF, Tab 13 at 4 -5, 9-37. Thereafter, t he administrative judge issued a
second order, requesting that the appellant choose only one of the options
previously presented. RF, Tab 14. The applied replied, circling the option to
pursue her appeal as an IRA appeal but also continuing to appear to assert her
affirmative defenses of disability discrimination and EEO retaliation. RF, Tabs
15-16.
¶5 Based on the written record, the administrative judge issued a remand initial
decision, finding that the appellant elected to pursue her appeal as an IRA a ppeal
and dismissing the appeal for lack of jurisdiction . RF, Tab 23, Remand Initial
Decision (RID) at 1. Specifically, t he administrative judge found that the
appellant failed to make a nonfrivolous allegation that she made a protected
disclosure under 5 U.S.C. § 2302 (b)(8). RID at 9 -13.
¶6 The appellant , who is pro se, has filed a petition for review in which she
challenges the administrative judge’s findings regarding her protected disclosures
and continues to appear to assert her affirmative defenses of disability
4
discrimination and EEO retaliation. Remand Petition for Review ( RPFR) File,
Tab 1 at 4 -8. The agency has filed an opposition in response to the petition for
review . RPFR File, Tab 3.
DISCUSSION OF ARGUME NTS ON REVIEW
¶7 An employee who claims to have suffered whistleblowing reprisal regarding
an action may elect no more than one of the following remedies: a direct appeal
to the Board; a negotiated grievance procedure pursuant to 5 U.S.C. § 7121 ; or 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. 5 U.S.C.
§ 7121 (g); Savage v. Department of the Army , 122 M.S.P.R. 612 , ¶ 17 (2015) ,
clarified by Gardner v. Department of Veterans Affairs , 123 M.S.P.R. 647 ,
¶¶ 30-31 (2016) . Ordinarily , an individual who first requests cor rective 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) ; Savage , 122 M.S.P.R. 612 , ¶ 17. In such a
case, the jurisdictional requirements for an IRA appeal apply, even if the
contested personnel ac tion would have been directly appealable to the Board.
Savage , 122 M.S.P.R. 612 , ¶ 17. However, the Board also has held that an
election under 5 U.S.C. § 7121 (g) is binding only if made knowingly and
voluntarily. Id., ¶ 18.
¶8 Here, the administrative judge found that the appellant did not make a
knowing election because th e agency failed to provide her with notice of the
consequences of her election. RF, Tab 12 at 2 , 9; IAF, Tab 22 at 37 -39. As a
result, he provided the appellant with the opportunity to elect either an IRA
appeal challenging her removal based on alleged whistleblower reprisal or an
adverse action appeal challenging her removal under chapter 75 and raising
affirmative defenses. RF, Tab 12 at 8. As to a potential IRA appeal, h e found
that the appellant exhausted h er administrative remedies with OSC ; that is, that
OSC had investigated her allegations, found no basis for deter mining that a
5
violation of her rights under the whistleblower laws occurred , and provided her
with Board appeal rights . Id. at 9; RF, Tab 6 at 6-10. As to a potential removal
appeal under chapter 75, he found that the appellant timely filed the appeal and
that the Board ha d jurisdiction over it. RF, Tab 12 at 9.
¶9 Because the administrative judge found that the Board ha d jurisdiction over
her ap peal under chapter 75 , the choice that he presented to the appellant was
essentially a choice between adjudicating —or withdrawing —her affirmative
defenses other than whistleblower reprisal . When an appella nt raises affirmative
defenses, the administrative judge must apprise her of the applicable burdens of
proving those defenses and must address those defenses in any close of record
order or prehearing conference summary and order. Erkins v. U.S. Postal Service ,
108 M.S.P.R. 367, ¶ 8 (2008). When an appellant makes an election to pursue an
appeal as an IRA appeal, as opposed to an otherwise appealable action, base d on
the mistaken beli ef that he could still pursue his nonwhistleblowing affirmative
defenses in an IRA appeal, the Board has fou nd that the election was not knowing
and informed and, therefore, not binding. Agoranos v. Department of Justice ,
119 M.S.P.R. 498, ¶ 18 (2013) (finding that the appellant’s election to pursue his
claims as an IRA appeal was not a valid, informed electi on when the record did
not show that he received notice that his election would result in the waiver or
loss of any of his claims for relief from his removal appeal ).
¶10 Here, the administrative judge did not explicitly advise the appellant that
she would be withdrawing her affirmative defenses if she chose to pursue her
appeal as an IRA appeal , or give her an opportunity to object . Moreover, the
appellant’s continued assertions throughout the appeal pertaining to her
affirmative defenses other tha n whistlebl ower reprisal evidence a
misunderstanding that, by choosing to pursue her appeal as an IRA appeal, the
Board would no longer consider those claims. IAF, Tabs 1, 13, 15, 28; RF,
Tabs 13, 15 -16; RPFR File, Tab 1 at 4 -7; see Zendejas v. Department of
Homelan d Security , 107 M.S.P.R. 348, ¶ 6 (2007) (explaining that a withdrawal
6
based on a misunderstanding constitutes an exception to the general finality rule) .
Therefore, we find that , although the appellant circled the option for pursuing her
appeal as an IRA appeal, the record evidence indicates that she wanted the merits
of her removal and all of her affirmative defenses adjudicated b y the Board and
that she misunderstood that she was waiving these claims . Under these
circumstances , we find a remand is necessary to adjudicate the merits of her
removal and any affirmative defenses she raised in response to the removal . See,
e.g., Free born v. Department of Justice , 119 M.S.P.R. 290 , ¶ 18 (2013)
(instructing an administrative judge on remand to adjudicate a previously
withdrawn whistleblower reprisal claim if the administrative judge determined
that the appellant made a binding election to proceed with that claim before the
Board and that his decision to withdraw that claim was base d on a material
misunderstanding that he could pursue the claim at a later date) .
ORDER
¶11 For the reasons discussed above, we remand this case to the Denver Field
Office for further adjudication in accordance with this Remand Order.
FOR THE BOARD:
Washi ngton, D.C. /s/ for
Jennifer Everling
Acting Clerk of the Board | PADILLA_ABIGAIL_L_DE_0752_15_0483_B_1_REMAND_ORDER_1960894.pdf | 2022-09-15 | null | DE-0752-15-0483-B-1 | NP |
4,121 | https://www.mspb.gov/decisions/nonprecedential/REQUARTH_ROBERT_E_DA_0752_21_0353_X_1_FINAL_ORDER_1960933.pdf | UNITED STATES OF AME RICA
MERIT SYSTEMS PROTEC TION BOARD
ROBERT E. REQUARTH,
Appellant,
v.
DEPARTMENT OF THE AR MY,
Agency.
DOCKET NUMBER
DA-0752 -21-0353 -X-1
DATE: September 15, 2022
THIS FINAL ORDER IS NONPRECEDENTIAL1
Charles H. Allenberg , Virginia Beach, Virginia, for the appellant.
Kathy M. Wright , Texarkana, Texas, for the agency.
BEFORE
Cathy A. Harris, Vice Chairman
Raymond A. Limon, Member
Tristan L. Leavitt, Member
FINAL ORDER
¶1 This case is before the Board on the appellant’s petition to enforce the
parties’ settlement agreement resolving his underlying appeal. In a May 4, 2022
compliance initial decision, the administrative judge found that the agency ha d
not fully complied with the agreement because it impos ed a debt for unpaid health
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
require d to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117 (c).
2
insurance premiums for coverage that the agency acknowledged had been
terminated. Requarth v. Department of the Army , MSPB Docket No. DA -0752 -
21-0353 -C-1, Compliance File (CF), Tab 12, Compliance Initial Decision (CID)
at 5. For the reasons discussed below, we now find the agency in compliance and
DISMISS the appellant’s petition for enforcement.
DISCUSSION OF ARGUME NTS AND EVIDENCE ON COMPLIANCE
¶2 In an October 20, 2021 init ial decision, the administrative judge accepted
into the record for enforcement the parties’ settlement agreement disposing of the
underlying dispute. Requarth v. Department of the Army , MSPB Docket
No. DA-0752 -21-0353 -I-1, Initial Appeal File, Tab 14 , Initial Decision (ID) . The
initial decision became the final decision of the Board on November 24, 2021,
after neither party petitioned for administrative review. ID at 14.
¶3 On March 11, 2022, the appellant petitioned for enforcement of the
settlement agr eement. CF, Tab 1. In the compliance initial decision , the
administrative judge found that the agency ha d not fully complied with the
agreement because it impos ed a debt for unpaid health insurance premiums for
coverage that the agency acknowledged had b een terminated. CID at 12. The
administrative judge therefore ordered the agency to “take all actions required to
resolve the incorrect overpayment determination .” Id. Neither party filed any
submission with the Clerk of the Board within the time limit set forth in 5 C.F.R.
§ 1201.114 . As such, pursuant to 5 C.F.R. § 1201.183 (b)-(c), the administrative
judge’s findings of noncompliance became final, and the appellant’s petition for
enforcement was referred to the Board for a final decision on issues of
compliance. Requarth v. Depa rtment of the Army , MSPB Docket No. DA-0752 -
21-0353 -X-1, Compliance Referral File (CRF), Tab 1.
¶4 In response to the Clerk’s acknowledgment order, see CRF, Tab 1, the
agency responded with evidence that it had resolved its incorrect overpayment
3
determination . CRF, Tabs 4 -5. In his reply, t he appellant acknowledged that “it
appears the agency has now attained compliance. ” See CRF, Tab 6 at 5.
¶5 The Board has the authority to enforce a settlement agreement which has
been entered into the record in the same man ner as any final Board decision or
order. Richardson v. Environmental Protection Agency , 5 M.S.P.R. 248 , 250
(1981). Because a settlement agreement is a contract, the Board will adjudicate
an enforcement proceeding relevant to a settlement agreement in accordance with
contract law. See Greco v. Department of the Army , 852 F.2d 558 , 560 (Fed. Cir.
1988). Under settled contract law, the party alleging breach of a settlement
agreement has the burden of proving such breach. Kramer v. Department of t he
Navy , 46 M.S.P.R. 187 , 190 (1990).
¶6 As noted above, the appellant no longer challenges the agency’s compliance
with the settlement agree ment. Accordingly, we find the agency in compliance
and DISMISS the petition for enforcement. This is the final decision of the Merit
Systems Protection Board in this compliance proceeding. Title 5 of the Code of
Federal Regulations, section 1201.183(c)( 1) (5 C.F.R. § 1201.183 (c)(1)).
NOTICE TO THE APPELL ANT REGARDING
YOUR RIGHT TO REQUES T
ATTORNEY FEES AND CO STS
You may be entitled to be paid by the agency for your reasonable attorney
fees and costs. To be paid, you must meet the requirements set out at Title 5 of
the United States Code (5 U.S.C.), sections 7701(g), 1221(g), or 1214(g). The
regulations may be found at 5 C.F.R. §§ 1201.201 , 1201.202, and 1201.203. If
you believe you meet these requirements, you must file a motion for attorney fees
and costs WITHIN 60 CALENDAR DAYS OF THE DATE OF THIS DECISION.
You must file your motion for attorney fees and costs with the office that issued
the initial decision on your appeal.
4
NOTICE OF APPEAL RIG HTS2
You may obtain review of this final decision. 5 U.S.C. § 7703 (a)(1). By
statute, the nature of your claims determines the time limit for seeking such
review and the appropriate forum with which to file. 5 U.S.C. § 7703 (b).
Although we offer the following summary of available appeal rights, the Merit
Systems Protection Board does not provide legal advice on which option is most
appropriate for your situation and the rights described below do not represent a
statement of how courts will rule regarding which cases fall within their
jurisdiction. I f you wish to seek review of this final decision, you should
immediately review the law applicable to your claims and carefully follow all
filing time limits and requirements. Failure to file within the applicable time
limit may result in the dismissal of your case by your chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that f orum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703 (b)(1)(A).
If you submit a petition for 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 w hich option is most appropriate in any matter.
5
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is availabl e at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decis ion—including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703 (b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. ____ , 137 S. Ct. 1975 (2017). If you have a
representa tive in this case, and your representative receives this decision before
you do, then you must file with the district court no later than 30 calendar days
after your representative receives this decision. If the action involves a claim of
discrimination based on race, color, religion, sex, national origin, or a disabling
condition, you may be entitled to representation by a court -appointed lawyer and
6
to waiver of any requirement of prepayment of fees, costs, or other security. See
42 U.S.C. § 2000e -5(f) and 29 U.S.C. § 794a .
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702 (b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702 (b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial revi ew pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302 (b)(8) or
other protected activities listed in 5 U.S.C. § 2302 (b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
7
disposition of allegation s of a prohibited personne l practice described in
section 2302(b) other than practices described in section 2302(b)(8), or
2302(b)(9)(A)(i), (B), (C), or (D),” then you may file a petition for judicial
review either with the U.S. Court of Appeals for the F ederal 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,” wh ich is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb. gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representat ion 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 cou rt 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:
Washington, D.C. /s/ for
Jennifer Everling
Acting Clerk of the Board | REQUARTH_ROBERT_E_DA_0752_21_0353_X_1_FINAL_ORDER_1960933.pdf | 2022-09-15 | null | DA-0752-21-0353-X-1 | NP |
4,122 | https://www.mspb.gov/decisions/nonprecedential/GELB_SUSAN_L_SF_1221_21_0267_W_1_FINAL_ORDER_1960342.pdf | UNITED STATES OF AME RICA
MERIT SYSTEMS PROTEC TION BOARD
SUSAN L. GELB,
Appellant,
v.
DEPARTMENT OF VETERA NS
AFFAIRS,
Agency.
DOCKET NUMBER
SF-1221 -21-0267 -W-1
DATE: September 14, 2022
THIS FINAL ORDER IS NONPRECEDENTIAL1
Brook L. Beesley , Alameda, California, for the appellant.
Vanessa Lichtenberger , San Francisco , California, for the agency.
BEFORE
Cathy A. Harris, Vice Chair man
Raymond A. Limon, Member
Tristan L. Leavitt, Member
FINAL ORDER
¶1 The appellant has filed a petition for review of the initial decision,
which denied her request for corrective action under 5 U.S.C. § 1221 . 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 dis tinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117 (c).
2
based on an erroneous interpretation of statute or regulation or the erroneous
application of the law to the facts of the case; the administrative judge’s rulings
during either the course of the appeal or the initial decision were not consistent
with required procedures or involved an abuse of discretion, and the resulting
error affec ted the outcome of the case; or new and material evidence or legal
argument is available that, despite the petitioner’s due diligence, was not
available when the record closed. Title 5 of the Code of Federal Regulations,
section 1201.115 ( 5 C.F.R. § 1201.115 ). After fully considering the filings in this
appeal, we conclude that the petitioner has not established any basis under
section 1201.115 for granting the petition for review. The refore, 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 argues that she was improperly deprived of her
right to a hearing . In an individual right of action (IRA) appeal , an appellant
generally has a right to a h earing when, as in this case, the appeal was timely
filed and the Board has jurisdiction over the appeal. 5 C.F.R. § 1209.6 (b);
see Ormond v. Department of Justice , 118 M.S.P.R. 337 , ¶ 4 (2012) (“If the
appellant establishes Board jurisdiction over his IRA appeal by exhausting his
remedies before [the Office of Special Counsel] and making the requisite
nonfrivolous allegations, he has the right to a hearing on the merits of his
claim .”). However, it is well established that an appellant may forfeit the
opportunity to a hearing by inexcusably fail ing to attend. See Callahan v.
Department of the Navy , 748 F.2d 1556 , 1559 (Fed. Cir. 1984) . The question of
whether failure to appear at a hearing is excusable is “comparable to the issue of
whether good cause has been shown for extension by the [Board] of a regulatory
time limit. ” Id.
¶3 We discern no error in the administrative judge’s finding that the appellant
failed to establish good cause for her fai lure to attend the hearing. During
an April 22, 2021 prehearing conference, the administrative judge informed the
3
parties that th e hearing would take place using the Zoom for Government (ZfG)
videoconferencing platform. Initial Appeal File (IAF), Tab 9 at 4. At that time,
the appellant’s representative expressed concern about the appellant’s ability to
access the necessary equipme nt and internet connection and asked if the appellant
could appear in person at the regional office. Id. The administrative judge
indicated that the Board’s then -current COVID -19 protocol precluded
an in-person appearance, and he ordered the appellant to review the ZfG
information she had been provided and determine whether she could successfully
use ZfG using the equipment available to her. Id. He ordered the appellant to
notify the Board in writing by May 14, 2021, if she could not use ZfG and
indicated that if the appellant did not make such a submission by that date,
the hearing would, absent extraordinary circumstan ces, proceed as
scheduled using ZfG. Id. The appellant failed to make such a submiss ion by the
May 14, 2021 deadline.
¶4 In a subsequent pleading , the appellant belatedly claimed that she was
unable to appear by video and requested that she be allowed to participate in
person or by telephone, using the ZfG dia l-in option. IAF, Tab 18.
The administrative judge denied the appellant’s untimely request to appear other
than by video and also denied her request for recons ideration of that ruling.
IAF, Tabs 19, 22. He repeatedly warned the appellant that failure to appear as
ordered could resu lt in sanctions under 5 C.F.R. § 1201.43 . IAF, Tabs 19, 22, 25.
¶5 The appellant entirely failed to appear at the hearing, either by video or
telephone . When asked to explain his client’ s absence, her representative gave no
indication th at the appellant was unavailable for reasons beyond her control .
Instead, the representative reiterated his objections to the administrative judge’s
order directing the appellant to appear by video and stated that the appellant had
made other plans for the day. IAF, Tab 28, Hearing Audio Recording. Under
4
these circumstances, we discern no error in the administrative judge’s finding that
the appellant failed to show good cause for her absences.2
¶6 Moreove r, even if we were to find that the administrative judge erred in
cancelling the hearing, an administrative judge’s procedural error is of no legal
consequence unless it is shown to have adversely affected a party’s substantive
rights . Karapinka v. Department of Energy , 6 M.S.P.R. 124 , 127 (1981). In her
close of record submission below, the appellant explicitly conceded that no
mater ial facts were in dispute and that she would have presented only oral
argument had the hearing taken place. IAF, Tab 30 at 8. Hence, the appellant has
not shown that the cancellation of the hearing affected her substantive rights.
¶7 The appellant further argues, for the first time on review, that the
administrative judge’s appointment was invalid under the Appointments Clause.
The Board generally will not consider an argument raised for the first time in a
petition for review absent a showing that it is b ased 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 the absence of such a showing, the
appellant’s new argument provides no basis for further review.
NOTICE OF APPEAL RIG HTS3
You may obtain review of this final decision. 5 U.S.C. § 7703 (a)(1). By
statute, the nature of 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 We have considered the appellant’s argument that, even though she was absent, the
hearing could have proceeded with her repre sentative acting in her stead. See Sparks v.
U.S. Postal Service , 32 M.S.P.R. 422 , 425 (1987). In this case, however, unlike Sparks ,
the appellant’s representative requested that the hearing be rescheduled . Moreover, as
discussed above, the administrative judge had explicitly ordered the appellant herself to
appear by video and advised her that failure to comply with that order could result in
sanctions under 5 C.F.R. § 1201.54 (which may include cancellation of a hearing).
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 n otice, the
Board cannot advise which option is most appropriate in any matter.
5
Although we off er the following summary of available appeal rights, the Merit
Systems Protection Board does not provide legal advice on which option is most
appropriate for your situation and the rights described below do not represent a
statement of how courts will rule regarding which cases fall within their
jurisdiction. If you wish to seek review of this final decision, you should
immediately review the law applicable to your claims and carefully follow all
filing time limits and requirements. Failure to file within the applicable time
limit may result in the dismissal of your case by your chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whethe r a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703 (b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 2043 9
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within t he court’s Rules of Practice, and Forms 5, 6, 10, and 11.
6
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for informati on regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawfu l discrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703 (b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. ____ , 137 S. Ct. 1975 (2017) . If you have a
representative in this case, and your representative receives this decision before
you do, then you must file with the district court no later than 30 calendar days
after your representative receives this decision. If the action involves a claim of
discrimination based on race, color, religion, sex, national origin, or a disabling
condition, you may be entitled to representation by a court -appointed lawyer and
to waiver of any requirement of prepayment of fees, costs, or other security. See
42 U.S.C. § 2000e -5(f) and 29 U.S.C. § 794a .
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702 (b)(1). You must file any such request with the
7
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702 (b)(1 ). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for rev iew to the EEOC by regular U.S. mail, the
address of the EEOC is:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302 (b)(8) or
other protected activities listed in 5 U.S.C. § 2302 (b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
disposition of allegations of a prohibited personnel practice describe d in section
2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i),
(B), (C), or (D),” then you may file a 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, 20 17. The All Circuit Review Act, signed into law by the President on
8
review within 60 days of the date of issuance of this decision. 5 U.S.C.
§ 7703 (b)(1)(B).
If you submit a petition for j udicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional informa tion about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of P ractice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115 -195,
132 Stat. 1510.
9
Contact information f or the courts of appeals can be found at their
respective websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
FOR THE BOARD:
Washington, D.C. /s/ for
Jennifer Everling
Acting Clerk of the Board | GELB_SUSAN_L_SF_1221_21_0267_W_1_FINAL_ORDER_1960342.pdf | 2022-09-14 | null | SF-1221-21-0267-W-1 | NP |
4,123 | https://www.mspb.gov/decisions/nonprecedential/HARPER_BRENDA_CH_315H_21_0395_I_1_REMAND_ORDER_1960434.pdf | UNITED STATES OF AME RICA
MERIT SYSTEMS PROTEC TION BOARD
BRENDA HARPER,
Appellant,
v.
DEPARTMENT OF THE AR MY,
Agency.
DOCKET NUMBER
CH-315H -21-0395 -I-1
DATE: September 14, 2022
THIS ORDER IS NONPRECEDENTIAL1
Brenda Harper , Clarksville, Tennessee, pro se.
Katherine E. Griffis , Esquire, Fort Campbell, Kentucky, for the agency.
BEFORE
Cathy A. Harris, Vice Chairman
Raymond A. Limon, Member
Tristan L. Leavitt, Member
REMAND ORDER
¶1 The appellant has filed a petition for review of the initial decision, which
dismissed her appeal of an agency action separating her from Federal service as
moot . For the reasons discussed below, we GRANT the petition for review,
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required t o follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117 (c).
2
VACATE the initial decision, and REMAND the case to the Central Regional
Office for further adjudication in accordance with this Remand Order.
BACKGROUND
¶2 On May 26, 2020, the appellant wa s appointed to the position of Medical
Support A ssistant with the agency. Initial Appeal File (IAF), Tab 5 at 14. As a
preference eligible in the excepted service, see id ., she was required to complete
1 year of service to meet the statutory definition of an “employee,” see 5 U.S.C.
§ 7511 (a)(1)(B)( i). On July 16, 2021, the agency issued the appellant a “Notice
of Termination during Probationary Period,” asserting that it was terminating her
during her probationary period for unsatisfactory performance or conduct. IAF,
Tab 5 at 30-35. The agency a lso issued the appellant a Standard Form 50
(SF-50), reflecting that, effective July 16, 2021, the appellant was terminated
during her probat ionary period. IAF, Tab 1 at 36 .
¶3 Thereafter, the appellant appealed the action to the Board. IAF, Tab 1.
Durin g her appeal, she claimed that the agency’s July 16, 2021 action was due to
discrimination on the basis of disability and age. IAF, Tab 25. Also , while the
appeal was pending before the administrative judge, the agency rescinded the
termination action, took steps to return the appellant to a position at the same
grade and level of pay as the position she held prior to the separat ion action,
restored her leave and other benefits, and provided her with all applicable back
pay. IAF , Tab 10, Tab 23 at 16, Tab 36 at 4 -5. Thereafter, the administrative
judge issued a notice of intent to dismiss the appeal as moot, providing the
appellant with an opportunity to object or to express opposition to a dismissal.
IAF, Tab 37. The appellan t did not respond to the notice.
¶4 On December 1, 2021, the administrative judge issued an initial decision
dismissing the appeal as moot. IAF, Tab 38, Initial Decision (ID) at 1.
Specifically, she reiterated the steps taken by the agency to restore the a ppellant
to the status quo ante prior to the July 16, 2021 separation , ID at 2 -3, reasoning
that, because the agency completely rescinded the action after the appeal was
3
filed, the appeal was rendered moot, thereby dive sting the Board of jurisdiction,
ID a t 2. Because she determined that the Board lacked jurisdiction over the
appeal, she concluded that the appellant’s discrimination claims would be
“returned to the agency for processing as a nonmixed discrimination complaint.”
ID at 4 n.1.
¶5 The appellant has filed a petition for review of the initial decision,
requesting that the Board hear her discrimination claims. Petition for Review
(PFR) File, Tab 1 at 4 -10. The agency has not responded to the appellant’s
petition for review.2
DISCUSSION OF ARGUM ENTS ON REVIEW
The agency’s separation action against the appellant is a removal under 5 U.S.C.
§ 7701 , and not a probationary termination.
¶6 As explained above, the agency issued the appellant a Notice of
Termination during Probationary Period and an SF -50 reflecting a termination
during a probationary or trial period . IAF, Tab 1 at 34, Tab 5 at 30 -35. However,
the appellant’s appointment began on May 26, 2020, and under 5 U.S.C.
§ 7511 (a)(1)(B)(i), she met the statutory definition of an employee after 1 year of
service. IAF, Tab 5 at 14. Thus, the agency’s separation action, effective
July 16, 2021, was taken after the appellant became an employee . IAF, Tab 1
at 34. Because , at the time of the separation action, the appellant was a
preference eligible in an excepted -service position who had completed 1 year of
current continuous service in the same or similar position in an Executive a gency,
she was an “employee” and thus had Board appeal rights .3 See IAF, Tab 1 at 34,
2 The appellant has also filed a motion for leave to submit additional information or
documentation . PFR File, Tab 3. Because the parties will have an opportunity to
further develop the record on rema nd, we find it unnecessary to rule on the appellant’s
motion for leave.
3 The agency ’s characterization of the appellant’ s separation as a probationary
termination does not control the appellant’s legal status. See Grigsby v. Department of
Commerce , 729 F.2d 772 , 774 -76 (Fed. Cir. 1984) (explaining that an SF -50 does not
4
Tab 5 at 14 ; 5 U.S.C. § 7511 (a)(1)(B)(i) . Thus, we find that the Board has
jurisdiction over her removal. 5 U.S.C. §§ 7512 (1), 7513(d).
The agency’s rescission of the appellant’s removal does not render the appeal
moot.
¶7 As noted above, the administrative judge concluded that, because the
agency rescinded the removal action, the appeal was rendered moot. ID at 2 -3.
However, a n appeal of an action over which the Board has jurisdiction , such as
the removal action at issue here, is not moot even when the agency ef fects a
complete rescission of the action as long as there is s ome possible, effectual relief
that could be granted to the appellant . See, e.g. , Lamberson v. Department of
Veterans Affairs , 80 M.S.P.R. 648 , ¶¶ 12-14, 36 (1999) (finding that, because the
Board initially had jurisdiction over the appeal of the removal action, the
agency’s post-appeal rescission of that action did not render the appeal moot and
the Board retained jurisdiction to adjudicate the appellant’s claims of
discrimination and retaliation). Specifically, in Hess v. U.S. Postal Service ,
124 M.S.P.R. 40, ¶ 8 (2016), t he Board recognized that an appellant’s claims of
discrimination may result in compensatory damages, and an appeal in which such
claims are raised is not rendered moot by an agency’s re scission or cancellation
of an adverse action. Thus, although the agency rescinded the removal action, the
appellant nonetheless had outstanding discrimination claims at issue in her
appeal. Accordingly, we find that t he appeal is not moot and that the
administrative judge must address the appellant’s discrimination claims on
remand. See Hess , 124 M .S.P.R. 40 , ¶ 8; Lamberson , 80 M.S.P.R. 648 , ¶¶ 12-14,
36.
control an employee’s legal status). Rather, the statutory language of 5 U.S.C.
§ 7511 (a)(1)(B)(i) controls her legal status.
5
ORDER
¶8 For the reasons discussed above, we remand this case to the Centr al
Regional O ffice for further adjudication in accordance with this Remand Order.
On remand, the administrative judge shall hold the appellant’s requested hearing
but may limit the subject matter to issues deemed relevant on remand. IAF, Tab 1
at 2.
FOR THE BOARD:
Washington, D.C. /s/ for
Jennifer Everling
Acting Clerk of the Board | HARPER_BRENDA_CH_315H_21_0395_I_1_REMAND_ORDER_1960434.pdf | 2022-09-14 | null | CH-315H-21-0395-I-1 | NP |
4,124 | https://www.mspb.gov/decisions/nonprecedential/HILL_JEFFREY_S_AT_0432_16_0643_I_1_REMAND_ORDER_1960492.pdf | UNITED STATES OF AME RICA
MERIT SYSTEMS PROTEC TION BOARD
JEFFREY S. HILL,
Appellant,
v.
DEPARTMENT OF HOMELA ND
SECURITY,
Agency.
DOCKET NUMBER
AT-0432 -16-0643 -I-1
DATE: September 14, 2022
THIS ORDER IS NONPRECEDENTIAL1
Adam Jerome Conti , Esquire, Atlanta, Georgia, for the appellant.
Andrew Hass , Washington, D.C. , for the agency.
BEFORE
Cathy A. Harris , Vice Chairman
Raymond A. Limon , Member
Tristan L. Leavitt , Member
REMAND ORDER
¶1 The agency has filed a petition for review of the initial decision, which
reversed the agency’s action removing the appellant for unacceptable
performance. For the reasons discussed below, we GRANT the agency’s petition
for review , REVERSE the initial decision to the extent it held that the appellant’s
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
require d to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117 (c).
2
performance standards were invalid, and REMAND the case to the Atlanta
Regional O ffice for further adjudication in accordance with this Remand Order ,
including for the administrative judge to consider the decision of the U.S. Court
of Appeals for the Federal Circuit (Federal Circuit) in Santos v. National
Aeronautics & Space Administration , 990 F.3d 1355 (Fed. Cir. 2021) .
BACKGROUND
¶2 The appellant served as a Supervisory Information Technology (IT)
Specialist with the agency’s Federal Em ergency Management Agency . Initial
Appeal File (IAF), Tab 8 at 170. In January 2015, the agency is sued the appellant
a performance plan for the rating period of January 1 to December 31, 2015. Id.
at 93-129. In January 2016, the appellant’s supervisor provided the appellant
with his performance appraisal and rating for the 2015 rating period, in whic h he
rated the appellant’s performance as unacceptable in two of the seven core
competencies of his positi on: Core Competency 1: Communication ; and Core
Competency 6: Assigning, Monitoring & Evaluating Work. Id. at 91 . In
February 2016, the appellant’ s supervisor issued the appellant a 60 -day
performance improvement plan (PIP). Id. at 85 -89. On May 3, 2016, the
appellant’s supervisor notified the appellant that he had failed to achieve an
acceptable level of performance, proposed the appellant’s remo val for
unacceptable performance in Core C ompetencies 1 and 6 , and placed the
appellant in an administrative leave status. Id. at 44 -46, 48, 50 -83. The appellant
provided oral and written replies to the proposed removal, as well as a
supplemental written reply in response to additional information provided by the
deciding official. Id. at 28 -29, 31, 33 -42. The deciding officia l issued a decision
sustaining the proposed removal, effective July 11, 2016. Id. at 24 -26.
3
¶3 The appellant timely filed a Board appeal in which he challenged the
removal and requested a hearing.2 IAF, Tab 1. The appellant alleged that his
performance wa s not unsatisfactory, the PIP added new duties inconsistent with
the performance standards set forth in his performance plan, his performance
during the PIP was not rated in accordance with the performance standards in his
performance plan, the agency comm itted harmful procedural error during the
removal process, and the agency removed him because of his age, disabilities, and
protected equal employment opportunity (EEO) activity. Id. at 6. During the
prehearing conference, the appellant withdrew his affi rmative defense of
disability discrimination. IAF, Tab 24 at 4.
¶4 Following a hearing, the administrative judge issued an initial decision
reversing the agency’s removal action. IAF, Tab 28, Initial Decision (ID). The
administrative judge found that the a gency’s performance standards were not
valid because they did not notify the appellant of the level of performance
required to achieve acceptable performance and could be interpreted as absolute.
ID at 6 -10. He also found that the agency failed to supple ment the performance
standards , as the tasks set forth in the PIP failed to inform the appellant of the
level of performance he was required to achieve , and it was unreasonable that the
appellant’s failure to complete 1 of the 11 tasks in the PIP would res ult in
unacceptable performance . ID at 9 -12. Thus, the administrative judge held that
the agency failed to establish that the appellant’s performance standards were
valid and reversed the removal action . ID at 12, 17. He also found that the
2 On July 1, 2016 , the agency provided the appellant with a draft decision sustaining the
proposed removal and offered the appellant the opportunity to retire in lieu of removal
if he waived his appeal rights and dismissed his pending equal employment opportunity
complaint; 4 days later, the appellant declined the settlement offer and applied for
retirement. IAF, Tab 1 at 6, 9 -10, 15 -17; Hearing Transcript at 115-16 (testimony of
the deciding official). The appellant filed his appeal on July 7, 2016; however, the
agency did not issue the decision effecting his removal until July 11, 2016. IAF, Tab 1,
Tab 4, Tab 8 at 24 -26. It is unclear whether the agency effected the appellant’s
retirement prior to the issuance of the decision; regardless, the appellant’s retirement
status has no effect on this appeal. See 5 U.S.C. § 7701 (j).
4
appellant d id not prove his affirmative defenses of retaliation on the basis of
protected EEO activity and discrimination on the basis of age and that he need not
address the appellant’s harmful procedural error and due process affirmative
defenses given his reversal of the removal action . ID at 12 -17.
¶5 The agency has timely filed a petition for review of the initial decision, and
the appellant has filed a response in opposition to the agency’s petition. Petition
for Review (PFR) File, Ta bs 1, 4.3 As set forth below, we find that the
administrative judge erred in finding that the appellant’s performance standards
are not valid , and so we remand this matter for further adjudication of the merits
of the removal action.
DISCUSSION OF ARGUME NTS ON RE VIEW
¶6 As discussed below, we are remanding this appeal for two reasons . First,
the administrative judge did not fully adjudicate the merits of the appeal or the
appellant’s affirmative defenses of harmful procedural error and due process
violations after f inding that the agency failed to prove that its performance
standards were valid . We are vacating the administrative judge’s finding that the
performance standards were not valid. Thus, the remaining elements of a
performance -based action as set forth in Lee v. Environmental Protection Agency ,
115 M.S.P.R. 533 , ¶ 5 (2010) , as well as the above -mentioned affirmative
defenses, must be adjudicated. Second , after the issuance of the initial decision,
the Federal Circuit issued its decision in Santos , 990 F.3d 1355 . 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 must also
show that the initiation of a PIP was justified by the appellant’s unacceptable
3 The administrative judge ordered the agency to provide the appellant with interim
relief should either party file a petition for review. ID at 19. On review, the agency
submitted an uncontested certification stating that it has complied with the interim
relief order. PFR File, Tab 2 at 4 -5.
5
performance before the PIP. Id. at 1360 -63. Thus, remand is necessary for the
administrative judge to address the additional requirement set forth in Santos .
¶7 Below , we first address the administrative judge’s findings on the elements
of a chapter 43 ap peal as they existed at the time of the initial decision , which
includes our decision to reverse the administrative judge’s findings regarding the
validity of the agency’s performance standards and our remand instructions in
that regard. We then address the additional element to be considered on remand,
consistent with Santos . Finally, we briefly discuss the appellant’s affirmative
defenses of retaliation for protected EEO activity and discrimination on the basis
of age, wherein we discern no basis to dis turb the administrative judge’s findings.
The administrative judge erred in finding that the appellant’s performance
standards were not valid.
¶8 At the time the initial decision was issued, the Board’s case law stated that,
in a performance -based action und er 5 U.S.C. chapter 43, an agency must
establish by substantial evidence that: (1) the Office of Personnel Management
(OPM) approved its performance appraisal system and any significant changes
thereto; (2) the agency communicated to the appellant the performance standards
and cr itical elements of his position; (3) the appellant’s performance sta ndards
are valid under 5 U.S.C. § 4302 (b)(1); (4) t he agency warned the appellant of the
inadequacies of his performance during the appraisal period and gave him a
reasonable opportunity to dem onstrate acceptable performance; and (5) the
appellant’s performance remained unacceptable in one or more of the c ritical
elements for which he was provided an opportunity to demonstrate acceptable
performance. Lee, 115 M.S.P.R. 533 , ¶ 5. Substantia l evidence is the “degree of
relevant evidence that a reasonable person, considering the record as a whole,
might accept as adequate to support a conclusion, even though other reasonable
persons might disagree.” 5 C.F.R. § 1201.4 (p).
¶9 The administrative judge’s findings that OPM approved the performance
appraisal system utilized by the agency in this matter and that the agency
6
communicated to the appellant the performance standards and critical elements of
his position are not in dispute, and we discern no reason to disturb these findings,
as the record reflects that the administrative judge considered the evidence as a
whole and drew appropriate inferences from the evidence submitted . ID at 5 -6;
see Clay v. Department of the Army , 123 M.S.P.R. 245 , ¶ 6 (2016) (finding no
reason to disturb the administr ative judge’s findings when she considered the
evidence as a whole, drew appropriate inferences, and made reasoned conclusions
on the issue of credibility); Broughton v. Department of Health & Human
Services , 33 M.S.P.R. 357 , 359 (1987) (same).
¶10 On review, the agency argues that the administrative judge erred in finding
that the appellant’s performance standards are not valid because the appellant’s
performance standards include qualitative benchmarks, and the language of the
PIP sufficiently clarified the appellant’s performance standards and
communicated the minimum level of performance he was required to achieve.
PFR File, Tab 1 at 7 -15; ID at 6 -12. The appellant concedes that his performance
standards include valid benchmarks but argues that the supplemental measures set
forth in the PIP are unreasonable because they are unrelated to his performance
standards, unachievable, and do not inform him of the minimum level of
performance he was to achieve. PFR File, Tab 4 at 8 -12.
¶11 Performance standards must, to the maximum extent feasible, permit the
accurate appraisal of performance based on objective criteria related to the job in
questio n. 5 U.S.C. § 4302 (c)(1); Towne v. Department of the Air Force ,
120 M.S. P.R. 239 , ¶ 21 (2013) . Standards must be reasonable, realistic,
attainable, and clearly stated in writing. Towne , 120 M.S.P.R. 239 , ¶ 21.
Performance standards should be specific enough to provide an employee with a
firm benchmark toward which to aim his performance and must be sufficiently
precise so as to invoke general consensus as to their meaning and content. Id.
Performance standards are not valid if they do not set forth the minimum level of
7
performance that an employee must achieve to avoid removal for unacceptable
performance under chapter 43. Id.
¶12 The administrative judge found that the appellant’s performance standards ,
as set forth in Core C ompetencies 1 and 6, were not valid because they lacked
qualitative or quantitative benchmarks for “how well and how often” the
appellant had to meet the standards . ID at 8 -9. The fact that performance
standards may call for a cer tain amount of subjective judgment on the part of the
appellant’s supervisor does not automatically rende r them invalid, especially
when , as here, the appellant’s position involves the type of professional judgment
that is not susceptible to a mechanical r ating system. Neal v. Defense Logistics
Agency , 72 M.S.P.R. 158 , 162 (1996) ; see Wilson v. Department of Health
& Human Services , 770 F.2d 1048 , 1055 -56 (Fed. Cir. 1985) (recognizing that
“some tasks may be rated only with a certain modicum of subjective judgment ”).
Here, the appellant served as the Branch Chief of the regional IT division,
supervising approximately 14 employees, and both the technical and supervisory
nature of his work called for a degree of independence and discretion that
warranted less objectivity and specificity in his performance standards. Hearing
Transcript ( HT) at 129 -31 (testimony of the appellant); see Greer v. Department
of the Army , 79 M.S.P.R. 477 , 483 (1998) (“[W] ith greater discretion and
independence reposed in the incumbent of a position comes less objectivity and
specificity in the position’s performance standards. ”).
¶13 Contrary to the administrative judge’s find ings, we find that any lack of
specificity in the appellant’s performance standards was cured when the agency
gave content to the performance standards by prov iding the appellant with
supplemental standards in the PIP and providing oral and written feedback during
the period in which the PIP was in effect. ID at 9 -12. An agency may give
content to performance standards by informing the appellant of specific work
requirements thr ough written instructions, information concerning deficiencies
and methods of improving performance, memoranda describing unacceptable
8
performance, and responses to the appellant’s questions concerning performance.
Romero v. Equal Employment Opportunity C ommission , 55 M.S.P.R. 527 , 535
(1992), aff’d , 22 F.3d 1104 (Fed. Cir. 1994) (Table). In particular, the PIP
informed the appellant of his performance deficiencies under each core
competency at issue and outlined seven “improvement actions ” under Core
Competency 1 and four such actions under Core Competency 6 that he was to
complete during the period in which the PIP was in effect to perfo rm at an
acceptable level. IAF, Tab 8 at 86 -88.
¶14 The administrative judge found that the agency failed to set forth the
minimum level of performance that the appellant was required to meet because
the actions set forth in the PIP did not include performa nce measures and did not
inform the appellant of the minimum level of performance that he was required to
meet to achieve acceptable performance. ID at 9 -12. To the contrary, we find
that each improvement action set forth in the PIP set forth sufficient benchmark s
toward which the appellant was to aim his performance. Each action identified a
communication or written product that the appellant was to complete during the
period in which the PIP was in effect. IAF, Tab 8 at 87 -88. Each action further
identified required content for each communication or written product. Id.
Although the appellant disputed the validity of two actions under Core
Competency 1, which required him to submit a “completed” written product, we
find that this descriptor, coupled with his performance standard, which required
him to submit communications that “rarely require revisions,” was sufficie nt to
communicate to him the minimum level of quality his written products under
these actions were t o achieve. Id. at 86 -87; see also Wilson , 770 F.2d at 1055
(concluding that a performance standa rd providing that reports must require
“minimum revisions” was sufficiently objective and precise, despite allowing for
some subjective judgment on the part of the appellant’s evaluators). Each
improvement action also set forth either the frequency by which the appellant was
to complete a discrete action, such a s “every two weeks” during the period in
9
which the PIP was in effect , or a firm deadline to complete such an action. IAF,
Tab 8 at 87 -88. Thus, we find that the appellant’s performance standards, as
clarified by the improvement actions set forth in the P IP, were sufficiently precise
so as to invoke general consensus as to their meaning and content .
¶15 The administrative judge ’s finding that the agency did not inform the
appellant that failure to complete 1 of the 11 actions set forth in the PIP would
resul t in unacceptable performance is unsupported by the language in the PIP
itself . ID at 9 -10. The PIP informed the appellant that, by the end of the
designated performance improvement period, “your performance must improve to
a level of ‘Achieved Expectations’ in each element for which you are currently
rated as ‘Unacceptable’” and that failure to do so would resu lt in a
performance -based action, such as removal . IAF, Tab 8 at 86. Following a
description of the appellant’s performance standards a t the “Achieved
Expectations” level, the appellant’s performance deficiencies, and “Improvement
Actions to Achieve Expectations” that the appellant was to complete, the PIP
informed the appellant that “All im provement actions required for ‘Achieved
Expecta tions’ in your unacceptable critical elements are listed above under th e
heading ‘ Improvement Actions to Achieve Expectations. ’” Id. at 86-88. Thus,
we find that the language in the PIP was sufficiently clear to notify the appellant
that completi ng the 1 1 improvement actions set forth in the PIP was required to
demonstrate performance at the “Achieved Expectations,” or acceptable, level.
¶16 The administrative judge’s finding that the improvement actions were
merely a list of tasks that the appellant was req uired to perform in addition to his
normal duties , and were thus unreasonable, is unsupported by the record. ID
at 10-12. The 11 actions the appellant was to complete during the PIP “neither
materially changed the performance standard expected nor posed any additional
burdens on the appellant,” Anthony v. Department of the Army , 27 M.S.P.R. 271 ,
273 n.* (1985), aff’d , 795 F.2d 1011 (Fed. Cir. 1986) (Table) , but rather fleshed
out the appellant’s overall perf ormance objectives and constituted valid
10
clarifications that provided him a firm benchmark toward which to aim his
performance, Towne , 120 M.S.P.R. 239 , ¶¶ 21-23. The record reflects that the
actions identified firm deadlines and specific content for projects for which the
appellant was responsible prior to the implementation of the PIP and for
communications required of the appellant in the normal course of his supervisory
and management duties as Branch Chief . IAF, Ta b 8 at 86 -88, 130 -33; Tab 16
at 31-34; HT at 9 -10, 12 -18 (testimony of the acting IT division branch chief),
75-78 (testi mony of the proposing official). It was well within the agency’s
discretion to establish deadlines and other requirements to give content to the
appellant’s performance standards . See Towne , 120 M.S.P.R. 239 , ¶ 23
(concluding that standards set forth in the appellant’s PIP sufficiently fleshed out
a performance standard reg arding timeliness); Chaggaris v. General Services
Administration , 49 M.S.P.R. 249 , 254 -55 (1991) (finding that the appellant’s
perfor mance standards were valid when, among other things, he received a
document giving him clear written instructions for each project, the results
expected, due dates, and required follow -ups). Moreover, timely performance is
either directly or inherently requi red in the appellant’s performance standards .
Under Core Competency 6, the appellant’s performance standards required him to
“timely” monitor and evaluate team members’ performance, address performance
problems, address conduct issues, and provide feedbac k to unit members. IAF,
Tab 8 at 8 7. As to Core Competency 1, which required the appellant to prepare
“effective” communications, the appellant’s supervisor testified that the ability to
effectively communicate was related to the ability to timely commun icate. HT
at 100 (testimony of the proposing official) . Thus, we find the actions and time
limits set forth in the PIP to constitute valid clarifications of the appellant’s
performance standards.
¶17 Finally, the administrative judge ’s finding that it was unreasonable that the
appellant’s failure to complete 1 of the 11 improvement actions would resu lt in
unacceptable performance lacks explanation or evidentiary support . ID at 9 -10.
11
An absolute performance standard is one under which a single incid ent of poor
performance will result in an unsatisfactory rating on a critical element.
Guillebeau v. Department of the Navy , 93 M.S.P.R. 379 , ¶ 10 (2003), aff’d ,
362 F.3d 1329 (Fed. Cir. 2004). Although agencies are not barred from
implementing absolute performance stan dards, performance standards must
nevertheless be “reasonable, based on objective criteria, and communicat ed to the
employee in advance.” Guillebeau , 362 F.3d at 1337 . Thus, an agency is free to
set its performance standards as high as it deems appropriate, so long as those
standards are objective and meet the other express requirements of 5 U.S.C.
§ 4302 (c)(1). Jackson v. Department of Veterans Affairs , 97 M.S.P.R. 13 , ¶ 14
(2004) .
¶18 The agency has demonstrated by substantial evidence that the
11 improvement actions, standing alone or together , do not require an
unreasonably high level of performance by the appellant . None of the
improvement actions on their face require an unreasonably high level of
performance . IAF, Tab 8 at 87 -88. The appellant did not explain why completi ng
the 11 actions was unattainable except to argue that some of the action deadlines
were too close together (but he did not offer support for this clai m) and that he
could not perform the actions in addition to h is regular duties and his duties
during the reorganization of his division . HT at 141 -44, 148 -49 (testimony of the
appellant). Although the appel lant’s arguments regarding his ability to complete
all 11 actions during the PIP period due to his need to co mplete other work may
be relev ant to the issue of whether he was provided with a reasonable opportunity
to improve his performance to an acceptable level during the PIP period , there is
no evidence that the 11 improvement actions themselves required an unr easonably
high lev el of performance. Compare Hober v. Department of the Army ,
64 M.S.P.R. 129 , 132 (1994) (holding that, when a perform ance standard required
the appellant to coordinate and compile a n annual report by the “suspense date,”
and his actual ability to render acceptable performance under the standard was not
12
in dispute, the standard itself did not require an unreasonably high level of
performance) , with Blain v. Veterans Administration , 36 M.S.P.R. 322 , 324-25
(1988) (finding that a performance standard that required a file clerk to achieve a
99.91% accuracy rate in pulling and returning medical records from files was
unreasonable and thus invalid).
¶19 Accordingly, we find that the agency’s performance standards w ere not
impermissibly vague and reverse the administrative judge’s finding that the
performance standards were invalid. Upon finding that the performance standards
were invalid, the administrative judge did not further adjudicate the full merits of
the appeal as they existed at the time of the initial decision , nor did he reach the
issue of whether the appellant proved that the agency committed due process
violations or harmful procedural error. ID at 12, 16 -17. Further findings
regarding the merits and the appellant’s remain ing affirmative defenses are best
made by the initial finder of fact; thus, we remand the case for further
adjudication of the agency’s removal action. See Neal , 72 M.S.P.R. at 163.
¶20 On remand, the administrative judge shall make findings , based on the
evidence already in the record, as to whether the agency established by
substantial evidence that the agency warned the appellant of the inadequacies of
his performance during the appraisal period and gave him a reasonable
opportunity to demon strate acceptable performance, and whether the appellant’s
performance remained unacceptable in one or more of the critical elements for
which he was provided an opportunity to demonstrate acceptable performance.
See Lee, 115 M.S.P.R. 533 , ¶ 5. The administrative judge also shall make
findings , based on the evidence already in the record, as to whether the appellant
proved his affirmative defenses of due process violations and harmful procedural
error.
Remand is also required under Santos .
¶21 In addition to remanding the appeal for the administrative judge to consider
the remaining elements of a chapter 43 performance -based action, as set f orth
13
above , we must also remand this appeal in accordance with Santos . As noted,
during the pendency of the petition for review in this case, 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 the institution of a PIP
by proving by substantial evidence that the employee’s performance was
unacceptable prior to the PIP. The Federal Circuit’s decis ion 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. Thus, w e 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 criti cal elements. See id., ¶¶ 15-17. On
remand, the administrative judge shall accept argu ment and evidence on this issue
and shall hold a supplemental hearing , limited to this issue, if appropriate. Id.,
¶ 17.
¶22 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 Core Competency 1 and/or
Core Competency 6 was at an unacceptable level prior to his pla cement on the
PIP, and if the administrative judge also finds that the agency proved all the other
elements as they existed pre-Santos , he may incorporate his prior findings
regarding OPM ’s approval of the agency’s performance appraisal system and the
agency’s communication of the performance standards to the appellant in the
remand initial decision . He may also incorporate his prior findings on the
appellant’s affirmative defense of retali ation for protected EEO activity and
discrimination on the basis of age, as discussed below, in the remand initial
decision. Regardless of whether the agency meets its burden, if the argument or
evidence on remand regarding the appellant’s pre -PIP perform ance affects the
administrative judge’s analysis of the appellant’s affirmative defense s, he should
address such argument or evidence in the remand initial decision. See Spithaler
14
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 inclu de the administrative judge’s
conclusions of law and his legal reasoning, as well as the authorities on which
that reasoning rests).
The administrative judge properly found that the appellant did not prove his
affirmative defenses of retaliation for protec ted EEO activity and discrimination
on the basis of age.
¶23 On review, the appellant has not disputed the administrative judge’s
finding s that neither retaliation for the appellant’s participation in protected EEO
activity , nor discrimination on the basis of age, was a motivating factor in the
agency’s decision to remove the appellant . ID at 13 -16. In so finding, the
administrative judge applied the evidentiary standards set forth in Savage v.
Department of the Army , 122 M.S.P.R. 612 , ¶¶ 42-43, 51 (2015) , clarified on
other grounds by Gardner v. Department of Veterans Affairs , 123 M.S.P.R. 647 ,
¶¶ 30-31 (2016) . ID at 13 -14. In Savage , the Board stated that, when an
appellant asserts an affirmative defense of discrimination or retaliation, the Board
first will inquire whether the appellant has shown by preponderant evidence that
the prohibited consideration was a motivating factor in t he contested personnel
action. Savage , 122 M.S.P.R. 612 , ¶ 51. The Board further stated that, in making
his initial showing, an appellant may rely on direct evidence or any of the three
types of circumstantial evidence described in Troupe v. May Department Stores
Co., 20 F.3d 734 (7th Cir. 1994) , i.e., pretext, comparator or “convincing
mosaic,” e ither alone or in combination. Savage , 122 M.S.P.R. 612 , ¶ 51.
¶24 The Board has since clarified that Savage does not require admin istrative
judges to separate “direct” from “indirect” evidence and to proceed as if such
evidence were subject to different legal standards, or to require appellants to
demonstrate a “convincing mosaic” of discrimination or retaliation. Gardner ,
123 M.S.P.R. 647 , ¶ 29 (quoting Ortiz v. Werner Enterprises, Inc ., 834 F.3d 760 ,
15
764 (7th Cir. 2016) ). Instead, as the Board stated in Savage , the dispositive
inquiry is whether the appellant has shown by preponderant evidence that the
prohibited consideration was a motivating facto r in the contested personnel
action. Gardner , 123 M.S.P.R. 647 , ¶ 30; see Savage , 122 M.S.P.R. 612, ¶ 51.
Here , the administrative judge discussed the distinction between direct and
circumstantial evidence , but there is no indication that he disregarded any
evidence because it was not direct or circumstantial, and we conclude that he
properly considered the evidence as a whole in finding that the appellant failed to
prove by preponderant evidence that retaliation o r discrimination was a
motivating factor in the removal action . ID at 13-16. As such, we discern no
basis upon which to disturb the administrative judge’s finding s denying the
appellant’s affirmative defenses of retaliation and discrimination . See Clay ,
123 M.S.P.R. 245 , ¶ 6.
¶25 Nevertheless, as explained above, we recognize that the additional evidence
and argument taken on remand i n light of Santos could have an impact on the
appellant’ s discrimination and retaliation claim s.4 Thus , if, upon receiving
evidence and argument on the issue of whether the appellant’s performance was
at an unacceptable level prior to his placement on the PIP, the administrative
judge is le d to believe that discrimination or retaliation tainted the agency’s
decision to place the appellant on a PIP or now views other evidence in the
appellant’s dis crimination and retaliation claim s in a new light, he should explain
those findings in the new initial decision.
4 On August 29, 2022, the appellant filed a motion to reopen the record to submit an
August 9, 2022 decision from the Equal Employment Opportunity Commission (EEOC)
regarding the discrimination claim at issue in this appeal. PFR File, Tab 8 at 4 -5. In
his m otion, he asserts that the EEOC’s decision “contains legal findings” regarding the
appellant’s performance rating prior to his placement on the PIP and the subsequent
placement on the PIP. Id. We need not rule on the appellant’s motion at this time.
How ever, because this document purports to concern the issue of pre -PIP performance
as discussed in Santos and which forms one of the bases of this remand, the
administrative judge should accept the EEOC decision into the record on remand and
give it the evid entiary weight he deems appropriate.
16
ORDER
¶26 For the reasons discussed above, we remand this case to the Atlanta
Regional O ffice for further adjudication in accordance with this Remand Order.
FOR THE BOARD:
Washington, D.C. /s/ for
Jennifer Everling
Acting Clerk of the Board | HILL_JEFFREY_S_AT_0432_16_0643_I_1_REMAND_ORDER_1960492.pdf | 2022-09-14 | null | AT-0432-16-0643-I-1 | NP |
4,125 | https://www.mspb.gov/decisions/nonprecedential/JACKSON_FISHER_FELICIA_L_CH_0752_15_0492_I_1_FINAL_ORDER_1960023.pdf | UNITED STATES OF AME RICA
MERIT SYSTEMS PROTEC TION BOARD
FELICIA L. JACKSON -FISHER,
Appellant,
v.
UNITED STATES POSTAL SERVICE,
Agency.
DOCKET NUMBER
CH-0752 -15-0492 -I-1
DATE: September 13, 2022
THIS FINAL ORDER IS NONPRECEDENTIAL1
Glenn L. Smith , Esquire, Grand Rapids, Michigan, for the appellant.
Deborah W. Carlson , Chicago, Illinois, for the agency.
BEFORE
Cathy A. Harris , Vice Chairman
Raymond A. Limon , Member
Tristan L. Le avitt , Member
FINAL ORDER
¶1 The appellant has filed a petition for review of the initial decision, which
sustained her demotion. Generally, we grant petitions such as this one only
when: the initial decision contains erroneous findings of material fact; t he initial
decision is based on an erroneous interpretation of statute or regulation or 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 dis tinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117 (c).
2
erroneous application of the law to the facts of the case; the administrative
judge ’s rulings during either the course of the appeal or the initial decision were
not consistent with required procedures or involved an abuse of discretion, and
the resulting error affected the outcome of the case; or new and material evidence
or legal argument is available that, despite the petitioner ’s due diligence, was not
availabl e when the record closed. Title 5 of the Code of Federal Regulations,
section 1201.115 ( 5 C.F.R. § 1201.115 ). After fully considering the filings in this
appeal, and based on the follo wing points and authorities, we conclude that the
petitioner has not established any basis under section 1201.115 for granting the
petition for review. Therefore, we DENY the petition for review. Except as
expressly MODIFIED by this Final Order to clarif y the basis for weighing the
testimony and hearsay evidence , we AFFIRM the initial decision.
BACKGROUND
¶2 The agency proposed the appellant’s removal based upon one charge of
improper conduct. Initial Appeal File (IAF), Tab 5, Part 1 at 30 -34. The char ge
included four specifications, best summarized as follows : (1) behaving in a
threatening manner towards L.D. ( Senior Sales E xecutive , Shipping ); (2) coercing
a subordinate employee into taking an online biology class; (3) engaging in
unethical conduct w hen asking a subordinate to assist in getting the appellant’s
husband a job with the coworker ’s husband ’s company; and (4) selling Mary Kay
products to subordinate employees in the workplace. Id. at 30 -33. The deciding
official sustained the charge, but he mitigated the penalty to a demotion from a
Manager of Sales, EAS -25, to a Field Account Representative, EAS -18. Id.
at 23-27.
¶3 The appellant filed the instant appeal challenging her demotion and
request ing a hearing . IAF, Tab 1. After holding the hearing, the administrative
3
judge issued an initial decision that affirmed the agency ’s action.2 IAF, Tab 56,
Initial Decision (ID). In sustaining the charge, the administrative judge sustained
only specification s 1 and 4. ID at 2 -4. The appellant has filed a petition for
review, the agency has responded, and the appellant has replied. Petition for
Review (PFR) File, Tabs 5, 7 -8.
DISCUSSION OF ARGUME NTS ON REVIEW
We affirm the administrative judge ’s initial decision to sustain specification 1,
but we modify the decision to clarify the basis for weighing testimony and
hearsay evidence.
¶4 The appellant argues that the administrative judge should not have sustain ed
specification 1 because the agency has not proven that she b ehaved in a
threatening manner under the test for establishing a threat set forth by the U.S.
Court of Appeals for the Federal Circuit in Metz v. Department of the Treasury ,
780 F.2d 1001 , 1002 -03 (Fed. Cir. 1986) . PFR File, Tab 5 at 10-12; ID at 2 n.2.
To the contrary, we find that , because the specification contain s a detailed
narrative description of the misconduct that gave rise to the charge, the agency
was entitled to charge the appellant with the broad label of “improper conduct”
rather than a more specific label. Otero v. U.S. Postal Service , 73 M.S.P.R. 198,
202-03 (1997).
¶5 Here, s pecification 1 charge d the appellant with behaving in a threatening
manner towards L.D. IAF, Tab 5, Part 1 at 30 . The proposal notice include s a
narrative that further describe s the appellant’s actions. Id. at 30 -31. In short , the
proposing official state d that L.D. informed her that the appellant argued with
2 The appellant has not challenged, and we see no reason to disturb , the administrative
judge’s finding that there was no due process violation or harmful procedural error
regarding the agency’s decision to communicat e only with her representative or
concerning the deciding official’s Douglas factors analysis. ID at 14 -19; see Broughton
v. Department of Health & Human Services , 33 M.S.P.R. 357 , 359 (1987) . The
appellant also does not challenge the administrative judge’s finding of nexus , and we
see no reason to disturb this finding. Broughton , 33 M.S.P.R. at 359; ID at 19 -20; PFR
File, Tab 5.
4
her, and demeaned and humiliated her by “[getting ] in her face ” and yelling at her
in a customer meeting . Id. at 30. Th e proposing official also stated that one
customer at the meeting told her that the appellant told L.D. to “shut up” and
jumped out of her seat, raising her hand at L.D. Id. Further, the proposing
official recount ed that the appellant called her the day of the incident, stated that
she needed a “coaching moment ,” and reported that she got up from her seat,
went over to L.D., put her hand up, and loudly told L.D. to stop talking. Id. at 31.
The proposing official concluded that the appellant’s actions violated the
agency’s “Zero Tolerance ” policy regarding threatening and/or intimidating
behavior, tarnished the image of the agency, and were contrary to the appellant’s
responsibility fo r setting the parameters for appropriate behavior in the unit. Id.
¶6 The administrative judge found that the agency was not required to prove
that the appellant intentionally threatened L.D. under the Metz test, and instead
she sustained the specification because the agency proved the facts outli ned in its
proposal. ID at 2 -5 (citing Brough v. Department of Commerce , 119 M.S.P.R.
118, ¶ 12 n. 2 (2013) ). We find no error in this respect. See Otero , 73 M.S.P.R.
at 202-03.
¶7 Furthermore , even if we did apply the Metz analysis, we still would sustain
this specification. In Metz , 780 F.2d at 1002 -03, the Federal Circuit enumerated
the following factors for deciding whether an empl oyee threatened her
coworkers: the listener’s reactions; the listener’s apprehension of harm; the
speaker’s intent; any conditional nature of the statements; and attendant
circu mstances. First, the record reflects that L.D. felt threatened and that she
experienced apprehension of harm. The administrative judge gave greater weight
to L.D.’s statements that she perceived the appell ant’s behavior as threatening
because the appellant approached L.D. , raised her hand, and made L.D. feel that
the situation w ould get physical. ID at 5; IAF, Tab 5, Part 2 at 32 -33, Part 5
at 5-6. Second, the two cu stomers’ reactions, as recorded in their statements and
reported to the busi ness alliance manager and the appellant’s direct supervisor ,
5
also support the administrative judge’s finding that the appellant’s conduct was
threatening. ID at 5-6; IAF, Tab 53, Hearing Com pact Disc (Sept. 29, 2015)
(HCD 1) (testimony of the business all iance manager and the appellant’s direct
supervisor ); IAF, Tab 5, Part 2 at 38 -41. Specifically, the fact that the customers
reported the appellant’s conduct as aggressive and were concerned about how
L.D. was doing after the incident supports a finding t hat L.D. acted in a scared or
upset way and appeared to fear harm and that the appellant’s statements did not
appear to be conditional. IAF, Tab 5, Part 2 at 38-41.
¶8 Next, the record demonstrates the threatening nature of the appellant’s
comments and act ions regarding L.D. Particularly when the statement at issue is
made intentionally and maliciously and conveys a threatening action, the Board
will find that the intent element is proven . Rose v. U.S. Postal Service ,
109 M.S.P.R. 31, ¶ 24 (2007). The evidence supports such a finding here because
the administrative judge found, and we agree, that the appellant jumped out of her
seat, acted aggressively toward L.D., yelled at her, and told her to “shut up” and
to stop talking. ID at 2-5.
¶9 Moreover , the evidence does not show that the appellant intended her
statements and actions to be conditional or that attendant circumstances weigh
against a finding that she threatened L.D . Accordingly , we find that, even if the
agency was required to prove a threat charge under the Metz criteria , we still
would sustain the specification . See Rose , 109 M.S.P.R. 31, ¶¶ 11-29.
¶10 The appellant next asserts that the administrative judge erred in finding not
credible her testimony regarding this specification and incorrectly gave greater
weight to hearsay in the form of written statements by two customers who
witnessed the interaction , L.D. ’s out -of-court statement , and third parties ’
testimony regarding L.D. ’s description of the in cident. PFR File, Tab 5 at 7-17.
For the reasons discussed below, we modify the initial decision to properly weigh
the testimony and hearsay evidence in the context of the factors set forth in
Borninkhof v. Department of Justice , 5 M.S.P.R. 77 , 87 (1981).
6
¶11 In general, to resolve credibility issues, an administrative judge must
identify the factual questions in dispute, summarize the evidence on e ach disputed
question, state which version she believes, and explain in detail why she found
the chosen version more credible. Hillen v. Department of the Army , 35 M.S.P.R.
453, 458 (1987) .3 However, in weighing hearsay evidence, the administrative
judge must consider the following factors: (1) the availability of persons with
firsthand knowledge to testify at the hearing; (2) whether the statements of the
out-of-court declarants were signed or in affidavit form, and whether anyone
witnes sed the signing; (3) the agency ’s explanation for failing t o obtain signed or
sworn statements; (4) whether declarants were disinterested witnesses to the
events, and whether the stat ements were routinely made; (5) consistency of
declarants ’ accounts with other information in the case, internal consistency, and
their consistency with each other; (6) whether corroboration for statements can
otherwise be found in the agency record; (7) the absence of contradictory
evidence; and (8) the credibility of the declarant when he made the statement
attributed to him . Bornin khof , 5 M.S.P.R. at 87. Generally, the Board favors live
testimony over hearsay. Bledsoe v. Department of Justice , 91 M.S.P.R. 93 , ¶ 7
n.4 (2002). However, t he Federal Circuit has stated that “hearsay may be
accepted as preponderant evidence even without corroboration if, to a reasonable
mind, the circumstances are such as to lend it credence. ” Kewley v. Department
of Health & Huma n Services , 153 F.3d 1357 , 1364 (Fed. Cir. 1998) (citing Hayes
v. Department of the Navy , 727 F.2d 1535 , 1538 (Fed. Cir. 1984)) . To determine
whether hearsay evidence alone is sufficient to sustain the specification depends
3 In weighing witness credibility, the administrative judge considers the following
factors: (1) the witness ’s opportunity and capacity to observe the event or act in
question; (2) the witness ’s character; (3) any prior inconsisten t statement by the
witness; (4) a witness ’s bias, or lack of bias; (5) the contradiction of the witness ’s
version of events by other evidence or its consi stency with other evidence; (6) the
inherent improbability of the witness ’s version of events; and (7) the witness ’s
demeanor. Hillen , 35 M.S.P.R. at 458.
7
on its reliability and trustworthiness. Social Security Admini stration v. Long ,
113 M.S.P.R. 190 , ¶ 7 (2010), aff’d, 635 F.3d 526 (Fed. Cir. 2011).
¶12 Here, the administrative judge found that the appellant ’s testimony was not
credible because it was in her self -interest to characterize her interaction as not
aggressive or threatening , her testimony was contradicted by the statements of the
two customers wh o had witnessed the interaction, and he fou nd that the witnesses
who testified about L.D. ’s conflicting statements were credible. ID at 5-6; IAF,
Tab 5 4, Hearing Compact Disc (Sept. 30, 2015 ) (testimony of the appellant ); IAF,
Tab 5, Part 1 at 41-43, Part 2 at 42 -46. Conversely, the administrativ e judge
found that L.D. ’s characterization that she perceived the appellant as aggressive
and threatening, as recounted by the testimony of others at the hearing, was more
credible than that of the appellant. ID at 6. Specifically, she found that the
testimon ies of the appellant’s direct supervisor , the human resources liaison, and
the business alliance manager supported L.D. ’s version of events and were
credible because they testified in a straightforward manner and they did not have
any reason to be less than truthful or biased against the appellant. ID at 4 -6.
¶13 The administrative judge also found that the information from the two
customers who witnessed the incident was even more important in supporting
L.D. ’s version of events. I D at 5. Specifically, the administrative judge
considered the appellant’s direct supervisor ’s testimony that she called one of the
customers the day after the meeting, couching the call as a c ustomer feedback
request, and the customer reported that the ap pellant approached L.D., raised her
hand, and told her to shut up. Id. The administrative judge also considered the
business alliance manager ’s testimony that on the day after the incident, the first
customer asked how L.D. was doing, that the second customer said that the
appellant had threatened “fisticuffs ” and wished he had recorde d the interaction
on his iPhone, and that, when discussing the incident with agency investigators,
both customers described the appellant ’s conduct as aggressive. Id.; HCD 1
(testimony of the business alliance manager ); IAF, Tab 5, Part 2 at 28 -29, 58 -59.
8
¶14 Considering these findings in the context of the Borninkhof factors, we
agree with the administrative judge that L.D. ’s version of events has significant
probative value . Specifically, the agency ’s statement that L.D. was unable to
testify at the hearing weighs in favor of crediting her written statement, the
memorandum of interview, and the testimony of others about her statements to
them . PFR File, Tab 7 at 8. Additiona lly, the fact that L.D. ’s written statement is
a sworn affidavit and that the memorandum of interview was obtained during the
Office of Inspector General (OIG) investigation into the matters at issue in this
appeal supports a finding of reliability of the hearsay evidence . IAF, Tab 5,
Part 2 at 32 -33, Part 5 at 4-6; see Gardner v. U.S. Postal Service , 44 M.S.P.R.
565, 569 (1990) (finding that the administrative judge properly considered signed
grievance appeal forms in considering evidence of a threat) , aff’d , 983 F.2d 1087
(Fed. Cir. 1992) (Table) .
¶15 Although the two customers declined to give written sworn statements , their
interviews were conducted in the context of the formal OIG investigation . IAF,
Tab 5, Part 2 at 38 -41. Additionally , as the administrative judge found, these
individuals were disinterested parties. ID at 5. Thus, we find that their interview
statements further support favoring L.D. ’s account of the interaction with the
appellant .
¶16 In giving great weight to the statements of the two customers, the
administrative judge also considered the fact that one of the customers asked how
L.D. was doing and the oth er wished that he had recorded the interaction with his
iPhone. ID at 5. We agree that the customers ’ negative reactions to the
appellant ’s actions further support the weight given to the hearsay evidence of
L.D.’s version of events .4 Id.; HCD 1 (testim ony of the business alliance
manager and the appellant’s direct supervisor ); IAF, Tab 5, Part 2 at 38 -41.
4 The appellant’s direct supervisor ’s and the business alliance manager ’s respective
testimony indicates their impression s of the custome rs’ negative reactions to the
appellant’s actions, as opposed to the truth of their statements. HCD 1 (testimony of
9
¶17 We have considered the possibility that L.D. may have been biased against
the appellant because she was her subordinate and had filed an equal emplo yment
opportunity complaint against her. IAF, Tab 5, Part 5 at 4 -59. We also have
considered the appellant ’s arguments on review that the customers were biased
against her because they were under investigation for allegedly defrauding the
agency and that they believed L.D. “was on their side ” during the meeting . PFR
File, Tab 5 at 6-7. However, based upon our discussion above , our review of the
remaining Borninkhof factors, and our review of the record as a whole , we agree
with the administrative ju dge’s determination that L.D. ’s account of the meeting
is more credible than that of the appellant . Accordingly, we find that the
administrative judge properly weighed the evidence in support of sustaining this
specification. See Seeley v. Department of Tran sportation , 17 M.S.P.R. 139,
142-43 (1983) (finding that hearsay evidence comprised sufficient evidence to
sustain the agency ’s adverse ac tion based on the record taken as a whole), aff’d,
795 F.2d 1010 (Fed. Cir. 198 6) (Table) .
The appellant has not shown error in the administrative judge ’s decision to
sustain specification 4 .
¶18 On review, the appellant challenges the administrative judge ’s decision to
sustain specification 4 , which charged her with selling Mary Kay products to
subordinates in the workplace . PFR File, Tab 5 at 17-24. The administrative
judge found that the appellant admitted she was a Mary Kay consultant but denied
making s ales at work. ID at 12. I nstead , the appellant asserted that she was on
her cousin ’s sales team, her coworkers (including subordinates) asked that she
obtain specific products for them, and she collected payments that she forwarded
to her cousin. Id.
the business alliance manager and the appellant’s direct supervisor ). Thus, the
testimony is not hearsay, and it was proper for the administrative judge to give it great
weight. Taylor v. U .S. Postal Service , 75 M.S.P.R. 322 , 325 (1997) (citing Fed. R.
Evid. 801(c)) .
10
¶19 The appellant asserts that the administrative judge improperly sustained this
specification under 5 C.F.R. § 7001.102 (a)(2), which prohibits sales activity,
because she was not actually selling the Mary Kay products. She also challenges
the application of 5 C.F.R. § 2635.702 , which prohibits the use of her public
office for private gain. PFR File, Tab 5 at 20 -24; ID a t 12-13. First, we agree
with the administrative judge that 5 C.F.R. § 7001.102 (a)(2) forbids sales both for
oneself and for any other person and thus, regardless of whether the appella nt was
selling the products on behalf of her cousin, she still violated the regulation . ID
at 13. Second, pursuant to 5 C.F.R. § 2635.702 , an employee may not “use his
public office fo r his own private gain, for the endorsement of any product, service
or enterprise, or for the pri vate gain of . . . relatives ,” among others. We agree
with the administrative judge that this regulation prohibits the appellant’s
activities on behalf of her cousin and that, as part of her cousin’s sales team, she
improperly derived personal gain from the sales o f the Mary Kay products. ID
at 13-14.
¶20 The appellant challeng es the application of the agency’s ethics regulations
because she asserts that she was unaware o f her ethical obligations. PFR File,
Tab 5 at 23 -24. However, she violated the regulations when she sold the
products , regardless of whether she knew of her ethical responsibil ities or
intended to violate them . See Perdue v. V.A. Medical Center , 20 M.S.P.R. 86 , 88
(1984). Further, we agree with the administrative judge’ s finding that the
appellant actually knew the regulations and that it defies common sense and
prudence to engage in the charged business con duct with her subordinates. ID
at 13; HCD 1 (testimony o f the deciding official ); IAF, Tab 5, Part 4 at 6 -11.
Accordingly, we find that the appellant breached her ethical obligation s when she
sold the Mary Kay products to her subordinates and thus , we agree with the
administrative judge’s decision to sustain this specification . See Vargas v. U.S.
Postal Service , 83 M.S.P.R. 695 , 697 -99 (1999).
11
¶21 The appellant ’s remaining arguments constit ute mere disagreement with the
administrative judge ’s factual findings, which are supported by the record
evidence, and thus do not provide a basis for disturbing the initial decision .
Crosby v. U.S. Postal Service , 74 M.S.P.R. 98 , 105 -06 (1997). Accordingly, we
agree with the administrative judge that specification 4 is sustained.
We affirm the administrative judge ’s decision to de fer to the agency ’s penalty
determination.
¶22 The appellant asserts that the imposed penalty exceeds the tol erable bounds
of reasonableness, whether or not the Board sustain s specification 1,
specification 4, or both, and that the penalty should be mitigated to , at most, a
demotion to an EAS -23 position. PFR File, Tab 5 at 24 -29. For the reasons
discussed below, we disagree.
¶23 We agree that the appellant’s over 20 years of service free of previous
discipline constitutes a significant mitig ating factor. See Raco v. Social Security
Administration , 117 M.S.P.R. 1 , ¶ 15 (2011); Hanna v. Department of Labor ,
80 M.S.P.R. 294 , ¶ 16 (1998), aff’d , 18 F. App’x 787 (Fed. Cir. 2001). However,
her potential for rehabilitation is diminished as a mitigating factor by her failure
to admit that her conduct was improper. See Singletary v. Department of the Air
Force , 94 M.S.P.R. 553, ¶ 15 (2003) , aff’d , 104 F. App’x 155 (Fed. Cir. 2004 ).
Additionally, the appellant was on notice that her conduct was improper , but she
still continued to engage in the conduct regarding the Mary Kay products.
¶24 On review, the appellant asserts that the administrative judge erred in
finding that her proffered comparators were not similarly situated to her because
they were not charged with the same misconduct . ID at 22-23; PFR File, Tab 5
at 25-29. The administrative judge relied on the standard set forth in Lewis v.
Department of Veterans Affairs , 113 M.S.P.R. 657 , ¶ 6 (2010), in finding that the
appe llant did not meet h er burden of identifying a similarly situated employee .
ID at 22. Since the initial decision was issued, the Board has overruled Lewis to
clarify that, when analyzing a disparate penalty claim, broad similarity between
12
employees is in sufficient to establish that they are appropriate comparators, and
the relevant inquiry is whether the agency knowingly and unjustifiably treated
employees who engaged in the same or similar offenses differently. Singh v. U.S.
Postal Service , 2022 MSPB 15, ¶¶ 11-14. The administrative judge distinguished
the appellant from the proffered comparators because , although the agency
charged e ach comparator with behavior deemed threatening or harassing by their
subordinates, the appellant was charged with additional misconduct . ID at 22.
The administrative judge erred in so finding because one of the proffered
comparator s was similarly charged with behavior deemed threatening or harassing
by a subordinate and additional misconduct. IAF, Tab 37 at 4-9. The
administrative judge’s finding was not prejudicial to the appellant, however,
because this comparator was not charged with additional misconduct that was the
same or similar to that of the appellant. See Singh , 2022 MSPB 15, ¶ 17 (opining
that the Boa rd should not attempt to weigh the relative seriousness of various
offenses in order to determine whether two employees who committed different
acts of misconduct were treated disparately ); Reid v. Department of the Navy ,
118 M.S.P.R. 396 , ¶¶ 22-23 (2012) (finding that the appe llant did not establish
that employee s engaged in conduct similar to his when their conduct was only
similar w ith respect to one charge) . The appellant thus has not established that
the proffered comparators engaged in the same or similar offenses as those at
issue here . In any event, it appears that the penalty imposed on th e comparator
who was charged with add itional misconduct resulted from a settlement
agreement. IAF, Tab 37 at 4 -12. The Board has held that, “if another employee
receives a lesser penalty, despite apparent similarities in circumstances, as the
result of a settlement agreement, the agency is not required to explain the
difference in treatment.” Davis v. U.S. Postal Service , 120 M.S.P.R. 457 , ¶ 10
(2013). Here, therefore, even assuming a similarity in circumstances, the
appellant did not show a disparity in penalties.
13
¶25 Moreover, t he deciding official properly considered that he did not want the
appellant to supervise her previous team , in particular because her misconduct
involved her threatening a subordinate and thus went to the heart of her duties
and responsibilities as a supervisor . HCD 1 (testimony of the deciding official );
see Hanna , 80 M.S.P.R. 294, ¶ 17. We also considered that he did not want the
appellant to interact with customers because two customers witnessed the
appellant ’s threatening behavior . HCD 1 (testimony of the deciding official ); see
Hutson v. Department of the Interior , 67 M.S.P.R. 432 , 447 (1995). The deciding
official testified t hat he wanted to impose a penalty that would allow the
appellant to work at the same location in a position where by she could maint ain
her benefits and retirement . HCD 1 (testimony of the deciding official ). He
further testified that, although other mana gers had been demoted fewer steps than
had the appellant, part of the difference in treatment was attributable to the
availability of positions. ID at 21-22; HCD 1 (testimony of the deciding official ).
We find these to be reasonable and appropriate considerations under the
circumstances.
¶26 For the first time at the hearing , the appellant testified that she would have
been willing to relocate nationwide for reassignment to a nonsupervisory position
of Small Business Sales Specialist at her former EAS -25 level . ID at 21-22;
HCD 1 (testimony of the appellant ). She asserts that a demotion to an EAS -23
level is the most severe reasonable penalty . PFR File, Tab 5 at 29. We agree
with the administrative judge that the appellant ’s alleged willingness to rel ocate
did not provide a reason for disturbing the penalty, especially as there was no
evidence that the position she identified was available. ID at 23; HCD 1
(testimony of the appellant ). On review, the appellant has not identified an y
available position, particularly not a nonsupervisory position that does not
involve interacting with the public. T he agency was in the best position to
determine whether placement in an ava ilable position would address the deciding
official ’s concerns a bout the appellant ’s duties. Based upon the above and our
14
considering the record as a whole , we find that the administrative judge properly
sustained the demotion , and we affirm the initial decision . See Little v.
Department of Transportation , 112 M.S.P.R. 224, ¶ 32 (2009) (finding that, given
the multiplicity of charges, the serious nature of each of the charges, the
appellant ’s status as a supervisor, his admissions regarding his misconduct, and
the deciding official ’s proper consideration of the relevant Douglas factors, the
administrative judge properly affirmed the demotion penalty ).
¶27 Accordingly, we affirm the init ial decision.
NOTICE OF APPEAL RIG HTS5
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 ob tain
review of this final decision. 5 U.S.C. § 7703 (a)(1). By statute, the nature of
your claims determines the time limit for seeking such review and the appropriate
forum with which to file. 5 U.S.C. § 7703 (b). Although we offer the following
summary of available appeal rights, the Meri t Systems Protection Board does not
provide legal advice on which option is most appropriate for your situation an d
the rights described below do not represent a statement of how courts will rule
regarding which cases fall within their jurisdiction. If you wish to seek review of
this final decision, you should immediately review the law applicable to you r
claims and carefully follow all filing time limits and requirements. Failure to file
within the applicable time limit may result in the dismissal of your case by your
chosen forum.
Please read carefully each of the three main possible choices of revie w
below to decide which one applies to your particular case. If you have questions
5 Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise which option is most appropriate in any matter.
15
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a gen eral rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decis ion. 5 U.S.C.
§ 7703 (b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
16
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703 (b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. ____ , 137 S. Ct. 1975 (2017). If you have a
representative in this case, and your representative receives this decision before
you do, then you m ust file with the district court no later than 30 calendar days
after your representative receives this decision. If the action involves a claim of
discrimination based on race, color, religion, sex, national origin, or a disabling
condition, you may be e ntitled to representation by a court -appointed lawyer and
to waiver of any requirement of prepayment of fees, costs, or other security. See
42 U.S.C. § 2000e -5(f) and 29 U.S.C. § 794a .
Contact information for U.S. district courts can be found at their respe ctive
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employme nt
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702 (b)(1) . You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702 (b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, th e
address of the EEOC is:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
17
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302 (b)(8) or
other protected activities listed in 5 U.S.C. § 2302 (b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
disposition of allegations of a prohibited personnel practice described in
section 2302(b) other than practices des cribed in section 2302(b)(8), or
2302(b)(9)(A)(i), (B), (C), or (D),” then you may file a 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 m ust 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
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 co urt 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
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
Conta ct information for the courts of appeals can be found at their
respective websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites .aspx .
FOR THE BOARD:
Washington, D.C. /s/ for
Jennifer Everling
Acting Clerk of the Board | JACKSON_FISHER_FELICIA_L_CH_0752_15_0492_I_1_FINAL_ORDER_1960023.pdf | 2022-09-13 | null | CH-0752-15-0492-I-1 | NP |
4,126 | https://www.mspb.gov/decisions/nonprecedential/JOHNSON_WADRA_E_DA_0752_17_0498_I_1_FINAL_ORDER_1960052.pdf | UNITED STATES OF AME RICA
MERIT SYSTEMS PROTEC TION BOARD
WADRA E. JOHNSON,
Appellant,
v.
UNITED STATES POSTAL SERVICE,
Agency.
DOCKET NUMBER
DA-0752 -17-0498 -I-11
DATE: September 13, 2022
THIS FINAL ORDER IS NONPRECEDENTIAL2
Wadra E. Johnson , Lafayette, Louisiana, pro se.
Steven E. Coney , Dallas, Texas, for the agency.
BEFORE
Cathy A. Harris , Vice Chairman
Raymond A. Limon , Member
Tristan L. Leavitt , Member
1 This appeal was previously joined with Johnson v. U.S. Postal Service , MSPB Docket
No. DA -0752 -18-0005 -I-1, for adjudication under 5 C.F.R. § 1201.36 (b). We find that
the appeals n o longer meet the criteria for joinder and will issue a separate decision
addressing the appellant’s petition for review in that appeal.
2 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion an d Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117 (c).
2
FINAL ORDER
¶1 The appellant has filed a petition for review of the initial decision, which
dismissed as moot her appeal of her suspension. For the reasons discussed below,
we GRANT the appellant’s petition for review , AFFIRM IN PART and VACATE
IN PART the initial decis ion, and REVERSE the suspension.
¶2 The material facts in this appeal are not in dispute. The administrative
judge found that the agency initiated the appellant’s absence by sending her home
from work on August 10, 2017 , and not permitting her to return un til October 23,
2017 , when it placed her in a limited duty assignment. Initial Appeal File (IAF),
Tab 47, Initial Decision (ID) at 7 -11. The administrative judge further found that
the appellant’s absence constitutes an appealable suspension under Abbott v. U.S.
Postal Service , 121 M.S.P.R. 294, ¶¶ 9-10 (2014). ID at 8-11. The
administrative judge’s findings are fully supported by the record , and the agency
does not dispute them.
¶3 The administrative judge further found , and the agency does not dispute,
that the agency failed to afford the appellant advance notice of the suspension or
an opportunity to respond before imposing the su spension . ID at 11-12. It
therefore failed to afford her minimum due process , and its suspension must be
reversed. Martin v. U.S. Postal Service , 123 M.S.P.R. 189, ¶ 11 (2016).
¶4 Although the suspension must be reversed, the appellant is entitled to a
decision on the merits of her disability discrimination claim. Id., ¶ 12. The
administrative judge found that the agency offered, and the appellant accepted, a
reasonable accommodation in the form of a limited duty job assignment providing
lobby assistance and answering telephones. ID at 14. The administrative judge
found, therefore, that the appella nt failed to show that the agency failed to
accommodate her disability. The appellant does not dispute this finding on
review. We therefore affirm the administrative judge’s findings that the
appellant’s absence constitutes an appealable suspension, that the agency failed to
3
afford her minimum due process, and that the appellant failed to prove her
discrimination claim.
¶5 The administrative judge found that the agency afforded the appellant all of
the relief she would have received in her suspension appeal if the appeal had been
adjudicated and she had prevailed, and that this rendered the appeal moot and
removed it from the Board’s jurisdiction. ID at 14 -16. The Board’s jurisdiction
is determined by the nature of an agency’s action at the time an appeal i s filed
with the Board. Haskins v. Department of the Navy , 106 M.S.P.R. 616 , ¶ 15
(2007) . An agency’s unilateral modification of its adverse action after an appeal
is filed cannot divest the Board of jurisdiction unless the appellant consents to
such divestiture or unless the agency completely rescinds the action being
appealed. Id. Thus, the Board may dismiss an appeal as moot if the agency
cancels or rescinds the action. Id. For an appeal to be deemed moot, however,
the employee must have received all of the relief that she could have received if
the matter had been adjudicated and she had prevailed. Id. If an appeal is not
truly moot despite cancellation of the action under appeal, the proper remedy is
for the Board to retain jurisdiction and to adjudicate the appeal on the merits. Id.
An appeal is not moot whe n there is a genuine factual dispute as to whether the
appellant has received all of the relief to which she is entitled. Id., ¶ 20.
¶6 The administrative judge found that the agency paid the appellant all
appropriate back pay for the period August 10 through October 20, 2017,
including 40 hours o f base pay per week , overtime, premium pay, leave
restoration, and two Federal holidays. ID at 15. The appellant began her limited
duty assignment on Monday, October 23, which was the second week of the pay
period. The agency paid her 40 hours plus overti me and premium pay for the first
week of the pay period, and the administrative judge found that the appellant was
not entitled to any addit ional pay for Saturday, October 21, and Sunday,
October 22. However, according to the agency’s pay records, the app ellant’s pay
period started on Saturday; she worked Saturday and Sunday, was off on Monday
4
and Tuesday, and worked Wednesday, Thursday, and Friday. IAF, Tab 45 at 60.
Therefore, it appears that, had she been working, she would have worked on
Saturda y and Sunday, October 21 and 22 , because those were regular work days
for her and because her new assignment was not effective until October 23. We
find, therefore, that there is a genuine factual dispute as to whether the appellant
is entitled to be paid for t hese 2 days. Therefore, the appeal is not moot, and the
administrative judge erred by dismissing the appeal for lack of jurisdiction.
ORDER
¶7 We ORDER the agency to cancel the appellant’ s suspension and to restore
the appellant effective August 10, 2017. 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 th e date of this decision.
¶8 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 t he 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 Boar d’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.
¶9 We further ORDER the agenc y 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).
¶10 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
5
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 carrie d 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).
¶11 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 fo rth above.
NOTICE TO THE APPELL ANT REGARDING
YOUR RIGHT TO REQUES T
ATTORNEY FEES AND CO STS
You may be entitled to be paid by the agency for your reasonable attorney
fees and costs. To be paid, you must meet the requirements set forth at title 5 of
the United States Code (5 U.S.C.), sections 7701(g), 1221(g), or 1214(g).
The regulations may be found at 5 C.F.R. §§ 1201.201 , 1201.202, and 1201.203.
If you believe you meet these requirements, you must file a motion for attorney
fees and costs WITHIN 60 CALENDAR DAYS OF THE 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.
NOTIC E OF APPEAL RIGHTS3
The initial decision, as supplemented by this Final Order, constitutes the
Board’s final decision in this matter. 5 C.F.R. § 1201.113 . You may obtain
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
review of this final decision. 5 U.S.C. § 7703 (a)(1). By statute, the nature of
your claims determines the time limit for seeking such review and the appropriate
forum with which to file. 5 U.S.C. § 7703 (b). Although we offer the following
summary of available appeal rights, the Merit Systems Protection Board does not
provide legal advice on which option is most appropriate for your situation and
the rights described below do not represent a statement of how courts will rule
regarding which cases fall within their jurisdiction. If you wish to seek review of
this final decision, you should immediately review the law applicable to your
claims and carefu lly follow all filing time limits and requirements. Failure to file
within the applicable time limit may result in the dismissal of your case by your
chosen forum.
Please read carefully each of the three main possible choices of review
below to decide whi ch one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703 (b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of partic ular
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.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by a n action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703 (b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. ____ , 137 S. Ct. 1975 (2017). If you have a
representative in this case, and your representative receives this decision before
you do, then you must file with the district court no later than 30 calendar days
after your representative receives this deci sion. If the action involves a claim of
discrimination based on race, color, religion, sex, national origin, or a disabling
condition, you may be entitled to representation by a court -appointed lawyer and
to waiver of any requirement of prepayment of fees , costs, or other security. See
42 U.S.C. § 2000e -5(f) and 29 U.S.C. § 794a .
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
8
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702 (b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702 (b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review t o the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursua nt to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302 (b)(8) or
other protected activities listed in 5 U.S.C. § 2302 (b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
disposition of allegations of a pro hibited personnel practice described in section
2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i),
(B), (C), or (D),” then you may file a petition for judicial review either with the
U.S. Court of Appeals for the Federal Cir cuit or any court of appeals of
9
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.
Washingt on, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the 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, 201 8, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
The Al l Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115 -195,
132 Stat. 1510.
10
Contact information for the courts of appeals can be found at their
respective websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsit es.aspx .
FOR THE BOARD:
Washington, D.C. /s/ for
Jennifer Everling
Acting Clerk of the Board
DEFENSE FINANCE AND ACCOUNTING SERVICE
Civilian Pay Operations
DFAS BACK PAY CHECKLIST
The following documentation is required by DFAS Civilian Pay to compute and pay back pay
pursuant to 5 CFR § 550.805. Human resources/local payroll offices should use the following
checklist to ensure a request for payment of back pay is complete. Missin g documentation may
substantially delay the processing of a back pay award. More information may be found at:
https://wss.apan.org/public/DFASPayroll/Back%20Pay%20Process/Forms/AllItems.aspx.
NOTE: Attorneys’ fees or other non -wage payments (such as d amages) 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 Remed y 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 employme nt.
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 sever ance pay received by the employee upon separation.
Lump Sum Leave Payment Debts: When a separation is later reversed, there is no authority
under 5 U.S.C. § 5551 for the reinstated employee to keep the lump sum annual leave payment
they may have received. The payroll office must collect the debt from the back pay award. The
annual leave will be restored to the employee. Annual leave that exceeds the annual leav e
ceiling will be restored to a separate leave account pursuant to 5 CFR § 550.805(g).
NATIONAL FINANCE CEN TER CHECKLIST FOR BA CK PAY CASES
Below is the information/documentation required by National Finance Center to process
payments/adjustments agreed on in Back Pay Cases (settlements, restorations) or as ordered by
the Merit Systems Protection Board, EEOC, and courts .
1. Initiate and submit AD -343 (Payroll/Action Request) with clear and concise information
describing what to do in accordance with decisi on.
2. The following information must be included on AD -343 for Restoration:
a. Employee name and social security number.
b. Detailed explanation of request.
c. Valid agency accounting.
d. Authorized signature (Table 63).
e. If interest is to be included.
f. Check mailing address.
g. Indicate if case is prior to conversion. Computations must be attached.
h. Indicate the amount of Severance and Lump Sum Annual Leave Payment to be
collected (if applicable).
Attachments to AD -343
1. Provide pay entitlement to incl ude Overtime, Night Differential, Shift Premium, Sunday
Premium, etc. with number of hours and dates for each entitlement (if applicable).
2. Copies of SF -50s (Personnel Actions) or list of salary adjustments/changes and amounts.
3. Outside earnings document ation statement from agency.
4. If employee received retirement annuity or unemployment, provide amount and address to
return monies.
5. Provide forms for FEGLI, FEHBA, or TSP deductions. (if applicable)
6. If employee was unable to work during any or part of t he period involved, certification of the
type of leave to be charged and number of hours.
7. If employee retires at end of Restoration Period, provide hours of Lump Sum Annual Leave
to be paid.
NOTE: If prior to conversion, agency must attach Computation Worksheet by Pay Period and
required data in 1 -7 above.
The following information must be included on AD -343 for Settlement Cases: (Lump Sum
Payment, Correction to Promotion, Wage Grade Increase, FLSA, etc.)
a. Must provide same data as in 2, a -g above.
b. Prior to conversion computation must be provided.
c. Lump Sum amount of Settlement, and if taxable or non -taxable.
If you have any questions or require clarification on the above, please contact NFC’s
Payroll/Personnel Operations at 504 -255-4630. | JOHNSON_WADRA_E_DA_0752_17_0498_I_1_FINAL_ORDER_1960052.pdf | 2022-09-13 | null | DA-0752-17-0498-I-11 | NP |
4,127 | https://www.mspb.gov/decisions/nonprecedential/HARRACH_LESLIE_K_DE_1221_12_0491_W_2_FINAL_ORDER_1960056.pdf | UNITED STATES OF AME RICA
MERIT SYSTEMS PROTEC TION BOARD
LESLIE K. HARRACH,
Appellant,
v.
SOCIAL SECURITY
ADMINISTRATION,
Agency.
DOCKET NUMBER
DE-1221 -12-0491 -W-2
DATE: September 13, 2022
THIS FINAL ORDER IS NONPRECEDENTIAL1
Leslie K. Harrach , Phoenix, Arizona, pro se.
Cynthia B. De Nardi , Esquire, San Francisco, California, for the agency.
BEFORE
Cathy A. Harris , Vice Chairman
Raymond A. Limon , Member
Tristan L. Leavitt , Member
FINAL ORDER
¶1 The appellant has filed a petition for review of the initial decision, which
denied her request for corrective action . Generally, we grant petitions such as
this one only in the following circumstances: the initial decision contains
erroneous findings of material fact; the initial decision is based on an erroneous
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
requir ed to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117 (c).
2
interpretation of statute or regulation or the erroneous application of the law to
the facts of the case; the administrative judge ’s rulings during either the course of
the appeal or the initial decision were not consistent with required procedures or
involved an abuse of discretion, and the resulting error affected the outcome of
the case; or new and material evidence or legal argument is available that, despite
the petitioner ’s due diligence, was not available when the record closed. Title 5
of the Code of Federal Regulations, s ection 1201.115 ( 5 C.F.R. § 1201.115 ).
After fully considering the filings in this app eal, we conclude that the petitioner
has not esta blished any basis under section 1201.115 for granting the petition for
review. Therefore, we DENY the petition for review. Except as expressly
MODIFIED by this Final Order to (1) vacate the administrative judge ’s
credibility determinations made after a hearing the appellant did not request ,
(2) find that the appellant established that her four disclosures were protected and
were contributing factor s in her termination , and (3) find a slight retaliatory
moti ve on the part of relevant agency officials , we AFFIRM the initial decision.
BACKGROUN D
¶2 Effective August 29, 2010, the agency appointed the appellant to an
excepted -service Attorney -Advisor position with the agency ’s Office of Disability
Adjudication and Review in Phoenix, Arizona . Harrach v. Social Security
Administration , MSPB Docket No. DE-1221 -12-0491-W-1, Initial Appeal File
(IAF), Tab 8 at 115. The appointment was subject to a 2 -year trial period. Id. At
all times relevant to this appeal, the ap pellant ’s first -line supervisor was M.H.,
Attorney Adjudicator and Group Supervisor, her second -line supervisor was
L.W., Hearing Office Director , and her third -line supervisor was P.F., Hearing
Office Chief Administrative Law Judge (CALJ). Harrach v. Social Security
Administration , MSPB Docket No. DE-1221 -12-491-W-2, Appeal File (W -2 AF),
Tab 45 at 40-41.
3
¶3 On August 17, 2012, CALJ P.F. issued the appellant a notice of termination .
IAF, Tab 8 at 53-54. In the notice, the agency provided the follow ing narrative in
support of the termination:
Despite counseling and opportunity to improve, you have failed to
properly demonstrate courtesy and consideration when interacting
with coworkers, including management, and you h ave not conducted
yourself with propriety.
On October 19, 2010 and October 5, 2011, you were advised that all
employees must adhere to the Standards of Conduct for Employees
of the Executive Branch as explained in the Annual Personnel
Reminders. Specifically, the A nnual Personnel Remind ers, Part 1.6,
states that you “are responsible for observing the requirements of
courtesy and consideration while dealing with coworkers or serving
the public and must conduct yourself with propriety.” On May 24,
2012 you were counseled by your first -line supervisor after you
made discourteous remarks. For example, you told [M.H.] , your
supervisor, that she was “stupid”, and “incompetent.” During the
counseling session with her, you engaged in further misconduct by
making additional discourteous remarks. You indicated that [M.H.]
was not a legal professional and that her professional license was “a
fake.” You also frequently interrupted [M.H.] during the meeting
and used profanity, among other inappropriate conduct. After the
counseling session, your supervisor e -mail ed you a summary of the
discussion. This e -mail also reminded you about the requirement
that you treat others with courtesy and respect, as set forth in the
Annual Personnel Reminders, Part 1.6. Subsequently, you continued
to interact with others, including management, in an aggressive and
inappropriate manner.
Id. The appellant ’s termination was effective August 27, 2012. Id. at 52.
¶4 On September 4, 2012, t he appellant timely filed an individual right of
action (IRA) appeal in which she alleged that the agency terminated her in
retaliation for her protected whistleblower disclosures . IAF, Tab 1 at 3-5, 11 -16.
The appel lant indicated on her initial appeal form that she requested a hearing.
Id. at 2. On January 23, 2013, the administrative judge dismissed the appeal
without prejudice pending a Board determination regarding the retroactive effect
of the Whistleblower Protection Enhancement Act of 2012, Pub. L. No. 112-199,
126 Stat. 1465 (WPEA) . IAF, Tab 14, Initial Decision. On July 15, 2013, the
4
appeal was refiled sua sponte following the Board ’s decision in Day v.
Department of Homeland Security , 119 M.S.P.R. 589 (2013) . W-2 AF, Tab 1.
¶5 The administrative judge subsequently issued a jurisdictional order
providing the parties with their respective burdens of proof in an IRA appeal .
W-2 AF, Tab 8. After the parties had an opportunity to respond to the order, the
administrative judge found that the Board has jurisdiction over the appe llant ’s
IRA appeal . W-2 AF, Tab 40. Specifically, she found that the appellant had
exhausted her administrative remedies before the Office of Special Counsel
(OSC) by first raising her concerns in an OSC complaint dated August 6, 2012, as
amended on Augu st 31, 2012. Id. at 1. In addition, she found that the appellant
nonfrivolously alleged that she was terminated during her trial period in
retaliation for having made protected whistleblower disclosures. Id. at 2. The
administrative judge also found th at a separation from Federal service constituted
a personnel action under 5 U.S.C. § 2302 (a)(2)(A) . Id.
¶6 Havin g found jurisdiction over the appeal, the administrative judge granted
a hearing on the merits of the appeal. W -2 AF, Tabs 20, 40 . The appellant
subsequently filed a motion for a decision on t he written record. W-2 AF,
Tab 42. Thereafter, the administrative judge issued an order cancelling the
hearing and providing the parties with t he opportunity to submit closing evidence
and argument no later than January 31, 2014. W-2 AF, Tab 44. Following the
submission of closing evidence and argument by the parties, the administrative
judge ordered a hearing on her own initiative , relying on 5 C.F.R. § 1201. 41(b)(5)
for doing so . W-2 AF, Tab 57. On May 19-21, 2014, she held an in -person
hearing. W-2 AF, Tab 69.
¶7 On May 25, 2016, the administrative judge issued an initial decision
denying the appellant ’s requ est for corrective action. W -2 AF, Tab 76, Initial
Decision (W -2 ID). She first found that the appellant established a prima facie
case of whistleblower reprisal . Id. at 18-19. In that regard, she found that the
appellant raised the following disclosures in both her OSC complaint and her
5
Board appeal: (1) a May 2012 meeting with CALJ P.F. during which the
appellant disclosed fraud and discrimination by her supervisor M.H . concerning
administrative law judge ( ALJ) M.T. and attorney M.C. ; (2) a June 2012 affidavit
submitted to the Equal Employment Opportunity Commission (EEOC) by the
appellant disclosing “[M.H.] ’s fraud, coercion, abuse of power and
discrimination”; (3) her July 25, 2012 letter to the EEOC disclosing that the
agency violat ed the Privacy Act when it improperly accessed her offi cial
personnel records; and (4) her August 3, 2012 letter to the EEOC in which she
disclosed “witness tampering activities of [M.H. ], [CALJ P.F.], and [D.T. ] that
occurred on August 2, 2012.” W-2 ID at 3; W -2 AF, Tab 40 at 2. Based on
extensive credibility determinations, the administrative judge found that the
meeting between the appellant and CALJ P.F. described in disclosure (1) did not
occur , W-2 ID at 12-13, 19, and that the events described in disclosure (2) did not
happen, W-2 ID at 6-8, 15, 19. She found, however, that it was undisputed that
the appellant ’s disclosures to the EEOC in July and August 2012 were in fact
made and that d isclosures (3) and (4) evidence d a violation of law and therefore
constitute d protected disclosures under 5 U.S.C. § 2302 (b)(8) .2 W-2 ID at 19.
2 To the extent the appellant may be asking the Board to order corrective action based
on alleged reprisal for engaging in equal employment opportunity (EEO) activity, we
(and the administrative jud ge) did not address her concerns in that context. The
disclosures and personnel action at issue in this case happened before the enactment of
the WPEA. The WPEA did not apply retroactively to disclosures or activities that
occurred before its December 27, 2012 effective date. The WPEA expanded the IRA
appeal rights afforded under 5 U.S.C. § 1221 (a) to include requests for corrective action
based not only on the prohibited personnel practices disc ussed in section 2302(b)(8) but
also for those discussed in sections 2302(b)(9)(A)(i), (B), (C), and (D). See WPEA,
§ 101(b)(1), 126 Stat. at 1465 -66; see also 5 U.S.C. § 1214 (a)(3) . Most pertinent here,
under the WPEA, an employee has the right under certain circumstances to seek
corrective action when she suffers reprisal due to the filing of an EEO complaint. See
5 U.S.C. § 2302 (b)(9)(A)(i) (prohibiting an agency from retaliating against an employee
for “the exercise of any appeal, complaint, or grievance right” related to
whistleblowing). However, the WPEA’s predecessor statute, the Whistleblower
Protection Act (WPA), d id not authorize the Board to order corrective action in cases
involving alleged reprisal for engaging in EEO activity. See Spruill v. Merit Systems
Protection Board , 978 F.2d 679 , 690 (Fed. Cir. 1992) (recognizing that the WPA did
6
Furthermore, the administrat ive judge found that the appellant established by
preponderant evidence that her protected disclosures were a contributing factor in
her termination . W-2 ID at 20-22.
¶8 Having found that th e appellant established a prima facie ca se of
whistleblower retaliation as to disclosures (3) and (4), the administrative judge
considered whether the agency established by clear and convincing evidence that
it would have terminated the appellant in the absence of her protected disclosures.
W-2 ID at 22-27. She found the agency met its burden of proof and, therefore ,
she denied the appellant ’s request for corrective action. W-2 ID at 27-28.
¶9 The appellant timely filed a petition for review. Petition for Review (PFR)
File, Tab 1. The agency has filed a response , PFR File, Tab 6, and the appellant
has filed a reply to the agency ’s response, PFR File, Tab 7. The appellant raises
the following arguments on review: (1) the administrative judge ’s credibility
findings should be overturned because the administrative judge failed to properly
weigh and consider evidence and misapplied Hillen ;3 (2) the administrative judge
improperly excluded evidence and te stimony during the hearing; (3) the
administrative judge erred in convening the hearing followi ng the appellant ’s
motion for a decision on the written record; (4) the administrative judge erred in
finding that two of her alleged disclosures were not protected; (5) the
not provide individuals with a right to bring an IRA appeal based on claims of reprisal
for making disclosures protected under section 2302(b)(9)). As a result, neithe r we nor
the administrative judge analyzed the appellant’s EEO activity as a possible
section 2302(b)(9) retaliation claim under the WPEA.
3 To resolve credibility issues, an administrative judge must identify the factual
questions in dispute, summarize the evidence on each disputed question, state which
version she believes, and explain in detail why she found the chosen version more
credible, considering such factors as: (1) the witness’s opportunity and capacity to
observe the event or action question ; (2) the witness’s character; (3) any prior
inconsistent statement by the witness; (4) a witness’s bias, or lack of bias; (5) the
contradiction of the witness’s version of events by other evidence or its consistency
with other evidence; (6) the inherent i mprobability of the witness’s version of events;
and (7) the witness’s demeanor. Hillen v. Department of the Army , 35 M.S.P.R. 453 ,
458 (1987).
7
administrative judge failed to draw an adverse inference against the agency for
changing its “story . . . [once] it realized that the knowledge/timing test an d
evidence went against them ”; (6) the administrative judge erred in finding that the
agency met its burden of proof by clear and convincing evidence; (7) the
administrative judge committed a procedural error by delaying the issuance of the
initial decision ; and (8 ) the administrative judge did not consider that the agency
violated the notice requirement in the appellant ’s union contract by failing to
provide her with sufficient not ice of her termination. PFR File, Tabs 1, 7.
DISCUSSION OF ARGUME NTS ON REVIEW
The administrative judge should have decided the appeal based on the written
record .
¶10 As noted above, the appellant contends on review that the administrative
judge erred in c onvening a hearing over her motion for a decision on the written
record. PFR File, Tab 1 at 13. Under 5 C.F.R. § 1201.41 (b)(5), an administrative
judge has the authority to order a hear ing on h er own initiative if the
administrative judge determines that a hearing is necessary to resolve important
issue s of credibility ; ensure that the record on significant issues is fully
developed; or to otherwise ensure a fair and just adjudication of the case. An
administrative judge ’s authority to order a hearing, however, must be viewed in
light of the Congressional purpose underlying the right to a hearing. Dodd v.
Department of the Interior , 48 M.S.P.R. 582, 584 (1991) . Our reviewing court
has stated that the hearing right exists for the benefit of the appellant and that “a
heari ng with live witnesses should never be forced upon an employee who has
forfeited or abandoned [her] right to a hearing.” Callahan v. Department of the
Navy, 748 F.2d 1556 , 1559 ( Fed. Cir. 1984) (holding that when an appellant
failed to appear for a hearing without a valid excuse, it was error for the
administrative judge to continue the hearing without the appellant, vacating the
Board’s decision , and remanding the case for reconsideration based “on the
8
record developed by the agency during its investigation”) ; see Dodd , 48 M.S.P.R.
at 584.
¶11 While we are sympathetic as to why the administrative judge, as the trier of
fact and relying on the langu age of section 1201.41(b)(5), may have wished to
develop the record on the issues before her in this whistleblower case, we find
that the administrative judge should have granted the appellant ’s request for a
decision on the written record and determined w hether to grant or deny the
appellant ’s request for corrective action without relying on the hearing testimony.
See Grimes v. General Services Administration , 84 M.S.P.R. 244, ¶ 8 (1999);
Kirkpatrick v. Department of the Interior , 49 M.S.P.R. 316, 318 (1991) ; Dodd ,
48 M.S.P.R. at 584-85. Therefore, under the circumstances of this case, t he
administrative judge ’s credibility findings are vacated. However, because the
written record is complete, we will rule on the merits of the appeal without
remanding this appeal to the field office. See Grimes , 84 M.S.P.R. 244, ¶ 9
(declining to remand the appeal to the regional office when the administrative
judge erred in considering the hearing testimony in reaching her decision but the
record was complete). Because we reach our decision in this case based on t he
written record, as the appellant sought below, we will not consider the appellant ’s
challenges to the administrative judge ’s credibility determinations, nor will we
consider her argument that the administrative judge improperly excluded e vidence
and arg ument during the hearing.
¶12 In deciding this case on the wri tten record, we have considered, among
other things, the statements and affidavits submitted by the parties. These
out-of-court statements and affidavits constitute hearsay. Hearsay evidence is
admissible in Board proceedings, and the assessment of the probative value of
hearsay evidence necessarily depends on the circum stances of each case.
Borninkhof v. Department of Justice , 5 M.S.P.R. 77, 83 –87 (1981). The
following factors may be included in considering the probative value of the
hearsay evidence: (1) the availability of persons with firsthand knowledge to
9
testify at the hearing; (2) whether the statements of the out -of-court declarants
were signed or in affidavit form and whether anyone witnessed the signing;
(3) the agency ’s explanation for failing to obtain signed or sworn statements;
(4) whether the declarants were disinterest ed witnesses to the events and whether
the stat ements were routinely made; (5) the consistency of declarants ’ accounts
with other information in the case, internal consistency, and their c onsistency
with each other; (6) whether corroboration for statements can otherwise be found
in the agency record; (7) the absence of contradictory evidence; and (8) the
credibility of the declarants when they made the statement attributed to them. Id.
at 87. We have considered these factors in assessing whether the parties have met
their respective burden s of proof.
The appellant established a pr ima facie case of whistleblower retaliation .
¶13 After establishing the Board ’s jurisdiction in an IRA appeal, as the
administrative judge found the appellant did in this cas e,4 an a ppellant must
establish a prima facie case of whistleblower retaliation by proving by
preponderant evidence that she made a protected disclosure that was a
contributing factor in a personnel action taken against her. 5 U.S.C. § 1221 (e)(1);
Lu v. Department of Homeland Security , 122 M.S.P.R. 335 , ¶ 7 (2015). If the
appellant makes out a prima facie case, then the agency is given an opportunity to
prove by clear and convincing evidence that it would have taken the same
personnel action in the absen ce of the protected disclosure. 5 U.S.C.
§ 1221 (e)(1) -(2); Lu, 122 M.S.P.R. 335 , ¶ 7. Preponderant evidence is that
degree of releva nt evidence that a reasonable person, considering the record as a
whole, would accept as sufficient to find that a contested fact is more likely true
than unt rue. 5 C.F.R. § 1201.4 (q). Clear and convincing evidence is that
measure or degree of proof that produces in the mind of the trier of fact a firm
4 The parties do not challenge the administrative judge’s jurisdictional finding on
review. Because the agency does not challenge that finding, we discern no basis for
disturbing it.
10
belief as to the allega tions sought to be established. 5 C.F.R. § 1209.4 (e). It is a
higher standard than preponderant evidence. McC arthy v. International Boundary
& Water Commission , 116 M.S.P.R. 594, ¶ 43 (2011), aff’d, 497 F. App’x 4 (Fed.
Cir. 2012).
The appellant established by preponderant e vidence that she made
protected disclosures.
¶14 A protected disclosure i s a disclosure of information that an appellant
reasonably believes evid ences a violation of any law, rule, or regulation, gross
mismanagement, a gross waste of funds, an abuse of authority, or a substantial
and specific dan ger to public health or safety. 5 U.S.C. § 2302 (b)(8)(A) ;
Linder v. Department of Justice , 122 M.S.P.R. 14, ¶ 12 (2014). A reasonable
belief exists if a disinterested observer with knowledge of the essential facts
known to and readily ascertainable by the appellant could reaso nably conclude
that the actions evidence one of the categories of wrongdoing l isted in
section 2302(b)(8)(A). Id.; see Lachance v. White , 174 F.3d 1378 , 1381 (Fed.
Cir. 1999) . To establish that she made a protected disclosure, the appellant need
not prove that the matter disclosed actual ly established one of the types of
wrongdoing listed under section 2302(b)(8)(A); rather, she must show that the
matter disclosed was one that a reasonable person in h er position could have
believed evidenced any o f the situations specified in 5 U.S.C. § 2302 (b)(8).
Chavez v. Department of Veterans Affairs , 120 M.S.P.R. 285, ¶ 18 (2013) .
Moreover, the Board does not require an appellant to correctly label the category
of wrongdoi ng under 5 U.S.C. § 2302 (b)(8). Tullis v. Department of the Navy ,
117 M.S.P.R. 236, ¶ 7 (2012).
¶15 As previously noted, the administrative judge found that the appellant
raised the following disclosures: (1) a May 2012 me eting with CALJ P.F. where
the appellant claims she disclosed fraud and discrimination by her supervisor
M.H. regarding ALJ M.T. and attorney M.C. ; (2) a June 2012 affidavit submitted
to the EEOC disclosing “[M.H.] ’s fraud, coercion, abuse of power and
11
discrimination”; (3) a July 25, 2012 letter to the EEOC disclosing Privacy Act
violations; and (4) an August 3, 2012 letter to the EEOC in which the appellant
disclosed “witness tamper ing activities of [M.H.], [CALJ P.F.], and [D.T.] that
occurred on Augus t 2, 2012.” W -2 ID at 3; W -2 AF, Tab 40 at 2. We discern no
basis for disturbing the administrative judge ’s findings that the appellant ’s
disclosures to the EEOC in July and August 2012 occurred . In particular, t he
record reflects that, by letter dated July 25, 2012, the appellant alleged to the
EEOC that the agency violated the Privacy Act by M.H. disclosing her personal
information to the agency ’s EEOC counsel and by the agency ’s EEOC counsel
disclosing the information to ano ther employee.5 IAF, Tab 5 at 44-48. In
addition, on August 3, 2012 , the appellant alleged to the EEOC that the agency
engaged in witness tampering when it asked her to review the transcript of a
deposition she had given in another employee ’s EEOC case. Id. at 59-61. She
alleged that M.H. raised her voice and repeatedly told her to sign the deposition
and that the appellant felt under such duress that she was unable to properly
review her deposition. Id. The appellant contended that M.H. ’s actions violated
Federal Rule of Civil Procedure 30(e) and 18 U.S.C § 1512 .6 Id.
¶16 We agree that a reasonable person in the appellant ’s position c ould
reasonably believe that these disclosures evidence d a violation of law . W -2 ID
at 19. Thus, we affirm the administrative judge ’s findings that disclosures (3)
and (4) constitute protected disclosures under 5 U.S.C. § 2302 (b)(8). See
5 The Privacy Act, 5 U.S.C. § 552a , generally prohibits an agency from disclosing
records without the prior written consent of the individual to whom the record pertains.
See 5 U.S.C. § 552a (b). For purposes of section 552a, the term “record” means any
grouping of information about an individual that is maintained by an agency and that
contains , among other things, her name, or the identifying number, symbol, or other
identifying particular assign ed to the individual, such as a finger or voice print or
photograph. See 5 U.S.C. § 552a (a)(4).
6 Section 1512 , titled “Tampering with a witness, victim, or an informant,” prohibits
intimidating a person with intent to influence that person’s testimony or cause her to
withhold testimony or a document from an official proceeding. See 5 U.S.C. § 1512 (b).
Federal Rule of Civil Procedure 30 relates to depositions by oral examination.
12
Hupka v. Department of Defense , 74 M.S.P.R. 406, 410-11 (1997) (finding that
the appellant ’s disclosures regarding alleged Privacy Act violations were
protected) ; see also Kalil v. Department of Agriculture , 96 M.S.P.R. 77, ¶ 16
(200 4) (determining that the appellant made a nonfrivolous allegation that his
disclosure evidenced a violation of 18 U.S.C. § 1512 ). In making th ese
determination s, we do not find that the appellant actually established violation s of
a law, rule, or regulation , but rather that she met h er burden of proving that the
matter disclosed was one that a reasonable person in h er position c ould believe
evidenced such a violation. See Weber v. Department of the Army , 9 F.3d 97 , 101
(Fed. Cir. 1993) ( finding that the Whistleblower Protection Act does not give the
Board the right to review the subs tance of whistleblowing claims ).
¶17 The administrative judge relied on extensive credibility determinations in
finding that disclosure (1) did not happen and that the events in disclosure (2) did
not occur . We have considered the documentary evidence supporting these
disclosures and, as set forth below, we find tha t these disclosures are in fact
protected .
¶18 In her August 31, 2012 amended OSC complaint, the appellant stated the
following regarding disclosure (1):
My direct supervi sor, [M.H.], and . . . [CALJ P.F.] became aware in
early May that I had revealed the discrimination a nd fraud by [M.H.]
against [ALJ M.T.] and [M.C.]. [P.F.] chose to do nothing about it.
[P.F.] and [M.H.] were aware that I would be serving as a witness in
the case of another individual who had proceedings in front of the
[EEOC] and would be submitting an affidavit that disclosed, among
other things, the discrimination agains t [ALJ M.T.] and [M.C.] as
well as the individual involved in the EEOC case.
IAF, Tab 5 at 34. In a statement on jurisdiction made under penalty of perjury ,
the appellant contended that, during a conversation with C ALJ P.F. in early
May 2012, she disclosed that M.H. directed her to sign prewritten affidavits .
W-2 AF, Tab 12 at 5-6, 9. According to the appellant, the affidavits stated that
13
she witnessed ALJ M.T. verbally abusing and berating staff and that M.C. was
verbally abusive to staff and did o utside work during work hours. Id.
¶19 The appellant raised similar allegations in her deposition testimony.
Specifically, she stated under oath that, in early May 2013, she told CALJ P.F.
that M.H. attempted to “coerce [her] into filin g false affidavits” against ALJ M.T.
and M.C. in an effort to get them removed. W -2 AF, Tab 36 at 31, 35 -36. The
appellant stated that M. H. wanted her to say that Judge M.T. verbally attacked
and berated people and that M.C. used work tim e to do outside work. Id.
at 36-37. She further stated that she never witnessed the incidents M.H. asked her
to detail in the affidavits. Id. at 36.
¶20 Furthermore, the appellant reiterated her allegations that M.H. attempted to
coerce her into signing “false affidavits” in a June 21, 2012 affidavit to the
EEOC , which forms the basis for disclosure (2) . W-2 AF, Tab 15 at 12-13. In
her affidavit, she stated that M.H. attempted to coerce her to file false affidavits
regarding an ALJ and a Senior Attorney Advisor. Id. at 13.
¶21 In a declaration under penalty of perjury, CALJ P.F. stated that she did not
recall having a conversation with the appellant in early May 2012 regarding
M.H. ’s alleged “attempted coercion.” W -2 AF, Tab 45 at 29-30. She also stated
that she did not recall the appellant “ever telling [her] anything about [M.H.]
committing fraud or coercion.” Id. at 30. CALJ P.F. did state that the appellant
asked her on May 30, 2012 , whether she was aware that M.H. “wanted [the
appellant] to keep a n eye on [M.C. ’s] activities at work.” The record also
contains a declaration under penalty of perjury from M.H. In the declaration,
M.H. did not refer to the affidavits described in disclosure s (1) and (2) . Id.
at 40-46.
¶22 We find the appellant ’s state ments relating to M.H. ’s request that the
appellant sign false affidavits to have significant probative value . See
Borninkhof , 5 M.S.P.R. at 87. As set forth above, these statements were made
under penalty of perjury or in an affi davit form , and are internally consistent .
14
Moreover, they are not directly contradicted by M.H. ’s sworn declaration.
Regarding the appellant ’s statements that she told CALJ P.F. in early May that
M.H. attempted to force her to commit perjury, we find this evidence entitled to
less probative value because it is contrad icted by CALJ P.F.’s sworn statement
that such a conversation did not occur . However, the appellant ’s statements on
this issue are nonetheless entitled to some probative value because they were
made under penal ty of perjury and are internally consistent . Thus, upon applying
the Borninkhof factors to the hearsay evidence submitted by the parties, and
without the benefit of the administrative judge ’s comprehensive credibility
findings on these issues, we find it is more likely true than untrue that disclosures
(1) and (2) occurred.
¶23 Furthermore, we find that disclosure (1) constitutes a protected disclosure.
The appellant characterized disclosure (1) as evidencing a violation of law, rule,
or regulation —specifically, a violation of 18 U.S.C. § 1622 . W -2 AF, Tab 12
at 10. Section 1622, titled “Subornation of perjury,” states “[w]hoever procures
another to commit any perjury is guilty of subornat ion of perjury, and shall be
fined under this title or imprisoned not more than five years, or both.” She also
alleged that her disclosure evidenced an abuse of authority on the part of M.H.
Id. at 10-11.
¶24 We find that a reasonable person in the appella nt’s position could
reasonably believe that her disclosure to CALJ P.F. evidenced a violation of law,
rule, or regulation or an abuse of authority . At the very least, the appellant ’s
disclosure may evidence a violation of 18 U.S.C. § 1001 , which prohibits making
false statements in any matte r within the jurisdiction of a Federal agency. See
Luecht v. Department of the Navy , 87 M.S.P.R. 297, ¶ 13 (2000) (finding that the
appellant made a nonfrivolous allegation that his disclos ure evidenced a violation
of 18 U.S.C. § 1001 ). An abuse of authority occurs when there is an arbitrary and
capricious exercise of power by a Federal official or employee that adversely
affects the rights of any person or results in personal gain or advantage to herself
15
or to other preferred persons. Pulcini v. Social Security Administration ,
83 M.S.P.R. 685, ¶ 9 (1999), aff’d, 250 F.3d 758 (Fed. Cir. 2000). The Board has
stated t hat there is no de minimis standard for abuse of authority. Id. We find
that a disinte rested observer could reasonably conclude that M.H.’s directing the
appellant to sign false affidavits constituted an arbitrary and capricious exercise
of power that adversely affected the rights of ALJ M.T. and those of M.C .
¶25 Concerning disclosure (2), the record reflects t hat, in an affidavit dated
June 21, 2012, the appellant alleged to the EEOC that [M.H.] “attempted to
coerce me to file false affidavits that would have been untruthful and not based
on person al observation or knowledge” in order to get two other employees
remov ed. W -2 AF, Tab 15 at 12-13. For the same reasons set forth above for
disclosure (1) , we find that a reasonable person in the appellant ’s position c ould
reasonably believe that disclosure (2) evidenced a violation of law, rule, or
regulation and an abuse of authority . We therefore find that disclosure (2) also
constitutes a protected disclosure. Accordingly, we affirm the administrative
judge ’s findings that disclosures (3) and (4) are protected , but we modify the
initial decision to find that disclosures (1) and (2) also are protected under
5 U.S.C. § 2302 (b)(8).
The appellant established by preponderant evidence that her disclosures
were a contributing factor in her termination .
¶26 The term “contributing factor” means any disclosure that affects an
agency ’s decision to threaten, propose, take, or not take a personnel action with
respect to the individual making the disclosure. Usharauli v. Department of
Health & Human Services , 116 M.S.P.R. 383, ¶ 31 (2011) . The most common
way of proving the contributing factor element is the “knowledge/timing” test.
Wadhwa v. Department of Veterans Affairs , 110 M.S.P.R. 615, ¶ 12, aff’d,
353 F. App’x 43 5 (Fed. Cir. 2009) . Under that test, an appellant can prove the
contributing factor element through evidence that the official taking the personnel
action knew of the whistleblowing disclosure and took the personnel action
16
within a period of time such that a reasonable per son could conclude that the
disclosure was a contributing factor in the personnel action. Id. To satisfy the
test, the appellant need demonstrate only that the fact of, not necessarily the
content of, the protected disclosure was one of the factors that tended to affect the
personnel action in any way. Armstrong v. Department of Justice , 107 M.S.P.R.
375, ¶ 19 (2007) , overruled o n other grounds by Edwards v. Department of
Labor , 2022 MSPB 9 .
¶27 The administrative judge found that the appellant established that
disclosures (3) and (4) were a contributing factor in her termination . She found
that CALJ P.F. , M.H., L.W., and other pertinent agency officials involved in the
appellant ’s termination disclaimed knowledge of the appellant ’s protected
disclosures . W-2 ID at 20. The administrative judge noted , however, that the
appellant sent copies of her July and August disclosures to the attorney
representing the agency before the EEOC and that he presumably received a copy
of her June affidavit . Id. at 21. She found that, based on the circumstances, it
was reasonable to infer that relevant agency officials knew the appellant was
reporting concerns to the EEOC. Id. The administrative judge also noted that the
appellant sent an email to L.W., copying C ALJ P.F., which asserted that L.W.
told the appellant, “[w]e can’t have you filing things with the court about
management and our attorney. We can produce your employment records, we are
your employer and there will be a request in the file.” Id.; IAF, Tab 5 at 53-54.
The administrative judge found that this email suggests that L.W. had been told
about the appellant ’s July 25, 2012 letter expressing Privacy Act concerns.
W-2 ID at 21. She thus found that the appellant met the knowledge/timing test as
to disclosures (3) and (4). The agency does not challenge these findings on
review, and we discern no basis for distur bing them .7
7 As previously noted, the appellant contends on review that the administrative judge
failed to draw an adverse inference against the agency for changing its “story . . . [once]
it realized that the knowledge/timing test and evidence went against them.” PF R File,
17
¶28 We find that the appellant also established that disclosures (1) and (2) were
a contributing factor in her termination . The appellant established both
components of the knowledge /timing test as to disclosure (1) because she made
the disclosure to CALJ P.F., who issued her letter of termination, and because th e
May 2012 meeting during which she made the disclosure occurred mon ths prior
her August 27, 2012 termination. See Mudd v. Department of Veterans Affairs ,
120 M.S.P.R. 365, ¶ 10 (2013) (holding that a personnel action that occurred
within 1 year of a protected disclosure satisfies the “tim ing” component of the
knowledge/ timing test ). As previously noted, the administrative judge found that ,
based on the specific circumstances of this case, it was reasonable to infer that
the relevant agency officials had knowledge that the appellant was repor ting
concerns to the EEOC. W -2 ID at 21. The agency does not dispute the
administrative judge’s findings regarding contributing factor on review. In
addition, the appellant has met the timing component of the knowledge /timing
test for disclosure (2). Thus, under the circumstances of this case, we find that
the appellant has met the contributing factor requir ement with regard to
disclosure (2).
¶29 We th erefore affirm the administrative judge ’s findings that the appellant
met the contributing factor requirement concerning disclosures (3) and (4), but
modify the initial decision to find that the appellant also established contributing
factor regarding disc losures (1) and (2).
Tab 1 at 10-11. The appellant appears to argue that the agency “changed their story” to
show that the appellant’s termination was initiated before her first disclosure to
CALJ P.F. in early May 2012. Id. at 11. However, while noting that agency officials
discussed the appellant’s separation prior to her protected disclosures, W -2 ID at 24, the
administrative judge ultimately found that the appellant established the contributing
factor element regarding disclosures (3) and (4). Thus, to the exten t the agency may
have submitted evidence to show the personnel action was contemplated prior to the
appellant’s disclosures, the administrative judge did not find any such evidence to be
dispositive concerning the contributing factor element.
18
The agency established by clear and convincing evidence that it would have taken
the same personnel action absent the appellant ’s disclosures.
¶30 In determining whether the agency has met its burden of proving by clear
and convincing evidence that it would have taken the same personnel action in the
absence of the appellant ’s whistleblowing, the following factors should be
considered: (1) the strength of the agency ’s evidence in suppo rt of its personnel
action; (2) the existence and s trength of any motive to retaliate on the part of the
agency officials who were in volved 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) ; Parikh v. Department of Veterans Affairs ,
116 M.S.P.R. 197 , ¶ 36 (2011) . When conducting an assessment of the Carr
factors, the U.S. Court of Appeals for the Federal Circuit has instructed the Board
to “evaluate all the pertinent evidence in determining whether an element of a
claim or defense has been proven adequately,” Whitmore v. Department of Labor ,
680 F.3d 1353 , 1368 (Fed. Cir. 2012), and, building on this directive, the Board
has held that a proper analysis of the clear and convincing evidence issue requires
that all of the evidence be weighed together —both the evidence that supports the
agency ’s case and the evidence that detracts from it, Shibuya v. Department of
Agriculture , 119 M.S.P.R. 537, ¶ 37 (2013) (citing Whitmore , 680 F.3d at 1368 ).
¶31 Regarding Carr factor one, we agree with the administrative ju dge’s finding
that the agency had strong e vidence in support of its personnel action . W-2 ID
at 23-24. As previously noted, the agency charged the appellant with
“interact[ing] with others, including management, in an aggressive and
inappropriate manner.” IAF, Tab 8 at 54. In reaching her find ing concerning the
first Carr factor , the administrative judge correctly noted that the record is replete
with combative, adversarial emails sent by the appellant to her superiors. W-2 ID
at 23. The record also contains evidence indicating that the appel lant acted
inappropriately towards nonmanagement employees.
19
¶32 On April 13, 2012, the appellant sent M.H. an email demanding that she
answer a series of interrogatory -style questio ns about work assignments.
W-2 AF, Tab 36 at 147-48. The email included the following:
Please state which parts you disagree with (i.e. what is not to your
understanding ( see original ema il)). Clarify your position in
disagreement.
Let’s make this simple and basic:
(1) Did I not request[] work be added to my queue on Thursday,
April 12, 2012 via email? Yes or No?
Id. On May 2, 2012, the appellant sent L.W., her second -line supervisor, an
email objecting to L.W. ’s instruction to pick up additional work or request leave
as a “baseless, unconscionable personnel decision.” Id. at 132. The appellant
further characterized L.W. ’s response as “inappropriate” and accused agency
management of “incompetence.” Id.
¶33 On May 24, 2012 , M.H. sent an email to an agency official stating that the
appellant had come to her office and accused another employee of “stealing” her
“quick parts” to draft his decisions. Id. at 126. According to M.H., the appellant
announced she was “going to confront [the employee] .” Id. M.H. stated that,
after discussing the issue with the employee , she asked the appellant to come to
her office. Id. During their conversation, the appellant called M.H. “stupid” and
“incompetent.” Id. M.H. expre ssed a concern in her email that the appellant
would attempt to confront the employee later in the day, despite her instruction
that she abstain from doing so. Id. While M.H. ’s recollection of the appellant ’s
statements constitutes hearsay evidence, we f ind this evidence to have significant
probative value. See Borninkhof , 5 M.S.P.R. at 87.
¶34 Following the appellant ’s conduct on that date, M.H. decided to counsel the
appellant about her recent behavior in the office. W -2 AF, Tab 6 at 80-83. M.H.
subseque ntly memorialized her May 24, 2012 counseling session with the
appellant in an email she sent to the appellant on that date . Id. According to
M.H., before she could begin counseling the appellant, the appellant informed her
20
“in a very loud and indignant manner that [she] had things stolen” from her office
on three occasions. Id. at 80. M.H. stated that the appellant then yelled at her
and told her she knew about the thefts. Id. M.H. advised the appellant that she
had found the appellant ’s behavior to be unprofessional on several occasions and
reminded her that, as a licensed legal p rofessional and Federal employee, she was
obliga ted to treat all people with respect and co urtesy. Id. The appellant
responded by telling her that M.H. was not a licensed legal professional and that
her license was fake. Id. M.H. further stated in the email that the appellant
interrupted her constan tly during the meeting, called her a liar, and stated that
what M.H. was telling her was bull shit. Id. at 81. M.H. ’s email description of
her May 24, 2012 meeting with the appellant is corroborated by her sworn
declaration, in which she alleged that , dur ing the May 24, 2012 counseling
session, the appellant had interrupted her numerous times, called her a liar , and
told her that her law license was “fake.” W -2 AF, Tab 45 at 43. While M.H. ’s
account of the appellant ’s statements constitute s hearsay, we find this evidence to
have considerable probative value. See Borninkhof , 5 M.S.P.R. at 87.
¶35 On July 26, 2012, the appellant sent M.H. an email stating, among other
things, “[t]his back and forth is getting nowhere and is wasting time I could be
writing, and you all could be doing more important things. I think we have
another of your comprehension issues.” W-2 AF, Tab 36 at 118. The appellant’s
email followed an email conversation between M.H. and the appellant during
which the appellant s tated that she could not “access references/research on the
Intranet,” and M.H. attempted to help her resolve this issue. Id. at 118-19.
¶36 Upon considering the documentary evidence in support of the agency ’s
action, we affirm the administrative judge ’s find ing that the agency had strong
evidence in support of the appellant ’s termination. This evidence reflects that the
appellant behaved in an inappropriate and unprofessional manner toward her
managers and others at the agency both before and after M.H. coun seled her on
May 24, 2012. Further, as noted by the administrative judge, the agency warned
21
the appellant that it was scrutinizing he r during her trial period. W -2 ID at 24;
IAF, Tab 5 at 80; see Lewis v. Department of the Army , 63 M.S.P.R. 119, 126
(1994) (noting an agency’s obligation to use the probationary period to assess the
appellant’s potential for succ ess), aff’d, 48 F.3d 1238 (Fed. Cir. 1995). We thus
find that Carr factor one weighs in the agency’s favor.
¶37 Regarding Carr factor two, the administrative judge found that the agency
officials involved in the appellant ’s termination did not have a motive to retali ate
against the appellant . W-2 ID at 24-26. In relevant part, the administrative judge
found that management officials started discussing the appellant ’s separation
prior to the appellant ’s protected disclosures. Id. at 24. The administrative judge
noted that CALJ P.F. ’s decision to terminate the appellant was firm by early
July 2012, prior to the appellant ’s July and August 2012 disclosures. Id.
¶38 The appellant disputes the administrative judge ’s finding regard Carr factor
two on review , arguing th at agency officials had a strong retaliatory motive and
that they fabricated reasons for the personnel action following the decision to
terminate her . PFR File, Tab 1 at 31. Specifically, as noted above , the appellant
contends that the agency attempted to show that her termination was initiated
before her first disclosure to the CALJ in early May 2012. Id. at 11.
¶39 The record reflects that agency officials were concerned about the
appellant ’s conduct prior to her first disclosure and considered the possibi lity of
terminating her as early as May 2, 2012. In a sworn declaration, L.W. stated that
the appellant had communicated impatiently and inappropriately with
management in April 2012. W-2 AF, Tab 45 at 34. Because L.W. was concerned
about the appellant ’s misconduct, on May 2, 2012, she contacted P.B., an agency
regional attorney, to inquire whether the appellant was hired under an
excepted -service appointment. Id. at 35. L.W. stated that she “raised the issue
because [she] was not sure if the other man agers in the office were aware of [the]
[a]ppellant ’s status or the possibility of terminating her appointment.” Id. In a
sworn declaration, P.B. stated that, in March 2012, he began assisting M.H. with
22
“employee relations issues involving the [a]ppellan t.” Id. at 38. He stated that
L.W. contacted him on May 2, 2012, to discuss problems with the appellant and
that L.W. asked him to determine whether the appellant was serving a trial period
because she was concerned about the appellant ’s behavior. M.H. stated in a
sworn declaration that she contacted a regional agency attorney in April 2012 to
discuss the appellant ’s “rude and discourteous” manner. Id. at 44. Based on the
documentary evidence, we find the appellant ’s contention, that the agency
“fabric ated” reasons for her termination, lacks merit. The record reflects that the
appellant ’s supervisors expressed a strong concern about her conduct prior to her
first disclosure in early May 2012 and that L.W. inquired about the possibility of
terminating her as early as May 2, 2012.
¶40 In light of this evidence, and a lack of record evidence suggesting a strong
retaliatory motive on the part of relevant agency officials, we find that agency
officials involved in the appellant ’s termination did not have a strong motive to
retaliate against the appellant. However, we disagree with the administrative
judge ’s finding that these officials had no motive to retaliate against the
appellant . Agency of ficials that were either directly involved in or that could
have influenced the decision to terminate the appellant were the subjects of her
disclosures . Thus, we find that , under the circumstances of this case, relevant
agency officials had a slight retaliatory motive. See Whitmore , 680 F.3d
at 1370 -71 (finding that the appellant’s criticisms “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”);
Russell v. Department of Justice , 76 M.S.P.R. 317, 326 (1997) (considering the
fact that the agency officials were the subjects of the appellant ’s protected
disclosures in determining that they had a retaliatory motive ). We therefore
modify the administrative judge ’s finding regarding Carr factor two to find the
existence of a slight retaliatory motive .
23
¶41 Finally, regarding Carr factor three, the appellant alleges that the agency
did not take similar actions against employees who had not engaged in
whistleblowing but who were otherwise similarly situated. PFR File, Tab 1 at 33.
Our reviewing court has long held that , for purposes of assessing this factor,
“Carr does not impose an affirmative burden on the agency to produce evidence
with respect to each and every one of the three Carr factors to weigh them each
individually in the agency ’s favor,” and th at “the absence of any evidence relating
to Carr factor three can effectively remov e that factor from the analysis.”
Whitmore , 680 F.3d at 1374 . However, it also has observed that “the
Government ’s failure to produce evidence on this factor ‘may be at the agency ’s
peril, ’ considering the Government ’s advantage in accessing this type of
evidence.” Miller v. Department of Justice , 842 F.3d 1252 , 1262 (Fed. Cir. 2016)
(quoting Whitmore , 680 F.3d at 1374).
¶42 Here, the agency contended that there were no other employees in the
appellant ’s office who demonstrated similar con duct issues. W -2 AF, Tab 45
at 19. The agency further alleged that there w ere no other employees in that
office who were serving a trial period like the appellant. Id. The administ rative
judge found, accordingly, that there was no evidence that the agency took similar
actions against employees who are not whistleblowers but who are otherwise
similarly situated . She concluded that this Carr factor helps neither the appellant
nor the a gency . W-2 ID at 27.
¶43 We find that the administrative judge did not adopt an unduly restrictive
view of what it means to be “similarly situate d” for purposes of this appeal.
Carr , 185 F.3d at 1327 (finding that “the ‘support staff ’ employees of the New
Haven hearing office were not similarly situated to Ms. Carr” when the
employees were supervised under separate chains of command). Furthermore , we
agree with the administrative judge’s finding that the third Carr factor is not a
significant consideration under the circumstances of this case. See Rumsey v.
Departm ent of Justice , 120 M.S.P.R. 259, ¶ 36 (2013) (finding that, when there
24
was no evidence in the record concerning how the agency treated appropriate
nonwhistleblower comparators, consideration of this factor did not materially
assist the Board in deciding whether the agenc y had met its burden of proof) .
¶44 Even if Carr factor three could be found to “cut slightly against the
Government,” we are nonetheless left with the firm belief that the agency would
have taken the same action in the absence of the appellant ’s protected disclosures
based on the strength of the evidence in support of its action and the absence of a
sufficient motive to retaliate against her. See Mithen v. Department of Veterans
Affairs , 122 M.S.P.R. 489, ¶ 36 (2015) (holding that the Board does not view the
Carr 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), aff’d,
652 F. App’x 971 (Fed. Cir. 2016) ; Sutton v. Dep artment of Justice , 94 M.S.P.R.
4, ¶¶ 19-21 (2003) (finding that a whistleblower was lawfully removed based on
the evidence under Carr factors one and two, when the record contained no
evidence of action taken against similarly situated nonwhistleblowe rs), aff’d ,
97 F. App’x 322 (Fed. Cir. 2004) . Accordingly, we agree with the administrative
judge ’s conclusion that the agency established by clear and convincing evidence
that it would have terminated the appellant during her trial period in the absence
of her protected whistleblower disclosures. Thus, we conclude that the appellant
is not entitled to corrective action in her IRA appeal.8
8 As previo usly noted, the appellant argued on review that the administrative judge
committed a procedural error by delaying the i ssuance of the initial decision and that
the administrative judge failed to consider that the agency violated the notice
requirement in t he appellant ’s union contract by failing to provide her with sufficient
notice of her termination. PFR File, Tab 1 at 7 n.2, 13, 26. These assertions do not
provide a basis for review. The appellant’s argument that she received insufficient
notice is no t material to the dispositive issues in this IRA appeal. Furthermore, to the
extent the issuance of the initial decision was delayed, the appellant has not shown that
any delay prejudiced her substantive rights. An adjudicatory error that is not
prejudic ial to a party’s substantive rights provides no basis for reversal of an initial
decision . See Panter v. Department of the Air Force , 22 M.S.P.R. 281 , 282 (1984).
25
NOTICE OF APPEAL RIGHTS9
The initial decision, as supplemented by this Final Order, constitutes the
Board’s final decision in this matter. 5 C.F.R. § 1201.113 . You may obtain
review of this final decision. 5 U.S.C. § 7703 (a)(1). By statute, the nature of
your claims determines the time limit for seeking such review and the approp riate
forum with which to file. 5 U.S.C. § 7703 (b). Although we offer the following
summary of available appeal rights, the Meri t Systems Protection Board does not
provide legal advice on which o ption is most appropriate for your situation an d
the rights described below do not represent a statement of how courts will rule
regarding which cases fall within their jurisdiction. If you wish to seek review of
this final decision, you should immediatel y review the law applicable to your
claims and carefully follow all filing time limits and requirements. Failure to file
within the applicable time limit may result in the dismissal of your case by your
chosen forum.
Please read carefully each of the th ree main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703 (b)(1)(A).
9 Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise which option is most appropria te in any matter.
26
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.caf c.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Prote ction Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703 (b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. ____ , 137 S. Ct. 1975 (2017). If you have a
representative in this case, and your representative receives this decision before
you do, then you must file with the district court no later than 30 calendar days
after your representative receives this decision. If the action involves a claim of
27
discrimination based on race, color, religion, sex, national origin, or a disabling
condition, you may be entitled to representation by a court -appointed lawyer and
to waiver of any requirement of prepayment of fees, costs, o r other security. See
42 U.S.C. § 2000e -5(f) and 29 U.S.C. § 794a .
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed thr ough the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702 (b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receiv e
this decision. 5 U.S.C. § 7702 (b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Wash ington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5S W12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302 (b)(8) or
28
other protected activities listed in 5 U.S.C. § 2302 (b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no cha llenge to the Board’s
disposition of allegations of a prohibited personnel practice described in section
2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i),
(B), (C), or (D),” then you may file a petition for judicial review either with the
U.S. Court of Appeals for the Federal Circuit or any court of appeals of
competent jurisdiction.10 The court of appeals must receive your petition for
review within 60 days of the date of issuance of this decision. 5 U.S.C.
§ 7703 (b)(1)(B).
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “G uide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit , you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
10 The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the Presi dent on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent ju risdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115 -195,
132 Stat. 1510.
29
Board neither endorses the services provided by any attorney nor war rants that
any attorney will accept representation in a given case.
Contact information for the courts of appeals can be found at their
respective websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
FOR THE BOARD:
Washington, D.C. /s/ for
Jennifer Everling
Acting Clerk of the Board | HARRACH_LESLIE_K_DE_1221_12_0491_W_2_FINAL_ORDER_1960056.pdf | 2022-09-13 | null | DE-1221-12-0491-W-2 | NP |
4,128 | https://www.mspb.gov/decisions/nonprecedential/PRINCE_BILLIE_JO_AT_0752_15_0080_I_1_FINAL_ORDER_1960067.pdf | UNITED STATES OF AME RICA
MERIT SYSTEMS PROTEC TION BOARD
BILLIE JO PRINCE,
Appellant,
v.
DEPARTMENT OF THE AR MY,
Agency.
DOCKET NUMBER
AT-0752 -15-0080 -I-1
DATE: September 13, 2022
THIS FINAL ORDER IS NONPRECEDENTIAL1
Mark G. Wonders , Ozark, Alabama, for the appellant.
Elizabeth A. Bidwill , Esquire, Fort Rucker, Alabama, for the agency.
BEFORE
Cathy A. Harris , Vice Chairman
Raymond A. Limon , Member
Tristan L. Leavitt , Member
FINAL ORDER
¶1 The agency has petitioned for review of the September 22, 2016 initial
decision in this appeal. Petition for Review (PFR) File, Tab 1. For the reasons
set forth below, we DISMISS the petition for review 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
require d to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117 (c).
2
¶2 After the filing of the petition for review, the parties submitted a document
entitled “ Stipulation Regarding Request to Withdraw Agency Petition for Review
with Prejudice to Refile” signed and dated by the parties on November 7, 2018.
PFR File, Tab 6 at 4 -5. The parties attached to the stipulation a fully executed
settlement agreement signed and dated by the parties on August 28, 2018. Id.
at 6-8. The settlement agreement provides, among other things, for the
withdrawal of the agency’s petition for review. Id. at 6.
¶3 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
Massey v. Office of Personnel Management , 91 M.S.P.R. 289 , ¶ 4 (2002) ,
overruled on other grounds by Delorme v. Department of the Interior ,
124 M.S.P.R. 123 , ¶¶ 11 -21 (2017) ( holding that the Board may enforce
settlement agreements that have been entered into the record, independent of any
prior finding of Board jurisdiction over the underlying matter being settled).
¶4 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 enforceme nt by the Board. PFR File, Tab 6 . In addition, we find that the
agreement is lawful on its face and that the parties freely entered into it. Id.
¶5 Accordingly, we find that dismissing the petition for review “with prejudice
to refiling” (i.e., the parties normally may not refile this appeal) is appropriate
under these circumstances, and we accept the settlement agreement into the
record for enforceme nt purposes.
3
¶6 This is the final decision of the Merit Systems Protection Board in this
appeal. Title 5 of the Code of Federal Regulations, section 1201.113 ( 5 C.F.R.
§ 1201.113 ).
NOT ICE TO THE PARTIES O F 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 of fice 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 a ny
communications between the parties. 5 C.F.R. § 1201.182 (a).
NOTICE OF APPEAL RIG HTS2
You may obtain review of this final decision. 5 U.S.C. § 7703 (a)(1). By
statute, the nature of your claims determines the time limit for seeking such
review and the appropriate forum with which to file. 5 U.S.C. § 7703 (b).
Although we offer the following summary of available appeal rights, the Merit
Systems Protection Board does not provide legal advice on which option is most
appropriate for your situation and the rights described b elow do not represent a
statement of how courts will rule regarding which cases fall within their
jurisdiction. If you wish to seek review of this final decision, you should
immediately review the law applicable to your claims and carefully follow all
filing time limits and requirements. Failure to file within the applicable time
limit may result in the dismissal of your case by your chosen forum.
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 w hich option is most appropriate in any matter.
4
Please read carefully each of the three main possible choices of review
below to decide which one applies t o your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judic ial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703 (b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any a ttorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
5
were affected by an action that is appealable to the Board and tha t such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703 (b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. ____ , 137 S. Ct. 1975 (2017). If you have a
representative in this case, and your representative receives this decision before
you do, then you must file with the district court no later than 30 calendar days
after your representative receives this decision. If the action involves a claim of
discrimination based on race, color, religion, sex, national origin, or a disabling
condition, you may be entitled to representation by a court -appointed lawyer and
to waiver of any requirement of prepayment of fees, costs, or other security. See
42 U.S.C. § 2000e -5(f) and 29 U.S.C. § 794a .
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscou rts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702 (b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702 (b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is:
6
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requi ring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2 012. This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302 (b)(8) or
other protected activities listed in 5 U.S.C. § 2302 (b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
disposition of allegations of a prohibited personnel practice descri bed in section
2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i),
(B), (C), or (D),” then you may file a 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 cou rt 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 fo r judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional info rmation about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules o f Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the 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:
Washington, D.C. /s/ for
Jennifer Everling
Acting Clerk of the Board | PRINCE_BILLIE_JO_AT_0752_15_0080_I_1_FINAL_ORDER_1960067.pdf | 2022-09-13 | null | AT-0752-15-0080-I-1 | NP |
4,129 | https://www.mspb.gov/decisions/nonprecedential/SWAPSY_SHARON_C_CH_0353_13_0311_I_2_FINAL_ORDER_1960088.pdf | UNITED STATES OF AME RICA
MERIT SYSTEMS PROTEC TION BOARD
SHARON C. SWAPSY,
Appellant,
v.
UNITED STATES POSTAL SERVICE,
Agency.
DOCKET NUMBER
CH-0353 -13-0311 -I-2
DATE: September 13, 2022
THIS FINAL ORDER IS NONPRECEDENTIAL1
Donna L. Drake , Markham, Illinois, for the appellant.
Deborah W. Carlson and Rebecca Heeter , Esquire, Chicago , Illinois, for the
agency.
BEFORE
Cathy A. Harris , Vice Chairman
Raymond A. Limon , Member
Tristan L. L eavitt , Member
FINAL ORDER
¶1 The appellant has filed a petition for review of the initial decision, which
dismissed for lack of jurisdiction her appeal of the agency’s den ying her request
for restoration. For the reasons set forth below, we DENY the petition for review
and AFFIRM the initial decision , MODIFY ING the administrative judge’s
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
require d to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117 (c).
2
analysis of the dispositive jurisdictional issue in this case and VACATING her
findings regarding the appellant’s allegations of discrimination.
BACKGROUND
¶2 After the appellant suffered a work -related injury to her knee, the agency
placed her in a limited -duty assignment. Swapsy v. U.S. Postal Service , MSPB
Docket No. CH -0353 -13-0311 -I-1, Initial Appeal File (I AF), Tab 10 at 7,
¶¶ 3c-3d, 3f-3h, 3j. Shortly thereafter, however, the appellant submitted revised
medical restrictions that limited her to no more than 500 feet of walking per day;
no running, squatting, kneeling, or crawling; no ladders or stairs; and no lifting,
carrying, pushing, or pulling more than 10 poun ds. Id., ¶ 3j. Because the
requirements of the appellant’s limited -duty assignment exceeded her revised
medical restrictions , the agency withdrew the offer on October 4, 2011 , and sent
her home. Id.
¶3 After a second -opinion medical evaluation revised the appellant’s medical
restrictions, the agency on April 13, 2012 , offered the appellant a new modified
job that provided for no lifting or carrying more than 20 pounds, sitting for more
than 4 hours, and standing for more than 4 hours. Id., ¶¶ 3l-3n. The appellant
rejected the offer. Id., ¶ 3o. However, the Office of Workers’ Compensation
Programs (OWCP) determined that the job offer was suitable. Id., ¶ 3p.
¶4 The appellant filed a Board appeal of the agency’s alleged denials of
restoration , which the administrative judge dismissed without prejudice at the
appellant’s request. IAF, Tabs 1, 8. Upon refiling, and a fter holding the
requested hearing, the administrative judge dismissed the appeal for lack of
jurisdiction , finding that the appellant failed to show by preponderant evidence
that the agency’s den ying her request for restoration on October 4, 2011 , was
arbitrary and capricious and that the appellant failed to show that the agency
denied her request for restoration on April 13, 2012. Swapsy v. U.S. Postal
Service , MSPB Docket No. CH -0353 -13-0311 -I-2, Appeal File ( I-2 AF), Tab 45
3
Initial Decision (ID) at 10 -22. The administrative judge also found in the
alternative that the refiled appeal was untimely filed without a showing of good
cause. ID at 22-26.
ANALYSIS
¶5 Agencies are required to make every effort to restore in the local
commuting area an individual who has partially recovered from a compensable
injury and who is able to return to limited duty. 5 C.F.R. § 353.301 (d). Partially
recovered employees may appeal to the Board for a determination of whether the
agency is acting arbitrarily and capriciously in denying restoration. 5 C.F.R.
§ 353.304 (c). To establish jurisdiction over a restoration appeal as a partially
recovered individual, the appellant must prove the following by preponderant
evidence2: (1) she was absent from her position due to a compensable injury;
(2) she recovered sufficiently to return to duty on a part -time basis or to return to
work in a position with less demanding physical requirements than those
previously required of her; (3) the agency denied her request for restoration; and
(4) the denial was arbitrary and capricious. Bledsoe v. Merit Systems Protection
Board , 659 F.3d 1097 , 1104 (Fed. Cir. 2011), modified in part by regulation as
stated in Kingsley v. U.S. Postal Service , 123 M.S.P.R. 365, ¶ 10 (2016 ); Latham
v. U.S. Postal Service , 117 M.S.P.R. 400, ¶ 10 (2012), overruled on other
grounds by Cronin v. U.S. Postal Service , 2022 MSPB 13, ¶¶ 20-21; 5 C.F.R.
§ 353.304 (c).
2 Because the appellant filed her Board appeal prior to March 30, 2015, we apply the
“preponderant evidence” standard rather than the current “nonfrivolous allegation”
standard. See Clark v. U.S. Po stal Service , 123 M.S.P.R. 466 , ¶ 5 n.2 (2016)
(explaining that the Board adopted a nonfrivolous allegation standard for restorati on
appeals by regulation effective March 20, 2015), aff’d , 679 F. App’x 1006 (Fed. Cir.
2017) . Preponderant evidence is the degree of 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
The appellant failed to establish Board jurisdiction over the agency’s
October 4, 2011 denial of her request for restoration .
¶6 Regarding the appellant’s claim that the agency denied her request for
restoration when it withdr ew her limited -duty assignment on October 4, 2011, the
administrative judge found , and it is not disputed, that the appellant satisfied the
first three jurisdictional elements. ID at 10; see Scott v. U.S. Postal Service ,
118 M.S.P.R. 375 , ¶ 9 (2012) ( stating that an agency’s resci nding a previous
restoration or discontinu ing a limited -duty assignment may constitute an
appealable denial of restoration). In considering the fourth element, whether the
agency’s denial of restoration was arbitrary and capricious , the administrative
judge first found that the agency proffered do cumentary evidence showing that it
search ed for vacancies within the local commutin g area as required by 5 C.F.R.
§ 353.301 (d), and that therefore its search was geographically adequate , noting
that the appellant did n ot challenge that evidence . ID at 10-11; I-2 AF , Tab 32
at 73-89. The administrative judge correctly found that the appellant failed to
show that the agency’s denial was due to a failure to perform its obligations under
5 C.F.R. § 353.301 (d), ID at 10 -11, and t hus, the appropriateness of the agency’s
search is not a basis for fi nding that the agency’s actions in this case were
arbitrary and capricious.
¶7 The administrative judge went on to co nsider whether the agency ’s failure
to adhere to its own internal restoration obligations , as set forth in its Employee
and Labor Relations Manual (ELM) § 546 and EL -505, chapters 7 and 11 ,3
rendered the denial per se arbitrary and capricious, conc luding that it did not. ID
at 11 -16. In this analysis, the administrative judge relied upon the Board’s
decision in Latham , wherein, in deference to the Office of Personnel
Management’s interpretation of 5 C.F.R. § 353.301 (d), a majority of the Board
3 These provisions require the agency to offer modified assignments to partially
recovered individuals whenever work is available and within their medical restrictions ,
regardless of whether the tasks comprise the essential functions of an established
position . Latham , 117 M.S.P.R. 400 , ¶¶ 3, 26.
5
found that it has jurisdiction over appeals concerning the deni al of restoration to
partially recovered individuals when the denial results from the agency’s
violating its own internal rules. Latham , 117 M.S.P.R. 400, ¶ 13.
¶8 However, in Cronin , 2022 MSPB 13, ¶ 20, the Board overruled Latham and
its progeny, concluding that, to establish jurisdiction under 5 C.F.R. § 353.304 (c),
an appellant must , inter alia, make a nonfrivolous allegation that the agency failed
to comply with the minimum requirement of 5 C.F.R. § 353.301 (d), i.e., to search
within the local commuting area for vac ant positions to which it can restore a
partially recovered employee and to consider her for such vacancies , but t hat an
agency’s failure to comply with self -imposed obligations to undertake further
restoration efforts, including those set forth in the age ncy’s EL M, cannot
constitute a violation of 5 C.F.R. § 353.301 (d) such that a resulting denial of
restoration would be rendered “arbitrary and capricious” for purposes of
establishing Boa rd jurisdiction under 5 C.F.R. 353.304 (c). Id. Therefore , the
administrative judge ’s analy sis of whether the agency’s failure to comply with its
ELM provisions regarding the restoration rights of partially recovered employees
was “arbitrary and capricious” for purposes of establishing Board jurisdiction was
improper under Cronin , and we therefore vacate that part of her analysis.
¶9 The appellant asserts that the October 4, 2011 restoration denial was
arbitrary and capricious because the agency could have accommodated her
medical restrictions in a way that would have allowed her to continue working in
the limited -duty assignment that it discontinued. P etition for Review (PFR) File,
Tab 3 at 18 -19. Again citing Latham , the administrative judge addressed but
rejected this claim, as well as the appellant’s claim that the agency acted
arbitrarily and capriciously b y discriminat ing agains t her based on race, sex, age,
and prior equal employment opportunity activity . ID at 12 -19. However, in
Cronin , the Board f urther f ound that claims of prohibited discrimination or
reprisal for protected activity also do not serve as independent means of showing
that a denial of restoration was arbitrary and capricious for purposes of
6
section 353.304(c) , Cronin , 2022 MSPB 13, ¶ 21, and we t herefore vacate that
portion of the administrative judge’s analysis as well .
The appellant failed to establish Board jurisdiction over the agency’s
April 12, 2012 alleged denial of her request for restoration.
¶10 The appellant also alleged that the ag ency denied her request for restoration
when it offered her a limited -duty assignment on April 12, 2012. Partially
recovered employees may not appeal an improper restoration to the Board; they
may only appeal to the Board to determin e whether the agency’s actions were
arbitrary and capricious. Trembly v. U.S. Postal Service , 85 M.S.P.R. 297 , ¶ 3
(2000) . The Board lacks jurisdictio n to review the particulars of the restoration.
Foley v. U.S. Postal Service , 90 M.S.P.R. 206 , ¶ 6 (2001) . Nevertheless, whe n
the agency has made a job offer to the appellant, the Board might, in appropriate
circumstances, deem a restoration so unreasonable as to amount to a denial o f
restoration within the Board’s jurisdiction . Ballesteros v. U.S. Postal Service ,
88 M.S.P.R. 428 , ¶ 8 (2001) .
¶11 The administrative judge correctly found that the appell ant did not prove
that the agency denied her request for restoration. ID at 21 -22. The agency
offered the appellant a limited -duty assignment that OWC P determined was
suitable. IAF, Tab 5 at 129 -31. The appellant alleges that OWCP later reversed
its finding, but she submitted no evidence to substantiate her assertion. In a
May 20, 2013 letter, OWCP informed the appellant that “[her] case continues to
be open for medical and . . . clarification regarding [her] current work -related
restrictions.” I-2 AF , Tab 32 at 29. The appellant contended to OWCP tha t her
medical restrictions were not “finalized,” and it appears that OWCP decided not
to terminate he r compensation paym ents until the conflicts about her medical
restrictions were resolved, not because it reversed its suitability analysis.
¶12 An employee who rejects a suitable offer of restoration cannot show that the
agency’s offer was so unreasonable as to amount to an appealable denial of
restoration because OWCP, by finding the offer suitable, necessarily determined
7
that it was reasonable. Trembly , 85 M.S.P.R. 297 , ¶ 6 (finding that, when OWCP
found the agency’s restoration offer suitable, the Board was precluded from
finding th at the offer was so unreasonable that it amounted to a denial of
restoration). Decisions on an offered position ’s suitability are within the
exclusive domain of OWCP and it is OWCP, not the employing agency and not
the Board, which possesses the requisite expertise to evaluate whether a position
is suitable in light of that employee’s particular medical condition. New v.
Department of Veterans Affairs , 142 F.3d 1259 , 1264 (Fed. Cir. 19 98); Bynum v.
U.S. Postal Service , 112 M.S.P.R. 403 , ¶ 23 (2009) , aff’d , 382 F. App’x 934 (Fed.
Cir. 2010). Because the appellant rejected a suitable offer of employment, she
has not shown by preponderant evidence that the agency denied a request for
restoration. Therefore, we find that the administrative judge correctly found that
the appel lant did not establish jurisdiction over the April 13, 2012 alleged denial
of restoration.
The appellant’s remaining arguments on review do not warrant granting her
petition for review .
¶13 As is usual, the administrative judge conducted a prehearing conferenc e in
which she , inter alia, defined the issues for adjudication and ruled on witness
requests . In her prehearing conference memorandum, the administrative judge
identified the October 4, 2011 withdrawal of the limited -duty assignment and the
April 13, 201 2 limited -duty offer as the only two alleged requests for restoration
at issue in this appeal. I-2 AF , Tab 34 at 2. The administrative judge afforded
the appellant the opportunity to object to her identification of the issues, but the
appellant did not p reserve an objection for review. Id. at 2, 6; Hearing Transcript
(HT) at 5 (statement of the administrative judge) . To the extent the appellant
discusses other alleged denials of restoration in her petition for review, those
claims are not within the pur view of this appeal.
¶14 The appellant contends for the first time on review that the agency failed to
conduct a proper search, and she correctly points out that many of the agency’s
8
search documents are dated 2013 or later and do not show that the agency
conducted a proper search in late 2011. PFR File, Tab 3 at 18 -19; I-2 AF , Tab 32
at 73 -89. The agency supported its documentary evidence with hearing testimony
that it conducted a search for available work in October 2011 before sending the
appellant home. HT at 172 -73 (testimony of the Health and Resources Manager) .
The agency further provided evidence that, during the relevant time frame, it used
an electronic system known as Web ESP to conduct searches for work . HT
at 32-33, 173. However, Web ESP was discontinued in 2014 after a data breach
and its files are no longer recoverable. HT at 33, 184 . The only available Web
ESP records are the ones for which someone happened to create a paper copy
before the system was discontinued. The appellant did not conduct any cross
examination at the hearing concerning the search when she had the opportunity to
do so. The Board need 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 evi dence
not previously available despite the party ’s due diligence. Banks v. Department
of the Air Force , 4 M.S.P.R. 268 , 271 (1980) . Even if the Board were to consider
this argument, we would find that the agency has provided a reasonable
explanation for the lack of paper doc umentation of its search, and we agree with
the administrative judge that the appellant failed to prove that t he search was
improper. ID at 11.
¶15 The appellant repeats on review her allegation below that OWCP reversed
itself and determined that the April 13, 2012 offer was not suitable. The
administrative judge found that the appellant introduced no evidence to
substantiate her assertion. On review , the appellant identified her Exhibit T as
proof that OWCP reversed its decision. PFR File, Tab 3 at 20. The
administrative judge rejected a late -filed set of exhibits, including Exhibit T. We
find that the appellant has not shown that the administrative judge abused her
discretion by rejecting the appellant’s late -filed exhibits. If there is a document
finding the position not suitable, it would have been sent to the appellant in the
9
normal course of business and sh e already should have possessed a copy. Even if
she kept incomplete records at home and had to request documents from OWCP,
her appeal had been pending since February 23, 2013 , by the time she finally
submitted her exhibits on January 16, 2016. She did n ot state when she requested
the documents; she merely made a bare allegation that she had just received them.
Because she did not submit the rejected exhibits until after the deadline passed
and only a few days before the hearing, and because she did not show why she
could not have submitted them on time despite her diligence, we find tha t the
administrative judge was within her discretion to reject the exhibits.
¶16 Even if the administrative judge abused her discretion, Exhibit T does not
warrant reversal of the initial decision. The exhibit is a series of OWCP records
of telephone contact. I-2 AF , Tab 35 at 49 -66. One document is a statement that
an employee informed the appellant that OWCP found some unidentified position
not suitable. Id. at 64. Thu s, it would have been hearsay evidence that OWCP
found unsuitable a job offer that may or may not have been the offer at issue in
this appeal. We do not know the job title of the person who took the appellant’s
telephone call, so we do not know if she was the Claims Examiner handling the
appellant’s case or a customer service representative working a phone bank and
reading information from a computer screen. The Board has found that a
document missing indicia o f reliability to a similar degree as the reco rd of
telephone contact in this appeal constituted at best a mere scintilla of evidence
and did not rise to the level of even substantial evidence. Adamsen v. Department
of Agriculture , 116 M.S.P.R. 331 , ¶¶ 13-18 (2011) . Substantial evidence is a
lesser standard of proof than preponderant evidence. Towne v. Department of the
Air Force , 120 M.S.P.R. 239 , ¶ 6 (2013) . Because we have found that evidence
of this quality is insufficient to meet the substantial evidence st andard, we find
that the appellant’s evidence here does not rise to the level of preponderant
evidence. Thus , even if the Board were to consider the appellant’s rejected
Exhibit T, it is insufficient to establish Board jurisdiction.
10
¶17 Finally, in light of o ur dismissal of this appeal for lack of jurisd iction, we
need not address the administrative judge’s alternative finding that the appeal was
untimely refiled.
NOTICE OF APPEAL RIG HTS4
The initial decision, as supplemented by this Final Order, constitutes t he
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 t ime limit may result in the dismissal of your case by your
chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular fo rum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order 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 i n this matter, the Board may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise which option is most appropriate in any matter.
11
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703 (b)(1)(A).
If you submit a peti tion for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional inform ation about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC r eview of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. I f so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703 (b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. ____ , 137 S. Ct. 1975 (2017). If you have a
representative in this case, and your representative receives this decision before
you do, then you must file with the district court no later than 30 calendar days
12
after your representative receives this decision. If the action involves a claim of
discrimination based on race, color, religion, sex, national origin, or a disabling
condition, you may be entitled to representation by a court -appointed lawyer and
to waiver of any requirement of prepayment of fees, costs , or other security. See
42 U.S.C. § 2000e -5(f) and 29 U.S.C. § 794a .
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702 (b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702 (b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C . 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
13
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302 (b)(8) or
other protected activities listed in 5 U.S.C. § 2302 (b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
disposition of allegations of a prohibited personnel practice described in
section 2302(b) other than practices described in section 2302(b)(8), or
2302(b)(9)(A)(i), (B), (C), or (D),” then you may file a 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 Circui t
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petiti oners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our we bsite at
http://www.mspb.gov/probono for information regarding pro bono representation
5 The original statutory provision that provided for jud icial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 201 7. Pub. L. No. 115 -195,
132 Stat. 1510.
14
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorne y will accept representation in a given case.
Contact information for the courts of appeals can be found at their
respective websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
FOR THE BOARD:
Washington, D.C. /s/ for
Jennifer Everling
Acting Clerk of the Board | SWAPSY_SHARON_C_CH_0353_13_0311_I_2_FINAL_ORDER_1960088.pdf | 2022-09-13 | null | CH-0353-13-0311-I-2 | NP |
4,130 | https://www.mspb.gov/decisions/nonprecedential/JOHNSON_WADRA_E_DA_0353_18_0005_I_1_FINAL_ORDER_1959401.pdf | UNITED STATES OF AME RICA
MERIT SYSTEMS PROTEC TION BOARD
WADRA E. JOHNSON,
Appellant,
v.
UNITED STATES POSTAL SERVICE,
Agency.
DOCKET NUMBER
DA-0353 -18-0005 -I-11
DATE: September 12, 2022
THIS FINAL ORDER IS NONPRECEDENTIAL2
Wadra E. Johnson , Lafayette, Louisiana, pro se.
Steven E. Coney , Dallas, Texas, for the agency.
BEFORE
Cathy A. Harris , Vice Chairman
Raymond A. Limon , Member
Tristan L. Leavitt , Member
1 This appeal was previously joined with Johnson v. U.S. Postal Service , MSPB Docket
No. DA -0752 -17-0498 -I-1, for adjudication under 5 C.F.R. § 1201.36 (b). We find that
the appeals no longer meet the criteria for joinder and will issue a separate decision
addressing the appellant’s petition for review in that appeal.
2 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
requir ed to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117 (c).
2
FINAL ORDER
¶1 The appellant has filed a petition for review of the initial decision, which
dismissed for lack of jurisdiction her appeal of the agency’s alleged denial of her
request for restoration following her partial recovery from a compensable injury.
Generally, we grant petiti ons 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 t he facts of the case; the administrative
judge’s rulings during either the course of the appeal or the initial decision
were not consistent with required procedures or involved an abuse of discretion,
and the resulting error affected the outcome of the cas e; or new and material
evidence or legal argument is available that, despite the petitioner’s due
diligence, was not available when the record closed. Title 5 of the Code of
Federal Regulations, section 1201.115 ( 5 C.F.R. § 1201.115 ).
¶2 On review, the appellant submits for the first time documents showing that
she has one or more work -related injuries that the Office of Workers’
Compensation Programs has found to be compensable under the Federal
Employees’ Compensation Act. The administrative judge ordered the appellant to
produce these documents below in an order compelling discovery , and when the
appellant failed to comply with that order, the administrative judge issued a
sanctions orde r precluding her from submitting them absent a showing that they
constituted new and material evidence not previously available despite her due
diligence. Initial Appeal File (IAF) , Tab 43 at 7-9; see IAF, Tabs 11, 20, 36, 38,
41-42. The appellant did no t file any objections to the order compelling
discovery or the sanctions order , and she has not offered any explanation as to
why she waited until now to submit these documents . Because the appellant has
not alleged, much less shown, that these documents are new and material
evidence that could not have been timely submitted in compliance with the
administrative judge’s order compelling discovery, we have not con sidered them.
3
Avansino v. U.S. Postal Service , 3 M.S.P.R. 211 , 214 (1980). In any event, none
of the documents appear to be related to the medical condition upon which her
absence from work at issue in this appeal was predicated , and, thus , they are not
relevant to this appeal.
¶3 After fully considering the filings in this appeal, we conclude that the
petitioner has not established any basis under section 1201.115 for granting the
petition for review. Therefore, we DENY the petition for revi ew and AFFIRM
the initial decision, which is now the Board’s final decision. 5 C.F.R.
§ 1201.113 (b).
NOTICE OF APPEAL RIG HTS3
You may obtain review of this final decision. 5 U.S.C. § 7703 (a)(1). By
statute, the nature of your claims determines the time limit for seeking such
review and the appropriate forum with which to file. 5 U.S.C. § 7703 (b).
Although we offer the following summary of available appeal rights, the Merit
Systems Protection Board does not provide legal advice on which option is most
appropriate for your situation and the rights described b elow do not represent a
statement of how courts will rule regarding which cases fall within their
jurisdiction. If you wish to seek review of this final decision, you should
immediately review the law applicable to your claims and carefully follow all
filing time limits and requirements. Failure to file within the applicable time
limit may result in the dismissal of your case by your chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
3 Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise which option is most appropriate in any matter.
4
(1) Judicial review in general . As a general rule, an appellant seeking
judicia l review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703 (b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Ci rcuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful d iscrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
5
receive this decision. 5 U.S.C. § 7703 (b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. ____ , 137 S. Ct. 1975 (2017). If you have a
representative in this case, and your representative receives this decision before
you do, then you must file with the district court no later than 30 calendar days
after your representative receives this decision. If the action involves a claim of
discrimination based on race, color, religion, sex, national origin, or a disabling
condition, you may be entitled to representation by a court -appointed lawyer and
to waiver of any requirement of prepayment of fees, costs, or other security. See
42 U.S.C. § 2000e -5(f) and 29 U.S.C. § 794a .
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscou rts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702 (b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702 (b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requi ring 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 2 012. This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302 (b)(8) or
other protected activities listed in 5 U.S.C. § 2302 (b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
disposition of allegations of a prohibited personnel practice descri bed in section
2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i),
(B), (C), or (D),” then you may file a 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 co urt 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 infor mation about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the 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 f or the courts of appeals can be found at their
respective websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
FOR THE BOARD:
Washington, D.C. /s/ for
Jennifer Everling
Acting Clerk of the Board | JOHNSON_WADRA_E_DA_0353_18_0005_I_1_FINAL_ORDER_1959401.pdf | 2022-09-12 | null | DA-0353-18-0005-I-11 | NP |
4,131 | https://www.mspb.gov/decisions/nonprecedential/CASTILLEJOS_RICARDO_R_SF_0831_17_0586_I_1_FINAL_ORDER_1959439.pdf | UNITED STATES OF AME RICA
MERIT SYSTEMS PROTEC TION BOARD
RICARDO R. CASTILLEJ OS,
Appellant,
v.
OFFICE OF PERSONNEL
MANAGEMENT,
Agency.
DOCKET NUMBER
SF-0831 -17-0586 -I-1
DATE: September 12, 2022
THIS FINAL ORDER IS NONPRECEDENTIAL1
Rufus F. Nobles, I , Zambales, Philippines, for the appellant.
Jane Bancroft , Washington, D.C., for the agency.
BEFORE
Cathy A. Harris, Vice Cha irman
Raymond A. Limon, Member
Tristan L. Leavitt, Membe r
FINAL ORDER
¶1 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 a deferred retirement annuity under the Civil
Service Retirement System (CSRS). Generally, we grant petitions such as this
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
require d to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117 (c).
2
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 re gulation or the erroneous application of the law to
the facts of the case; the administrative judge’s rulings during either the course of
the appeal or the initial decision were not consistent with required procedures or
involved an abuse of discretion, an d the resulting error affected the outcome of
the case; or new and material evidence or legal argument is available that, despite
the petitioner’s due diligence, was not available when the record closed. Title 5
of the Code of Federal Regulations, section 1201.115 ( 5 C.F.R. § 1201.115 ).
After fully considering the filings in this appeal, we conclude that the petitioner
has not established any basis under section 1201.115 for granting the petition for
review. Therefore, we DENY the petition for review. Except as expressly
MODIFIED by this Final Order to find that the appellant did not seek to make a
deposit into the Civil Service Retirement and Disability Fund (Fund), we
AFFIRM the initial decision.
BACKGROUND
¶2 The appellant fo rmerly worked as a civilian employee of the Department of
the Navy in Subic Bay , Philippines. Initial Appeal File (IAF), Tab 5 at 27 . He
received an indefinite appointment as a Munitions Helper in the excepted service
on October 1, 1974, and his subsequent appointments were either not -to-exceed
appointments or indefinite appointments in the excepted service until h e was
terminated on September 26 , 1986 .2 Id. at 26-34.
2 The Standard Form 50 (SF -50) effecting the appellant’s termination indicates his
retirement coverage as “5.” IAF, Tab 5 at 27. The appellant’s p rior SF -50 effecting a
promotion indicate s that retirement coverage “5” means “other.” Id. at 28.
3
¶3 On April 28, 2017, the a ppellant applied for a deferred retirement annuity
under the CSRS ba sed on his Federal service .3 Id. at 8 -10. OPM issued a
reconsideration decision denying his application. Id. at 6-7.
¶4 The appellant appealed OPM’s reconsideration decision to the Board and
did not request a hearing. IAF, Tab 1. The administrative judge issued an initial
decision affirming OPM’s re consideration decision. IAF, Tab 8, Initial Decision
(ID) at 1, 10 . She found that , although the appellant had sufficient cre ditable
Federal service, he was not eligible for a deferred annuity under the CSRS
because he failed to show that any of his service was performed in a position
covered under the CSRS . ID at 10.
¶5 The appellant has filed a petition for review.4 Petition f or Review ( PFR )
File, Tab 1. OPM has filed a response . PFR File, Tab 4.
DISCUSSION OF ARGUME NTS ON REVIEW
¶6 The appellant, as an applicant for retirement benefits , has the burden of
proving his entitlement to an annuity. Cheeseman v. Office of Person nel
Management , 791 F.2d 138 , 140 -41 (Fed. Cir. 1986). To qualify for a civil
service retirement annuity, a Government employee must complete at least
5 years of creditable service with at least 1 of the last 2 years of his Federal
service in a “covered” position. 5 U.S.C. § 8333 (a)-(b); Quiocson v. Office of
Personnel Management , 490 F.3d 1358 , 1360 (Fed. Cir. 2007). Covered service
includes only an appointment that is subject to the CSRS and for which an
3 The administrative judge characterized the appellant as also seeking the right to make
a deposit to the Fund. IAF, Tab 8, Initial Decision (ID) at 4-5. This characterization
was consistent wi th OPM’s interpretation of a letter that the appellant submitted with
his deferred annuity application. IAF , Tab 5 at 11 -24. However, his argument was that
he was not required to make such a deposit to be eligible for an annuity. Id. at 13;
Petition for Review File, Tab 1 at 1. Accordingly, we modify the initial decision to find
that the appellant only applied for a deferred annuity.
4 The appellant’s petition for review appears to be untimely filed. However, given our
decision on the merits of the ap peal, we need not address the timeliness of the petition
for review.
4
employee must therefor e deposit part of his pay into the Fund. Encarnado v.
Office of Personnel Management , 116 M.S.P.R. 301, ¶ 7 (2011).
¶7 The administrative judge affirmed OPM’s reconsideration decision based on
her finding that the appellant was not eligible for a CSRS annuity because he had
not served in a position covered by CSRS. ID at 10. On review, the appellant
argues that his servi ce was covered b y virtue of 5 U.S.C. § 8334 (c) and 5 C.F.R.
§ 831.303 (a). PFR File, Tab 1 at 2. For the reasons discussed belo w, we agree
with the administrative judge’s decision to affirm OPM ’s reconsideration
decision.
¶8 Well -established principles of law preclude this appellant from qualifying
for a deferred annuity. Temporary and indefinite appointments are excluded from
CSRS coverage. Quioscon , 490 F.3d at 1360; Encarnado , 116 M.S.P.R. 301 , ¶ 8;
5 C.F.R. § 831.201 (a)(1) -(2), (13) -(14). The appellant’s reliance on 5 C.F.R.
§ 831.303 (a) is misplaced, as that section only addresses whether service is
creditable, not whether it is covered. See Lledo v. Office of Personnel
Management , 886 F.3d 1211 , 1214 (Fed. Cir. 2018) (explaining that section
831.303(a) does not “ convert creditable service into covered service ”); Tate v.
Office of Personnel Management , 109 M.S.P.R. 57 , ¶¶ 7 -8 (2008 ). Further,
5 U.S.C. § 8334 (c), which permits certain individuals to make deposits, does not
support the appellant’s claims. Section 8334(c) applies only to individuals who,
unlike the appellant, h ave covered service, in other words, service during which
contributions to the Fund were withheld. Muyco v. Office of Personnel
Management , 114 M.S.P.R. 694 , ¶¶ 12 -13 (2010); 5 C.F.R. § 831.112 (a)(2)
(interpreting section 8334(c) as permitting an individual who occupied a position
“in which retirement deductions w ere properly withheld” to make a deposit or
redeposit). The appellant has not alleged that such contributions were withheld.
¶9 Accordingly, we deny the appellant’s petition for review and affirm the
initial decision.
5
NOTICE OF APPEAL RIG HTS5
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 bel ow do not represent a statement of how courts will rule
regarding which cases fall within their jurisdiction. If you wish to seek review of
this final decision, you should immediately review the law applicable to your
claims and carefully follow all filin g time limits and requirements. Failure to file
within the applicable time limit may result in the dismissal of your case by your
chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to yo ur particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be 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 c annot 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 Circ uit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Peti tioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attor ney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that su ch action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703 (b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. ____ , 137 S. Ct. 1975 (2017). If you have a
representative in this case, and your representative receives this decision before
you do, then you must file with the district court no later t han 30 calendar days
after your representative receives this decision. If the action involves a claim of
7
discrimination based on race, color, religion, sex, national origin, or a disabling
condition, you may be entitled to representation by a court -appoin ted lawyer and
to waiver of any requirement of prepayment of fees, costs, or other security. See
42 U.S.C. § 2000e -5(f) and 29 U.S.C. § 794a .
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebs ites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702 (b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702 (b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
addr ess of the EEOC is:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be ad dressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to yo u only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302 (b)(8) or
8
other protected activities listed in 5 U.S.C. § 2302 (b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
disposition of allegations of a prohibited personne l practice described in
section 2302(b) other than practices described in section 2302(b)(8), or
2302(b)(9)(A)(i), (B), (C), or (D),” then you may file a 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 Federa l
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are i nterested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
6 The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circu it Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any oth er circuit court 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
respec tive websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
FOR THE BOARD:
Washington, D.C. /s/ for
Jennifer Everling
Acting Clerk of the Board | CASTILLEJOS_RICARDO_R_SF_0831_17_0586_I_1_FINAL_ORDER_1959439.pdf | 2022-09-12 | null | SF-0831-17-0586-I-1 | NP |
4,132 | https://www.mspb.gov/decisions/nonprecedential/WEINBERG_IRA_S_NY_1221_11_0069_W_4_FINAL_ORDER_1959453.pdf | UNITED STATES OF AME RICA
MERIT SYSTEMS PROTEC TION BOARD
IRA S. WEINBERG,
Appellant,
v.
DEPARTMENT OF JUSTIC E,
Agency.
DOCKET NUMBER
NY-1221 -11-0069 -W-4
DATE: September 12, 2022
THIS FINAL ORDER IS NONPRECEDENTIAL1
Ira S. Weinberg , Saranac Lake, New York, pro se.
Tiffany O. Lee , Esquire, Washington , D.C., for the agency.
BEFORE
Cathy A. Harris , Vice Chairman
Raymond A. Limon , Member
Tristan L. Leavitt , Member
FINAL ORDER
¶1 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 . 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 dis tinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117 (c).
2
the initial decision is based on an erroneous interpretation of statute or regulation
or the erroneous application of the law to the facts of the case; the administrative
judge’s rulings during either the course of the appeal or the initial decision
were not consisten t with required procedures or involved an abuse of discretion,
and the resulting error affected the outcome of the case; or new and material
evidence or legal argument is available that, despite the petitioner’s due
diligence, was not available when the re cord closed. Title 5 of the Code of
Federal Regulations, section 1201.115 ( 5 C.F.R. § 1201.115 ). After fully
considering the filings in this appeal, we conclude that the petitioner has not
established any basis under section 1201.115 for granting the petition for review.
Therefore, we DENY the petition for review . Except as expressly MODIFIED by
this Final Order to correct the administrative judge’s analysis regarding the
agency’s bur den of proof in this case, we AFFIRM the initial decision, which is
now the Board’s final decision. 5 C.F.R. § 1201.113 (b).
¶2 As further detailed in the initial decision, the agency app ointed the
appellant to the position of Clinical Nurse in August 2009, subject to a 1 -year
probationary period. Weinberg v. Department of Justice , MSPB Docket
No. NY-1221 -11-0069 -W-4, Appeal File, Tab 3, Initial Decision (ID) at 2.2 He
worked in the Heal th Services Unit of a correctional facility. ID at 2. In
July 2010, the agency terminated him during his probationary period for
unsatisfactory performance. Id.; Weinberg v. Department of Justice , MSPB
Docket No. NY -1221 -11-0069 -W-2, Appeal File (AF -2), Tab 12 at 22-24. In
support of its action, t he agency cited several specific instances, including the
appellant twice administering the wrong medication to inmates on May 21, 2010,
2 Due to various delays, the administrative judge repeatedly dismissed the instant appeal
without prejudice for refiling at a later date, resulting in several docket numbers for this
single matter. Weinberg v. Depa rtment of Justice , MSPB Docket No. NY-1221 -11-
0069 -W-1, Initial Appeal File, Tab 9; Weinberg v. Department of Justice , MSPB Docket
No. NY-1221 -11-0069 -W-2, Appeal File, Tab 17; Weinberg v. Department of Justice ,
MSPB Docket No. NY-1221 -11-0069 -W-3, Appeal File, Tab 29.
3
his alleged failure to follow proper procedures for prepping an inmate fo r a
medical procedure at an outside facility on June 13, 2010, and his alleged failure
to exercise sound medical judgment on June 27, 2010. AF -2, Tab 12 at 22.
According to the decision letter, the appellant’s performance had not improved,
despite being counseled repeated ly by his supervisor. Id.
¶3 The appellant filed a complaint with the Office of Special Counsel (OSC),
asserting that he was terminated in reprisal for making various disclosures.
Weinberg v. Department of Justice , MSPB Docket No. NY -1221-11-0069 -W-1,
Initial Appeal File , Tab 1 at 2-3. The instant IRA appeal followed. Id. at 1. The
administrative judge held the requested hearing and issued an initial decision
denying the request for corrective action. ID at 1-2. The appellant has fil ed a
petition for review. Weinberg v. Department of Justice , MSPB Docket
No. NY-1221 -11-0069 -W-4, Petition for Review (PFR) File, Tab 1. The agency
has filed a response, and the appellant has replied.3 PFR File, Tabs 3-4.
¶4 The Board has jurisdiction over an IRA appeal if the appellant exhausts his
administrative remedies before OSC and makes nonfrivolous allegations that:
(1) he made a disclosure described under 5 U.S.C. § 2302 (b)(8), or engaged in
protected activity described under 5 U.S.C. § 2302 (b)(9)(A)(i), (B), (C ), or (D);
and (2) the disclosure or protected activity was a contributing factor in the
agency’s decision to take or fail to take a personnel action as defined by 5 U.S.C.
§ 2302 (a). 5 U.S.C. §§ 1214 (a)(3), 1221(e)(1); Yunus v. Department of Veterans
Affairs , 242 F.3d 1367 , 1371 (Fed. Cir. 2001). As to the exhaustion requirement,
it is met when an appellant has provide d OSC with sufficient basis to pursue an
investigation. Chambers v. Department of Homeland Security , 2022 MSPB 8,
¶¶ 10-11. The B oard’s jurisdiction is limited to those issues that have been
3 The Acting Cler k of the Board issued an Order Sealing the R ecord because it contains
sensitive medical and personally identifying information. PFR File, Tab 5. The
appellant filed an objection to the Acting Clerk’s order but, because it was not filed
within the 15 -day deadline set by the Acting Clerk, we have not considered it. PFR
File, Tab 6.
4
previously raised with OSC. However, an appellant may give a more detailed
account of his whistleblowing activities before the Board than he did to OSC. An
appellant may demonstrate exhaustion through his initial OSC complaint,
evidence that he amended the original complaint, including but not limited to
OSC’s determination letter and other letters from OSC referencing any amended
allegations, and the appellant’s written responses to OSC refere ncing the
amended allegations. An appellant may also establish exhaustion through other
sufficiently reliable evidence, such as an affidavit or a declaration attesting that
the appellant raised with OSC the substance of the facts in the Board appeal. Id.
¶5 After establishing the Board’s jurisdiction in an IRA appeal, an appellant
bears the burden of establishing a prima facie c ase of whistleblower retaliation by
proving 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); Mattil v. Department of State , 118 M.S.P.R. 662 , ¶ 11 (2012). If an
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); Mattil , 118 M.S.P.R. 662 , ¶ 11. In determining whether an
agency has shown by clear and convincing evidence that it would have taken the
same per sonnel action in the absence of whistleblowing, the Board will consi der
the following factors: (1) the strength of the agency’s evidenc e in support of its
action; (2) the existence and strength of any motive to retaliate on the part of
agency officials wh o were involved in the decision; an d (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).
¶6 Below, the administrative judge addressed 20 alleged disclosures, all of
which are fully detailed in the i nitial decision. ID at 7-27. He found that the
Board lack ed jurisdiction over disclosure 1 because the appellant failed to prove
5
exhaustion with OSC. ID at 8-9. The administrative judge also found that the
appellant failed to meet his burden of proving that disclosures 7, 14, 16, 18, and
20 were protected. ID at 16-17, 22 -27. However, he found that the appellant did
meet his burden of showing that disclosures 2 -6, 8 -13, 15, 17, and 19 were
protected. ID at 9-26. In addition, the administrative judge found that the
appellant met his burden of showing that his protected disclosures were a
contributing factor in his probationary termination. ID at 27-29.
¶7 Because the appellant met h is burden of presenting a prima facie case of
whistleblower reprisal, the burden shifted to the agency to show by clear and
convincing evidence that it still would have terminated the appellant’s
employment, absent his protected disclosures . See supra ¶ 5. The administrative
judge addressed the matter accordingly. He firs t found that the agency’s evidence
in support of the probationary termination was strong. ID at 29-46. He also
found that at least one agency official involved in the appellant’s termination had
some motive to retaliate. ID at 46-47. Finally, he found that there was no
evidence that the agency treated similarly situated employees who were not
whistleblowers more favorably . ID at 47. After weighing those factors, the
administrative judge concluded that the agency met its burden by proving that it
would have taken the same action in the absence of the appellant’s
whistleblowing. Id. Therefore, he denied the appellant’s request for corrective
action. Id.
¶8 Although the appellant has filed a petition for review, it contains no
arguments or evidence. PFR File, Tab 1. Instead, it simply indicates that the
appellant “would like a review.” Id. at 1. A petition for review must contain
sufficient specificity to enable the Board to ascertain whether there is a serious
evidentiary challenge justifying a co mplete review of the record. See Tines v.
Department of the Air Force , 56 M.S.P.R. 90 , 92-93 (1992). Before the Board
will undertake a complete review of the record, the petitioning party must explain
why the challenged factual determination is incorrect and identify the specific
6
evidence in the record which demonstrates the error. Weaver v. Department of
the Navy , 2 M.S.P.R. 129 , 133 (1980) , review denied , 669 F.2d 613 (9th Cir.
1982) (per curiam) . Because the appellant’s petition for review contains neither
evidence nor a rgument demonstrating any error by the administrative judge, we
find that his petition does not meet the Board’s criteria for review under 5 C.F.R.
§ 1201.115 .
¶9 The appellant’s reply br ief does contain some arguments, such as assertions
that he was set up to fail and lacked adequate sleep during the times of his alleged
performance deficiencies. PFR File, Tab 4 at 1-2. However, a reply is limited to
the issues raised by another party in the response to the petition for review.
5 C.F.R. § 1201.114 (a)(4). It may not raise new allegations of error . Id.
Accordingly, we will not consider arguments first raised in the appellant’s reply.
See Boston v. Department of the Army , 122 M.S.P.R. 577 , ¶ 5 n.3 (2015)
(declining to consider new arguments th at were first raised in a reply brief).4
4 We modify the initial decision as to an erroneous finding by the administrative judge,
which does not change the outcome of the case. The a dministrative judge, in analyzing
the second Carr factor, addressed the possible motive of two individuals who were in a
position to influence the appellant’s removal. The administrative judge found that one
of these two individuals was implicated by one of the appellant’s disclosures but did not
have a strong motive to reta liate under the circumstances. ID at 46-47. The
administrative judge also found that the other individual in question did not have a
motive to retaliate because she was not implicated by the appellant’s disclosures, even
though her subordinates were. ID at 46. In making this finding, t he administrative
judge failed to recognize Board precedent establishing that a supervisor may have a
motive to retaliate based on disclosure s that their subordinates have engaged in
wrongdoing. Compare Runstrom v. Department of Veterans Affairs , 123 M.S.P.R. 169 ,
¶ 17 (2016) (concluding that a disclosure about another employee’s alleged
improprieties did not reflect negatively on that employee’s supervisor because agency
officials quickly looked into the matter and found no wrongdoing), with Ayers v.
Department o f the Army , 123 M.S.P.R. 11, ¶ 29 (2015) (finding that agency officials
had a possible motive to retaliate based on a disclosure th at an individual within their
chain of command was harassing the appellant , which reflected on the officials’
capacities as managers and employees) , and Chavez v. Department of Veterans Affairs ,
120 M.S.P.R. 285 , ¶¶ 32-33 (2013) (finding that disclosures of subordinate employees’
wrongdoing created a motive to retaliate on the part of their first - and second -level
supervisors). However , the appellant did not raise this issue on review . Additionally,
the appellant did not raise on review the issue that if an agency fails to present evidence
7
NOTICE OF APPEAL RIG HTS5
The initial decision, as supplemented by this Final Order, constitutes the
Board’s final decision in this ma tter. 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
summar y of available appeal rights, the Meri t Systems Protection Board does not
provide legal advice on which option is most appropriate for your situation an d
the rights described below do not represent a statement of how courts will rule
regarding which cases fall within their jurisdiction. If you wish to seek review of
this final decision, you should immediately review the law applicable to your
claims and carefully follow all filing time limits and requirements. Failure to file
within the applicable time li mit may result in the dismissal of your case by your
chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
regarding the third Carr factor, it does not weigh in the agency’s favor . See Soto v.
Department of Veterans Affairs , 2022 MSPB 6, ¶¶ 17-18. Even if he had, we would
find that the agency still met its burden. W hile we would recogniz e that the supervisor
in question may have had a motive to retaliate because her subordinates were implicated
by many of the appellant’s disclosures and while the third Carr factor would not weigh
in the agency’s favor , the first Carr factor weigh ed heavily in its favor.
5 Since the issuance of the initial decision in this matter, the Board may have updated
the notice of revi ew 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 d iscrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703 (b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. ____ , 137 S. Ct. 1975 (2017). If you have a
representative in this case, and your representative receives this decision before
9
you do, then you must file with the district court no later than 30 calendar days
after your representative receives this decision. If the action involves a claim of
discrimination based on race, color, religion, sex, national origin, or a disabling
condition, you may be entitled to representation by a court -appointed lawyer and
to waiver of any requirement of prepayment of fees, costs, or other security. See
42 U.S.C. § 2000e -5(f) and 29 U.S.C. § 794a .
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscou rts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702 (b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702 (b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requi ring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
10
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2 012. This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302 (b)(8) or
other protected activities listed in 5 U.S.C. § 2302 (b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
disposition of allegations of a prohibited personnel practice described in section
2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i),
(B), (C), or (D),” then you may file a 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 t he U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “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 r eprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court 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 appe als can be found at their
respective websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
FOR THE BOARD:
Washington, D.C. /s/ for
Jennifer Everling
Acting Clerk of the Board | WEINBERG_IRA_S_NY_1221_11_0069_W_4_FINAL_ORDER_1959453.pdf | 2022-09-12 | null | NY-1221-11-0069-W-4 | NP |
4,133 | https://www.mspb.gov/decisions/nonprecedential/JONES_JOHN_PAUL_DE_4324_16_0275_I_1_FINAL_ORDER_1959471.pdf | UNITED STATES OF AME RICA
MERIT SYSTEMS PROTEC TION BOARD
JOHN PAUL JONES, III ,
Appellant,
v.
DEPARTMENT OF HEALTH AND
HUMAN SERVICES,
Agency.
DOCKET NUMBER S
DE-4324 -16-0275 -I-1
DE-3330 -16-0274-I-1
DATE: September 12, 2022
THIS FINAL ORDER IS NONPRECEDENTIAL1
John Paul Jones, III , Albuquerque, New Mexico, pro se.
Vinayak S. Nain , Washington, D.C., for the agency.
BEFORE
Cathy A. Harris , Vice Chairman
Raymond A. Limon , Member
Tristan L. Leavitt , Member
FINAL ORDER
¶1 The appellant has filed a petition for review of the initial decision, which
denied his request for corrective action under the Uniformed Services
Employment and Reemployment Rights Act of 1994 (codified as amended at
38 U.S.C. §§ 4301 -4335) and the Veterans Employment Opportunities Act 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 t o follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117 (c).
2
1998 . Generally, we grant petitions such as this one only in the following
circumstances: the initial decision contains err oneous 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 app eal or the initial decision
were not consistent with required procedures or involved an abuse of discretion,
and the resulting error affected the outcome of the case; or new and material
evidence or legal argument is available that, despite the petitioner’ s due
diligence, was not available when the record closed. Title 5 of the Code of
Federal Regulations, section 1201.115 ( 5 C.F.R. § 1201.115 ). After fully
considering the filings in th is appeal, we conclude that 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 RIG HTS2
You may obtain review of this final decision. 5 U.S.C. § 7703 (a)(1). By
statute, the nature of your claims determines the time limit for seeking such
review and the appropriate forum with which to file. 5 U.S.C. § 7703 (b).
Although we offer the following summary of avail able appeal rights, the Merit
Systems Protection Board does not provide legal advice on which option is most
appropriate for your situation and the rights described below do not represent a
statement of how courts will rule regarding which cases fall withi n their
jurisdiction. 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.
3
filing time limits and requirements. Failure to file within the applicable time
limit may re sult in the dismissal of your case by your chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the app ropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of A ppeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703 (b)(1)(A).
If you submit a petition for revie w to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about th e U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representati on
for Merit Systems Protection Board appellants before the 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. ____ , 137 S. Ct. 1975 (2017). If you have a
representative in this case, and your representative receives this decision before
you do, then you must file with the district court no later than 30 calendar days
after your representative receives this decision. If the a ction involves a claim of
discrimination based on race, color, religion, sex, national origin, or a disabling
condition, you may be entitled to representation by a court -appointed lawyer and
to waiver of any requirement of prepayment of fees, costs, or oth er security. See
42 U.S.C. § 2000e -5(f) and 29 U.S.C. § 794a .
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702 (b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702 (b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is:
5
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302 (b)(8) or
other protected activities l isted in 5 U.S.C. § 2302 (b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
disposition of allegations of a prohibited personne l practi ce described in
section 2302(b) other than practices described in section 2302(b)(8), or
2302(b)(9)(A)(i), (B), (C), or (D),” then you may file a petition for judicial
review either with the U.S. Court of Appeals for the Federal Circuit or any court
of app eals 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 co urt 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 pe tition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additi onal information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’ s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regard ing pro bono representation
for Merit Systems Protection Board appellants before the 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 inf ormation for the courts of appeals can be found at their
respective websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
FOR THE BOARD:
Washington, D.C. /s/ for
Jennifer Everling
Acting Clerk of the Board | JONES_JOHN_PAUL_DE_4324_16_0275_I_1_FINAL_ORDER_1959471.pdf | 2022-09-12 | null | S | NP |
4,134 | https://www.mspb.gov/decisions/nonprecedential/JONES_JOHN_PAUL_DE_3330_16_0287_I_1_FINAL_ORDER_1959513.pdf | UNITED STATES OF AME RICA
MERIT SYSTEMS PROTEC TION BOARD
JOHN PAUL JONES, III ,
Appellant,
v.
DEPARTMENT OF HEALTH AND
HUMAN SERVICES,
Agency.
DOCKET NUMBER
DE-3330 -16-0287 -I-1
DATE: September 12, 2022
THIS FINAL ORDER IS NONPRECEDENTIAL1
John Paul Jones, III , Albuquerque, New Mexico, pro se.
Vinayak S. Nain , Washington, D.C., for the agency.
BEFORE
Cathy A. Harris , Vice Chairman
Raymond A. Limon , Member
Tristan L. Leavitt , Member
FINAL ORDER
¶1 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. Generally, we grant petitions such as this one only in
the following circumstanc es: the initial decision contains erroneous findings of
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been id entified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117 (c).
2
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 rulin gs during either the course of the appeal or the initial
decision were not consistent with required procedures or involved an abuse of
discretion, and the resulting error affected the outcome of the case; or new and
material evidence or legal argument is a vailable that, despite the petitioner’s due
diligence, was not available when the record closed. Title 5 of the Code of
Federal Regulations, section 1201.115 ( 5 C.F.R. § 1201.115 ). Aft er fully
considering the filings in this appeal, we conclude that 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 i s now the Board’s final decision. 5 C.F.R. § 1201.113 (b).
NOTICE OF APPEAL RIG HTS2
You may obtain review of this final decision. 5 U.S.C. § 7703 (a)(1). By
statute, the nature of your claims determines the time limit for seeking such
review and the appropriate forum with which to file. 5 U.S.C. § 7703 (b).
Although we offer the following summary of available appeal rights, the Merit
Systems Protection Board does not provide legal advice on which option is most
appropriate for your situation and the rights described b elow do not represent a
statement of how courts will rule regarding which cases fall within their
jurisdiction. If you wish to seek review of this final decision, you should
immediately review the law applicable to your claims and carefully follow all
filing time limits and requirements. Failure to file within the applicable time
limit may result in the dismissal of your case by your chosen forum.
2 Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise which option is most appropriate in any matter.
3
Please read carefully each of the three main possible choices of review
below to decide which one applies t o your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judic ial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703 (b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any a ttorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
4
were affected by an action that is appealable to the Board and tha t such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703 (b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. ____ , 137 S. Ct. 1975 (2017). If you have a
representative in this case, and your representative receives this decision before
you do, then you must file with the district court no lat er than 30 calendar days
after your representative receives this decision. If the action involves a claim of
discrimination based on race, color, religion, sex, national origin, or a disabling
condition, you may be entitled to representation by a court -appointed lawyer and
to waiver of any requirement of prepayment of fees, costs, or other security. See
42 U.S.C. § 2000e -5(f) and 29 U.S.C. § 794a .
Contact information for U.S. district courts can be found at their respective
websites, which can be accesse d through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702 (b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you r eceive
this decision. 5 U.S.C. § 7702 (b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later tha n 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is:
5
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302 (b)(8) or
other protected activities listed in 5 U.S.C. § 2302 (b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises n o challenge to the Board’s
disposition of allegations of a prohibited personne l practice described in
section 2302(b) other than practices described in section 2302(b)(8), or
2302(b)(9)(A)(i), (B), (C), or (D),” then you may file a 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
whistleblo wer claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court 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:
Washington, D.C. /s/ for
Jennifer Everling
Acting Clerk o f the Board | JONES_JOHN_PAUL_DE_3330_16_0287_I_1_FINAL_ORDER_1959513.pdf | 2022-09-12 | null | DE-3330-16-0287-I-1 | NP |
4,135 | https://www.mspb.gov/decisions/nonprecedential/SPALDING_ZERINA_CB_1208_22_0016_U_2_ORDER_ON_STAY_EXTENSION_REQUEST_1958986.pdf | UNITED STATES OF AME RICA
MERIT SYSTEMS PROTEC TION BOARD
SPECIAL COUNSEL
EX REL. ZERINA SPALD ING,
Petitioner,
v.
DEPARTMENT OF THE TR EASURY,
Agency.
DOCKET NUMBER
CB-1208 -22-0016 -U-2
DATE: September 9, 2022
THIS STAY ORDER IS N ONPRECEDENTIAL1
Julie R. Figueira , Esquire, Malvina Winston , Esquire and Paul David
Metcalf, Jr. , Esq uire, Washington, D.C., for the petitioner.
Corlie McCormick, Jr. , Esq uire, Crofton, Maryland, for the relator .
Ralph C. Conte , Esquire, Washington, D.C., for the agency.
BEFORE
Cathy A. Harris, Vice Chairman
Raymond A. Limon, Member
Tristan L. Leavitt, Member
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or dis tinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117 (c).
2
ORDER ON STAY EXTENSION REQUEST
¶1 Pursuant to 5 U.S.C. § 1214 (b)(1)( B), the Office of Special Counsel (OSC)
requests a 60 -day extension of the previously granted stay of the Department of
the Treasury’s (the agency ) proposed removal while OSC completes its
investigation and legal review of the matter and determines whether t o seek
corrective action. For the reasons discussed below, OSC’s request is GRANTED.
BACKGROUND
¶2 On July 25, 2022 , OSC requested a 45 -day initial stay of the proposed
removal of Ms. Spalding based on a charge of misconduct. Special Counsel ex
rel. Zerina Spalding v. Department of the Treasury , MSPB Docket No. CB-1208 -
22-0016 -U-1, Stay Request File (U-1 SRF) , Tab 1. In its initial stay request, OSC
argued that it had reasonable grounds to believe that the agency’s proposed action
was in retaliation for Ms. Spalding’s protected activity under 5 U.S.C.
§ 2302 (b)(1) and (b)( 8). Id. On July 28, 2022 , OSC’s initial stay request was
granted through and including September 10, 2022 . Special Counsel ex rel.
Zerina Spalding v. Department of the Treasury , MSPB Docket No. CB-1208 -22-
0016 -U-1, Order on Stay Request, ¶¶ 1, 7 (July 28, 2022 ).
¶3 On August 26, 2022 , OSC filed a timely request to extend the stay for an
additional 60 days. Specia l Counsel ex rel. Zerina Spalding v. Department of the
Treasury , MSPB Docket No. CB-1208 -22-0016 -U-2, Stay Request File (U-2
SRF) , Tab 1 . The agency timely filed a response in opposition to OSC’s request.
U-2 SRF, Tab 3.
ANALYSIS
¶4 A stay granted pursuant to 5 U.S.C. § 1214 (b)(1) is issued to maintain the
status quo ante while OSC and the agency involved resolve the disputed matter.
Special Counsel v. Department of Transportation , 74 M.S.P.R. 155 , 157 (1997).
The purpose of the stay is to minimize the consequences of an alleged prohibited
3
personnel practice. Id. In evaluating a request for an extension of a stay, the
Board will review 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. Id. at 158. The B oard may grant the extension for any period that
it considers appropriate. 5 U.S.C. § 1214 (b)(1)(B); Special Counsel ex rel.
Waddell v. Department of Justice , 105 M.S.P.R. 208 , ¶ 3 (2007).
¶5 In its request for an extension, OSC asserts that it has issued a request for
information and documents to the agency and has obtained additional testimony
from witnesses. U-2 SRF, Tab 1 at 5. OSC also states that it intends to continue
its investigation while awaiting the agency’s complete response to its request for
information and documents, including interviewing additional witnesses. Id.
¶6 In response, the agency opposes OSC’s request for a stay extension, arguing
that granting the extension would be unreasonable and inappropriate under the
circumstances. U -2 SRF, Tab 3 at 4 -11. Specifically, the agency argues that the
substance of M s. Spalding’s protected activity is essentially a claim of retaliation
under title VII and that the Board has held in similar circumstances that claims of
retaliation for activity protected under title VII do not constitute protected
activity under 5 U.S.C. § 2302 (b)(8). Id. at 4-5 (citing Edwards v. Department of
Labor , 2022 MSP B 9, ¶¶ 23 -25). Observing that OSC regularly defers claims of
retaliation for activity protected under title VII to the Equal Employment
Opportunity Commission , the agency argues that the Board should reject OSC’s
request for an extension. Id. at 5.
¶7 Viewing the record in the light most favorable to OSC and considering the
fact that the evidentiary record supporting OSC’s initial stay request does not
appear to have changed materially since the initial stay was granted, an extension
of the stay is not c learly unreasonable to allow OSC time to continue its
investigation , attempt a resolution of this matter and, if necessary, pursue
4
corrective action before the Board.2 Special Counsel v. Small Business
Administration , 73 M.S.P.R. 12 , 13-14 (1997) .
¶8 In its response in opposition to the stay extension request, the agency
requested that Ms. Spalding be placed in an administrative leave status and
produced evidence demonstrating that neither OSC nor Ms. Spalding object to her
placement in such a status while OSC conducts its investigation. U -2 SRF, Tab 3
at 4; see U-1 SRF, Tab 6 at 14, 38 -40. A stay granted pursuant to 5 U.S.C.
§ 1214 (b) is issued as a means of minimizing the adverse consequences of a
prohibited personnel practice, providing time for a full investigation and
settlement negotiations, and safeguardin g the status quo ante while the interested
parties prepare their cases for presentation to the Board. Special Counsel v.
Department of Veterans Affairs , 60 M.S.P.R. 40 , 41 (1993).
¶9 The Board has made clear that the purpose of a stay is to preserve the status
quo ante, not simply the status quo, and therefore, if a stay is appropriate, the
employee must generall y be placed in the same position she held before the
agency’s allegedly improper actions. Special Counsel ex rel. Perfetto v.
Department of the Navy , 85 M.S.P.R. 454 , ¶ 17 (2000). The Board has also held
that placement of an employee on administrative leave generally does not
constitute a return to the status quo ante. Special Counsel v. Department of
Transportation , 72 M.S.P.R. 104 , 107 (1996). We decline to address the issue of
Ms. Spalding’s placement on administrative leave in this stay extension order .
OSC may raise issues of alleged noncompliance separately in a petition for
enforcement. 5 C.F.R. § 1201. 182(b).3
2 Member Limon granted OSC’s initial stay request based on an allegation of a
prohibited personnel practice under 5 U.S.C. § 2302 (b)(1)(A) in connection with
Ms. Spalding’s proposed removal, and therefore found it unnecessary to consider
whether to grant the stay based on 5 U.S.C. § 2302 (b)(8). Order on Stay Request , ¶ 6
n.2; U-1 SRF , Tab 2. We grant OSC’s stay extension request on the same basis.
3 Regarding the agency’s assertion that OSC has raised issues regarding the merits of its
prohibited personnel practices claim and so the agency should be permitted to respond
5
¶10 Finally, a separate determination must be made on the length of the
reques ted stay . Waddell , 105 M.S.P.R. 208 , ¶ 5. The Board may extend the
period of a stay for any period that it considers appropriate. 5 U.S.C.
§ 1214 (b)(1)(B); Special Counsel ex rel. Meyers v. Department of Housing &
Urban Development , 111 M. S.P.R. 48, ¶ 17 (2009) . It is the intent of Congress
that stays not be extended for prolonged periods of time. Special Counsel v.
Department of the Treasury , 71 M.S.P.R. 419 , 421 (1996). Moreover, the Board
is obligated to press OSC to present corrective action cases in a timely manner.
Id. at 422. Although the agency argues that OSC obtained the principal
documents pertaining to its investigation 5 months ago, we note that this is OSC’s
first stay extension request. U -2 SRF, Tab 3 at 10. Additionally, the agency
acknowledges that it has received requests for information and documents as
recently as August 3, 2022, and it does not dispute OSC’s assertion that it
continues to conduct interviews in furtherance of its investigation. Id.; see U-2
SRF, Tab 1 at 5, 7. In light of the se factors, we find that a 60-day extension of
the stay is warranted, and we therefore grant OSC’s request.4
to the substance of those argum ents, the decision cited by the agency to support this
proposition is nonprecedential pursuant to 5 C.F.R. § 1201.117 (c)(2) , meaning the
Board is not required to follow it as binding authority. Additionally, as previously set
forth, OSC has demonstrated that it has reasonable grounds to believe that a prohibited
personnel practice was committed, warranting extension of the stay while it conducts an
investigation. Special Counsel ex r el. Perfetto v. Department of the Navy , 83 M.S.P.R.
169, ¶ 11 (1999) ; see Special Counsel ex rel. Tines v. Department of Veterans A ffairs ,
98 M.S.P.R. 510 , ¶ 5 (2005) (stating that a stay request need merely fall within the
range of rationality to be granted); Spec ial Counsel v. Department of Transportation ,
74 M.S.P.R. 155, 157 (1997) (stating that a stay proceeding is not intended to be a
substitute for a complete hearing on the merits of a prohibited personnel practice
claim). Therefore, we decline to consider the agency’s arguments regarding the merits
of the relator’s proposed removal.
4 In its stay extension request, OSC indicates that i t has obtained testimony suggesting
that an agency employee refer red Ms. Spalding’s complaints of discrimination to the
agency’s Office of Inspector General (OIG) because of other complaints of racial
discrimination, and indicates that it is “working to id entify” the other complaints of
racial discrimination that were referred to the OIG. U -2 SRF, Tab 1 at 5, 7. To the
6
ORDER
¶11 Pursuant to 5 U.S.C. § 1214 (b)(1)(B), a 60 -day extension of the stay is
hereby GRANTED, and it is ORDER ED as follows :
(1) The stay issued on July 28, 2022, is extended through and inclu ding
November 9, 2022 , on the terms and conditions set forth in that
Order ;
(2) The agency shall not effect any changes in Ms. Spalding’s duties or
responsibilities that are inconsistent with her salary or grade level, or
impose upon her any requirement which is not required of other
employees of comparable position, salary, or grade level;
(3) Within 5 working days of this Order, the agency shall submit
evidence to the Clerk of the Board showing that it has complied with
this Order;
(4) Any request for a further extension of this stay pursuant to 5 U.S.C.
§ 1214 (b)(1)(B), as amended by Pub. L. No. 115 -42,5 and 5 C.F.R.
§ 1201.136 (b) mu st be received by the Clerk of the Board and the
agency , together with any further evidentiary support, on or before
October 25 , 2022 ; and
extent OSC seeks to investigate allegations of prohibited personnel practices other than
those related to Ms. Spalding’s proposed removal, OSC may seek a separate stay related
to those matters. See Special Counsel v. U.S. Fish & Wildlife Service , 64 M.S.P.R. 413 ,
414-15 (1994) .
5 As passed by the House of Representatives on May 25, 2017, passed by the Senate on
June 14, 2017, and signed into law on June 27, 2017.
7
(5) Any comments on such a request that the agency wants the Board to
consider pursuant to 5 U.S.C. § 1214 (b)(1)(C) and 5 C.F.R.
§ 1201.136 (b) must be received by the Clerk of the Board on or
before November 1 , 2022 .
FOR THE BOARD:
Washington, D.C. /s/ for
Jennifer Everling
Acting Clerk of the Board | SPALDING_ZERINA_CB_1208_22_0016_U_2_ORDER_ON_STAY_EXTENSION_REQUEST_1958986.pdf | 2022-09-09 | null | CB-1208-22-0016-U-1; CB-1208-22-0016-U-2 | NP |
4,136 | https://www.mspb.gov/decisions/nonprecedential/JONES_JOHN_PAUL_DE_3330_15_0551_I_1_FINAL_ORDER_1959034.pdf | UNITED STATES OF AME RICA
MERIT SYSTEMS PROTEC TION BOARD
JOHN PAUL JONES, III ,
Appellant,
v.
DEPARTMENT OF HEALTH AND
HUMAN SERVICES,
Agency.
DOCKET NUMBER S
DE-3330 -15-0551-I-1
DE-3330 -15-0550 -I-1
DE-3330 -16-0003 -I-1
DE-3330 -16-0006 -I-1
DE-3330 -16-0012 -I-1
DE-3330 -16-0013 -I-1
DE-3330 -16-0026 -I-1
DE-3330 -16-0027 -I-1
DATE: September 9, 2022
THIS FINAL ORDER IS NONPRECEDENTIAL1
John Paul Jones, III , Albuquerque, New Mexico, pro se.
Robert L. Thomas , Esquire, Corey Thompson , Esquire and Laura
VanderLaan , Atlanta , Georgia, for the agency.
Christy Te , Esquire and Susan M. Andorfer , Esquire, Washington, D.C., for
the agency.
BEFORE
Cathy A. Harris , Vice Chairman
Raymond A. Limon , Member
Tristan L. Leavitt , Member
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or dis tinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117 (c).
2
FINAL ORDER
¶1 The appellant has filed a petition for review of the initial decision, which
denied corrective action in this joinder of eight right -to-compete appeals2 under
the Veterans Employment Opportunities Act of 1998. Generally, we grant
petitions such as this on e only when: 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 judg e’s rulings during either the course of
the appeal or the initial decision were not consistent with required procedures or
involved an abuse of discretion, and the resulting error affected the outcome of
the case; or new and material evidence or legal argu ment is available that, despite
the petitioner’s due diligence, was not available when the record closed. Title 5
of the Code of Federal Regulations, section 1201.115 ( 5 C.F.R. § 1201.1 15).
After full y considering the filings in the se appeal s, we conclude that 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 decisi on, which is now the Board’s final decision. 5 C.F.R.
§ 1201.113 (b).
¶2 The agency issued vacancy announcements for four GS -14 and two GS -15
Public Health Advisor positions, and two GS-14 Lead Public Health Advisor
positions. The appellant applied but not was not selected for them because he
lacked the required 1 year of specialized experience. After the appellant
exhausted his remedies with the Department of Labor, he filed these e ight
appeals. The administrative judge joined the appeals and determined that there
were no material facts in dispute warranting a hearing. He therefore issued a
2 This appeal is a joinder of eight similar appeals from the sa me appellant: MSPB
Docket Nos. DE-3330 -15-0551 -I-1, DE -3330 -15-0550 -I-1, DE-3330 -16-0003 -I-1,
DE-3330 -16-0006 -I-1, DE-3330 -16-0012 -I-1, DE-3330 -16-0013 -I-1, DE-3330 -16-0026 -
I-1, and DE -3330 -16-0027 -I-1.
3
decision on the written record in which he found that the appellant failed to prove
that he was entitled to corrective action. The appellant filed a petition for review
of the initial decision. Petition for Review (PFR) F ile, Tab 1. The agency
responded in opposition to the petition for review and the appellant replied to the
agency’s response . PFR File , Tabs 3 -4.
¶3 Nearly all of the arguments that the appellant raised in his appeals are
identical or substantially the same as arguments he has raised, and we have
addressed, in earlier appeals. We find no error in the administrative judge ’s
pre-decisional rulings or in his initial decision , and we will not revisit the
appellant’s reiteration of arguments previously considered and rejected.
¶4 The appellant has made a new claim against the administrative judge. In a
pleading entitled “Clarification S ought concerning Matters related to Court
Deportment,” the appellant stated that one of the agency’s representatives,
Mr. Thomas , engaged in abusive conduct3 in an earlier case, the administrative
judge had (in his opinion) fostered a culture of “anything goes” by denying the
appellant’s motion to disqualify Mr. Thomas and otherwise failing to protect the
appellant, and he was concerned about the possibility of future incidents. MSPB
Docket No. DE-3330 -16-0003 -I-1, Initial Appeal File ( 0003 IAF), Tab 25 at 4-5;
MSPB Docket No. DE -3330 -16-0006 -I-1, Initial Appeal File ( 0006 IAF), Tab 24
at 4-5. He asked :
[W]hat will be the correct response if . . . Mr. Thomas . . . decides to
call Appellant’s wife a “slut and a whore”? Neither the Appellant
nor his wife will be satisfied with a “tut -tut,” and would provide an
appropriate response that would ensure Mr. Thomas would never do
it again.
0006 IAF, Tab 24 at 5. The appellant assert ed that he “must conclude” that the
administrative judge would allow racial slurs, demeaning characterizations,
3 This alleged conduct did not involve racial slurs. The purported racial slurs to which
the appellant refers la ter were uttered by a different agency representative in an appeal
involving a different agency.
4
physical and economic threats, and threats and insults to the appe llant’s wife in
his courtroom. Id. He stat ed, “If that conclusion is correct, then Appellant will
undertake all necessary and legitimate measure to defend himself and his wife.”
Id. The administrative judge responded with an order that informed the parties
that he expected them to behave as they would in any legal proceeding. 0003
IAF, Tab 27 at 1; 0006 IAF, Tab 26 at 1. He also stated :
I remind the parties that the Board speaks only through its issuances;
the parties have no authority to presume to speak on the Board’s
behalf, even by adverse inference. A party makes assumptions –
such as the [assumptions the appellant made] – at his own peril.
0006 IAF, Tab 26 at 1. The appellant responded with a pleading in which he
reiterated his allegations about the alleged abuse he has suffered in the courtroom
in prior cases and the Board’s failure to do anything about it, and he stated , “Oh,
the threats, they do proliferate.” 0003 IAF, Tab 29 at 4 -5; 0006 IAF, Tab 28
at 4-5. The appellant’s disingenuous assumption that the administrative judge
would permit contumacious behavior was provocative and unnecessary and his
interpretation of the administrative judge’s warning about the perils of making
assumptions as a threat is unreasonable. We discern no error in the
administrative judge’s statement.
¶5 The appellant filed a “Motion with USERRA Charge”4 in each of the eight
appeals in which he stated, for “the instant complaint and all future complaints,
he is requesting that the matter be adjudicated under BOTH the provision of
USERRA as well as the VEOA.”5 He subsequently filed pleadings in all eight
4 Uniformed Services Employment and Reemployment Rights Act of 1994 (codified as
amended at 38 U.S.C. §§ 4301 -4335) .
5 MSPB Docket No. DE-3330 -15-0550 -I-1, Initial Appeal File (0550 IAF), Tab 7 at 4;
MSPB Docket No. DE -3330 -15-0551 -I-1, Initial Appeal File (0551 IAF), Tab 7 at 4 ;
0003 IAF, Tab 5 at 4; 0006 IAF, Tab 4 at 4; MSPB Docket No. DE -3330 -16-0012 -I-1,
Initial Appeal File (0012 IAF), Tab 5 at 4; MSPB Docket No. DE-3330 -16-0013 -I-1,
Initial Appeal File ( 0013 IAF), Tab 5 at 4; MSPB Docket No. DE -3330 -16-0026 -I-1,
Initial Appeal File ( 0026 IAF), Tab 4 at 4; MSPB Docket No. DE -3330 -16-0027 -I-1,
Initial Appeal File ( 0027 IAF), Tab 4 at 4.
5
appeals that contained the following statement: “Appellant is not pursuing a
claim for the violations covered in this docket number by any other law, rule, or
regulation.”6
¶6 In his joinder order, the administ rative judge found that the Board had
jurisdiction over the appellant’s VEOA right -to-compete claim, but stated that the
Board lacked jurisdiction over any other claim, without explicitly mentioning
USERRA. MSPB Docket No. DE -3330 -15-0551 -I-1 (0551 IAF), Tab 13 at 3.
The appellant did not preserve an objection to the administrative judge’s failure
to recognize a USERRA claim and in fact did not mention USERRA at all for the
remainder of the appeal. 0551 IAF, Tabs 14-15, 19, 21. The administrative judge
did not address USERRA in the initial decision, and the appellant does not
address any USERRA claim against the agency in his petition for review . To the
extent that the administrative judge should have made an explicit ruling
concerning the appellant’s U SERRA claims, any failure to do so did not prejudice
the appellant’s substantive rights. The appellant appears to have waived his
USERRA claims in writing in each appeal and he does not assert that the Board
has not addressed them.
¶7 On review, the appell ant contends that the administrative judge erred by
finding that there were no material facts in dispute and therefore erred by
deciding the appeal without a hearing. PFR File, Tab 1 at 4. We previously have
addressed essentially the same argument in the appellant’s prior appeals and will
not revisit them here. Based on our review of the record, we agree with the
administrative judge that the appellant did not raise a genuine dispute of material
fact warranting a hearing . Waters -Lindo v. Department of D efense , 112 M.S.P.R.
1, ¶ 5 (200 9).
6 0550 IAF, Tab 8 at 6; 0551 IAF, Tab 8 at 6; 0003 IAF, Tab 8 at 6; 0006 IAF, Tab 9
at 6; 0012 IAF, Tab 8 at 6; 0013 IAF, Tab 8 at 6; 0026 IAF, Tab 8 at 6; 0027 IAF,
Tab 8 at 6.
6
¶8 The appellant further alleges on review that the administrative judge
intentionally delayed issuing the initial decision beyond the 120 -day adjudication
standard in retaliation for the appellant’s persistence in seeking redress for racial
slurs made by a representative for another agency in a different appeal. PFR File,
Tab 1 at 4 -6. The Board already has addressed the appellant’s contention that the
administrative judge did not take the remarks seriously enough in that appeal .
Jones v. Department of Veterans Affairs , MSPB Docket No. DE-3330 -14-0364 -
I-1, Final Order, ¶¶ 11-12 (Apr. 13, 2015) . The Board concluded that the
administrative judge’s actions did not constitute bias, and the agency
representative’s comments were not evidence that the agency violated the
appellant’s veterans’ preferenc e rights. Id. The appellant sought review before
the U .S. Court of Appeal s for the Federal Circuit , and the court affirmed the
Board’s decision, specifically addressing the appellant’s arguments about the
agency representative’s remarks. Jones v. Depart ment of Veterans Affairs ,
629 F. App’x 956, 960 (Fed. Cir. 2015). To the extent that the appellant invites
the Board to reopen that issue , he has not come forward with new evidence of
sufficient weight to warrant a different outcome in that case, and we s ee no
reason to take the extraordinary step of reopening an appeal in which a final court
decision already has been issued.
¶9 Aside from the appellant’s theory that his refusal to let the matter drop has
caused the administrative judge to intentionally retaliate against him by delaying
his issuance of the initial decision, the appellant identifies no evidence and offers
no plausible theory as to why any alleged retaliation was because of his
uniformed service, as required for a successful U SERRA claim. To the extent
that the appellant’s allegations could be seen as a claim of administrative judge
bias, the appellant has not presented sufficient evidence to overcome the
presumption of honesty and integrity that accompanies administrative
adjudicators . Oliver v. Department of Transportation , 1 M.S.P.R. 382 , 386
(1980). Further, the Board has long recognized that an administrative judge’s
7
failure to issue an initial decision within the Board’s 120 -day standard is not
evidence of bias and does not constitute reversible error. McCollum v.
Department of Veter ans Affairs , 75 M.S.P.R. 449, 462 (1997); Sanborn v.
Department of the Navy , 15 M.S.P.R. 553, 554 (1983) .
NOTICE OF APPEAL RIGHTS7
You may obtain review of this final decision. 5 U.S.C. § 7703 (a)(1). By
statute, the nature of your claims determines the time limit for seeking such
review and the appropriate forum with which to file. 5 U.S.C. § 7703 (b).
Although we offer the following summary of available appeal rights, the Merit
Systems Protection Board does not provide legal advice on which option is most
appropri ate for your situation and the rights described below do not represent a
statement of how courts will rule regarding which cases fall within their
jurisdiction. If you wish to seek review of this final decision, you should
immediately review the law appli cable to your claims and carefully follow all
filing time limits and requirements. Failure to file within the applicable time
limit may result in the dismissal of your case by your chosen forum.
Please read carefully each of the three main possible choi ces of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in genera l. As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be 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 revie w rights included in final decisions. As indicated in the notice, the
Board cannot advise which option is most appropriate in any matter.
8
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of par ticular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the servic es provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected b y an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil act ion with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703 (b)(2); see Perry v. Me rit Systems
Protection Board , 582 U.S. ____ , 137 S. Ct. 1975 (2017). If you have a
representative in this case, and your representative receives this decision before
you do , then you must file with the district court no later than 30 calendar days
after your representative receives this decision. If the action involves a claim of
9
discrimination based on race, color, religion, sex, national origin, or a disabling
condition, you may be entitled to representation by a court -appointed lawyer and
to waiver of any requirement of prepayment of fees, costs, or other security. See
42 U.S.C. § 2000e -5(f) and 29 U.S.C. § 794a .
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Eq ual Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702 (b)(1) . You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702 (b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, th e
address of the EEOC is:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302 (b)(8) or
10
other protected activities listed in 5 U.S.C. § 2302 (b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
disposition of allegations of a prohibited personne l practice described in
section 2302(b) other than practices des cribed in section 2302(b)(8), or
2302(b)(9)(A)(i), (B), (C), or (D),” then you may file a 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 m ust 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 yo u are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
8 The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower re prisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115 -195,
132 Stat. 1510.
11
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
Contact information for the courts of appeals can be found at their
respective websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
FOR THE BOARD:
Washington, D.C. /s/ for
Jennifer Everling
Acting Clerk of the Board | JONES_JOHN_PAUL_DE_3330_15_0551_I_1_FINAL_ORDER_1959034.pdf | 2022-09-09 | null | S | NP |
4,137 | https://www.mspb.gov/decisions/nonprecedential/JOHNSON_WADRA_E_DA_0752_18_0227_I_1_FINAL_ORDER_1959131.pdf | UNITED STATES OF AME RICA
MERIT SYSTEMS PROTEC TION BOARD
WADRA E. JOHNSON,
Appellant,
v.
UNITED STATES POSTAL SERVICE,
Agency.
DOCKET NUMBER
DA-0752 -18-0227 -I-1
DATE: September 9, 2022
THIS FINAL ORDER IS NONPRECEDENTIAL1
Wadra E. Johnson , Lafayette, Louisiana, pro se.
Steven E. Coney , Dallas, Texas, for the agency.
BEFORE
Cathy A. Harris , Vice Chairman
Raymond A. Limon , Member
Tristan L. Leavitt , Member
FINAL ORDER
¶1 The appellant has filed a petition for review of the initial decision, which
dismissed for lack of jurisdiction her appeal of a suspension and an alleged denial
of a request for restoration. On petition for review, the appellant argues that the
administrative judge er red by finding that she failed to show that her suspension
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
require d to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117 (c).
2
lasted more than 14 days in light of the agency’s evidence that it ordered her to
return to work and by finding that she failed to show that her medical condition
had been accepted by the Office of Workers’ Compensation Programs as a
compensable injury. 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 invo lved an abuse of
discretion, and the resulting error affected the outcome of the case; or new and
material evidence or legal argument is available that, despite the petitioner’s due
diligence, was not available when the record closed. Title 5 of the Code of
Federal Regulations, section 1201.115 ( 5 C.F.R. § 1201.115 ). After fully
considering the filings in this appeal, we conclude that the petitioner has not
established any basis under s ection 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 RIG HTS2
You may obtain review of this final decision. 5 U.S.C. § 7703 (a)(1). By
statute, the nature of your claims determines the time limit for seeking such
review and the appropriate forum with which to file. 5 U.S.C. § 7703 (b).
Although we offer the following summary of available appeal rights, the Merit
Systems Protection Board does not provide legal ad vice on which option is most
appropriate 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 w hich option is most appropriate in any matter.
3
jurisdiction. If you wish to seek review of this final decision, you sh ould
immediately review the law applicable to your claims and carefully follow all
filing time limits and requirements. Failure to file within the applicable time
limit may result in the dismissal of your case by your chosen forum.
Please read carefully e ach of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more informati on.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703 (b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petit ion to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s websit e, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representatio n for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our 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
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimina tion
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703 (b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. ____ , 137 S. Ct. 1975 (2017). If you have a
representative in this case, and your representative receives this decision before
you do, then you must file with the district court no later than 30 calendar days
after yo ur representative receives this decision. If the action involves a claim of
discrimination based on race, color, religion, sex, national origin, or a disabling
condition, you may be entitled to representation by a court -appointed lawyer and
to waiver of a ny requirement of prepayment of fees, costs, or other security. See
42 U.S.C. § 2000e -5(f) and 29 U.S.C. § 794a .
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims onl y, excluding
all other issues . 5 U.S.C. § 7702 (b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702 (b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
5
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 2 0507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302 (b)(8) or
other protected activities listed in 5 U.S.C. § 2302 (b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
disposition of allegations of a prohibited personnel practice described in section
2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i),
(B), (C), or (D),” then you may file a petition for judicial review either with the
U.S. Cour t of Appeals for the Federal Circuit or any court of appeals of
competent jurisdiction.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 cou rt 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 Petitioner s and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our websit e at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney wi ll accept representation in a given case.
Contact information for the courts of appeals can be found at their
respective websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
FOR THE BOARD:
Washington, D.C. /s/ for
Jennifer Everling
Acting Clerk of the Board | JOHNSON_WADRA_E_DA_0752_18_0227_I_1_FINAL_ORDER_1959131.pdf | 2022-09-09 | null | DA-0752-18-0227-I-1 | NP |
4,138 | https://www.mspb.gov/decisions/nonprecedential/PARKER_JAMES_C_DC_0842_15_0928_I_1_FINAL_ORDER_1958583.pdf | UNITED STATES OF AME RICA
MERIT SYSTEMS PROTEC TION BOARD
JAMES C. PARKER,
Appellant,
v.
OFFICE OF PERSONNEL
MANAGEMENT,
Agency.
DOCKET NUMBER
DC-0842 -15-0928 -I-1
DATE: September 8, 2022
THIS FINA L ORDER IS NONPRECEDENTIAL1
James C. Parker , Woodbridge, Virginia, pro se.
Jane Bancroft , Washington, D.C., for the agency.
BEFORE
Cathy A. Harris , Vice Chairman
Raymond A. Limon , Member
Tristan L. Leavitt , Member
FINAL ORDER
¶1 The appellant has filed a petition for review of the initial decision, which
affirmed the denial of his application by the Office of Personnel Management
(OPM) for Federal Employee Retirement System (FERS) law enforcement officer
(LEO) retirement benefits . Generally, w e grant petitions such as this one only in
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117 (c).
2
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 o f the law to the facts of the case; the
administrative judge’s rulings during either the course of the appeal or the initial
decision were not consistent with required procedures or involved an abuse of
discretion, and the resulting error affected the outc ome of the case; or new and
material evidence or legal argument is available that, despite the petitioner’s due
diligence, was not available when the record closed. Title 5 of the Code of
Federal Regulations, section 1201.115 ( 5 C.F.R. § 1201.115 ). After fully
considering the filings in this appeal, we conclude that the petitioner has not
established any basis under section 1201.115 for granting the petition for review.
Therefore, we D ENY the petition for review. Except as expressly MODIFIED to
address the appellant’s arguments regarding his service with the Department of
the Treasury , Burea u of Engraving and Printing (BEP ) and his military service
deposit , we AFFIRM the initial decision.
BACKGROUND
¶2 The appellant’s former employing agency, the Transportation Security
Agency (TSA) , removed him from his position as a Federal Air Marshal (FAM)
on May 12, 2014, for failure to follow policy and leave procedures. Initial
Appeal File (IAF), Tab 11 at 24, Tab 16, Initial Decision (ID) at 2 n.1 . The
appellant , who was 51 years old at the time of his separation from employment ,
filed an application for immediate retirement with OPM. IAF, Tab 7 at 6, 17 ,
30-33, 35.
¶3 OPM issued a decision on October 31, 2014 , denying the appellant’s
retirement application . Id. at 17 . The appellant filed a Board appeal of that
decision , which the administrative judge vacated and remanded to OPM for
further consideration of the appellant ’s claims and proper notice of his
3
reconsideration rights. Parker v. Office of Personnel Management , MSPB Docket
No. DC -0842 -15-0230 -I-1, Initial Decision at 1 -2, 8-10 (Apr. 14, 2015 ).
¶4 In a new June 1, 2015 reconsideration decision, OPM denied the appellant’s
retirement application , finding that he lacked the necessary creditable LEO
service for LEO retirement , that he was ineligible for a deferred retirement
because he had not yet reached age 62, and that his military service was not
creditable tow ards his deferred annuity calculation because he had not pa id his
military deposit in full . IAF, Tab 7 at 6-8. Specifically, OPM determined that
the a ppellant was ineligible for LEO retirement under 5 U.S.C. § 8412 (d)
because , while he had a total of 19 years and 12 days of creditable Federal
service, he had earned only 11 years, 9 months, and 22 days of creditable LEO
service , from July 21, 2002 , to May 12, 2014, through his LEO -designated
positions with the Department of Transportation, Federal Aviation
Administration, and TSA . Id. at 6-7. OPM found that the remaining 7 years,
2 months, and 20 days of Federal service did not count as LEO service because he
had earned it while in a non-LEO position with the Department of the Treasury ,
BEP , from May 1, 1995 , to July 20, 2002 . Id. OPM also did not credit his
military service as LEO service. Id. at 6, 22. OPM then apprised him of his
appeal rights. Id. at 8.
¶5 The appellant filed this appea l, alleging that OPM committed harmful error
by denying him his requested LEO retirement benefits . IAF, Tab 1 at 2. He
claimed that he was entitled to retire under 5 U.S.C. § 8412 (d) because his prior
service in the military, from November 1981 to June 1992, may be tacked onto
his civilian LEO service . IAF, Tab 1 at 2, Tab 10 at 1 -2, ID at 2-5. In support ,
he first argued that his Individual Retirement Record (IRR) , which “certified” his
service computation date (SCD) as October 18, 1984 , conclusively proved that his
military service and all of his civilian Federal employment was creditable LEO
service . IAF, Tab 1 at 2, Tab 11 at 8-9, 11 . Second, he claimed that while on
active duty with the De partment of the Air Force , he was a qualifying Federal
4
employee because he was working for a Federal agency within the Executive
Branch performing LEO duties . IAF, Tab 11 at 6 -7, 10. Finally , he claimed that
his military service was creditable because any failure to pay his deposit in full
was attributable to agency misrepresentations and, alternatively , that he was not
required to pay a military deposit under the Civil Service Retirement System
(CSRS) provisions in effect at the time that he served . Id. at 7-9. He therefore
claimed that he had 29 years, 6 months , and 24 days of creditable LEO s ervice
and was eligible for LEO retirement benefits. Id. at 8. He asserted that by again
denying his LEO retirement application, OPM failed to correct the adm inistrative
errors present in the October 31, 2014 reconsideration decision and was violating
his rights under the Uniformed Service s Employment and Reemployment Rights
Act of 1994 (USERRA) (codified as amended at 38 U.S.C. §§ 4301 -4335). IAF,
Tab 1 at 2 , Tab 11 at 10 .
¶6 After considering the pleadings and holding a status conference, the
administrative judge determined that the appellant was only raising claims in
connection with his denial of LEO retirement benefits under 5 U.S.C. § 8412 (d)
and restricted the issues on appeal to those claims. IAF, Tab 10 at 1, Tab 15,
Hearing Compact Disc , 19:45 -20:53 (statements made by the administrative
judge ); ID at 4 n.3. He further concluded that there were no material facts in
dispute as to those claims. IAF, Tab 13 at 2. He therefore limited the hearing t o
the presentation of oral argument and d id not allow the parties an opportunity to
present evidence . Id. The administrative judge also noted that, although it
appeared that the appellant may not be eligible for an LEO retirement benefit
because he was removed from his FAM position “for cause,” see 5 U.S.C.
§ 8412 (d), he did not need to address that issue, IAF, Tab 10 at 2 n.2.
¶7 After holding oral arguments, t he administrative judge issue d an initial
decision , affirming OPM’s June 1, 2015 reconsideration decision. IAF, Tab 15 ;
ID at 1, 8. He concluded that the appellant was not an “employee ,” as required
by 5 U.S.C. § 8412 (d), while performing his military service because uniformed
5
service is expressly excluded from the definition of employee for the purposes of
FERS retirement. ID at 7. He found that the appellant’s military service was not
creditable LEO service as a result, reg ardless of the duties performed . ID at 6 -8.
He further found that OPM had not violated the appellant’s USERRA rights by
denying his application because OPM was precluded as a matter of law from
crediting his military service as LEO service. ID at 7-8. He did not address the
appellant’s claims in connection with his military deposit, as he determined that
the appellant failed to raise an objection to his order limiting the issues on appeal
only to the appellant’s entitlement to LEO retirement benefits under 5 U.S.C.
§ 8412 (d). ID at 4 n.3.
¶8 The appellant has filed a petition for review, claiming that TSA, OPM, and
the administrative judge wrongfully denied his request for FERS LEO retirement
because he earned enough LEO service credit from h is military service and two
civilian positions to qualify for LEO retirement under 5 U.S.C. § 8412 (d).
Petition for Review (PFR) File, Tab 1 at 5 -9. The appellant also argues that OPM
and the administrative judge improperly questioned the accuracy of his IRR and
reasserts his military deposit claims .2 Id. at 6, 8 -16. The agency has filed a pro
forma reply . PFR File, Tab 4.
2 The appellant does not challenge the administrative judge’s denial of his request for
correct ive action under USERRA or his decision to cancel the evidentiary hearing . We
nonetheless discern no error with the administrative judge’s determinations on those
issues. See Jezouit v. Office of Personnel Management , 97 M.S.P.R. 48 , ¶ 13 (2004)
(finding that the administrative judge had the authority to cancel the evidentiary hearing
and to hold oral arguments inst ead because the appeal solely presented issues of law) ,
aff’d , 121 F. App’x 865 (Fed. Cir. 2005) ; Crawford v. Department of Transportation ,
95 M.S.P.R. 44 , ¶¶ 8, 15 (2003) (finding that the agency did not violate the appellant’s
USERRA rights because it did not deny him a benefit of employment) , aff’d , 373 F.3d
1155 (Fed. Cir. 2004) .
6
DISCUSSION OF ARGUME NTS ON REVIEW
The appellant earned less than 20 years of creditable LEO service.
¶9 As correctly articulated by the administrative judge, under the relevant parts
of 5 U.S.C. § 8412 (d), an “employee ” is entitled to an immediate FERS LEO
retirement annuity if at the time of his separation he is at least 50 years of age
with 20 years of creditable LEO servi ce or has at least 25 years of creditable LEO
service, regardless of his age. The term “law enforc ement officer” is defined, for
the purposes of this appeal, as an “employee” with certain types of duties.
5 U.S.C. § 8401 (17)(A). Thus, t o meet the years of creditable LEO service
requirement, at a minimum, the appellant must have been an “employee ,” as
defined by statute, while performing the service . For the purposes of FERS
retirement provisions, an “employee ” is defined by 5 U.S.C. § 2105 and other
provisions not relevant to this appeal. See 5 U.S.C. § 8331 (1)(A); 5 U.S.C.
§ 8401 (11). Section 2105 mandates that the appellant be “appointed in the civil
service” to qualify as an “employee. ” 5 U.S.C. § 2105 (a). The term “civil
service” does not include positions in the uniformed service s, such as the
appellant ’s active duty service with the Department of the Air Force. 5 U.S.C.
§ 2101 .
¶10 As these provisions indicate , as a matter of law, the appellant was not an
“employee” while performing his military service . He therefore was not an LEO
while serving in the military , and his military service was not creditable LEO
service for the purposes of FERS LEO retirement , even though his later service as
a FAM was creditable and regardless of whether he paid his military deposit in
full. See Bell v. Office of Personnel Management , 22 M.S.P.R. 43 , 44-45 (1984)
(determining that the appellant’s military service as a law enforcement officer
could not be credited toward the minimum service requirements of 5 U.S .C.
§ 8336 (c)(1)) ; see also Bronger v. Office of Personnel Management ,
769 F.2d 756, 758 -60 (Fed. Cir. 1985) (finding that the appellant’s military
7
service could not be tacked on to his 23 years of creditable service as a civilian
air traffic controller for purposes of early retirement under 5 U.S.C. § 8336(e)).3
¶11 Moreover , even if the appellant’s 7 years, 2 months, and 20 days of service
as a BEP Police Officer w ere creditable LEO service, as the appellant appears to
argue , he still would have fewer than 20 years of creditable LEO service earned
from his t wo civilian positions . PFR File, Tab 1 at 10. We therefore agree with
the administrative judge that the appellant lacks the 20 years of LEO service
required by 5 U.S.C. § 8412 (d) to be eligible for LEO retirement.4 ID at 6; see
Bell, 22 M.S.P.R. at 44 -45.
The appellant’s IRR does not prove that he is entitled to have his military service
credited as LEO service.
¶12 As alleged , the appellant’s IRR shows that his SCD is October 18, 19 84.
IAF, Tab 7 at 39. In addition, the appellant’s FERS pers onal benefits statement
3 The Board may rely on CSRS case law in analyzing FERS determinations, as the
statutes, regulations, and case law generally are parallel. See Bingaman v. Department
of the Treasury , 127 F.3d 1431 , 1433 -34 ( Fed. Cir. 1997) (noting the similarities
between the LEO requirements under CSRS and FERS) . Compare 5 U.S.C. §§ 8331 (1),
(20), 8336 (c)(1), (e), with 5 U.S.C. §§ 8401 (11), (17), 8412(d).
4 Thus, w e modify the initial decision to find that we need not resolve the appellant ’s
apparent claims that his BEP service was creditable LEO service because , as set forth
above, it does not affect the outcome of the instant appeal. However, the record reflects
that BEP did not designate his position as an LEO position. I AF, Tab 11 at 18, 26.
Should the appellant wish to challenge the designation or apply for LEO credit based on
the actual duties performed in that position, he may pursue such a challenge through
BEP’s administrative process . See Hamilton v. Department of Defense , 80 M.S.P.R.
636, ¶¶ 5-6 (1999) (stating that a n employee may qualify for LEO retirement credit
either by serving in a po sition that has been approved as such or by applying for LEO
credit and proving to his employing agency that he is entitled to LEO retirement credit );
5 C.F.R. §§ 842.801 (b) (setting fort h OPM’s delegation of authority to agency heads to
designate positions as LEO positions), 842.803 (a)-(b) (indicating that the employing
agency determines whether a position is an LEO position), 842.804(c) (listing the
requirements for challenging an agency ’s LEO designation). The Board has the
authority to review the agency’s determination . Hamilton , 80 M.S.P.R. 636 , ¶ 4.
However, if an employee in a non -LEO designated position does not seek such a
determination within 6 months after entering the position or after any significant change
in duties, the agency’s determination that the service is not so covered is presumed to
be correct. Id., ¶ 6; 5 C.F.R. § 842.804 (c).
8
from January 3, 2010, identifies a n SCD of October 18, 1984 , for “6C/ECBPO
Retirement” and “FERS LEO/F F (Code M)” retirement coverage , and his removal
Standard Form 50 li sts the same SCD . IAF, Tab 7 at 35, Tab 11 at 27. We
nonetheless disagree with his claims that OPM and the administrative judge must
accept these documents as conclusive evidence of his prior LEO service ,
especially because the personal benefits statemen t was certified by the agency in
his IRR . PFR File, Tab 1 at 9 -16.
¶13 Under U.S. Court of Appeals for the Federal Circuit and Board case law,
OPM and the Board may review the accuracy and completeness of the
determinations and certifications made by the employing agency in an appellant’s
IRR. Lisanti v. Office of Personnel Management , 573 F.3d 1334, 1338 -40 (Fed.
Cir. 2009); Conner v. Office of Personnel Management , 120 M.S.P.R. 670, ¶ 6
(2014 ), aff’d , 620 F. App’x 892 (Fed . Cir. 2015) . The Board and nonprecedential
Federal Circuit case law finding to the contrary , and on which the appellant
relies , is not the prevailing law. PFR File, Tab 1 at 9 -10; see Lisanti , 573 F.3d
at 1339 -40 (overruling Board and nonprecedential Fe deral Circuit decisions
establishing that an employing agency’s certified IRR is binding); Conner ,
120 M.S.P.R. 670, ¶¶ 5-6 (expressly overruling the Board case law relied on by
the appellant). Moreover, the Board cannot order the payment of an LEO
retirement annuity based on that SCD because, for the reasons explained above,
crediting the appellant’s military service would c ontravene FERS retirement law.
See Office of Personnel Management v. Richmond , 496 U.S. 414 , 416, 424,
434 (1990) ( holding that the Board cannot order the payment of Federal
retirement benefits when the statutory conditions for entitlement to those benefits
are not met). Therefore, we find no error with the administrative judge’s decision
not to rely on the SCD listed in the appellant’s IRR as th e date from which to
compute his LEO service credit .
9
The appellant has shown no reversible error in the administrative judge’s decision
not to adjudicate his claims relating to his military deposit.
¶14 In his response to the administrative judge’s order limit ing the issues on
appeal to the appellant’s entitlement to LEO retirement benefits, the appellant
requested that the administrative judge adjudicate his claims as to his military
deposit. IAF, Tab 11 at 9 . Although the administrative judge found otherwis e,
ID at 4 n.3, when construed liberally, we consider this pro se appellant’s response
to be an objection to the decision to exclude those arguments. See Jordan v.
Office of Personnel Management , 108 M.S.P.R. 119 , ¶ 19 (2008) (explaining that
the Board construes pro se pleadings liberally) . The appellant reasserts on review
his claims concerning his military deposit. PFR File, Tab 1 at 6, 8 -9. Thus, we
modify the initial decision to address the issue of his military service deposit.
¶15 As explained above, the appellant’s military service is not relevant for
determining his entit lement to LEO retirement benefits. His military service may
be credited towards his length of regular service and annuity computation for
deferred retirement , as noted by OPM in its reconsideration decision , if a deposit
is made for that service .5 IAF, T ab 7 at 7-8; see Bronger , 769 F.2d at 760 (noting
that, although the appellant’s military service could not be tacked on to his
civilian air traffic controller service for purposes of early retirement, it may be
used to calculate his length of regular serv ice and annuity amount) . Under those
circumstances, payment of his military deposit in full may be relevant. IAF,
Tab 7 at 7 -8; see 5 U.S.C. § 8411 (c)(1)(B) ( providing that, for the purpose of a
FERS basic annuity, c reditable service includes post -1956 military service if an
5 The appellant’s military deposit also may be relevant for the purposes of determining
his eligib ility for an immediate retirement annuity under 5 U.S.C. § 8412 (a). See
5 U.S.C. § 8411 (c)(1)(B) . However, we need not consider that issue because OPM did
not address it in its reconsideration decision , and the appellant has not claimed that he
is entitled to benefits under that provision. IAF, Tab 7 at 6 -8; Poole v. Department of
the Army , 117 M.S.P.R. 516 , ¶ 10 (2012) (observing that the scope of an appeal
involving Federal retirement benefits generally is limited to those matters addres sed in
OPM’s reconsideration decision ).
10
appropriate deposit is made ). The appellant , however, is ineligible for a deferred
retirement because he has not reached age 62. See 5 U.S.C. § 8413 (a)
(establishing that an employee with at least 5 years of service at the time of his
separation is entitled to an annuity beginning at age 62). Thus, he has not shown
that the administrative judge’s decision to exclude his military deposit claims
from consideration , despite his objection, constitutes reversible error. 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).
¶16 Accordingly, we deny the appellant’s petition for review and affirm the
initial decision , as modified , which affirmed OPM’s denial of the appellant’s
application for LEO retirement benefits under 5 U.S.C. § 8412 (d).
NOTICE OF APPEAL RIG HTS6
The initial decision, as sup plemented 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. § 7 703(b). Although we offer the following
summary of available appeal rights, the Merit Systems Protection Board does not
provide legal advice on which option is most appropriate for your situation and
the rights described below do not represent a statem ent of how courts will rule
regarding which cases fall within their jurisdiction. If you wish to seek review of
this final decision, you should immediately review the law applicable to your
claims and carefully follow all filing time limits and requiremen ts. Failure to file
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.
11
within the applicable time limit may result in the dismissal of your case by your
chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board orde r must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C .
§ 7703 (b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” whi ch is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.g ov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representati on in a given case.
12
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whol e or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703 (b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. ____ , 137 S. Ct. 1975 (2017). If you have a
representative in this case, and your representative receives this decision before
you do, then you must file with the district court no later than 30 calendar days
after your representative receives this decision. If the action involves a claim of
discrimination based on race, color, religion, sex, national origin, or a disabling
condition, you may be entitled to representation by a court -appointed lawyer and
to waiver of any requirement of prepayment of fees, costs, or other security. See
42 U.S.C. § 2000e -5(f) and 29 U.S.C. § 794a .
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebs ites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702 (b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702 (b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
addr ess of the EEOC is:
13
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be ad dressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302 (b)(8) or
other protected activities listed in 5 U.S.C. § 2302 (b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
disposition of allegations of a prohibited personnel practice described in section
2302(b) ot her than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i),
(B), (C), or (D),” then you may file a petition for judicial review either with the
U.S. Court of Appeals for the Federal Circuit or any court of appeals of
competent jurisdiction.7 The court of appeals must receive your petition for
review within 60 days of the date of issuance of this decision. 5 U.S.C.
§ 7703 (b)(1)(B).
7 The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into la w by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals o f competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115 -195,
132 Stat. 1510.
14
If you submit a petition for judicial review to the U .S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Cou rt of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6 , 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Mer it Systems Protection Board appellants before the 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:
Washingto n, D.C. /s/ for
Jennifer Everling
Acting Clerk of the Board | PARKER_JAMES_C_DC_0842_15_0928_I_1_FINAL_ORDER_1958583.pdf | 2022-09-08 | null | DC-0842-15-0928-I-1 | NP |
4,139 | https://www.mspb.gov/decisions/nonprecedential/ORAM_CYRIL_DAVID_DANIEL_DC_3330_17_0098_I_1_FINAL_ORDER__1958738.pdf | UNITED STATES OF AME RICA
MERIT SYSTEMS PROTEC TION BOARD
CYRIL DAVID DANIEL O RAM, JR.,
Appellant,
v.
DEPARTMENT OF DEFENS E,
Agency.
DOCKET NUMBER
DC-3330 -17-0098 -I-1
DATE: September 8, 2022
THIS FINAL ORDER IS NONPRECEDENTIAL1
Cyril David Daniel Oram, Jr. , Bellingham, Washington , pro se.
Troy R. Holroyd , Fort Belvoir, Virginia, for the agency.
BEFORE
Cathy A. Harris , Vice Chairman
Raymond A. Limon , Member
Tristan L. Leavitt , Member
FINAL ORDER
¶1 The appellant has filed a petition for review of the initial decision, which
found that the Board had jurisdiction over his Veterans Employment
Opportunities Act of 1998 (VEOA) appeal but denied hi s request for corrective
action. 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).
2
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 aff ected the outcome of the case; or new and material
evidence or legal argument is available that, despite the petitioner ’s due
diligence, was not available when the record closed. Title 5 of the Code of
Federal Regulations, section 1201.115 ( 5 C.F.R. § 1201.115 ). After fully
considering the filings in this appeal, we conclude that the petitioner has not
established any basis under section 1201.115 for granting the petition for review.
Therefore, we DENY the petition for review . Except as expressly MODIFIED by
this Final Order to find that the Board has jurisdic tion over the appellant ’s appeal
as a right -to-compete claim under 5 U. S.C. § 3330a (a)(1)(B) , we AFFIRM the
initial decision.
BACKGROUND
¶2 The appellant, a preference -eligible veteran, applied for a GS -12
Information Technology Specialist position with the agency under job
announcemen t number DLAJ6 -16-1778879 -MP. Initial Ap peal File (IAF), Tab 4
at 11 -18, Tab 9 at 11 -12. On September 30, 2016, the agency notified the
appellant that he was not selected for the position. IAF, Tab 1 at 10 -11. The
appellant subsequently filed a timely complaint with the Department of Labor ’s
(DOL) Veterans ’ Employm ent and Training Service claiming violation of his
veterans ’ preference rights in connection with his nonselection for the position.
Id. at 12. Finding no violation, DOL issued a letter notifying the appellant that it
was closing i ts investigation into his complaint and advising him of his right to
appeal its decision to the Board. Id. at 13-15.
3
¶3 The appellant timely filed an appeal with the Board. IAF, Tab 1. In an
initial decision based on the written record, the administrative judge found that
the Board had jurisdiction over the appellant ’s appeal pursuant to VEOA ,
5 U.S.C. § 3330a , but denied the appellant ’s request for corrective action on the
merits, finding that the agency did not violate his rights under the Act. IAF,
Tab 14, Ini tial Decision (ID) at 1, 9 -10.
¶4 The appellant has filed a timely petition for review. Petition for Review
(PFR) File, Tab 1. The agency has filed a response, and the appellant has filed a
reply. PFR File, Tabs 3-4.
DISCUSSION OF ARGUME NTS ON REVIEW
¶5 On review, the appellant alleges that he was improperly denied his
requested hearing, and asserts that the administrative judge err ed in determining
that his veterans ’ preference rights were not violated by the agency ’s decision not
to select him. PFR File, Tab 1. The appellant also argues that he was denied the
right to “apply and/or compete, ” and he submits what he describes as pr eviously
unavailable evidence —copies of two vacancy announcements for which he
applied but was not selected . PFR File, Tab 1 at 4 , Tab 4 at 4 -19.
The administrative judge did not err by deciding the appeal without holding a
hearing.
¶6 Although the appellant concedes that his initial appeal form does not reflect
a request for a hearing, he asserts that he is “pretty sure ” that he “specifically
raised the issue and requested a hearing ” below and argues that he was denied his
right to a heari ng. PFR File, Tab 1 at 3. The record reflects that the appellant
checked the box indicating that he did not want a hearing on his initial appeal
form. IAF, Tab 1 at 2. In an acknowledgement order dated November 10, 2016,
the administrative judge advise d the appellant that a failure to request a hearing
within 10 days of the date of that order would constitute a waiver of his right to a
hearing. IAF, Tab 2 at 2. In an order on jurisdiction, also issued on
4
November 10, 2016, she also notified the appell ant that after meeting his burden
of proving jurisdiction, he would be grante d a hearing if he requested one and
only if there remained a genuine dispute of material fact. IAF, Tab 3 at 7 -8. The
appellant filed a reply to the administrative judge ’s order on jurisdiction the same
day both the acknowledgement and jurisdiction al order s were issued, but he did
not indicate that he wanted a hearing in that filing. IAF, Tab 4. On
November 30, 2016, however, he requested to “proceed to the hearing on
substanti ally previously founded jurisdiction ” in a response to the agency ’s
motion to dismiss the appeal. IAF, Tab 11 at 4.
¶7 Thus, while it appears that the appellant expressed a desire for a hearing, he
did not do so within the time limit proscribed by the admini strative judge ’s
acknowledgement order. The Board has held that an appellant waives his right to
a hearing when, after being specifically placed on notice of his requirement to
request one, he fails to do so in a timely manner. Nugent v. U.S. Postal Serv ice,
59 M.S.P.R. 444 , 446 -47 (1993) (finding no error in an administrative judge ’s
denial of the appellant ’s request for a hearing allegedly made for the first time
during a telephonic status conference, more than 10 days after the
acknowledgement order informing the appellant of his re quirement to request a
hearing). Additionally, the Board has held that there is no right to a heari ng in an
appeal brought pursuant to VEOA when , as here, there is no genuine dispute of
material fact and one party must prevail as a matter of law. Montgomery v.
Department of Health & Human Services , 123 M.S.P.R. 216 , ¶ 13 (2016);
Williamson v. U.S. Postal Service , 106 M.S.P.R. 502 , ¶¶ 8 -9 (2007) ; see 5 C.F.R.
§ 1208.23 (b). Accordingly, we find that the administrative judge did not err by
deciding the appellant ’s VEOA appeal on the mer its without holding a hearing.
The administrative judge did not err in denying the appellant ’s request for
corrective action under 5 U.S.C. § 3330a (a)(1)(A).
¶8 The Board ’s jurisdiction is limited to those matters over which it has been
given jurisdictio n by law, rule, or regulation. Maddox v. Merit Systems
5
Protection Board , 759 F.2d 9 , 10 (Fe d. Cir. 1985). To establish Board
jurisdiction over an appeal brought under VEOA, an appellant must show that he
exhausted his administrative remedy with DOL and make nonfrivolous allegations
of the following: (1) he is a preference eligible within the m eaning of VEOA;
(2) the action at issue took place on or after the October 30, 1998 enactment date
of VEOA; and (3) the agency violated his rights under a statute or regulation
relating to veterans ’ preference. See Miller v. Federal Deposit Insurance
Corp oration , 121 M.S.P.R. 88 , ¶ 6 (2014), aff’d, 818 F.3d 1361 (Fed. Cir. 2016) ;
5 C.F.R. § 1201.57 .
¶9 In an order on jurisdiction, the administrative judge advised the appellant of
his burden of proving Board jurisdiction over h is VEOA appeal under 5 U.S.C.
§ 3330a . IAF, Tab 3 at 2 -3. Finding that the appellant proved Board jurisdiction
over his appeal as a complaint under 5 U.S.C. § 3330a (a)(1)(A), the
administrative judge nonetheless denied the appel lant’s request for corrective
action, concluding that he was not entitled t o veterans ’ preference because the
vacancy at issue was filled using merit pr omotion procedures and the agency had
properly afforded the appellant with the right to compete. ID at 6-9.
¶10 On review, the appellant reasserts his argument that the agency ’s selection
process was unfair and that his veterans’ preference rights were violated by the
agency’s decision not to select him for the position. PFR File, Tab 1 at 4 -5,
Tab 4 at 4-5. As the administrative judge correctly observed, the Board has
regularly held that an individual is not entitled to veterans’ preference points
under the merit promotion process. ID at 7 -8; Boston v. Department of the Army ,
122 M.S.P.R. 577 , ¶ 4 (2015); Dean v. Consumer Product Safety Commission ,
108 M.S.P.R. 137 , ¶ 11 (2008) ; see Joseph v. Federal Trade Commission ,
505 F.3d 1380 , 1380 -82 (Fed. Cir. 2007). Veterans ’ preference under merit
promotion procedures provide s only a right to apply and an opportunity to
compete in the process of selectin g the best qualified candidate. Joseph , 505 F.3d
at 1383 . It does not mand ate the method by which the agency makes a selection ,
6
nor do es it require any given applicant ’s selection . The appellant has not cited
any statute or regulation regarding veterans ’ preference applicable to merit
promotion procedures that the agency violat ed by failing to hire him for the
position . Accordingly, we find that the administrative judge properly found no
violation of the appellant ’s veterans ’ preference rights , and we discern no reason
to disturb her finding s. See Crosby v. U.S. Postal Service , 74 M.S.P.R. 98 , 106
(1997) (finding no reason to disturb the administrative judge ’s findings when she
considered the evidence as a whole, drew appropriate inferences, and made
reasoned conclusions); Broughton v. Department of Health & Human Services ,
33 M.S.P.R . 357 , 359 (1987) (same).
The Board has jurisdiction over the appeal as a “right -to-compete ” claim under
5 U.S.C. § 3330a (a)(1)(B).
¶11 In addition, the Board may have jurisdiction under VEOA to consi der a
claim that the agency violated a preference eligible’s or a veteran’s right to
compete . To establish Board jurisdiction over a claim that he was denied the
opportunity to compete for a vacant position, an appellant must demonstrate that
he exhausted his administrative remedy with DOL, and make nonfrivolous
allegations of the following: that he is a preference eligible or veteran who was
separated from the armed forces under honorable conditions after 3 years or more
of active service; and that the a gency denied him the opportunity to compete
under merit promotion procedures for a vacant position for which the agency
accepted applications from indivi duals outside its own workforce . Oram v.
Department of the Navy , 2022 MSPB 30, ¶ 6.
¶12 On review, t he appellant argues that the agency denied him the right to
compete for a number of vacancies, in cluding the one at issue in this appeal.2
2 The appellant also has submitted copies of a number of t hese vacancy announcements
as attachments to his petition for review . PFR File, Tab 4 at 6 -20. Althoug h he
suggests that these documents were not available at the time the record closed below ,
PFR File, Tab 1 at 4, all of the included vacancies have closing dates prior to the
December 9, 2016 close of record date . IAF, Tab 10 . Accordingly, we have not
7
PFR File, Tab 1 at 4. It is undisputed that the appellant is both a preference
eligible and a veteran who was separated from the armed forces under honorable
conditions a fter more than 3 years of active service. IAF, Tab 1 at 1, Tab 4 at 4,
17-19, Tab 9 at 7-8; see 5 U.S.C . § 3304 (f)(1) . It is similarly undisputed that the
agency accepted applications for the vacancy announcement from applicant s from
outside its workforce and that the selection at issue took place after December 10,
2004. IAF, Tab 9 at 8, 11 -12.
¶13 Although the administrative ju dge determined otherwise, ID at 4 n.2, we
find that the appellant raise d a right -to-compete claim below and that he
presented sufficient evidence that he exhausted his remedy before DOL regarding
this claim, IAF, Tab 1 at 12 -15, Tab 11 at 4-6. The agency does not dispute that
the appella nt raised and exhausted a claim un der 5 U.S.C. § 3330a (a)(1)(B). IAF,
Tab 9 at 8 -10. Furthermore, in his response to the agency’s motion to dismiss the
appeal, t he appellant indicated his belief that he was not provided a “full
opportunity to compete ” and was not “afforded due consideration in the selection
process.” IAF, Tab 11 at 4 -6. Pro se appellants are not expected to frame issues
with the precision of a common law pleading . Ellio tt v. Department of the Air
Force , 102 M.S.P.R. 364 , ¶ 8 (2006). The Board also has held that an appellant ’s
assertion that his veterans ’ preference rights were viola ted should be liberally
construed and that an allegation, even in general terms, that an appellant ’s
veterans ’ preference rights were violated is sufficient to meet the requirement of a
nonfrivolous allegation to establish Board ju risdiction over a VEOA ap peal.
Slater v. U.S. Postal Service , 112 M.S.P.R. 28 , ¶ 6 (2009); Elliot , 102 M.S.P.R.
364, ¶ 8 . Based on the foregoing, we modify the initial decision to find that the
considered this evidence because it is not new in that it was not unavailable when the
record closed despite the party ’s due diligence, and it is not material in that the
appellant has not explained why he believes that it warrants an outcome different from
that of the initial decision. See Avansino v. U.S. Postal Service , 3 M.S.P.R. 211 , 214
(1980); 5 C.F.R. § 1201.115 (d).
8
Board has jurisdic tion over the appellant ’s appeal as a right -to-compete claim
under 5 U.S.C. § 3330a (a)(1)(B) .
The administrative judge nonetheless correctly found that the agency provided the
appellant with an opportunity to compete.
¶14 Although we find Board jurisdiction over the appellant ’s right -to-compete
claim, because the record is fully developed on this issue and there is no genuine
issue of material fact, we also find that we can resolve the claim without
remanding it to the administrative judge for further consideration. The agency
submitted undisputed evidence that it considered the appellant ’s application, he
was found qualified for the position, his name was referred for consideration, and
he was ranked as the third alternate for the position, thus providing him all tha t
was required under VEOA. ID at 2, 9; see Joseph , 505 F.3d at 1383 -84 (finding
that the appellant was given a “full ‘opportunity to compete ’” in the merit
selection process because he filed his application, he was one of the four
applicants who qualified for final consi deration, and he was interviewed, but not
selected ); Harellson v. U.S. Postal Service , 113 M.S.P.R. 534 , ¶ 11 (2010)
(stating that the same evidence establishing that the agency accepted and
considered the appellant ’s application also indicates that he was permitted to
compete under 5 U.S.C. § 3304 (f)(1)) .
¶15 Accordingly, we deny the appellant ’s petition for review and affirm the
initial decision as modified, deny ing the appellant ’s request for corrective action.
NOTICE OF APPEAL RIG HTS3
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
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
forum with which to file. 5 U.S.C. § 7703 (b). Although we offer the following
summary of available appeal rights, the Meri t Systems Protection Board does not
provide legal advice on which option is most appropriate for your situation an d
the rights described bel ow do not represent a statement of how courts will rule
regarding which cases fall within their jurisdiction. If you wish to seek review of
this final decision, you should immediately review the law applicable to your
claims and carefully follow all filin g time limits and requirements. Failure to file
within the applicable time limit may result in the dismissal of your case by your
chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicia l review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703 (b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Ci rcuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Pe titioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
10
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit ou r website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any att orney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703 (b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. ____ , 137 S. Ct. 1975 (2017). If you have a
representative in this case, and your representative receives this decision before
you do, then you must file with the district court no later than 30 calendar days
after your representative receives this decision. If the action involves a claim of
discrimination based on race, color, religion, sex, national origin, or a disabling
condition, you may be entitled to representation by a court -appointed lawyer and
to waiver of any requirement of prepayment of fees, costs, or other security. See
42 U.S.C. § 2000e -5(f) and 29 U.S.C. § 794a .
Contact information for U.S. district courts can be found at their respective
websites, which can be accesse d through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702 (b)(1). You must file any such request with the
11
EEOC’s Office of Federal Operations within 30 calendar days after you r eceive
this decision. 5 U.S.C. § 7702 (b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later tha n 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302 (b)(8) or
other protected activities listed in 5 U.S.C. § 2302 (b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
disposition of allegations of a prohibited personne l practice described in
section 2302(b) other than practices described in section 2302(b)(8), or
2302(b)(9)(A)(i), (B), (C), or (D),” then you may file a petition for ju dicial
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 2 7, 2017. The All Circuit Review Act, signed into law by the President on
12
petition for review within 60 days of the date of issuance of this decision.
5 U.S.C. § 7703 (b)(1)(B).
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Cour t of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the F ederal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any at torney nor warrants that
any attorney will accept representation in a given case.
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Fed eral Circuit or any other circuit court of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115 -195,
132 Stat. 1510.
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:
Washington, D.C. /s/ for
Jennifer Everling
Acting Clerk of the Board | ORAM_CYRIL_DAVID_DANIEL_DC_3330_17_0098_I_1_FINAL_ORDER__1958738.pdf | 2022-09-08 | null | DC-3330-17-0098-I-1 | NP |
4,140 | https://www.mspb.gov/decisions/nonprecedential/ORAM_CYRIL_DAVID_DANIEL_DC_3443_17_0035_I_1_FINAL_ORDER_1958741.pdf | UNITED STATES OF AME RICA
MERIT SYSTEMS PROTEC TION BOARD
CYRIL DAVID DANIEL O RAM, JR.,
Appellant,
v.
DEPARTMENT OF THE AI R FORCE,
Agency.
DOCKET NUMBERS
DC-3443 -17-0035 -I-1
DC-3443 -16-0850 -I-11
DATE: SEPTEMBER 8, 2022
THIS FINAL ORDER IS NONPRECEDENTIAL2
Cyril David Daniel Oram, Jr. , Bellingham, Washington , pro se.
Sandra Fortson , Joint Base Andrews, Maryland, for the agency.
BEFORE
Cathy A. Harris , Vice Chairman
Raymond A. Limon , Member
Tristan L. Leavitt , Member
1 The administrative judge issued an order joining these appeals, finding that it would
expedite processing of the cases without adversely affecting the interests of either
party. See 5 U.S.C. § 7701(f)(2) and 5 C.F.R. § 1201.36 (a)(2). The administrative
judge designated Oram v. Department of the Air Force , MSPB Docket No. DC-3443 -
17-0035 -I-1, as the lead case.
2 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or dis tinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117 (c).
2
FINAL ORDER
¶1 The appellan t has filed a petition for review of the initial decision, which
dismissed his appeals for a lack of Board jurisdiction. Generally, we grant
petitions such as this one only in the following circumstances: the initial decision
contains erroneous findings of material fact; the initial decision is based on an
erroneous interpretation of statute or regulation or the erroneous application of
the law to the facts of the case; the administrative judge’s rulings during either
the course of the appeal or the initi al decision were not consistent with required
procedures or involved an abuse of discretion, and the resulting error affected the
outcome of the case; or new and material evidence or legal argument is available
that, despite the petitioner’s due diligence, was not available when the record
closed. Title 5 of the Code of Federal Regulations, section 1201.115 ( 5 C.F.R.
§ 1201.115 ). After fully considering the filings in these appeals, we conclude
that the petitioner has not established any basis under section 1201.115 for
granting the petition for review. Therefore, we DENY the petition for review and
AFFIRM the initial decision, which is now the Board’s final decision. 5 C.F.R.
§ 1201.113 (b).
BACKGROUND
¶2 The agency tentatively selected the appellant for a GS -12 Information
Technology Specialist position at the agency’s Ramstein Air Base in Germany,
which the appellant a ccepted . Oram v. Department of the Air Force , MSPB
Docket No. DC -3443 -16-0850-I-1, Initial Appeal File (0850 IAF), Tab 12
at 10-15. Following his acceptance of the tentative offer, the appellant requested
a Living Quarters Allowance (LQA) for the position, which was denied. 0850
IAF, Tab 11 at 19 -32, Tab 12 at 6-8. The agency informed the appellant that he
could file a request for reconsideration of the LQA denial with the Office of
Personnel Management (OPM), but that his onboarding for the position would
need to proceed without the inclusion of a LQA while the reconsideration request
3
was pending. 0850 IAF , Tab 11 at 12. The appellant subsequen tly filed an
appeal with the Board challenging the LQA denial. 0850 IAF , Tab 1 at 5 .
¶3 During the pendency of that Board appeal, the appellant requested that the
agency delay his entry on duty (EOD) date until the completion of the appeal of
the LQA determi nation. 0850 IAF , Tab 11 at 15 -16. The agency grant ed the
initial request for an extension , but denied a second requested extension. Id.
at 5-10. The agency informed the appellant that if he did not appear for his
October 3, 2016 EOD date, it would res cind the job offer. Id. at 6. The appellant
did not appear for the October 3, 2016 EOD date, and on October 5, 2016, the
agency rescinded the job offer. Oram v. Department of the Air Force , MSPB
Docket No. DC -3443 -17-0035 -I-1, Initial Appeal File ( 0035 IAF), Tab 1 at 3.
The appellant sub sequently filed a second appeal challenging the agency’s job
offer rescission. Id. at 2. The regional office docketed that appeal as MSPB
Docket No. DC-3443 -17-0035 -I-1. 0035 IAF , Tab 2. In that appeal, the
appellant claimed that the agency rescinded the job offer in retaliation for
challenging the LQA denial and for filing a Board appeal.3 0035 IAF , Tab 3
at 4-5. The appellant also attached a copy of a complaint he filed with the Office
of Special Counsel (OSC) on October 1, 2016. Id. at 6-12.
¶4 In orders issued in both appeals, the administrative judge identified the
jurisdictional issues presented by the appel lant’s appeals and afforded him an
opportunity to address the question of Board jurisdiction. 0035 IAF , Tab 2
at 2-5; 0850 IAF , Tab 2 at 2 -4, Tab 17 at 2 -4. After joining the appellant’s two
Board appeals , 0035 IAF , Tab 7, and 0850 IAF , Tab 27, and consi dering the
appellant’s responses to the jurisdictional orders, the administrative judge issued
an initial decision on the written record , 0035 IAF , Tab 16, Initial Decision (ID).
3 The appellant also filed a request to stay the agency’s decision to withdraw his job
offer, which was separately docketed by the administrative judge . Oram v. Department
of the Air Force , MSPB Docket No. DC -3443 -17-0035 -S-1, Stay File (SF) . On
October 25, 2016, the administrative judge issued an order dismissing his request . SF,
Tab 2 .
4
Regarding the appellant’s challenge to the LQA denial, the administrative ju dge
determined that as a non -employee Federal contractor, the appellant was not an
“employee” with Board a ppeal rights as defined under 5 U.S.C. chapter 75 and
did not otherwise meet any of the conditions that would entitle him to Board
appeal rights as an applicant for employment. ID at 4 -5. Further, the
administrative judge determined that the Board lacked jurisdiction over the appeal
of the LQA denial. ID at 5.
¶5 Regarding the appellant’s challenge to the withdrawal of the job offer, the
administrative judge found that the offer wa s tentative and never finalized, and
that th e appellant never entered on duty or performed any job duties in the
position. ID at 6. The administrative judge explained that an agency may revoke
an appointment prior to an appel lant’s entrance on duty or performance in the
position and that the agency’s withdrawal of the appellant’s employment offer
was not appealable to the Board. ID at 6 -7. Turning to the appellant’s
whistleblower reprisal claim, the administrative judge dete rmined that the
appellant failed to demonstrate that he had exhausted his a dministrative remedies
with OSC and, thus, the Board lacked jurisdiction over his claim as an individual
right of action (IRA) appeal. ID at 8 -9.
¶6 The appellant has filed a petition for review of the joined appeals. Petition
for Review (PFR) File, Tab 1.4 The agency has filed a response , and the appellant
has filed a reply to the response. PFR File Tabs 6 -7.
4 The appellant also has filed a motion for leave to submit additional evidence. PFR
File, Tab 9. Pleadings allowed on re view include a petition for review, a cross petition
for review, a response to a petition for review, a response to a cross petition for review,
and a reply to a response to a petition for review. 5 C.F.R. § 1201.114 (a). No other
pleading will be accepted unless the party files a motion with and obtains leave from
the Clerk of the Board. 5 C.F.R. § 1201.114 (a)(5). S uch a motion must describe the
nature of and need for the pleading. Id. In his motion, the appellant requests to submit
additional evidence , which he claims will clarify his previous filings , “prevent further
misunderstandings [,] and . . . remove or prevent further complication of the data to be
found within.” PFR File, Tab 9 at 4. We find this explanation insufficient and deny the
appellant’s motion.
5
DISCUSSION OF ARGUME NTS ON REVIEW
The appellant has not shown that the ad ministrative judge erred in adjudicating
his appeals.
¶7 The appellant asserts on review that he was entitled to a hearing and “do[es]
not recall being afford ed the opportunity of a hearing. ” PFR File, Tab 1 at 3.
The record reflects that the appellant chec ked the box indicating that he did not
want a hearing on his initial appeal form, and the administrative judge advised
him in the acknowledgment order that a failure to request a hearing within
10 days would constitute a waiver of his right to a hearing. 0035 IAF , Tab 1 at 3,
Tab 2 at 2. The appellant did not request a hearing. Similarly, in his subsequent
appeal of the rescinded tentative job offer, the appellant also did not request a
hearing and did not respond to the administrative judge’s acknowledg ment order
again affording him the opportunity to request a hearing and informing him that
his failure to request a hearing within 10 days would constitute a waiver of his
right to a hearing. 0035 IAF , Tab 1, Tab 2 at 2. Failure to timely request a
hearing will result in a waiver of that right when the appellant has not shown
good cause for his failure. Spradlin v. Office of Personnel Management ,
84 M.S.P.R. 279 , ¶ 11 (1999). Accordingly, the administrative judge did not err
by not holding a hearing.
¶8 The appellant also contend s that separate docketing of the denial of the
LQA and the rescission of the tentative job offer prevented the administrative
judge from seeing the pattern of discrimination and reprisal. PFR File, Tab 1
at 3, 7. As explained above , the administrativ e judge joined the two appeals, and
thus, she consider ed both claims in making her decision. The appellant has not
identified any prejudice to his rights by the administrative judge’s decision to
docket separately the two matters , filed approximately a month a part, and later
join them for adjudication in res ponse to his reque st. 0850 IAF , Tabs 26 -27;
0035 IAF , Tab 7; see Panter v. Department of the Air Force , 22 M.S.P.R. 281 ,
6
282 (1984) (noti ng that an adjudicatory error that is not prejudicial to a party’s
substantive rights provides no basis for rev ersal of an initial decision).
¶9 The appellant further argues on review that the administrative judge denied
him discovery, “which would have subst antially strengthen[ed] [his] case.” PFR
File, Tab 1 at 3. The record shows that the administrative judge stayed the
initiation of discovery pending a finding of Board jurisdiction. 0035 IAF ,
Tab 13. An administrative judge has broad discretion in ruli ng on discovery
matters, and absent an abuse of discretion , the Board will not find reversible error
in such rulings. Morrison v. Department of the Navy , 122 M.S.P.R. 205, ¶ 12
(2015). The appellant has not shown an abuse of discretion by the administrative
judge’s decision to delay discovery until Board jurisdiction was established.
¶10 Finally, on review , the appellant argues that the administrative judge did
not consider all of the submitted evidence. PFR File, Tab 1 at 3; see PFR File,
Tab 7 at 5 -6. An administrative judge’s failure to mention all of the evidence of
record does not mean that she did no t consider it in reaching her decision.
Marques v. Department of Health & Human Services , 22 M.S.P.R. 129 , 132
(1984), aff’d , 776 F.2d 10 62 (Fed. Cir. 1985) (Table); see Kirkpatrick v. U.S.
Postal Service , 74 M.S.P.R. 583 , 589 (1997) ( explaining that a n administ rative
judge is not required to specifically address every poin t raised by an appellant ).
¶11 In his reply to the agency’s response to his petition for review, the appellant
argues that he was “denied a benefit or allowance” based on his “marital status to
a person with a mental illness.” PFR File, Tab 7 at 8. As the administrative
judge did, we interpret this argument as a claim that the agency discriminated
against the appellant due to his wife’s medical condition and not an allegation
that his tentative j ob offer was rescinded due to his marital status. ID at 7. As
the administrative judge correctly found and as discussed in detail below, the
Board lacks jurisdiction over claims of discrimination absent an otherwise
appealable matter.
7
The appellant has n ot established Board jurisdiction over his appeals.
¶12 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). Regarding the appellant’s
challenge to the agency’s LQA determination , as the administrative judge
correctly explained , the Board does not have jurisd iction to review an agency’s
denial of a request for a LQA. Anderson v. Department of the Army , 93 M.S.P.R.
463, 465 n.* (2003) , aff’d , 89 F. App’x 707 (2004) ; Fernandez v. Department of
the Army , 84 M.S.P.R. 550 , ¶ 3 (1999), aff’d , 234 F.3d 553 (Fed. Cir. 2000).
Accordingly, we agree with the administrative judge’s findings dismissing the
appellant’s LQA appeal for lack of Board jurisdiction. ID at 5 -6.
¶13 Concerning the appellant’s challenge to the withdrawal of the tentative job
offer, generall y, an unsuccessful applicant for a Federal civil service position has
no right to appeal a nonselection. Kazan v. Department of Justice , 112 M.S.P.R.
390, ¶ 6 (2009). The administrative judge correctly identified the limited
exceptions in which the Board may have jurisd iction over nonselection claims and
found that the appellant did not raise a claim under any of those identified
exce ptions. ID at 6 -7; see 0850 IAF , Tab 17 at 2-4; 0035 IAF , Tab 2 at 2-5.
Thus, we also agree with the administrative judge’s determination that the Board
lacked jurisdiction over the appellant’s appeal as a nonselection claim. ID at 6 -7.
¶14 Regarding the ap pellant’s claim that the agency’s tentative job offer was
“firm” and thus irrevocable after he accepted it, the appellant has not submitted
anything to support this contention. PFR File, Tab 1 at 3, 7. Rather, in its
correspondence extending the offer , the agency clearly identified the offer as
“tentative” and conditioned finality of the offer on a number of additional
requirements, including the establishment of an EOD date, which the appellant
failed to meet. 0850 IAF , Tab 12 at 8 -12; 0035 IAF , Tab 1 a t 3. Appointment to
a civil service position requires “definite, unconditional action by an authorized
[F]ederal official designating an individual to a specific civil service position.”
8
Horner v. Acosta , 803 F.2d 687 , 693 (Fed. Cir. 1986 ); cf. National Treasury
Employees Union v. Reagan , 663 F.2d 239 , 248 n.14 (D.C. Cir. 1981)
(determining that a subset of the class of appellants became “ employees of the
[F]ederal government” when they were administered the oath of office and their
offers were not revoked prior to their entrance on duty) . There is no e vidence of
such action here. Furthermore, the Board has held that it lack ed jurisdiction over
an appeal when an agency withdrew a tentative job offer after an appellant had
accepted it, but before she actually performed in the position. Sapla v.
Department of the Navy , 118 M.S.P.R. 551 , ¶¶ 9-12 (2012).5
¶15 The appellant also argues on review that in rescinding his job offer , the
agency engaged in a prohibited personnel practice. PFR File, Tab 1 at 7 . It is
well settled that absent an otherwise appealable matter, the Board does not have
jurisdiction to consider such claims. Davis v. Department of Defense ,
105 M.S.P.R. 604 , ¶¶ 15-16 (2007) (explaining that absent an otherwise
appealable action, the Board cannot consider prohibite d personnel practic e
claims); Wren v. Department of the Army , 2 M.S.P.R. 1 , 2 (1980) (holding that
5 U.S.C. § 2302 (b) is not an independent source of Board jurisdiction), aff’d ,
681 F.2d 867 , 871 -73 (D.C. Cir. 1982). The appellant has not identified an
otherwise appealable action. See Davis , 105 M.S.P.R. 604, ¶ 15 (stating that a
nonselection is not an otherwise appealable action). Likewise, the Board lacks
jurisdiction over the appellant’s job offer rescission claim as a mixed -case appeal.
PFR File, Tab 1 at 3, 7 -8, Tab 7 at 4 -8. A mixed -case appeal involves an action
that is appealable to the Board and an allegation that the appealable action is
5 To the extent the appellant is claiming that the withdrawal of his job offer constitut ed
an unfair employment practice, PFR File, Tab 7 at 6, 8, that argument is similarly
unavailing. The appellant has not alleged that his appeal concerns an invalid
employment practice that was applied to him by OPM (or, a valid one that was
misapplied by the agency), or that any agency employment practice violates one of the
basic requirements of 5 C.F.R. § 300.103 . See Sauser v. Department of Veterans
Affairs , 113 M.S.P.R. 403 , ¶¶ 6 -7 (2010); 5 C.F.R. § 300.104 (a).
9
based on prohibited discrimination . Perry v. Merit Systems Protection Board ,
582 U.S. ___, 137 S. Ct. 1975 (2017) ; Lethridge v. U.S. Postal Service ,
99 M.S.P.R. 675 , ¶ 9 (2005) ( citing 5 C.F.R . § 1201.151 (a)(1); 29 C.F.R.
§ 1614.302 (a)(2)). As explained above , the appellant has not alleged that he was
subjected to an action that is otherwise appealable to the Board .
¶16 Finally, regarding the appellant’s claim that he suffered reprisal for
protected whistleblowing activity, we agree with the administrative j udge that the
appellant failed to meet his jurisdictional burden over this matter as an IRA
appeal. ID at 8 -9. To establish Board jurisdiction over an IRA appeal, an
appellant must exhaust his administrative remedies before the OSC and must
make nonfrivo lous allegations of the following: (1) he engaged in
whistleblowing by making a protected disclosure under 5 U.S.C. § 2302 (b)(8), or
engaged in other protected activity as specified in 5 U.S.C. § 2302 (b)(9)(A)(i),
(B), (C), or (D); and (2) the disclosure or activity was a contributing factor in the
agency’s decision to take or fail to take a personnel action as defined by 5 U.S.C.
§ 2302 (a)(2)(A).6 Hooker v. Department of Veterans Affairs , 120 M.S.P.R. 629 ,
¶ 9 (2014); see Yunus v. Department of Veterans Affairs , 242 F.3d 1367 , 371
(Fed. Cir. 2001); see also 5 U.S.C. §§ 1214 (a)(3), 1221. Although the appellant
provided a copy of his October 1, 2016 filing with OSC, he did not submit any
evidence proving exhaustion with OSC in response to the administrative judge’s
show cause order, and he ha s not furnished evidence of exhaustion on review.
0035 IAF , Tab 2 at 5 , Tab 3 at 6 -12.7 Accordingly, we agree with the
6 We have reviewed the relevant le gislation enacted during the pendency of this appeal
and have concluded that it does not affect the outcome of the appeal.
7 On March 26, 2017, the appellant filed a motion to dismiss the joined appeals without
prejudice to refiling, pending the resolution of his separately filed IRA appeal, and
submitted a close -out letter from OSC suggesting that he may have exhausted his
administrative remedies. PFR File, Tab 11; see Oram v. Department of the Air Force ,
MSPB Docket No. DC -1221 -17-0384 -W-1. An initial d ecision has been issued in the
IRA appeal, and a petition for review in that case is pending before the Board. Given
that the IRA appeal is being separately adjudicated, we see no reason to dismiss these
10
administrative judge’s finding that the appellant failed to meet his jurisdictional
burden in proving his whistleblower reprisal claims . ID at 9.
¶17 For the above reasons, we deny the petition for review and aff irm the initial
decision dismissing the appeal for lack of Board jurisdiction.
NOTICE OF APPEAL RIG HTS8
You may obtain review of this final decision. 5 U.S.C. § 7703 (a)(1). By
statute, the nature of your claims determines the time limit for seeking such
review and the appropriate forum with which to file. 5 U.S.C. § 7703(b).
Although we offer the following summary of available appeal rights, the Merit
Systems Protection Board does not provide legal advice on which option is most
appropriate for your situation and the rights described below do not represent a
stateme nt of how courts will rule regarding which cases fall within their
jurisdiction. If you wish to seek review of this final decision, you should
immediately review the law applicable to your claims and carefully follow all
filing time limits and requirement s. Failure to file within the applicable time
limit may result in the dismissal of your case by your chosen forum.
joined appeals and deny that request, and have not considered the OSC letter attached to
the motion in adjudicating these joined appeals.
Additionally, on Septembe r 16, 2019, the appellant filed a motion titled “Motion to
Withdraw Without Prejudi ce due to prior EEO election.” Petition for Review (PFR)
File, Tab 12. To determine whether the appellant was seeking to withdraw his petition
for review, and to establish that his request was knowing and voluntary, the Clerk of the
Board ordered the appellant to submit a pleading within 7 days, clarifying whether his
filing was in tended as a request to withdraw his petition for rev iew with prejudice to
refiling, or to withdraw his Board appeal. PFR File, Tab 13 at 1 -3. The order informed
the appellant that if he failed to respond, his pleading would be treated a s a request to
withdraw his Board appeal, which would be consi dered in a decision following the
restoration of a Board quorum. Id. at 1-2. The appellant failed to respond to the order.
Because we ultimately conclud e that the administrative judge correctly dismissed the
appellant’s appeal for lack of jurisdiction, we deny the appellant’s request.
8 Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review rights includ ed in final decisions. As indicated in the notice, the
Board cannot advise which option is most appropriate in any matter.
11
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703 (b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of partic ular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
12
were affected by a n action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703 (b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. ____ , 137 S. Ct. 1975 (2017). If you have a
representative in this case, and your representative receives this decision before
you do, t hen you must file with the district court no later than 30 calendar days
after your representative receives this decision. If the action involves a claim of
discrimination based on race, color, religion, sex, national origin, or a disabling
condition, you may be entitled to representation by a court -appointed lawyer and
to waiver of any requirement of prepayment of fees, costs, or other security. See
42 U.S.C. § 2000e -5(f) and 29 U.S.C. § 794a .
Contact information for U.S. district courts can be found at th eir respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702 (b)(1). You must file an y such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702 (b)(1). If you have a representative in this case,
and your rep resentative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EE OC is:
13
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302 (b)(8) or
other protected activities listed in 5 U.S.C. § 2302 (b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
disposition of allegations of a prohibited personne l practice described in
section 2302(b) other than practices described in se ction 2302(b)(8), or
2302(b)(9)(A)(i), (B), (C), or (D),” then you may file a 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).
9 The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of comp etent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases wi th the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115 -195,
132 Stat. 1510.
14
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Fede ral Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are intere sted in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appel lants before the 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:
Washington, D.C. /s/ for
Jennifer Everling
Acting Clerk of the Board | ORAM_CYRIL_DAVID_DANIEL_DC_3443_17_0035_I_1_FINAL_ORDER_1958741.pdf | 2022-09-08 | null | DC-3443-17-0035-I-1; DC-3443-16-0850-I-11 | NP |
4,141 | https://www.mspb.gov/decisions/nonprecedential/ORAM_CYRIL_DAVID_DANIEL_DC_3330_18_0056_I_1_FINAL_ORDER_1958754.pdf | UNITED STATES OF AME RICA
MERIT SYSTEMS PROTEC TION BOARD
CYRIL DAVID DANIEL O RAM, JR.,
Appellant,
v.
DEPARTMENT OF THE AI R FORCE,
Agency.
DOCKET NUMBER
DC-3330 -18-0056 -I-1
DATE: September 8, 2022
THIS FINAL ORDER IS NONPRECEDENTIAL1
Cyril David Daniel Oram, Jr. , Bellingham, Washington , pro se.
Sandra Fortson and Gerald L. Gilliard , Esquire, Joint Base Andrews ,
Maryland, for the agency.
BEFORE
Cathy A. Harris , Vice Chairman
Raymon d A. Limon , Member
Tristan L. Leavitt , Member
FINAL ORDER
¶1 The appellant has filed a petition for review of the initial decision, which
denied his request for corrective action pursuant to the Veterans Employment
Opportunities Act of 1998 . On petition for review, the appellant argues that the
administrative judge erred in concluding that the mandatory pay and grade
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
require d to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117 (c).
2
retention statutes and regulations that he cited were not ones relating to veterans ’
preference , and consequently determined that the appell ant was not entitled to
corrective action under 5 U.S.C. § 3330a (a)(1)(A). The appellant also argues that
the cases the administrative judge relied on in reaching his decision are
inapplicable to his appeal or are factually distinguishable . 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 interpretat ion of statute or regulation or the erroneous application of
the law to the facts of the case; the administrative judge’s rulings during either
the course of the appeal or the initial decision were not consistent with required
procedures or involved an abu se of discretion, and the resulting error affected the
outcome of the case; or new and material evidence or legal argument is available
that, despite the petitioner’s due diligence, was not available when the record
closed. Title 5 of the Code of Federal Regulations, section 1201.115 ( 5 C.F.R.
§ 1201.115 ). After fully considering the filings in this appeal, we conclude that
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 Boar d’s final decision. 5 C.F.R.
§ 1201.113 (b).
NOTICE OF APPEAL RIG HTS2
You may obtain review of this final decision. 5 U.S.C. § 7703 (a)(1). By
statute, the nature of your claims determines the time limit for seeking such
review and the appro priate forum with which to file. 5 U.S.C. § 7703 (b).
Although we offer the following summary of available appeal rights, the Meri t
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.
3
appropriate for your situation an d the rights described below do not represent a
statement of how courts will rule regarding which cases fall within their
jurisdiction. If you wish to seek review of this fi nal decision, you should
immediately review the law applicable to your claims and carefully follow all
filing time limits and requirements. Failure to file within the applicable time
limit may result in the dismissal of your case by your chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that fo rum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by th e court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703 (b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
4
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies t o you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision —including a disposit ion of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703 (b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. ____ , 137 S. Ct. 1975 (2017). If you have a
representative in this case, and y our representative receives this decision before
you do, then you must file with the district court no later than 30 calendar days
after your representative receives this decision. If the action involves a claim of
discrimination based on race, color, rel igion, sex, national origin, or a disabling
condition, you may be entitled to representation by a court -appointed lawyer and
to waiver of any requirement of prepayment of fees, costs, or other security. See
42 U.S.C. § 2000e -5(f) and 29 U.S.C. § 794a .
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702 (b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702 (b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
5
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for re view to the EEOC by regular U.S. mail, the
address of the EEOC is:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enha ncement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302 (b)(8) or
other protected activities listed in 5 U.S.C. § 2302 (b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
disposition of allegations of a prohibited personnel practice described in
section 2302(b) other than practices described in section 2302(b)(8), or
2302(b)(9)(A)(i), (B), (C), or (D),” then you may file a petition for judicial
review either with the U.S. Court of Appeals for the Federal Circuit or any court
of appeals of compete nt 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 co urt of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115 -195,
132 Stat. 1510.
6
petition for review within 60 days of the date of issuance of this decision.
5 U.S.C. § 7703 (b)(1)(B).
If you submit a petition for judi cial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional informatio n about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Prac tice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono re presentation
for Merit Systems Protection Board appellants before the 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 th e courts of appeals can be found at their
respective websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
FOR THE BOARD:
Washington, D.C. /s/ for
Jennifer Everling
Acting Clerk of the Board | ORAM_CYRIL_DAVID_DANIEL_DC_3330_18_0056_I_1_FINAL_ORDER_1958754.pdf | 2022-09-08 | null | DC-3330-18-0056-I-1 | NP |
4,142 | https://www.mspb.gov/decisions/nonprecedential/ORAM_CYRIL_DAVID_DANIEL_DC_1221_17_0384_W_1_FINAL_ORDER_1958761.pdf | UNITED STATES OF AME RICA
MERIT SYSTEMS PROTEC TION BOARD
CYRIL DAVID DANIEL O RAM, JR.,
Appellant,
v.
DEPARTMENT OF THE AI R FORCE,
Agency.
DOCKET NUMBER
DC-1221 -17-0384 -W-1
DATE: September 8, 2022
THIS FINAL ORDER IS NONPRECEDENTIAL1
Cyril David Daniel Oram, Jr. , Bellingham, Washington , pro se.
Sandra Fortson , Joint Base Andrews, Maryland, for the agency.
BEFORE
Cathy A. Harris , Vice Chairman
Raymond A. Limon , Member
Tristan L. Le avitt , Member
FINAL ORDER
¶1 The appellant has filed a petition for review of the initial decision, which
dismissed his individual right of action (IRA) appeal for lack of jurisdiction . On
petition for review, the appellant argues : (1) the administrative judge should
have included the denial of a living quarters allowance within the scope of the
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
require d to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board ’s case law. See 5 C.F.R. § 1201.117 (c).
2
IRA appeal ; (2) the administrative judge incorrectly concluded that he failed to
make a nonfrivolous allegation of any protected disclosure or p rotected activity ;
and (3) he has new evidence demonstrating that he was an employee at the time
he filed his IRA appeal . Generally, we grant petitions such as this one only in the
following circumstances: the initial decision contains erroneous findings of
material fact; the initial decision is based on an erroneous interpretation of statute
or regulation or the erroneous application of the law to the facts of the case; the
administrative judge’s rulings during either the course of the appe al or the init ial
decision were not consistent with required procedures or involved an abuse of
discretion, and the resulting error affected the outcome of the case; or new and
material evidence or legal argument is available that, despite the petitioner’s due
diligence , was not available when the record closed.2 Title 5 of the Code of
Federal Regulations, section 1201.115 ( 5 C.F.R. § 1201.115 ). After fully
considering the 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
2 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.
3 Regarding the evidence submitted by the appellant for the first time on review, while
the Standard Form 50 showing that the appellant received a career -conditional
appointment is dated after the issuance of the initial decision and thus was unavailable
prior to the close of the record below, he has not shown that his employment status is
material to the question of Board jurisdiction over this IRA appeal. Thus, the new
evidence does not set forth a basis to grant the petition for review. Russo v. Veteran s
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 ). Regarding the
October 1, 2016 Office of Special Counsel (OSC) complaint submitted by the appellant
for the first time on review, he has not explained why , desp ite his due diligence, he was
unable to file this document, which he created and purportedly filed with OSC , prior to
the close of the record below. Avansino v. U.S. Postal Service , 3 M.S.P.R. 211 , 214
(1980) (stating that the Board generally will not consider evidence submitted for the
first time with the petition for review absent a showing that it was unavailable before
the record was closed bel ow).
3
Therefore, we DENY the petition for review and AFFIRM the initial decision,
which is now the Board’s final decis ion. 5 C.F.R. § 1201.113 (b).
NOTICE OF APPEAL RIG HTS4
You may obtain review of this final decision. 5 U.S.C. § 7703 (a)(1) . By
statute, the nature of your claims determines the time limit for seeking such
review and the appropriate forum with which to file. 5 U.S.C. § 7703 (b).
Although we offer the following summar y of available appeal rights, the Merit
Systems Protection Board does not provide legal advice on which option is most
appropriate for your situation and the rights described below do not represent a
statement of how courts will rule regarding which cases fall within their
jurisdiction. If you wish to seek review of this final decision, you should
immediately review the law applicable to your claims and carefully follow all
filing time limits and requirements. Failure to file within the applicable time
limit may result in the dismissal of your case by your chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
On September 16 , 2019, the appellant filed a motion titled, “ Motion to Withdraw
Without Prejudice due to prior EEO election. ” Petition for Review (PFR) File, Tab 5.
To determine whether the appellant was seeking to withdraw his petition for review and
to establish that his request was knowing and voluntary, the Clerk of the Board ordered
the appellant to submit a pleading within 7 days, clarifying whether his filing was
intended as a request to withdraw his petition for review with preju dice to refiling or to
withdraw his Board appeal . PFR File, Tab 6 at 1 -3. The order informed the appellant
that if he failed to respond, his pleading would be treated as a request to withdraw his
Board appeal, which would be considered in a decision foll owing the restoration of a
Board quorum. Id. at 1-2. The appellant failed to respond to th e order . Because we
conclude that the administrative judge correctly dismissed the appellant’s IRA appeal
for lack of jurisdiction, we deny the appellant’s request .
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 informatio n about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Prac tice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Prote ction Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
5
receive this decision. 5 U.S.C. § 7703 (b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. ____ , 137 S. Ct. 1975 (2017) . If you have a
representative in this case, and your representative receives this decision before
you do, then you must file with the district court no later than 30 calendar days
after your representative receives this decision. If the action involves a claim of
discrimination based on race, color, religion, sex, national origin, or a disabling
condition, you may be entitled to representation by a court -appointed lawyer and
to waiver of any requirement of prepayment of fees, costs, or other security. See
42 U.S.C. § 2000e -5(f) and 29 U.S.C. § 794a .
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702 (b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702 (b)(1 ). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for rev iew to the EEOC by regular U.S. mail, the
address of the EEOC is:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If 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
Enhan cement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302 (b)(8) or
other protected activities listed in 5 U.S.C. § 2302 (b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
disposition of allegations of a prohibited personnel practice described in
section 2302(b) other than practices described in section 2302(b)(8), or
2302(b)(9)(A)(i), (B), (C), or (D),” then you may file a petition for judicial
review either with the U.S. Court of Appeals for the Federal Circuit or any court
of appeals of competen t 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 judic ial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to 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 or iginal statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, perm anently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
The All Circu it 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 Pract ice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono rep resentation
for Merit Systems Protection Board appellants before the 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:
Washington, D.C. /s/ for
Jennifer Everling
Acting Clerk of the Board | ORAM_CYRIL_DAVID_DANIEL_DC_1221_17_0384_W_1_FINAL_ORDER_1958761.pdf | 2022-09-08 | null | DC-1221-17-0384-W-1 | NP |
4,143 | https://www.mspb.gov/decisions/nonprecedential/SHILLING_CLIFFORD_CB_7521_17_0012_T_1_FINAL_ORDER_1958082.pdf | UNITED STATES OF AME RICA
MERIT SYSTEMS PROTEC TION BOARD
SOCIAL SECURITY
ADMINISTRATION,
Petitioner,
v.
CLIFFORD SHILLING,
Respondent.
DOCKET NUMBER
CB-7521 -17-0012 -T-1
DATE: September 7, 2022
THIS FINAL ORDER IS NONPRECEDENTIAL1
Marc J. Boxerman , Esquire, Chicago, Illinois, for the petitioner.
Marisa Silverman , Esquire, Dallas, Texas, for the petitioner.
Clifford Shilling , Fort Smith, Arkansas, pro se.
BEFORE
Cathy A. Harris, Vice Chairman
Raymond A. Limon, Member
Tristan L. Leavitt, Member
FINAL ORDER
¶1 On March 16, 2017, the petitioner filed a complaint requesting that the
Board find good cause to suspend the respondent for 45 days from his
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
require d to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117 (c).
2
administrative law judge position. Initial Appeal File (IAF), Tab 1. On
October 5, 2017, the administrative law judge issued an initial decision on the
written record ,2 finding that the petitioner proved the charge and that it
established good cause to sanction the respondent but mitigating the requested
45-day suspension to a 5 -day suspension. IAF, Tab 11, Initial Decision (ID) at 8,
18.
¶2 The petitioner has filed a pe tition for review of the initial decision
challenging the mitigation. Petition for Review (PFR) File, Tab 1. The
respondent has not filed a response . While the petition for review was pending
before the Board, the petitioner filed a motion to dismiss th e petition for review
and the underlying complaint , asserting that the respondent retired from the
agency on October 31, 2021, and that “there is no longer employment to
suspend. ” PFR File, Tab 3 at 5, 8.
¶3 In construing the petitioner’s motion as one f or a voluntary dismissal,
we must consider primarily the interests of the respondent. See Social Security
Administration v. Abell , 47 M.S.P.R. 98 , 100 -01 (1991) . A dismissal, however,
should be granted unless the respondent will suffer a clear legal prejudice. Id.
Here, the respondent has not responded to the petitioner’s motion to dismiss the
petition for review and compl aint despite having the opportunity to do so .
Additionally, he is no longer employed by the agency. PFR File, Tab 3 at 8.
Thus, we find that the respondent, as the nonmoving party, would not suffer clear
legal prejudice by dismissal of the complaint and petition for review, and we
further find that the dismissal of the petitioner’s complaint and petition for review
is appropriate under these circumstances. For these reasons , the petitioner’s
motion to dismiss is granted .
2 The respondent waived his right to a hearing. IAF, Tab 4.
3
¶4 Accordingly, and because this represents the final disposition of this case,
the complaint and petition for review are DISMISSED WITH PREJUDICE.
See Abell , 47 M.S.P.R. at 101.
¶5 This is the final decision of the Merit Systems Protection Board in this
matter. Title 5 of the Code of Federal Regulations, section 1201.113
(5 C.F.R.§ 1201.113 ).
NOTICE OF APPEAL RIG HTS3
You may obtain review of this final decision. 5 U.S.C. § 7703 (a)(1). By
statute, the nature of your claims determines the time limit for seeking such
review and the appropriate forum with which to file. 5 U.S.C. § 7703 (b).
Although we offer the following summary of available appeal rights, the Merit
Systems Protection Board does not provide legal advice on which option is most
appropriate for your situation and the rights described below do not represent a
statement of how courts will r ule regarding which cases fall within their
jurisdiction. If you wish to seek review of this final decision, you should
immediately review the law applicable to your claims and carefully follow all
filing time limits and requirements. Failure to file wit hin the applicable time
limit may result in the dismissal of your case by your chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whe ther a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition f or review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
3 Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise which option is most appropriate in any matter.
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. 2043 9
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within t he court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for informati on regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawfu l discrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703 (b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. ____ , 137 S. Ct. 1975 (2017). If you have a
representative in this case, and your representative receives this decision before
5
you do, then you must file with the district court no later than 30 calendar days
after your representative receives this decision. If the action involves a claim of
discrimination based on race, color, religion, sex, national origin, or a disabling
condition, you may be entitled to representation by a court -appointed lawyer and
to waiver of any requirement of prepayment of fees, costs, or other security. See
42 U.S.C. § 2000e -5(f) and 29 U.S.C. § 794a .
Contact information for U.S. district courts can be found at their resp ective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employm ent
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702 (b)(1). You must file any such request with the
EEOC’s Office of Federal Operation s within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702 (b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEO C via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
6
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302 (b)(8) or
other protect ed activities listed in 5 U.S.C. § 2302 (b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
disposition of allegations of a prohibited p ersonnel practice described in section
2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i),
(B), (C), or (D),” then you may file a petition for judicial review either with the
U.S. Court of Appeals for the Federal Circuit or a ny court of appeals of
competent jurisdiction.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 wit hin the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
4 The origi nal statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permane ntly allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court 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 info rmation regarding pro bono representation
for Merit Systems Protection Board appellants before the 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/Court Websites.aspx .
FOR THE BOARD:
Washington, D.C. /s/ for
Jennifer Everling
Acting Clerk of the Board | SHILLING_CLIFFORD_CB_7521_17_0012_T_1_FINAL_ORDER_1958082.pdf | 2022-09-07 | null | CB-7521-17-0012-T-1 | NP |
4,144 | https://www.mspb.gov/decisions/nonprecedential/KLIEBERT_WITT_LISA_CH_1221_15_0443_W_3_FINAL_ORDER_1958225.pdf | UNITED STATES OF AME RICA
MERIT SYSTEMS PROTEC TION BOARD
LISA KLIEBERT -WITT,
Appellant,
v.
DEPARTMENT OF THE AI R FORCE,
Agency.
DOCKET NUMBER
CH-1221 -15-0443 -W-3
DATE: September 7, 2022
THIS FINAL ORDER IS NONPRECEDENTIAL1
Tabitha Justice , Esquire, Dayton, Ohio, for the appellant.
Daniel J. Dougherty , Esquire, and William A. McClain, II , Esquire,
Wright -Patterson Air Force Base , Ohio, for the agency.
BEFORE
Cathy A. Harris , Vice Chairman
Raymond A. Limon , Member
Tristan L. Leavitt , Member
FINAL ORDE R
¶1 The appellant has petitioned for review of the December 27, 2016 initial
decision in this appeal. Kliebert -Witt v. Department of the Air Force , MSPB
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
require d to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117 (c).
2
Docket No. CH -1221 -15-0443-W-3, Petition for Review (PFR) File, Tab 1;
Kliebert -Witt v. Department of th e Air Force , MSPB Docket No. CH -1221 -15-
0443-W-3, Appeal File (W -3 AF), Tab 30, Initial Decision. For the reasons set
forth below, we DISMISS the appellant’s petition for review as settled.
¶2 After the filing of the petition for review, the parties submitte d a document
entitled “SETTLEMENT AGREEMENT AND RELEASE” signed and dated by
the appellant on October 19, 2020, and signed and dated by the agency on
October 23, 2020. PFR File, Tab 4. The document provides, among other
things, that the appellant agreed to dismissal with prejudice of her petition for
review.2 Id.
¶3 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 fr eely entered into it . See
Massey v. Office of Personnel Management , 91 M.S.P.R. 289 , ¶ 4 (2002) ,
overruled on other grounds by Delorme v. Department of the Interior ,
2 The settlement agreement provides that the appellant agreed to dismissal with
prejudice of her petition for review in MSPB Docket No. CH -1221 -15-0443-W-2. PFR
File, Tab 4 at 7. However, the petit ion for review was filed in MSPB Docket No.
CH-1221 -15-0443-W-3, which was docketed upon the appellant’s refiling of her appeal
after MSPB Docket No. CH -1221 -15-0443-W-2 was dismissed without prejudice in the
interests of judicial efficiency. Kliebert -Witt v. Department of the Air Force , MSPB
Docket No. CH -1221 -15-0443-W-2, Appeal File, Tab 5 , Initial Decision ; W-3 AF,
Tab 1. As MSPB Docket No. CH -1221 -15-0443-W-3 is a continuation of MSPB Docket
No. CH -1221 -15-0443-W-2 and there was no petition for revie w filed in MSPB Docket
No. CH -1221 -15-0443-W-2, we find that the parties intended that the appellant would
withdraw her petition for review in MSPB Docket No. CH -1221 -15-0443-W-3. This
conclusion is further supported by the appellant’s submission notifyin g the Board of the
settlement agreement, in which she indicated that the settlement agreement required
“the current appeal to be dismissed with prejudice.” PFR File Tab 4 at 4.
3
124 M.S.P.R. 123 , ¶¶ 11 -21 (2017) (holding that the Board may enforce
settlement agreements that have been entered into the record, independent of any
prior finding of Board jurisdiction over the underlying matter being settled).
¶4 Here, we find that the parties have entered into a settlement agreement,
understand its terms, and intend for the agreement to be entered into the record
for enforcement by the Board. PFR File, Tab 4. In addition, we find that the
agreement is lawful on its face and t hat the parties freely entered into it.
Accordingly, we find that dismissing the appellant’s petition for review “with
prejudice to refiling” (i.e., the parties normally may not refile this appeal) is
appropriate under these circumstances, and we accept t he settlement agreement
into the record for enforcement purposes.
¶5 This is the final decision of the Merit Systems Protection Board in this
appeal. Title 5 of the Code of Federal Regulations, section 1201.113 ( 5 C.F.R.
§ 1201.113 ).
NOTICE TO THE PARTIE S 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 carri ed out, and should include the dates and results of any
communications between the parties. 5 C.F.R. § 1201.182 (a).
4
NOTICE OF APPEAL RIG HTS3
You may obtain review of this final decisi on. 5 U.S.C. § 7703 (a)(1). By
statute, the nature of your claims determines the time limit for seeking such
review and the appropriate forum with which to file. 5 U.S.C. § 7703 (b).
Although we offer the following summary of available appeal rights, the Merit
Systems Protection Board does not provide legal advice on which option is most
appropriate for your situation and the rights descri bed below do not represent a
statement of how courts will rule regarding which cases fall within their
jurisdiction. If you wish to seek review of this final decision, you should
immediately review the law applicable to your claims and carefully follow al l
filing time limits and requirements. Failure to file within the applicable time
limit may result in the dismissal of your case by your chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one appl ies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703 (b)(1)(A).
If you submit a petition for 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 hav e updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise which option is most appropriate in any matter.
5
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “G uide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit , you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor war rants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to t he Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. distri ct court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703 (b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. ____ , 137 S. Ct. 1975 (2017). If you have a
representative in this case, and your representative receives this decision before
you do, then you must file with the district court no later than 30 calendar days
after your representative receives this decision. If the action involves a claim of
discrimination based on race, color, religion, sex, national origin, or a disabling
cond ition, you may be entitled to representation by a court -appointed lawyer and
6
to waiver of any requirement of prepayment of fees, costs, or other security. See
42 U.S.C. § 2000e -5(f) and 29 U.S.C. § 794a .
Contact information for U.S. district courts can be f ound at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702 (b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702 (b)(1). If you have a representative in this case,
and your representative receives this decision befor e you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Emp loyment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whis tleblowing disclosures under 5 U.S.C. § 2302 (b)(8) or
other protected activities listed in 5 U.S.C. § 2302 (b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
7
disposition of allegations of a prohibited personnel practice described in section
2302(b) other than practices described in section 2302(b)(8 ), or 2302(b)(9)(A)(i),
(B), (C), or (D),” then you may file a petition for judicial review either with the
U.S. Court of Appeals for the Federal Circuit or any court of appeals of
competent jurisdiction.4 The court of appeals must receive your petition f or
review within 60 days of the date of issuance of this decision. 5 U.S.C.
§ 7703 (b)(1)(B).
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, yo u must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is availab le at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securin g pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before th e Federal Circuit. The
4 The original statutory provision that provided for judicial review of certain
whistleb lower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decision s in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115 -195,
132 Sta t. 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:
Washington, D.C. /s/ for
Jennifer Everling
Acting Clerk of the Board | KLIEBERT_WITT_LISA_CH_1221_15_0443_W_3_FINAL_ORDER_1958225.pdf | 2022-09-07 | null | CH-1221-15-0443-W-3 | NP |
4,145 | https://www.mspb.gov/decisions/nonprecedential/HARRISON_DERRICK_AT_0714_21_0290_C_1_FINAL_ORDER_1958372.pdf | UNITED STATES OF AME RICA
MERIT SYSTEMS PROTEC TION BOARD
DERRICK HARRISON,
Appellant,
v.
DEPARTMENT OF VETERA NS
AFFAIRS,
Agency.
DOCKET NUMBER
AT-0714 -21-0290 -C-1
DATE: September 7, 2022
THIS FINAL ORDER IS NONPRECEDENTIAL1
Bradley R. Marshall , Esquire, Mt. Pleasant, South Carolina, for the
appellant.
Karen Mulcahy , Esquire, Bay Pines, Florida, for the agency.
Luis E. Ortiz -Cruz , Esquire, Orlando, Florida, for the agency.
BEFORE
Cath y A. Harris , Vice Chair man
Raymond A. Limon, Member
Tristan L. Leavitt, Member
FINAL ORDER
¶1 The appellant has filed a petition for review of the compliance initial
decision, which dismissed his petition for enforcement 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 t o follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117 (c).
2
On petitio n for review, the appellant argues that the agency is trying to avoid
providing the ordered relief by filing an “unmeritorious cross appeal” of the
merits initial decision.2 Compliance Petition for Review, Tab 1 at 5 . Generally,
we grant petitions such as this one only in the following circumstances: the
initial decision contains erroneous findings of material fact; the initial decision is
based on an erroneous interpretation of statute or regulation or the erroneous
application of the law to the facts of the case; the administrative judge’s rulings
during either the course of the appeal or the initial decision were not consistent
with required procedures or involved an abuse of discretion, and the resulting
error aff ected the outcome of the case; or new and material evidence or legal
argument is available that, despite the petitioner’s due diligence, was not
available when the record closed. Title 5 of the Code of Federal Regulations,
section 1201.115 ( 5 C.F.R. § 1201.115 ). After fully considering the filings in this
appeal, we conclude that the petitioner has not established any basis under
section 1201.115 for granting the petition for review. T herefore, 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 RIG HTS3
You may obtain re view of this final decision. 5 U.S.C. § 7703 (a)(1). By
statute, the nature of your claims determines the time limit for seeking such
review and the appropriate forum with which to file. 5 U.S.C. § 7703 (b).
Although we offer the following summary of available appeal rights, the Merit
2 The appellant’s petition for review and the agency’s cross petition for review of the
merits initial decision are being adjudicated under Harrison v. Department of Veterans
Affairs , MSPB Docket No. AT-0714 -21-0290 -I-1. The Board is issuing a separate
decision in that matter. This order relates only to the appellant’s petition for review of
the compliance initial decision.
3 Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise which option is most appropriate in any matter.
3
Systems Protection Board does not provide legal advice on which option is most
appropriate for your situat ion and the rights described below do not represent a
statement of how courts will rule regarding which cases fall within their
jurisdiction. If you wish to seek review of this final decision, you should
immediately review the law applicable to your claim s and carefully follow all
filing time limits and requirements. Failure to file within the applicable time
limit may result in the dismissal of your case by your chosen forum.
Please read carefully each of the three main possible choices of review
below t o decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule , an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703 (b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is th e court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
4
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Prote ction Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703 (b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. ____ , 137 S. Ct. 1975 (2017). If you have a
representative in this case, and your representative receives this decision before
you do, then you must file with the district court no later than 30 calendar days
after your representative receives this decision. If the action involves a claim of
discrimination based on race, color, religion, sex, national origin, or a disabling
condition, you may be entitled to representation by a court -appointed lawyer and
to waiver of any requirement of prepayment of fees, costs, or other security. See
42 U.S.C. § 2000e -5(f) and 29 U.S.C. § 794a .
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Oppor tunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702 (b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702 (b)(1). If you have a representative in this case,
5
and your representative receives this decision before you do, then you must fil e
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commiss ion
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures unde r 5 U.S.C. § 2302 (b)(8) or
other protected activities listed in 5 U.S.C. § 2302 (b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial p etition for review “raises no challenge to the Board’s
disposition of allegations of a prohibited personnel practice described in section
2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i),
(B), (C), or (D),” then you may fil e a 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
whist leblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decis ions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
6
review within 60 days of the date of issuance of this de cision. 5 U.S.C.
§ 7703 (b)(1)(B).
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of partic ular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
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:
Washington, D.C. /s/ for
Jennifer Everling
Acting Clerk of the Board | HARRISON_DERRICK_AT_0714_21_0290_C_1_FINAL_ORDER_1958372.pdf | 2022-09-07 | null | AT-0714-21-0290-C-1 | NP |
4,146 | https://www.mspb.gov/decisions/nonprecedential/JOHNNIE_TORIANO_A_AT_0714_21_0481_I_1_FINAL_ORDER_1957647.pdf | UNITED STATES OF AME RICA
MERIT SYSTEMS PROTEC TION BOARD
TORIANO A. JOHNNIE,
Appellant,
v.
DEPARTMENT OF VETERA NS
AFFAIRS,
Agency.
DOCKET NUMBER
AT-0714 -21-0481 -I-1
DATE: September 6, 2022
THIS FINAL ORDER IS NONPRECEDENTIAL1
Toriano A. Johnnie , Ridgeland, South Carolina, pro se.
Joy Warner , Esquire, and Sophia E. Haynes , Esquire, Decatur, Georgia, for
the agency.
BEFORE
Cathy A. Harris, Vice Chairman
Raymond A. Limon, Member
Trista n L. Leavitt, Member
FINAL ORDER
¶1 The appellant has filed a petition for review of the initial decision, which
affirmed his removal taken under the Department of Veterans Affairs
Accountability and Whistleblower Protection Act of 2017, Pub. L. No. 115 -41,
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
require d to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117 (c).
2
§ 202(a), 131 Stat. 862, 869 -73 (codified as amended at 38 U.S.C. §714 ). On
petition for review, the appellant argues that the administrative judge erred in
denying his requested witnesses and in relying solely on the agency’s evidence.
Petition for Review File, Tab 1 at 3. He also argues that he was unable to obtain
or submit any evidence to support his appeal because he lost access to the
agency’s email system and that he could not afford an attorney to assist him with
the Board appeal process. Id. at 4-5. Generally , we grant petitions such as this
one only in the following circumstances: the initial decision contai ns 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 petit ioner’s due diligence, was not available when the record closed. Title 5
of the Code of Federal Regulations, section 1201.115 ( 5 C.F.R. § 1201.115 ).
After fully considering the filings in this appeal, we conclude that 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
2 Regarding the appellant’s claim that the administrative judge erred in denying his
requested witnesses, the record shows that the appellant did not file a prehearing
submission, as ordered, which the administrative judge instructed should have included
his requests for witnesses. Initial Appeal File (IAF), Tab 8 at 1 -2. Further, the
administrative judge issued a summary and order of the prehearing conference, which
included the list of approved witnesses for the agency , and provided the appellant with
an opportunity to object to the summary. IAF, Tab 16 at 1. The appellant did not
object. To the extent the appellant’s submission containing discovery responses, which
includes his list of witnes ses, was intended to respond to the administrative judge’s
order requiring such information, that discovery submission was filed approximately
2 weeks beyond the September 2, 2019 deadline, on Sep tember 16, 2021. IAF, Tab 8
at 1, Tab 19. Based on the for egoing, we discern no error in the administrative judge’s
handling of witnesses in this matter.
3
NOTICE OF APPEAL RIG HTS3
You may obtain review of this final decision. 5 U.S.C. § 7703 (a)(1). By
statute, the nature of your claims determines the time limit for seeking such
review and the appropriate forum with which to file. 5 U.S.C. § 7703 (b).
Although we offer the following summary o f available appeal rights, the Merit
Systems Protection Board does not provide legal advice on which option is most
appropriate for your situation and the rights described below do not represent a
statement of how courts will rule regarding which cases fal l within their
jurisdiction. If you wish to seek review of this final decision, you should
immediately review the law applicable to your claims and carefully follow all
filing time limits and requirements. Failure to file within the applicable time
limit may result in the dismissal of your case by your chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is th e appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703 (b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
3 Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise which option is most appropriate in any matter.
4
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful d iscrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703 (b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. ____ , 137 S. Ct. 1975 (2017). If you have a
representative in this ca se, and your representative receives this decision before
you do, then you must file with the district court no later than 30 calendar days
after your representative receives this decision. If the action involves a claim of
discrimination based on race, c olor, religion, sex, national origin, or a disabling
condition, you may be entitled to representation by a court -appointed lawyer and
5
to waiver of any requirement of prepayment of fees, costs, or other security. See
42 U.S.C. § 2000e -5(f) and 29 U.S.C. § 794a.
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims onl y, excluding
all other issues . 5 U.S.C. § 7702 (b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702 (b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 2 0507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302 (b)(8) or
other protected activities listed in 5 U.S.C. § 2302 (b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
6
disposition of allegations of a prohibited personnel practice described in section
2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i),
(B), (C), or (D),” then you may file a petition for judicial review either with the
U.S. Cour t of Appeals for the Federal Circuit or any court of appeals of
competent jurisdiction.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 Petitioner s and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our websit e at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney wi ll 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
Decemb er 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court 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:
Washington, D.C. /s/
Jennifer Everling
Acting Clerk of the Board | JOHNNIE_TORIANO_A_AT_0714_21_0481_I_1_FINAL_ORDER_1957647.pdf | 2022-09-06 | null | AT-0714-21-0481-I-1 | NP |
4,147 | https://www.mspb.gov/decisions/nonprecedential/EWULONU_CHINONYEREM_U_CH_0714_21_0127_I_1_FINAL_ORDER_1957690.pdf | UNITED STATES OF AME RICA
MERIT SYSTEMS PROTEC TION BOARD
CHINONYEREM U. EWULO NU,
Appellant,
v.
DEPARTMENT OF VETERA NS
AFFAIRS,
Agency.
DOCKET NUMBER
CH-0714 -21-0127 -I-1
DATE: September 6, 2022
THIS FINAL ORDER IS NONPRECEDENTIAL1
Stephen Arthur Simon , Esquire, Cincinnati, Ohio, for the appellant.
Arlene Shively , Esquire, and Amber Groghan , Esquire, Akron, Ohio, for
the agency.
Kimberly Huhta , Esquire, Dayton, Ohio, for the agency.
BEFORE
Cathy A. Harris , Vice Chairman
Raymond A. Limon , Member
Tristan L. Leavitt , Member
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or dis tinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board's case law. See 5 C.F.R. § 1201.117 (c).
2
FINAL ORDER
¶1 The a gency has filed a petition for review of the initial decision in this
appeal. Petition for Review (PFR) File, Tab 1 ; see Initial Appeal Fil e, Tab 33,
Initial Decision . On September 14, 2021, the agency filed a pleading, signed by
counsel for both parties, providing that the appellant withdrew her initial appeal
and the agency withdrew its petition for review. PFR File, Tab 5 at 4. The Boar d
issued an order notifying the parties that the agency could withdraw its petition
for review under the Board’s expedited withdrawal process if the appellant did
not object to such withdrawal, but that the appellant could not withdraw her
initial appeal u nder this process; rather, the Board must vote on her withdrawal
request. PFR File, Tab 6 at 1 n.1. The Board ordered the parties to clarify their
intent. Id.
¶2 On September 17, 2021, the appellant filed a pleading confirming her intent
to withdraw her i nitial appeal and stating that her withdrawal was knowing and
voluntary. PFR File, Tab 7 at 4.
¶3 On September 20, 2021, the agency withdrew its request to withdraw its
petition for review, noting that it did not wish for the initial decision to become
final (as would occur if the agency withdrew its petition for review). The agency
stated that it did not oppose the appellant’s withdrawal of her initial appeal. PFR
File, Tab 8 at 4.
¶4 Under the circumstances present here, we find it appropriate to grant t he
appellant’s unopposed motion to withdraw her appeal. Accordingly , we
VACATE the initial decision and DISMISS the appeal as withdrawn with
prejudice to refiling (i.e ., the parties normally may not refile this appeal). See
5 C.F.R. § 1201.117 (b).
¶5 This is the final decision of the Merit Systems Protection Board in this
appeal. 5 C.F.R. § 1201.113 .
3
NOTICE OF APPEAL RIG HTS2
You may obtain review of this final decision. 5 U.S.C. § 7703 (a)(1) . By
statute, the nature of your claims determines the time limit for seeking such
review and the appropriate forum with which to file. 5 U.S.C. § 7703 (b).
Although we offer the following summar y of available appeal rights, the Merit
Systems Protection Board does not provide legal advice on which option is most
appropriate for your situation and the rights described below do not represent a
statement of how courts will rule regarding which cases fall within their
jurisdiction. If you wish to seek review of this final decision, you should
immediately review the law applicable to your claims and carefully follow all
filing time limits and requirements. Failure to file within the applicable time
limit may result in the dismissal of your case by your chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703 (b)(1)(A).
If you submit a petition for 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 informatio n about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Prac tice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Prote ction Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703 (b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. ____ , 137 S. Ct. 1975 (2017). If you have a
representative in this case, and your representative receives this decision before
you do, then you must file with th e district court no later than 30 calendar days
after your representative receives this decision. If the action involves a claim of
discrimination based on race, color, religion, sex, national origin, or a disabling
condition, you may be entitled to repre sentation by a court -appointed lawyer and
5
to waiver of any requirement of prepayment of fees, costs, or other security. See
42 U.S.C. § 2000e -5(f) and 29 U.S.C. § 794a .
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702 (b)(1). You must file an y such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702 (b)(1). If you have a representative in this case,
and your rep resentative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EE OC is:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302 (b)(8) or
other protected activities listed in 5 U.S.C. § 2302 (b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
6
disposition of allegations of a prohibited personnel practice described in section
2302(b) other than practices described in section 2 302(b)(8), or 2302(b)(9)(A)(i),
(B), (C), or (D),” then you may file a 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 pe tition for
review within 60 days of the date of issuance of this decision. 5 U.S.C.
§ 7703 (b)(1)(B).
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Cir cuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our 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 2 7, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Fed eral Circuit or any other circuit court of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115 -195,
132 Stat. 1510.
7
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
Conta ct information for the courts of appeals can be found at their
respective websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites .aspx .
FOR THE BOARD:
Washington, D.C. /s/ for
Jennifer Everling
Acting Clerk of the Board | EWULONU_CHINONYEREM_U_CH_0714_21_0127_I_1_FINAL_ORDER_1957690.pdf | 2022-09-06 | null | CH-0714-21-0127-I-1 | NP |
4,148 | https://www.mspb.gov/decisions/nonprecedential/NELSON_STACEY_VICTOR_DE_0845_14_0626_I_1_FINAL_ORDER_1957718.pdf | UNITED STATES OF AME RICA
MERIT SYSTEMS PROTEC TION BOARD
STACEY VICTOR NELSON ,
Appellant,
v.
OFFICE OF PERSONNEL
MANAGEMENT,
Agency.
DOCKET NUMBER
DE-0845 -14-0626 -I-1
DATE: September 6, 2022
THIS FINAL ORDER IS NONPRECEDENTIAL1
Stacey Victor Nelson , Fulton, South Dakota, pro se.
Tanisha Elliott Evans , Washington, D.C., for the agency.
BEFORE
Cathy A. Harris , Vice Chairman
Raymond A. Limon , Member
Tristan L. Leavitt , Member
FINAL ORD ER
¶1 The appellant has filed a petition for review of the initial decision, which
affirmed a reconsideration decision by the Office of Personnel Management
(OPM) finding that he had been overpaid annuity benefits under the Federal
Employees’ Retirement System (FERS) and that he did not qualify for a waiver 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 id entified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117 (c).
2
the overpayment. Generally, we grant petitions such as this one only when: 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 requ ired procedures or involved an abuse of discretion, and the resulting
error affected the outcome of the case; or new and material evidence or legal
argument is available that, despite the petitioner’s due diligence, was not
available when the record closed . Title 5 of the Code of Federal Regulations,
section 1201.115 ( 5 C.F.R. § 1201.115 ). After fully considering the filings in this
appeal, we conclude that the petitioner has not establ ished 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 In January 2009, OPM approved the appellant’s application for FERS
disabil ity retirement annuity benefits effective November 2008. Initial Appeal
File (IAF), Tab 8 at 8, 17. In January 2012, OPM notified the appellant t hat he
received an overpayment of $18 ,546.65 , and the appellant requested
reconsideration and a waiver of the overpayment . Id. at 18, 20 -23. OPM issued a
final decision in August 2014, confirming the existence and amount of the
overpayment and denying the appellant ’s waiver request . Id. at 6-7. OPM noted
that the appellant provided no financial data in support of his waiver request
although OPM gave him a Financial Resources Question naire (FRQ) , which he
did not submit even after requesting additional time to do so . Id. at 7. To prevent
possible financial hardship, however, OPM reduced the original repayment
schedule from 36 monthly installments of $515.18 , to 73 monthly installmen ts of
$257.59 to be collected by withholding from the appellant’s future monthly
annuity payments . Id. at 7, 18. The appellant appealed OPM’s final decision to
3
the Board , and he provided a n FRQ in support of his waiver request . IAF, Tabs
1, 14.
¶3 The administrative judge issued an initial decision based on the writt en
record, affirming OPM’s final decision concerning the overpayment and waiver
denial but modifying OPM’s repayment schedule because of the appellant’s
financial circumstances . IAF, Tab 64, Initial Decision ( ID) at 2 2-23. The
administrative judge found that OPM proved the existence and amount of the
$18,546.65 overpayment , which consisted of the following : (1) $14,825.48 for
health insuran ce premiums; (2) $2,409.14 for life insurance premiums; and
(3) $1,31 2.03 for an annuity overpayment , including taxe s withheld.2 ID at 4 -7.
The administrative judge found that the appellant was without fault in creating
the overpayment but he failed to prove that he was entitled to a waiver. ID
at 16-18. Although no waiver applied, t he admi nistrative judge modified OPM’s
prop osed repayment schedule . ID at 22 -23. Specifically, the administrative
judge found it reasonable to extend the appellant’s payment plan to 92 months,
with a monthly withholding of $200.00, and a final payment of $146.00 in the
93rd month. ID a t 23. In adjust ing the collection schedule, t he admin istrative
judge considered the appellant ’s FRQ, evidence that his debts and anticipated
expenses exceed his available assets , and that he is disabled and unable to work .
ID at 20, 22 -23.
¶4 The appellant has filed a petition for review of the initial decision ,
reasserting the arguments he made on appeal that his due process rights were
violated and that he is entitled to a waiver . Petition for Review (PFR) File,
Tab 1. The appellant does not dispute the administrative judge’s findings
2 The administrative judge found that OPM could have claimed a higher annuity
overpayment if it had relied on the appellant’s official statements. ID at 6 -7, 18 n.17.
He further found that the appellant benefitted from OPM’s failure to take advantage of
repeated notice s and opportunities to explain why, based on the official Stateme nts of
Annuities provided by the appellant, the overpayment could have been greater than
OPM claimed. ID at 6.
4
concerning the existence and amount of the overpayment. OPM responded in
opposition to his petition, and the appellant replied. PFR File, Tabs 4-5.
¶5 As the administrative judge correctly s tated in the initial decision, ID at 7,
recovery of an overpayment may be waived if the appellant is without fault and
recovery would be against equity and good conscience , 5 C.F.R. § 845.30 1.
Recovery would be against e quity and good conscience in the following
circumstances: (1) recovery would cause financial hardship to the person from
whom it is s ought ; (2) the recipient of the o verpayment can show , regardless of
his financial circumstances, that due to the notice that the payment would be
made, or because of t he incorrect payment s, he relinquished a valuable right or
changed positions for the worse ; or (3) recovery would be unconsci onable under
the circumstanc es. 5 C.F.R. § 845.30 3.
¶6 Financial hardship may exist when an appellant needs substantially all of
his current income and liquid assets to meet current “ordinary and necessary”
living e xpenses and liabilities. See 5 C.F.R. § 845.304 . After completin g his
analysis of the appellant’ s FRQ, the administrative judge reduced some of the
appellant’s claimed expenses as not “ ordinary and necessary,” added $50 per
month for emergencies, and determined that the appellant’s disposable monthly
income exceeded his ordinary and necessary monthly expenses by $ 1,011.51 .
ID at 8-12. Thus, the administrative judge found that the appellant did not prove
that he was entitled to a waiver based on financial hardship . ID at 8. Although
the appellant disputes the administrative judge’s ultimate finding that he was not
entitled to a waiver, he submits no new evidence of finan cial hardship on review .
PFR File, Tab 1 at 7 . We find no error in the administrative judge’s
determination that the appellant is not entitled to a waiver based on financial
hardship.
¶7 To prove waiver based on detrimental reliance, an appellant must prove
among other things that the relinquishment or change directly caused by the
overpayment is significan t enough to warrant the waiver and irrevocable, i.e., the
5
forfeited right cannot be recovered and/or the change of position cannot be
reversed. Alexand er v. Office of Personnel Management , 58 M.S.P.R. 358 ,
364-65 (1993) ; ID at 13 . On review, the appellant reasserts his argument that h e
is entitled to a wa iver because he relied to his detriment on the overpayment.
PFR File, Tab 1 at 3 -4. He argues that on appeal he provided uncontested
evidence, consisting of his sworn statement and affidavits from his spouse and his
ex-wife, showing that he permanently lost public assistance benefits and waived
receipt of child support in detrimental reliance on the overpayment. Id. at 4. In
addition, for the first time on review, the appellant submits the U.S. Department
of Agriculture’s 2008 -2009 Income Eligibility Guidelines for free and
reduced -price school meals to support his argument that his family would have
qualified for this bene fit but for OPM’s overestimating his retirement annuity
income , which left him ineligible to apply. Id. at 3, 9. He also submits a copy of
a State of South Dakota Child Support Obligation C alculator. Id. at 10.
¶8 The administrative jud ge found, and we agree, that the appellant was not
entitled to a waiver of the overpayment based on detrimental relianc e because he
did not show that he permanently relinquished a valuable right or changed
positions for the worse by relying on the overpayment. ID at 12-15. Although
the appellant submitted proof that the overpayment amount he received led him to
declin e child support from his ex -wife and that he did not apply for public
assistance or qualify for free or reduced -price lunch for his children because of
the overpayment , he has not sho wn that the rights he forfeited cannot be
recovered and/or his change o f position cannot be reversed. IAF, Tab 61
at 75-76, Tab 62 at 5-6; PFR File, Tab 1 at 9-10. Specifically, the appellant has
not shown that he is precluded from reapply ing for public assistance benefits or
free or reduced -price lunch for his children or mod ifying his child support
agreement based on his current income .
¶9 On review, the appellant restates his argument that the overpayment
adversely affected his daughter’s eligibility for student financial aid and grants
6
because colleges consider parental income in determining financial aid for
students. PFR File, Tab 1 at 4 -5. He raises this argument as proof that he is
entitled to a waiver of the overpayment based on detrimental reliance. We
considered the appellant ’s evidence that his annuity overpayment may have
caused one of his daughters to be “ineligible for certain grants and low interest
college loans” in 2010 and that she subsequently left college and joined the Navy.
IAF, Tab 61 at 75, Tab 62 at 6. Although we accept the a ppellant’s argument that
colleges generally consider parental income in determining student financial aid ,
we find that the appellant has not shown how OPM’s overpayment caused him to
relinquish a valuable right that cannot be recovered or that his possibl e change d
position for the worse cannot be reversed , even assuming that the overpayment
adversely affected his daughter’ s eligibility for college financial aid . PFR File,
Tab 1 at 4 ; ID at 15 . Accordingly, we find that the appellant’s arguments on
review are insufficient to prove that he is entitled to a waiver based on
detrimental reliance.
¶10 When a recipient of an overpayment does not meet the financial hardship
and detrimental reliance requirements for a waiver, a waiver may nevertheless be
granted where the circumstances establish that recovery would be unconscionable
on other equity grounds. Aguon v. Office of Personnel Management , 42 M.S.P.R.
540, 549 (1989). Because the concept of unconscionability is generally defined
in terms of broad, equitable considerations, the Board will consider all relevant
factors using a “totality -of-the-circumstances” approach to determine if recover y
of an annuity overpayment is unconscionable in a given case . Id. Such
circumstances may include, but are not limited to, cases in which OPM :
(1) delayed adjusting an annuity for an ex ceptionally long period of time;
(2) failed to respond in a reasonab le length of time to an annuitant’ s inq uiries
regarding an overpayment; (3) failed to expeditiously adjust an annuity after
receiving specific notice; or (4) was grossly negligent in handling a case.
Aguon , 42 M.S.P.R. at 550. The unconscionability crite rion is a high standard
7
justifying waiver only under exceptional circumstances. Boone v. Office of
Personnel Management , 119 M.S.P.R. 53 , ¶ 9 (2012).
¶11 The administrative judge found that the appellant did not prove
unconscionability , in part because OPM was not grossly negligent and did not
unreasonably delay the final adjustment of the appellant’s annuity or fail to
respond to his request for a waiver within a reasonable length of time. ID at 16.
On review, t he appellant argues that recovery would be unconscionable because
OPM double -reported the overp ayment to the Internal Revenue Service (IRS) ,
which caused him to incur an unfair tax liability in 2012. PFR File, Tab 1 at 5 .
The appellant also asks the Board to order OPM to provide the IRS with corrected
documentation to remove the 2012 overpa yment that OPM allegedly
double -reported to the IRS. Id. at 8.
¶12 The administrative judge specifically considered and repeatedly rejected the
appellant’s argument that recovery would be unconscionable because he incurred
an unfair tax liability. ID at 13 -14; IAF, Tabs 40, 48 . The administrative judge
properly found that OPM is legally required to withhold F ederal income taxes
from annuity benefits and remit them to the IRS and that the appellant must seek
a remedy from the IRS to the extent that any benefits adjustments or resulting
overpayments affected his past tax liabili ty. ID at 13 ; see Cebzanov v. Office of
Personnel Management , 96 M.S.P.R. 562 , ¶ 11 (2004) . We fin d that the
administrative judge’ s findings are supported by the applicable law a s cited in the
initial decision . ID at 13 .
¶13 Although the appellant also argues that recovery would be unconscionable
because he was not at fault in creating t he overpayment and OPM pers onnel
initially told him that he wa s being underpaid, we find that the appellant has not
shown exceptional circumstances justifying waiver. PFR File, Tab 1 at 5, 7; see
Boone , 119 M.S.P.R. 53 , ¶ 9. Moreover, contrary to the appellant’s argument on
review, we find that he has not shown that repaying the overpayment would leave
8
him in a worse financial position than he would have been in if there had been no
overpayment. PFR File, Tab 1 at 5.
¶14 On review, the appellant argues that his due process rights were violated
because the administrative judge denied his request for discovery to obtain
evidence to support his claim that he called the agency about his interim
retirement annuity and “long overdue finality .” PFR File, Tab 1 at 2 . The Board
will not reverse an administrative judge’ s rulings on discovery matters absent an
abuse of discretion . Wagner v. Environmental Protection Agency , 54 M.S.P.R.
447, 452 (1992), aff’d , 996 F.2d 1236 (Fed. Cir. 1993) (Table). On appeal, t he
administrative judge denied the appellant ’s motion to compe l discovery , finding
that the agency provided an adequate response to the appellant’s discovery
request and that sanctions were neither necessary nor appropriate . IAF, Tab 12
at 4. The administrative judge also found that the appellant’s discovery requests
were cumulative and duplicative and would impose a burden on the agency that
would outweigh any likely benefit. Id. We find that the appellant ’s arguments on
review do not show that the administrative judge abused his d iscretion in ruling
on these discovery matters. Moreover, to the extent that the appellant is claiming
that he has a due process right to discovery, his claim has no merit. PFR File,
Tab 1 at 5; see Markland v. Office of Personnel Management , 73 M.S.P.R. 349,
357 (1997) , aff’d , 140 F.3d 1031 (Fed. Cir. 1998).
¶15 On review, t he appellant also argues that his due pro cess rights were
violated because he asked repeatedly to call witnesses from OPM who verbally
assured him that he was being underpaid and would be owed back pay.3 PFR
File, Tab 1 at 2. The administrative judge has wide discretion under 5 C.F.R.
§ 1201.41 (b)(8), (10) to exclude witnesses when it has not been shown that their
testimony would be relevant, material, and nonrepetitious. Franco v. U.S. Postal
Service , 27 M.S.P.R. 322 , 325 (1985) . Before the appellant decided to provide
3 On review, the appellant does not identify the witnesses by name.
9
written submissions in lieu of hearing testimony, the administrative jud ge denied
one of the appellant’s requested witnesses on the ground that her testimony would
have been duplicative of the expected testimony of the appellant and his other
approved witness. IAF, Tab 60 at 2, Tab 61 at 1. We find that the appellant’s
argum ents on review do not show that the testimony of the denied witness would
have been relevant, material, or not repetitious. IAF, Tab 60 at 2; see 5 C.F.R.
§ 1201.41 (b)(8), (10) ; see also Franco , 27 M.S.P.R. at 325 .
¶16 The appellant also argues that he was denie d due process because OPM
began collecting the overpayme nt while his appeal was pending before the Board.
PFR File, Tab 1 at 6 . Pursuant to 5 C.F.R. § 845.205 (d), collecting overpayments
will begin after the Board has acted on any timely appeal of a waiver denial,
unless failure to make an offset would substantially prejudice the Government’s
ability to collect the debt; and the amount of time before the payment is due to be
made does not reasonably permit completing the proceedings. If the collections
offset begins before the administrative review pr ocess is finish ed, OPM’s
regulations require that the “amounts recovered by offset but later found not owed
will be refunded promptly.” Id. Here, however, the appe llant cites to no
evidence in the extensive appeal record showing that OPM prematurely recovered
any of the overpaym ent through collections offset during the pendency of his
appeal or that he did not owe any of the overpayment prematurely recovered . We
therefore find that the appellant’s argument on review presents no basis to disturb
the initial decision .
¶17 On review, th e appellant asserts that the administrative judge showed bias
for OPM and was not impartial. Administrative judges are presumed to be honest
and to act with integrity. Oliver v. Department of Transportation , l M.S.P.R. 382,
386 (1980). Accordingly, 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 fai r judgment impossible.” Bieber v. Department of the Army , 287 F. 3d
10
1358 , 1362 -63 (Fed. Cir. 2002) (quoting Liteky v. United States , 510 U.S. 540 ,
555 (1994)). The appellant claims that the administrative judge raised objections
to evidence accepted by OPM and “failed to address several pertinent issues and
applied the law incorrectly.” PFR File, Tab 1 at 7. We find, however, that none
of the appellant’ s claims of bias demonstrate any deep -seated favoriti sm or
antagonism.4 We also find that the administrative judge properly weighed the
evidence, reached the correct conclusion under the law, and issued a
well-reasoned decision. Should the appellant’s financial situation change or his
monthly expenses exce ed his m onthly income, nothing in this Final O rder
prevents the appellant from contacting OPM and requesting an adjusted
repayment scheduled based on an updated FRQ .
ORDER
¶18 We ORDER OPM to reduce the appellant’s repayment schedule to a rate of
$200.00 for 92 months, with a final payment of $146.00 in the 93rd month . OPM
must complete this action no later than 20 days after the date of this decision. 5
¶19 We also ORDER OPM to tell the appellant promptly in writing when it
believes it has fully carried out th e Board’s Order and of the actions it took to
carry out the Board’s Order. We ORDER the appellant to provide all necessary
4 Moreover, a s previously note d, although the administrative judge found that the
appellant failed to establish his entitlement to a waiver of the overpayment, he adjusted
OPM’s proposed repayment schedule by reducing the appellant’s monthly payments.
ID at 22 -23.
5 The appellant is hereby notified that OPM has advised the Board that it may seek
recovery from an annuitant’s estate or other responsible party of any debt remaining
upon his or her death. A party responsible for any debt remaining upon an annuitant’s
death may include a n heir (spouse, child, or other) who derives a benefit from the
annuitant’s Federal benefits, an heir or other person acting as the representative of his
or her estate if, for example, the representative fails to pay the United States before
paying the cla ims of other creditors in accordance with 31 U.S.C. § 3713 (b), or
transferees or distribute[r]s of your estate. Pierotti v. Office of Personnel Management ,
124 M.S.P.R. 103 , ¶ 13 (2016).
11
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).
¶20 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, a nd should include the dates and results of any communications
with OPM. See 5 C.F.R. § 1201.182 (a).
¶21 This is the final decision of the Merit Systems Protection Board in this
appeal. Tit le 5 of the Code of Federal Regulations, section 1201.113(c) ( 5 C.F.R.
§ 1201.113 (c)).
NOTICE OF APPEAL RIGHTS6
You may obtain review of this final decision. 5 U.S.C. § 7703 (a)(1). By
statute, the nature of your claims determines the time limit for seeking such
review and the appropriate forum with which to file. 5 U.S.C. § 7703 (b).
Although we offer the following summary of available appeal rights, the Merit
Systems Protection Board does not provide legal advice on which option is most
appropriate for your situation and the rights described below do not represent a
statement of how courts will rule regarding which cases fall within their
jurisdiction. If you wish to seek review of this final decision, you should
immediately review the law applicable to your claims and carefully follow all
filing time limits and requir ements. Failure to file within the applicable time
limit may result in the dismissal of your case by your chosen forum.
6 Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review rights included in fin al decisions. As indicated in the notice, the
Board cannot advise which option is most appropriate in any matter.
12
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. I f you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Boar d order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703 (b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitione rs and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our websi te at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney w ill accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
13
were affected by an action that is appealable to the Board and that such ac tion
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703 (b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. ____ , 137 S. Ct. 1975 (2017). If you have a
representative in this case, and your representative receives this decision before
you do, then you must file with the district court no later than 30 calendar days
after your representative receives this decision. If the action involves a claim of
discrimination based on race, color, religion, sex, national origin, or a disabling
condition, you may be entitled to representation by a court -appointed lawyer and
to waiver of any requirement of prepayment of fees, costs, or other security. See
42 U.S.C. § 2000e -5(f) and 29 U.S.C. § 794a .
Contact information for U.S. district courts can be found at their resp ective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employm ent
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702 (b)(1). You must file any such request with the
EEOC’s Office of Federal Operation s within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702 (b)(1) . If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for revi ew to the EEOC by regular U.S. mail, the
address of the EEOC is:
14
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhanc ement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302 (b)(8) or
other protected activities listed in 5 U.S.C. § 2302 (b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
disposition of allegations of a prohibited personnel practice described in s ection
2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i),
(B), (C), or (D),” then you may file a petition for judicial review either with the
U.S. Court of Appeals for the Federal Circuit or any court of appeals of
competent jurisdiction.7 The court of appeals must receive your petition for
review within 60 days of the date of issuance of this decision. 5 U.S.C.
§ 7703 (b)(1)(B).
7 The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jur isdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U. S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115 -195,
132 Stat. 1510.
15
If you submit a petition for judici al review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practi ce, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono repr esentation
for Merit Systems Protection Board appellants before the 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:
Washington, D.C. /s/ for
Jennifer Everling
Acting Clerk of the Board | NELSON_STACEY_VICTOR_DE_0845_14_0626_I_1_FINAL_ORDER_1957718.pdf | 2022-09-06 | null | DE-0845-14-0626-I-1 | NP |
4,149 | https://www.mspb.gov/decisions/nonprecedential/TOWNSEND_MARK_WILLIAM_DC_0752_15_0050_I_1_FINAL_ORDER__1957736.pdf | UNITED STATES OF AME RICA
MERIT SYSTEMS PROTEC TION BOARD
MARK WILLIAM TOWNSEN D,
Appellant,
v.
ENVIRONMENTAL PROTEC TION
AGENCY,
Agency.
DOCKET NUMBER
DC-0752 -15-0050 -I-1
DATE: September 6, 2022
THIS FINAL ORDER IS NONPRECEDENTIAL1
Mark R. Heilbrun , Esquire, Fairfax Station, Virginia, for the appellant.
Alexandra Meighan and Caitlin Downs , Washington, D.C., for the agency.
BEFORE
Cathy A. Harris , Vice Chairman
Raymond A. Limon , Member
Tristan L. Leavitt , Member
FINAL ORDER
¶1 The appellant has filed a petition for review of the initial decision, which
sustained his removal. Generally, we grant petitions such as this one only in the
following circumstances: the initial decision co ntains 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
require d to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117 (c).
2
or regulation or the erroneous application of the law to the facts of the case; the
administrative judge’s rulings during either the course of the appeal or the initial
decision were not consistent with required procedures or involved an abuse of
discretion, and the resulting error affected the outcome of the case; or new and
material evidence or legal argument is available that, despite the p etitioner’s due
diligence, was not available when the record closed. Title 5 of the Code of
Federal Regulations, section 1201.115 ( 5 C.F.R. § 1201.115 ). After fully
considering the fil ings in this appeal, we conclude that 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 deci sion. 5 C.F.R. § 1201.113 (b).
BACKGROUND
¶2 The appellant formerly was employed by the Environmental Protection
Agency (EPA or agency) as a GS -15 Supervisory Biologist until he was removed
after an Office of Inspector General (OIG) investigation concluded that he had
entered and certified time and attendance records for a subordinate from 2008 to
2012, despite knowing she was producing no work for the agency. Initial Appeal
File (IAF), Tab 3 at 17, 80 -83. Following the OIG investigation, the agency
proposed the appellant’s removal based on three charges: (1) Intentionally
Submitting False Time and Attendance Information; (2) Making False Statements
In Connecti on with an Official Investigation; and (3) Failure to Perform
Supervisory Duties as Required. Id. at 69 -76.
¶3 Charge 1 alleged that between 2008 and 2012 the appellant entered or
approved information on the subordinate’s timecards that reflected that she wa s
working, despite knowing t hat she was performing little or no agency work.
Id. at 70. Charge 2 alleged that the appellant made various false statements
during his OIG interview on July 3, 2012. Id. at 70 -71. Charge 3 alleged that ,
during the relevant time period, the app ellant had stopped assigning his
3
subordinate any work, rated her fully successful for rating periods for which he
knew she had performed little or no work, recommended her to receive a $1,000
cash performance award, and failed to prope rly account for her leave. Id.
at 71-72.
¶4 Effective October 7, 2014, the agency removed the appellant. Id. at 17.
The appellant filed a Board appeal challenging his removal and raising
affirmative defenses of whistleblower reprisal, discrimination, retal iation for
prior equal employment opportunity (EEO) activity, and harmful procedural error.
IAF, Tab 1 at 4 -6, Tab 77 at 4 -6. After holding the appellant’s requested hearing,
the administrative judge issued an initial decision sustaining the removal action.
IAF, Tab 87, Initial Decision (ID). The administrative judge found that the
agency proved that the appellant had engaged in the charged misconduct based on
the OIG report and testimony of Special Agent K, an OIG criminal investigator .
ID at 4-13.
¶5 Regarding charge 1, she found that the record overwhelmingly showed that
the appellant intentionally submitted false time and attendance information for his
subordinate as charged. ID at 4 -9. Regarding charge 2, based on an OIG
memorandum o f intervie w and the testimony of the OIG Special A gent, the
admi nistrative judge sustained all four specifications concerning instances in
which the appellant made false statements during his OIG interview. ID at 9 -11.
The administrative judge also susta ined charge 3 based on the appellant’s
admissions during his OIG interview. ID at 11 -13. The administrative judge
found that a nexus existed , and the penalty of re moval was reasonable. ID
at 13-18. Lastly, she found that the appellant failed to prove h is affirmative
defenses of harmful procedural error, whistleblower reprisal, discrimination based
on age, race, or sex, and retaliation for prior EEO activity. ID at 18 -28.
¶6 The appellant has filed a petition for review. Petition for Review (PFR)
File, Ta b 1. The agency has filed a response. PFR File, Tab 3. The appellant has
filed a reply. PFR File, Tab 4.
4
DISCUSSION OF ARGUME NTS ON REVIEW
¶7 On review, the appellant does not identify any specific error regarding the
administrative judge’s findings conce rning the essential facts supporting the
agency’s charges and the appellant’s affirmative defenses . Although t he
appellant urges generally that full B oard review of the entire record is necessary,
he fails to identify specific errors the administrative ju dge made in evaluating the
evidence or applying the law. Thus, the Board will not embark upon a complete
review of the record. See Baney v. Department of Justice , 109 M.S.P.R. 242 , ¶ 7
(2008); Tines v. Department of the Air Force , 56 M.S.P.R. 90 , 92 (1992).
The administrative judge did not abuse her discretion in her rulings on discovery
or the admissibility of evidence.
¶8 The appellant contends that the administrative judge erroneously declined to
admit into the record an OIG investigation concerning an alleged co mparator
employee. PFR File, Tab 1 at 13, 18. It is well settled that an administrative
judge has broad discretion to control the course of the hearing before her . Lopes
v. Department of the Navy , 119 M.S.P.R. 106 , ¶ 9 (2012). Rulings regarding the
exclusion of evidence are subject to review by the Board under an abuse of
discretion standard. Id., ¶ 11. The record reflects that th e administrative judge
excluded the report, which was dated April 17, 2014, because the appellant failed
to show good cause for his late submission of the report for the first time at the
hearing on December 3, 2015 . ID at 17 n.1 ; Hearing Transcript (HT) at 4-7. In a
prehearing order , the administrative judge informed the parties that, in presenting
evidence at the hearing, they would be limited to their prehearing submissio ns,
except for good cause shown. IAF, Tab 45 . Despite this warning , the appellan t
did not submit the report until the day of the hearing. Thus, we find that the
administrative judge did not abuse her discretion in excluding the report.
¶9 The appellant next contends that the administrative judge ignored discovery
abuse by the agency and improperly denied his motion concerning the agency’s
improper invocation of the law enforcement privilege during Special Agent K’s
5
deposition. PFR File, Tab 1 at 15 -17. The record reflects that the appellant filed
a “Motion for Production of Evidence for Which a Privilege is Claimed by the
Agency,” in which he generally asserted that the agency improperly invoked the
law enforcement privilege over 130 times to prevent his relevant “inquiry
concerning EPA personnel that the Deciding Official included i n his Douglas
Factor comparator analysis.” IAF, Tab 39 at 4. In his motion, he did not identify
which questions were at issue or explain how such questions would have elicited
relevant testimony but rather attached the entire 234 -page deposition transcri pt.
Id. at 7-240. The administrative judge denied the appellant’s motion as not in the
proper format, lacking in specificity, and requesting irrelevant information. IAF,
Tab 81. We find that the administrative judge did not abuse her discretion in
deny ing the appellant’s motion.
¶10 In any event, the appellant has not explained how the information he sought
to discover would have c hanged the outcome of the appeal and, thus, has not
provided a basis for reversal of the initial decision. See Sanders v. Soc ial
Security Administration , 114 M.S.P.R. 487 , ¶ 10 (2010); Russell v. Equal
Employment Opportunity Commission , 110 M.S.P.R. 557 , ¶ 15 (2009). On
review, he argues that the information sought was relevant to show disparate
penalty because it would establish tha t the OIG investigated another employee for
alleged similar misconduct only for administrative purposes, with no pos sibility
of criminal referral. PFR File, Tab 1 at 16. We fail to discern how such evidence
is relevant to the issue of whether the appella nt was treated disparately regarding
the removal penalty. See, e.g., Chavez v. Small Business Administration ,
121 M.S.P.R. 168, ¶ 19 (2014) (stating that a claim of disparate penalties focuses
on whether an imposed penalty is appropriate for the sustained charges ).
¶11 Finally , the appellant argues that the administrative judge improperly
denied his motion to compel depositions of four witnesses. PFR File, Tab 1
at 17 n.4. The record reflects that the appellant filed a motion to compel
6
depositions of R.M., A.W., J.D., and K.W .2 IAF, Tab 15 at 9 n.i. In his motion,
the appellant asserted that R.M . was a comparator who was treate d more
favorably than him despite her misconduct in supervising J.B., a former EPA
employee who defrauded the G overnment by regularly failing to show up for
work at the EPA and falsely claiming to have had a dual appointment with the
CIA. Id. at 6. The a ppellant alleged that A.W. had provided false testimony
about J.B. to Congress on several occasions. Id. at 7. He also sought to depose
J.D. and K.W. , EPA attorneys involved in his removal, regarding their contacts
with witnesses and drafting of declarations for agency witnesses. Id. at 8.
¶12 The administrative judge denied the appellant’s motion , finding that he
failed to show how the requested testimon y would lead to the discovery of
relevant evidence.3 IAF, Tab 23. In particular, she found that the appellant had
not shown how the requested information was relevant to any argument he might
make about disparate penalty or comp arators and that he could seek such
information through other witnesses. Id. She noted that the appellant had
focused his appeal on the behavior of other employees at the agency when it was
his own misconduct at issue. Id.
¶13 On review, the appellant contends that R.M .’s testimon y was “essential ”
and that other witnesses were alleged to have “suborned false statements” with
the purpose of undermining his credibility. PFR File, Tab 1 at 13, 17 n.4. We
find that the administrative judge did not abuse her discretion in denying the
2 The appellant also appears to contend that the administrative judge improperly denied
the depositi on of the EPA Inspector General , PFR File, Tab 1 at 17 n.4 ; however, this
individual was not included in his motion to compel depositions , IAF, Tab 15.
3 The appellant filed a Motion for Certification of Interlocutory A ppeal concerning the
administrative judge’s denial of his motion to compel the depositions. IAF , Tab 30.
The administrative judge denied this motion, finding that it did not meet the regulatory
criteria under 5 C.F.R. § 1201.92 . IAF, Tab 37. To the extent the appellant is
challe nging this ruling on rev iew, PFR File, Tab 1 at 17 n.4 , we find that the
administrative judge properly denied the motion because a discovery dispute is not a
sufficient basis for certifying an issue for interl ocutory appeal . See Cooper v.
Department of the Navy , 98 M.S.P.R. 683 , ¶ 6 (2005).
7
depositions of these witnesses. We fail to discern how the testimony of A.W.,
J.D., or K.W. would have led to evidence relevant to this appeal , and the
appellant has not explained how this evidence would have affected the outcome.
See Sanders , 114 M.S.P.R. 487 , ¶ 10.
¶14 Further, e ven if the administrative judge abused her discretion in denying
R.M .’s deposition, which the appe llant contends was relevant to show she was
treated more favorably, PFR File, Tab 1 at 13, any error did not affect the
outcome here because the adm inistrative judge properly found that the agency
established legitimate reasons for the difference in treatm ent, ID at 17 . The
administrative judge credited the deciding official’s testimony that he did not
consider the appellant’s misconduct to be analogous to that of the supervisor
involved in J.B.’s case because J.B. had deceived his supervisors into believi ng
that he was an undercover CIA agent with a dual appointment to the EPA,
whereas here, the appellant knew that his subordinate was doing no work because
he was not assigning her any work . Id.
The appellant’s remaining arguments do not provide a basis for reversal.
¶15 On review, the appellant reiterates his allegations below concerning due
process violations, including claims that the agency subjected him to numerous
illegal and unconstitutional investigations and that the deciding official and OIG
Special Agent K engaged in criminal wro ngdoing. PFR File, Tab 1 at 4-14. The
administrative judge, however, considered such arguments but found that he
failed to adequately explain how any such allegations constituted harmful
procedural error in the context of his removal. ID at 18 -19. Although the
appellant contends on review that the administrative judge failed to consider due
process violations that are “easily identified and eva luated ,” he fails to explain
such claims or identify any error in the initial d ecision. PFR File, Tab 1 at 5.
¶16 Next, the appellant contends that the administrative judge improperly relied
on the OIG report and various statements in the report, which he contends were
fabricated by Special Agent K . Id. at 20 -24. The administrative ju dge, however,
8
found Special Agent K to be a straightforward and credible witness. ID at 6. In
particular, she credited his testimony that both the appellant and his subordinate
testified during their OIG interviews that the subordinate had done no work
during the relevant time. Id. She also credited his testimony that the appellant
had certified and approved the subordinate’s time and attendance during the
relevant time period. Id. Additionally, she considered, but found unpersuasive ,
the appellant’s general testimony that the OIG report was flawed or enhanced,
noting that when the appellant was asked by his own attorney if there was
anything inaccurate in the report he responded, “No.” Id.
¶17 The appellant also argues that the administrative judge was b iased against
him as evidenced by her “deplorable” and “legally tenuous” order, in which he
contends she threatened him for raising legitimate arguments. PFR File,
Tab 1 at 19. We have reviewed the order denying the appellant’s motion for stay
and for sa nctions and find that it fails to establish a deep -seated antagonism
towards the appellant that would ma ke fair judgment impossible and, thus, does
not overcome the presumption of honesty and integrity accorded to administrative
judges. IAF, Tab 81; see B ieber 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).
¶18 Finally, the appellant argues that the initial decision failed to meet the
requirements of Spithaler v. Office of Personnel Management , 1 M.S.P.R. 587 ,
589 (1980), in which the Board stated that an initial decision must identify all
material issues of fact and l aw, summarize the evidence, resolve issues of
credibility, and include the administrative judge’s legal reasoning and
conclusions of law. PFR File, Tab 1 at 24 -25. We disagree. In contrast to the
initial decision in Spithaler , 1 M.S.P.R. at 589, the ini tial decision here contains
approximately 24 pages of detailed factual background and legal analysis . ID
at 4-27. We find that the appellant’s arguments on review constitute mere
disagreement with the administrat ive judge’s explained findings and thus do not
9
provide a basis for reversal. 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 references, and
made reasoned conclusions); see also Broughton v. Department of Health &
Human Services , 33 M.S.P.R. 357 , 359 (1987) (same). Although the appellant
contends that the initial decision is woefully incomplete, one -sided, cursory,
biased, and ignores material facts and relevan t issues, he does not identify any
particular evidence or testimony that the administrative judge failed to consider.
PFR File, Tab 1 at 25.
¶19 Accordingly, we affirm the initial decision , sustaining the appellant’s
removal.
NOTICE OF APPEAL RIGHTS4
You may obtain review of this final decision. 5 U.S.C. § 7703 (a)(1). By
statute, the nature of your claims determines the time limit for seeking such
review and the appropriate forum with which t o file. 5 U.S.C. § 7703 (b).
Although we offer the following summary of available appeal rights, the Merit
Systems Protection Board does not provide legal advice on which option is most
appropriat e for your situation and the rights described below do not represent a
statement of how courts will rule regarding which cases fall within their
jurisdiction. If you wish to seek review of this final decision, you should
immediately review the law applica ble to your claims and carefully follow all
filing time limits and requirements. Failure to file within the applicable time
limit may result in the dismissal of your case by your chosen forum.
Please read carefully each of the three main possible choice s of review
below to decide which one applies to your particular case. If you have questions
4 Since the issuance of the initial decision in this matter, the Board may have updated
the n otice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise which option is most appropriate in any matter.
10
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703 (b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particu lar
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Prote ction Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
11
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703 (b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. ____ , 137 S. Ct. 1975 (2017). If you have a
representative in this case, and your representative receives this decision before
you do, then you must file with the district court no later than 30 calendar days
after your representative receives this decision. If the action involves a claim of
discrimination based on race, color, religion, sex, national origin, or a disabling
condition, you may be entitled to representation by a court -appointed lawyer and
to waiver of any requirement of prepayment of fees, costs, o r other security. See
42 U.S.C. § 2000e -5(f) and 29 U.S.C. § 794a .
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed thr ough the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702 (b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receiv e
this decision. 5 U.S.C. § 7702 (b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Wash ington, D.C. 20013
12
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5S W12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302 (b)(8) or
other protected activities listed in 5 U.S.C. § 2302 (b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no cha llenge to the Board’s
disposition of allegations of a prohibited personnel practice described in section
2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i),
(B), (C), or (D),” then you may file a 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
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 wh istleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court 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
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “G uide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit , you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor war rants that
any attorney will accept representation in a given case.
Contact information for the courts of appeals can be found at their
respective websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
FOR THE BOARD:
Washington, D.C. /s/ for
Jennifer Everling
Acting Clerk of the Board | TOWNSEND_MARK_WILLIAM_DC_0752_15_0050_I_1_FINAL_ORDER__1957736.pdf | 2022-09-06 | null | DC-0752-15-0050-I-1 | NP |
4,150 | https://www.mspb.gov/decisions/nonprecedential/SPELLERS_DONALD_PH_1221_18_0247_W_1_FINAL_ORDER_1957941.pdf | UNITED STATES OF AME RICA
MERIT SYSTEMS PROTEC TION BOARD
DONALD SPELLERS, II,
Appellant,
v.
DEPARTMENT OF THE NA VY,
Agency.
DOCKET NUMBER
PH-1221 -18-0247 -W-1
DATE: September 6, 2022
THIS FINAL ORDER IS NONPRECEDENTIAL1
Heather White , Esq uire, Washington, D.C., for the appellant.
Deborah N. Borges , Esquire, and Kimberly A. Pritchard , Patuxent River,
Maryland, for the agency.
BEFORE
Cathy A. Harris , Vice Chairman
Raymond A. Limon , Member
Tristan L. Leavitt , Member
FINAL ORDER
¶1 The appellant has petitioned for review of the initial decision in this appeal.
Petition for Review (PFR) File, Tab 1. For the reasons set forth below, we
DISMISS the appeal as settled.
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
require d to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board's case law. See 5 C.F.R. § 1201.117 (c).
2
¶2 After the filing of the petition for review, the parties submitted a document
entitled “ Negotiated Settlement Agreement and Release of All Claims ,” signed
and dated by the appellant on August 2, 2021 , and by the agency on August 24,
2021. PFR File, Tab 4. The document provides, among other things, for the
withdrawal of t he appeal . Id., ¶ 2(a).
¶3 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 Maho ney 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 a nd whether the parties have freely entered into
it. See Massey v. Office of Personnel Management , 91 M.S.P.R. 289 , ¶ 4 (2002) ,
overruled on other grounds by Delorme v. Department of Interior , 124 M.S.P.R.
123, ¶¶ 11-21 (2017) (holding that the Board may enforce settlement agreements
that have been entered into the record, independent of any prior finding of Board
jurisdiction over the underlying matter being settled) .
¶4 Here, we find that the parties have ent ered into a settlement agreement,
understand its terms, and do not intend for the agreement to be entered into the
record for enforcement by the Bo ard. See PFR Fi le, Tab 4, ¶ 14 (providing that
enforcement shall be through the equal employment opportunity process) . As the
parties do not intend for the Board to enforce the settlement agreement, we need
not address the additional considerations regarding enforcement and do not enter
the settlement agreement into the record for enforcement by the Board.
¶5 Accordingly, we find that dismissing the appeal “with prejudice to refiling”
(i.e., the parties no rmally may not refile this appeal) is appropriate under these
circumstances . As the parties do not intend for the Board to enforce the terms of
the settlement agreement, we do not enter the settlement agreement into the
record for enforcement. This is th e final decision of the Merit Systems
3
Protection Board in this appeal. Title 5 of the Code of Federal Regulations,
section 1201.113 ( 5 C.F.R. § 1201.113 ).
NOTICE OF APPEAL RIG HTS2
You may obtain review of this final decision. 5 U.S.C. § 7703 (a)(1). By
statute, the nature of your claims determines the time limit for seeking such
review and the appropriate forum with which to f ile. 5 U.S.C. § 7703 (b).
Although we offer the following summary of available appeal rights, the Merit
Systems Protection Board does not provide legal advice on which option is most
appropriate f or your situation and the rights described below do not represent a
statement of how courts will rule regarding which cases fall within their
jurisdiction. If you wish to seek review of this final decision, you should
immediately review the law applicable to your claims and carefully follow all
filing time limits and requirements. Failure to file within the applicable time
limit may result in the dismissal of your case by your chosen forum.
Please read carefully each of the three main possible choices o f review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . A s a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of thi s 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 addres s:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of App eals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services prov ided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an ac tion that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action wit h an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703 (b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. ____ , 137 S. Ct. 1975 (2017). If you have a
representative in this case, and you r representative receives this decision before
you do, then you must file with the district court no later than 30 calendar days
after your representative receives this decision. If the action involves a claim of
5
discrimination based on race, color, relig ion, sex, national origin, or a disabling
condition, you may be entitled to representation by a court -appointed lawyer and
to waiver of any requirement of prepayment of fees, costs, or other security. See
42 U.S.C. § 2000e -5(f) and 29 U.S.C. § 794a .
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.as px.
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702 (b)(1). You must f ile any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702 (b)(1). If you have a representative in this case,
and yo ur representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C . 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302 (b)(8) or
6
other protected activities listed in 5 U.S.C. § 2302 (b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petit ion for review “raises no challenge to the Board’s
disposition of allegations of a prohibited personnel practice described in section
2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i),
(B), (C), or (D),” then you may file a 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 decisi on. 5 U.S.C.
§ 7703 (b)(1)(B).
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following addre ss:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particula r
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Ap peals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
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 co urt 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
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services pro vided by any attorney nor warrants that
any attorney will accept representation in a given case.
Contact information for the courts of appeals can be found at their
respective websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
FOR THE BOARD:
Washington, D.C. /s/ for
Jennifer Everling
Acting Clerk of the Board | SPELLERS_DONALD_PH_1221_18_0247_W_1_FINAL_ORDER_1957941.pdf | 2022-09-06 | null | PH-1221-18-0247-W-1 | NP |
4,151 | https://www.mspb.gov/decisions/nonprecedential/ORAM_CYRIL_DAVID_DANIEL_DC_3443_18_0057_I_1_FINAL_ORDER_1957288.pdf | UNITED STATES OF AME RICA
MERIT SYSTEMS PROTEC TION BOARD
CYRIL DAVID DANIEL O RAM, JR.,
Appellant,
v.
DEPARTMENT OF THE NA VY,
Agency.
DOCKET NUMBER
DC-3443 -18-0057 -I-1
DATE: September 2, 2022
THIS FINAL ORDER IS NONPRECEDENTIAL1
James D. Glenn , Norfolk, Virginia, for the appellant.
Brittany Michelle Moore and Patricia Reddy -Parkinson , Esquire, Norfolk,
Virginia, for the agency.
BEFORE
Cathy A. Harris , Vice Chairman
Raymond A. Limon , Member
Tristan L. Leavitt , Member
FINAL ORDER
¶1 The appellant has filed a petition for review of the initial decision, which
dismissed his constructive demotion appeal for lack of Board jurisdiction. On
petition for review, the appellant makes the following arguments: the
administrative judge erred by separately docketing his constructive demotion
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
require d to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117 (c).
2
claim; that his prior military service and his employment as a government
contractor should have counted toward the completion of his probationa ry period;
and reargues the merits of his separately docketed Veterans Employment
Opportunities Act of 1998 appeal . Generally, we grant petitions such as this one
only in the following circumstances: the initial decision contains erroneous
findings of ma terial 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 de cision were not consistent with required procedures or
involved an abuse of discretion, and the resulting error affected the outcome of
the case; or new and material evidence or legal argument is available that, despite
the petitioner’s due diligence, was not available when the record closed. Title 5
of the Code of Federal Regulations, section 1201.115 ( 5 C.F.R. § 1201.115 ).
After fully considering the filings in this appeal, we conclud e that 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 RIG HTS2
You may obtain review of this final decision. 5 U.S.C. § 7703 (a)(1). By
statute, the nature of yo ur claims determines the time limit for seeking such
review and the appropriate forum with which to file. 5 U.S.C. § 7703 (b).
Although we offer the following summary of available appeal rights, t he Merit
Systems Protection Board does not provide legal advice on which option is most
appropriate 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 w hich 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 revie w your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federa l Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703 (b)(1)(A).
If you submit a petition for review to the U.S. Court o f Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appea ls for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our 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
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial revie w of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703 (b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. ____ , 137 S. Ct. 1975 (2017). If you have a
representative in this case, and your representative receives this decision before
you do, then you must file with the district court no later than 30 calendar days
after your representative receives this decision. If the action involves a claim o f
discrimination based on race, color, religion, sex, national origin, or a disabling
condition, you may be entitled to representation by a court -appointed lawyer and
to waiver of any requirement of prepayment of fees, costs, or other security. See
42 U.S.C. § 2000e -5(f) and 29 U.S.C. § 794a .
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702 (b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702 (b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
5
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for re view to the EEOC by regular U.S. mail, the
address of the EEOC is:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enha ncement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302 (b)(8) or
other protected activities listed in 5 U.S.C. § 2302 (b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
disposition of allegations of a prohibited personnel practice descri bed in
section 2302(b) other than practices described in section 2302(b)(8), or
2302(b)(9)(A)(i), (B), (C), or (D),” then you may file a petition for judicial
review either with the U.S. Court of Appeals for the Federal Circuit or any court
of appeals of c ompetent 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 cou rt of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115 -195,
132 Stat. 1510.
6
petition for review within 60 days of the date of issuance of this decision.
5 U.S.C. § 7703 (b)(1)(B).
If you submit a petition fo r judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional info rmation about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules o f Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the 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 TH E BOARD:
Washington, D.C. /s/ for
Jennifer Everling
Acting Clerk of the Board | ORAM_CYRIL_DAVID_DANIEL_DC_3443_18_0057_I_1_FINAL_ORDER_1957288.pdf | 2022-09-02 | null | DC-3443-18-0057-I-1 | NP |
4,152 | https://www.mspb.gov/decisions/nonprecedential/ORAM_CYRIL_DAVID_DANIEL_DC_3330_18_0058_I_1_FINAL_ORDER_1957316.pdf | UNITED STATES OF AME RICA
MERIT SYSTEMS PROTEC TION BOARD
CYRIL DAVID DANIEL O RAM, JR.,
Appellant,
v.
DEPARTMENT OF THE AR MY,
Agency.
DOCKET NUMBER
DC-3330 -18-0058 -I-1
DATE: September 2, 2022
THIS FINAL ORDER IS NONPRECEDENTIAL1
Cyril David Daniel Oram, Jr. , Bellingham, Washington , pro se.
Richard L. Schwartz , APO , AE, for the agency.
BEFORE
Cathy A. Harris , Vice Chairman
Raymond A. Limon , Member
Tristan L. Leavitt , Member
FINAL ORDE R
¶1 The appellant has filed a p etition for review of the initial decision, which
denied his request for corrective action pursuant to the Veterans Employment
Opportunities Act of 1998 (VEOA) . On petition for review, the appellant argues
that the administrative judge improperly credited the agency ’s claim that it fully
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
require d to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board ’s case law. See 5 C.F.R. § 1201.117 (c).
2
considered his application package in determining that the appellant was provided
with an opportunity to compete for the position, and argues that several of those
decisions the admi nistrative judge relied on in reaching his decision are wrongly
decided or inapplicable. Generally, we grant petitions such as this one only in the
following circumstances: the initial decision contains erroneous findings of
material fact; the initial de cision is based on an erroneous interpretation of statute
or regulation or the erroneous application of the law to the facts of the case; the
administrative judge ’s rulings during either the course of the appeal or the initial
decision were not consistent with required procedures or involved an abuse of
discretion, and the resulting error affected the outcome of the case; or new and
material evidence or legal argument is available that, despite the petitioner ’s due
diligence, was not available when the reco rd closed. Title 5 of the Code of
Federal Regulations, section 1201.115 ( 5 C.F.R. § 1201.115 ). After fully
considering the 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 We agree with the administrative judge’s finding that, because the
Information Technology Specialist vacancy was filled using merit promotion
procedures, the appellant was not entitled to a veterans’ preference, and so his
request for corrective action under 5 U.S.C. § 3330a (a)(1)(A) was properly
denied . Initial Appeal File (IAF), Tab 13, Initial Decision (ID) at 3-4; see Joseph
v. Federal Trade Commission , 505 F.3d 1380 , 1382 (Fed. Cir. 2007) (finding that
an employee is not entitled to veterans ’ preference in the merit promotion
process) ; Perkins v. U.S. Postal Service , 100 M.S.P.R. 48 , ¶ 9 (2005) (same) . We
also agree with the administrative judge ’s conclusion that, based on the unrefuted
evidence in the form of a declaration submitted by the agency ’s Human Resources
Specialist responsible for reviewing applications for the position , the appellant
was perm itted to apply for the position and his application package was
forwarded for a substantive assessment of his qualifications, but he was
ultimately disqualified from further consideration because he failed to meet the
3
specialized requirements for the job. IAF, Tab 6 at 21-23; ID at 5-6. Therefore ,
the appellant received all of the rights to wh ich he wa s entitled under VEOA , and
he was not denied an opportunity to compete for the position under 5 U.S.C.
§§ 3330a (a)(1)(B) and 3304(f) . See Abell v. Department of the Navy , 92 M.S.P.R.
397, ¶ 8 (2002) (stating that 5 U.S.C. § 3304 (f) permits the preference -eligible
appellant and others in like circumstances to apply, but otherwise they receive no
special treatment in the process of filling a position under merit promotion
procedures) , aff’d, 343 F.3d 1378 (Fed. Cir. 2003) ; Scharein v. Department of the
Army , 91 M.S.P.R. 329 , ¶ 10 (2002) ( finding that VEOA does not guarantee a
preference eligible a position, but only an opportunity to compete with the other
candidates on the certificate of eligibles), aff’d, No. 02 -3270, 2008 WL 5753074
(Fed. Cir. Jan. 10, 2008) .
¶3 Next, t he appellant’s argument —that a number of cases the administrative
judge relied on in reaching his decision are inapplicable, invalid, or co ntrary to
congressional intent —does not provide a reason to disturb the initial decision.
Petition fo r Review (PFR) File, Tab 3 at 8 -17, Tab 6 at 8-9. Several of the
decisions the appellant takes issue with are precedential decisions of the
U.S. Court of Appeals for the Federal Circuit and, as such, are controlling
authority that the Board is bound to follow unless they are overruled by the cour t
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); see, e.g., PFR File,
Tab 3 at 8 -9, 12 (citing Kerner v. Department of the Interior , 778 F.3d 1336 (Fed.
Cir. 2015); Joseph , 505 F.3d at 1381; Abell v. Department of the Navy , 343 F.3d
1378 , 1380 (Fed. Cir. 2003)). Additionally, as to Phillips v. Department of the
Navy , a Board c ase, we find that the administrative judge correctly relied on it in
concluding that the agency used the merit promotion process to fill the position .
PFR File, Tab 3 at 8; ID at 4; see Phillips v. Department of the Navy ,
110 M.S.P.R. 184 , ¶ 6 (2008), reversed on other grounds by Oram v. Department
of the Navy , 2022 MSPB 30, ¶ 18 (reversing the Board’s decision in Phillips to
4
the extent that it implicitly relied on the proposition that a Federal employee may
be entitled to corrective action under VEOA for a violation of 5 U.S.C.
§ 3304 (f)).
¶4 Finally, the appellant argues that , throughout history, the Board and Federal
courts have improperly narrowed the “absolute and unlimited” scope of veterans’
preference right s granted by VEOA and the precursor Veterans’ Preference Act ,
and cites Hilton v. Sullivan , 334 U.S. 323 (1948), Crowley v. Unite d States ,
527 F.2d 1176 (Ct. Cl. 1975), Pulley v. Tennessee Valley Authority , 368 F. Supp.
90 (M.D. Tenn. 1973), and a number of other cases tha t he believes were wrongly
decided and are contrary to congressional intent. PFR File, Tab 3 at 8-17. We
are unpersuaded by this argument. These cases have not been overruled and
remain good law, and the appellant’s mere disagreement with the reasoning in
these decisions does not provide a basis for granting 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 RIG HTS2
You may obtain review of this final decision. 5 U.S.C. § 7703 (a)(1) . By
statute, the nature of your claims determines the time limit for seeking such
review and the appropriate forum with which to file. 5 U.S.C. § 7703 (b).
Although we offer the following summar y of available appeal rights, the Merit
Systems Protection Board does not provide legal advice on which option is most
appropriate for your situation and the rights described below do not represent a
statement of how courts will rule regarding which cases fall within their
jurisdiction. If you wish to seek review of this final decision, you should
immediately review the law applicable to your claims and carefully follow all
2 Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise which option is most appropriate in any matter.
5
filing time limits and requirements. Failure to file within the applicable time
limit may result in the dismissal of your case by your chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703 (b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
6
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful d iscrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703 (b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. ____ , 137 S. Ct. 1975 (2017). If you have a
representative in this case, and your representative receives this decision before
you do, then you must file with the district court no later than 30 calendar days
after your representative receives this decision. If the action involves a claim of
discrimination based on race, color, religion, sex, national origin, or a disabling
condition, you may be entitled to representation by a court -appointed lawyer and
to waiver of any requirement of prepayme nt of fees, costs, or other security. See
42 U.S.C. § 2000e -5(f) and 29 U.S.C. § 794a .
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed thr ough the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702 (b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receiv e
this decision. 5 U.S.C. § 7702 (b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is:
7
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Wash ington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5S W12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302 (b)(8) or
other protected activities listed in 5 U.S.C. § 2302 (b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no cha llenge to the Board’s
disposition of allegations of a prohibited personnel practice described in
section 2302(b) other than practices described in section 2302(b)(8), or
2302(b)(9)(A)(i), (B), (C), or (D),” then you may file a 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 co urt of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115 -195,
132 Stat. 1510.
8
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “G uide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit , you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor war rants that
any attorney will accept representation in a given case.
Contact information for the courts of appeals can be found at their
respective websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
FOR THE BOARD:
Washington, D.C. /s/ for
Jennifer Everling
Acting Clerk of the Board | ORAM_CYRIL_DAVID_DANIEL_DC_3330_18_0058_I_1_FINAL_ORDER_1957316.pdf | 2022-09-02 | null | DC-3330-18-0058-I-1 | NP |
4,153 | https://www.mspb.gov/decisions/nonprecedential/FAVALORA_FRANK_P_PH_831M_19_0450_I_1_FINAL_ORDER_1957338.pdf | UNITED STATES OF AME RICA
MERIT SYSTEMS PROTEC TION BOARD
FRANK P. FAVALORA,
Appellant,
v.
OFFICE OF PERSONNEL
MANAGEMENT,
Agency.
DOCKET NUMBER
PH-831M -19-0450 -I-1
DATE: September 2, 2022
THIS FINAL ORDER IS NONPRECEDENTIAL1
Elizabeth F. Eck, Rockport, Massachusetts, for the appellant.
Karla W. Yeakle , Washington, D.C., for the agency.
BEFORE
Cathy A. Harris , Vice Chairman
Raymond A. Limon , Member
Tristan L. Leavitt , Member
FINAL ORDER
¶1 The appellant has petitioned for review of the December 19, 2019 ini tial
decision in this appeal concerning his election of a survivor annuity benefit 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
require d to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117 (c).
2
his spouse under the Civil Service Retirement System and resulting overpayment.
Initial Appeal File, Tab 13, Initial Decision; Petition for Review (PFR) File,
Tab 1.2 For the reasons set forth below, we DISMISS the petition for review as
settled.
¶2 After the filing of the petition for review, the parties submitted a document
entitled “Settlement Agreement and Joint Request to Withdraw Petition for
Review,” which was signe d and dated by Elizabeth F. Eck on March 9, 2021, and
by the agency on March 10, 2021. PFR File, Tab 6 at 4-5. The document
provides, among other things, for the withdrawal of the petition for review. Id.
at 4.
¶3 Before dismissing a matter as settled, th e 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. 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 Massey
2 On March 10, 2021, the agency submitted evidence reflecting that the appellant passed
away on February 12, 2021, and that he had designated his spouse, Elizabeth F. Eck, as
the personal representat ive of his estate. PFR File, Tab 6 at 6-8. In addition, the
agency submitted a settlement agreement executed by the agency and Ms. Eck
containing a joint request to withdraw the petition for review. Id. at 4-5. Generally,
upon the death of an appellant, the Board will continue processing the appeal only in
response to a timel y motion to substitute a proper party. 5 C.F.R. § 1201.35 (a)-(b). No
motion to substitute Ms. Eck as the proper party has been filed here. However, the
Board’s regulations provide for the continued processing of an appeal in the absence of
a timely motion to substitute “if the interests of the proper party will not be
prejudiced.” 5 C.F.R. § 1201.35 (c). Because Ms. E ck has entered into the settlement
agreement resolving this appeal in her capacity as the personal representative of the
appellant’s estate, we find that the continued processing of the appeal will not prejudice
her interests. See Barcia v. Department of the Army , 47 M.S.P.R. 423 , 432 n.9 (1991)
(continuing to process an appeal without substitution following the death of the
appellant).
3
v. Office of Personnel Management , 91 M.S.P.R. 289 , ¶ 4 (2002) , overruled on
other grounds by Delorme v. Department of the Interi or, 124 M.S.P.R. 123 ,
¶¶ 11-21 (2017) (holding that the Board may enforce settlement agreements that
have been entered into the re cord, independent of any prior finding of Board
jurisdiction over the underlying matter being settled).
¶4 Here, we find that the parties have entered into a settlement agreement,
understand its terms, and intend for the agreement to be entered into the record
for enforcement by the Board. PFR File, Tab 6. In addition, we find that the
agreement is lawful on its face and t hat the parties freely entered into it. Id.
Accordingly, we find that dismissing the petition for review “with prejudice to
refiling” (i.e., the parties normally may not refile this appeal) is appropriate
under these circumstances, and we accept the sett lement agreement into the
record for enforcement purposes.
¶5 This is the final decision of the Merit Systems Protection Board in this
appeal. Title 5 of the Code of Federal Regulations, section 1201.113 ( 5 C.F.R.
§ 1201.113 ).
NOTICE TO THE PARTIE S 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
promptl y 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).
4
NOTICE OF APPEAL RIG HTS3
You may obtain review of this final decision. 5 U.S.C. § 7703 (a)(1). By
statute, the nature of your claims determines the time limit for seeking such
review and the appropriate forum with which to file. 5 U.S.C. § 7703 (b).
Although we offer the following summary of available appeal rights, the Merit
Systems Protection Board does not provide legal advice on which option is most
appropriate for your situation and the rights described be low do not represent a
statement of how courts will rule regarding which cases fall within their
jurisdiction. If you wish to seek review of this final decision, you should
immediately review the law applicable to your claims and carefully follow all
filing time limits and requirements. Failure to file within the applicable time
limit may result in the dismissal of your case by your chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judici al review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703 (b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
3 Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise which option is most appropriate in any matter.
5
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “G uide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit , you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor war rants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to t he Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. distri ct court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703 (b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. ____ , 137 S. Ct. 1975 (2017). If you have a
representative in this case, and your representative receives this decision before
you do, then you must file with the district court no later than 30 calendar days
after your representative receives this decision. If the action involves a claim of
discrimination based on race, color, religion, sex, national origin, or a disabling
cond ition, you may be entitled to representation by a court -appointed lawyer and
6
to waiver of any requirement of prepayment of fees, costs, or other security. See
42 U.S.C. § 2000e -5(f) and 29 U.S.C. § 794a .
Contact information for U.S. district courts can be f ound at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702 (b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702 (b)(1). If you have a representative in this case,
and your representative receives this decision befor e you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Emp loyment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whis tleblowing disclosures under 5 U.S.C. § 2302 (b)(8) or
other protected activities listed in 5 U.S.C. § 2302 (b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
7
disposition of allegations of a prohibited personnel practice described in section
2302(b) other than practices described in section 2302(b)(8 ), or 2302(b)(9)(A)(i),
(B), (C), or (D),” then you may file a petition for judicial review either with the
U.S. Court of Appeals for the Federal Circuit or any court of appeals of
competent jurisdiction.4 The court of appeals must receive your petition f or
review within 60 days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(B).
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of parti cular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court o f Appeals for the Federal Circuit, you may visit our 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 origina l statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanent ly allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
The All Circuit Re view 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:
Washington, D.C. /s/ for
Jennifer Everling
Acting Clerk of the Board | FAVALORA_FRANK_P_PH_831M_19_0450_I_1_FINAL_ORDER_1957338.pdf | 2022-09-02 | null | PH-831M-19-0450-I-1 | NP |
4,154 | https://www.mspb.gov/decisions/nonprecedential/ORAM_CYRIL_DAVID_DANIEL_DC_3330_18_0041_I_1_FINAL_ORDER_1957365.pdf | UNITED STATES OF AME RICA
MERIT SYSTEMS PROTEC TION BOARD
CYRIL DAVID DANIEL O RAM, JR.,
Appellant,
v.
DEPARTMENT OF HOMELA ND
SECURITY,
Agency.
DOCKET NUMBER
DC-3330 -18-0041 -I-1
DATE: September 2, 2022
THIS FINAL ORDER IS NONPRECEDENTIAL1
Cyril David Daniel Oram, Jr. , Bellingham, Washington , pro se.
Jana Pariser and Jane Brittan , Washington, D.C., for the agency.
BEFORE
Cathy A. Harris , Vice Chairman
Raymond A. Limon , Member
Tristan L. Leavitt , Member
FINAL ORDER
¶1 The appellant has filed a petition for review of the initial decision, which
denied his request for corrective action under the Veterans Emplo yment
Opportunities Act of 1998 (VEOA) . Generally, we grant petitions such as thi s
one only in the following circumstances: the initial decision contains erroneous
1 A nonprecedential order is one tha t the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinio n and Order has been identified by the Board
as significantly contributing to the Board ’s case law. See 5 C.F.R. § 1201.117 (c).
2
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 m aterial evidence or legal argument is available that, despite
the petitioner ’s due diligence, was not available when the record closed. Title 5
of the Code of Federal Regulations, section 1201.115 ( 5 C.F.R. § 1201.115 ).
After fully considering the filings in this appeal, we c onclude that the petitioner
has not established any basis under section 1201.115 for granting the petition for
review. Therefore, we DENY the petition for review a nd AFFIRM the initial
decision, which is now the Board ’s final decision. 5 C.F.R. § 1201.113 (b).
DISCUSSION OF ARGUME NTS ON REVIEW
¶2 On review , the appellant argues that the administrativ e judge misinterpreted
the plain language of 5 U.S.C. § 3304 (f)(1) and (2) to erroneously conclude that
the agency was not obligated to provide the appellant, a preference -eligible
veteran, with an opportunity to compete for a temporary or term vacancy
appointment . Petition for Review (PFR) File, Tab 1 at 4-5. Specifically, the
appellant argues that the la nguage in section 3304( f)(2) stating that a
preference -eligible veteran selected for a position s hall receive a career or
career -conditional appointment “as appropriate ” was conditional language that
did not bar agencies from using their discretion to awar d other than permanent
positions in appropriate circumstances, such as for the temporary position at issue
in this case . Id. at 5; PFR File, Tab 2 at 4. The appellant also argues that the
U.S. Court of Appeals for the Federal Circuit (Federal Circuit) de cision the
administrative judge relied on in reaching his conclusion that the agency was not
required to provide the appellant with an opportunity to compete for the position,
Kerner v. Department of the Interior , 778 F.3d 1336 (Fed. Cir. 2015), was
3
wrongly decided and that the administrative judge erred by relying on it. PFR
File, Tab 1 at 6 -7. Finally, the appellant asserts for the first time that he had
“technical difficulties” that prevented him from participating in the video hearing,
that he informed the administrative judge of the difficulties, and that he was
prejudiced by the administrative judge’s decision to hold t he hearing in his
absence. PFR File, Tab 1 at 5 -6.
¶3 As the administrative judge noted, in Kerner , the Feder al Circuit
determined that the opportunity -to-compete provision under 5 U.S.C. § 3304 (f) is
not applicable when a preference -eligible veteran is already employed in the
Federal civil service. Kerner , 778 F.3d at 1339. Precedential decisions of the
Federal Circuit, such as Kerner , are controlling authority for the Board, which we
are bound to follow unless they ar e 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). Accordingly, the administrative judge did not
err in denying corrective action on the basis that the app ellant already was a
Federal employee.2 Initial Appeal File (IAF), Tab 37, Initial Decision (ID)
at 6-8; see Oram v. Dep artment of the Navy , 2022 MSPB 30, ¶ 17.
¶4 There also is no merit to appellant’s argument that the administrative
judge ’s rulings denying his discovery -related requests “appeared to subject [the
appellant] to procedures not consistent with requirements,” and constituted an
abuse of discretion.3 PFR File, Tab 1 at 5 -6. The appellant appears to be
2 Regarding the administrative judge’s alternate holding that pursuant to 5 U.S.C.
§ 3304 (f)(1) and (2), preference -eligible applicants applying for temporary or term
vacancies announced under merit promotion procedures and for which the agency
solicits applicants from outside of its workforce are not entitled to a right to compete
due to the nature of the type of appointment, because we ultimately agree with the
administrative judge’s finding that Kerner already reaches this conclusion with regard
to all preference -eligible Federal employee applicants, we do not make any findings on
this alternate holding. ID at 8 -12; see Oram , 2022 MSPB 30, ¶ 17.
3 The administrative judge also separately docketed a Uniformed Services Employment
and Reemployment Rights Act of 1994 (USERRA) appeal regarding the same vacancy
announcements. See Oram v. Department of Homeland Security , MSPB Docket
4
referring to orders the ad ministrative judge issued denying the appellant’s motion
to quash the agency’s notice of deposition, IAF, Tab 26, and denying the
appellant’s request for recusal, IAF, Tab 29.
¶5 Regarding the denial of the appellant’s motion to quash, as the
administrative j udge correctly noted in his order, because no deadline had been
set for the cessation of discovery at the time the agency notified the appellant of
its intention to depose him , the agency’s request was not untimely, and the
appellant was obligated to coope rate with the agency . IAF, Tab 26 at 1; see
5 C.F.R. § 1201.73 (d)(4) . We find no error in the administrative judge’s
determination. Regarding the appellant’s challenge to the administrative judge’s
order denying the appellant’s request for recusal, the appellant’s argument
provides no basis to disturb the initial decision . IAF, Tab 29. The appellant’s
mere disagreement with the administrative judge’s rulings does not provide a
basis for recusal. See Caracciolo v. Department of the Treasury , 105 M.S.P.R.
663, ¶ 14 (2007) (holding that the mere fact the a dministrative judge made rulings
with which the appellant disagree s does not support a recusal).
¶6 Finally, regarding the appellant’s claim that the administrative judge erred
by holding the hearing despite his absence, VEOA complainants do not have an
uncon ditional right to a hearing before the Board. Coats v. U.S. Postal Service ,
111 M.S.P.R. 268 , ¶ 13 (2009); Downs v. Department of Ve terans Affairs ,
110 M.S.P.R. 139 , ¶ 12 (2008 ); 5 C.F.R. § 1208.23 (b). Instead, the Board has the
authority to decide a VEOA appeal on the merits, without a hearing, when there is
no genuine dispute of material fact and one party must prevail as a matter of law.4
No. DC-4324 -18-0042 -I-1. The administrative judge has issued a separate initial
decision on the USERRA claim. Oram v. Department of Homeland Security , MSPB
Docket No. DC-4324 -18-0042 -I-1, Initial D ecision (Feb. 26, 2018) . A petition for
review has been filed in that case and is being separately adjudicated.
4 A factual dispute is “material ” if, in light of the governing law, its resolution could
affect th e outcome. Waters -Lindo v. Department of Defense , 112 M.S.P.R. 1 , ¶ 5
(2009). A factual dispute is “genuine ” when there is sufficient evidence favoring the
5
Haasz v. Department of Veterans Affairs , 108 M.S.P.R. 349 , ¶ 9 (2008). Because
it is undisputed that the appellant was a current Federal employee at the time he
applied to the vacanci es at issue in this case, there remained no genuine dispute
of material fact , and the agency was entitled to prevail as a matter of law. Id.; see
Kerner , 778 F.3d at 1339; Oram , 2022 MSPB 30, ¶ 17 . Accordingly, even if the
administrative judge erred by holding the hearing in the appellant’s absence, that
error was harmless.
¶7 Consequently , 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 RIG HTS5
You may obtain review of this final decision. 5 U.S.C. § 7703 (a)(1). By
statute, the nature of your claims determines the time limit for seeking such
review and the appropriate forum with which to file. 5 U.S.C. § 7703 (b).
Although we offer the following summary of available appeal rights, the Merit
Systems Protection Board does not provide legal advice on which option is most
appropriate for your situation and the rights described below do not represe nt a
statement of how courts will rule regarding which cases fall within their
jurisdiction. If you wish to seek review of this final decision, you should
immediately review the law applicable to your claims and carefully follow all
filing time limits and requirements. Failure to file within the applicable time
limit may result in the dismissal of your case by your chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
party see king an evidentiary hearing for the administrative judge to rule in favor of that
party if he credits that party’s evidence. Id.
5 Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review rights included i n final decisions. As indicated in the notice, the
Board cannot advise which option is most appropriate in any matter.
6
about whether a particular forum is the appropriate one to review your case, you
should contact that f orum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703 (b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit , you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is ava ilable at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in sec uring pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants befor e the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option app lies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
7
judicial review of this decision —including a di sposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703 (b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. ____ , 137 S. Ct. 1975 (2017). If you have a
representative in this case, and your representative receives this decision before
you do, then you must file with the district court no later than 30 calendar days
after your representative receives this decision. If the action involves a claim of
discrimination based on race, colo r, religion, sex, national origin, or a disabling
condition, you may be entitled to representation by a court -appointed lawyer and
to waiver of any requirement of prepayment of fees, costs, or other security. See
42 U.S.C. § 2000e -5(f) and 29 U.S.C. § 794a .
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWeb sites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702 (b)(1) . You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702 (b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, th e
address of the EEOC is:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
8
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302 (b)(8) or
other protected activities listed in 5 U.S.C. § 2302 (b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
disposition of allegations of a prohibited personnel practice described in
section 2302(b) other than practices des cribed in section 2302(b)(8), or
2302(b)(9)(A)(i), (B), (C), or (D),” then you may file a 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 m ust 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
6 The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competen t jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with t he U.S. Court of Appeals
for the Federal Circuit or any other circuit court 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
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If yo u are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the 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:
Washington, D.C. /s/ for
Jennifer Everling
Acting Clerk of the Board | ORAM_CYRIL_DAVID_DANIEL_DC_3330_18_0041_I_1_FINAL_ORDER_1957365.pdf | 2022-09-02 | null | DC-3330-18-0041-I-1 | NP |
4,155 | https://www.mspb.gov/decisions/nonprecedential/HOLLISTER_BYRON_DE_0752_14_0040_I_2_FINAL_ORDER_(VC_OP_2)_1957029.pdf | UNITED STATES OF AME RICA
MERIT SYSTEMS PROTEC TION BOARD
BYRON HOLLISTER,
Appellant,
v.
DEPARTMENT OF JUSTIC E,
Agency.
DOCKET NUMBER
DE-0752 -14-0040 -I-2
DATE: September 1, 2022
THIS FINAL ORDER IS NONPRECEDENTIAL1
Lawrence A. Berger , Esquire, Glen Cove, New York, for the appellant.
Susan E. Gibson , Esquire, Washington, D.C., for the agency.
BEFORE
Cathy A. Harris , Vice Chairman
Raymond A. Limon , Member
Tristan L. Leavitt , Member
FINAL ORDER
¶1 The appellant has filed a petition for review of the initial decision, which
affirmed his removal from Federal service. Generally, we grant petitions such as
this one only in the following circumstances: the initial decision contains
erroneous f indings of material fact; the initial decision is based on an erroneous
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
require d to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117 (c).
2
interpretation of statute or regulation or the erroneous application of the law to
the facts of the case; the administrative judge’s rulings during either the course of
the appeal or t he initial decision were not consistent with required procedures or
involved an abuse of discretion, and the resulting error affected the outcome of
the case; or new and material evidence or legal argument is available that, despite
the petitioner’s due di ligence, was not available when the record closed. Title 5
of the Code of Federal Regulations, section 1201.115 ( 5 C.F.R. § 1201.115 ).
After fully considering the filings in this appeal, we conclude that the petitioner
has not established any basis under section 1201.115 for granting the petition for
review. Therefore, we DENY the petition for review and AFFIRM the initial
decision, which is now the Board’s final decision. 5 C.F.R. § 1201.113 (b).
BACKGROUND
¶2 The appellant was a GS -1811 -13 Supervisory Deputy U.S. Marshal (DUSM)
in the U.S. Marshal’s Service (USMS) in the District of New Mexico. Effective
September 27, 2013, the agency removed him from his position based on multiple
charges of misconduct . Hollister v. Department of Justice , MSPB Docket No.
DE-0752 -14-0040 -I-1, Initial App eal File (IAF), Tab 8 at 14 -30, Tab 9 at 4 -40.
The appellant contended that the action constituted reprisal for whistleblowing.
IAF, Tab 26, Tab 28 at 23 -29, Tab 30.
¶3 After a 4 -day hearing, the administrative judge issued an initial decision in
which he sustained all charges (and a ll specifications but one), found nexus, and
found that the removal penalty was within the tolerable bounds of reasonableness.
Hollister v. Department of Justice , MSPB Docket No. DE -0752 -14-0040 -I-2,
Appeal File (I-2 AF), Tab 13, Initial Decision (ID) at 16-35, 42 -46. He further
found that the appellant proved that he made a protected disclosure that was a
contributing factor to a personnel action but that the agency showed by clear and
convincing evidence that it would have removed the appellant absent a ny
whistleblowing. Id. at 35 -42.
3
¶4 On review, the appellant asserts that none of the charges should be
sustained and that the agency’s evidence was insufficient to meet the clear and
convincing evidence test. His arguments concerning the charges are taken
virtually verbatim from his closing argument. Compare PFR File, Tab 2 , with I-2
AF, Tab 7. He does not identify any particular flaws in the administrative judge’s
reasoning or any evidence contradicting the administrative judge’s findings; he
merely resu bmits the same arguments that failed to persuade the administrative
judge below . In finding that the agency proved its charges and the appellant
failed to prove that the removal constituted reprisal for whistleblowing, the
administrative judge considered the evidence as a whole, drew appropriate
inferences, and made reasoned conclusions on issues of credibil ity. Under the
circumstances, we see no reason to disturb those findings. See, e.g., Crosby v.
U.S. Postal Service , 74 M.S.P.R. 98, 106 (1997). Nevertheless, we find it
appropriate to summarize the administrative judge’s findings concerning the
charges.
ANALYSIS
Charge 1: Providing False, Misleading, or Inaccurate Information
¶5 The administrative judge did not sustain specification 3, ID at 22, and the
agency does not contest the administrative judge’s finding. Regarding
specifications 1 and 2, the agency asserted that the appellant submitted two
Standard Form (SF) 86s in 2002 and 2011 in which he failed to disclose that he
was employed as a general contractor in the residential building industry. IAF,
Tab 9 at 5 -9, Tab 10 at 40, 64, Tab 11a at 91. The agency cited, among other
documentary evidence, his statement to the Office of Personnel Management
(OPM) background investigator, IAF, Tab 11 at 143 -72; numerous business
documents relating to his company, IAF, Tab 13 at 5 -93, Tab 14 at 4 -58; letters
regarding Department of Veterans Affairs (VA) loans and a bank loan , IAF,
Tab 13 at 7, 15 ; a letter requesting a zoning variance, id. at 75; a document
4
requesting approval to engage in outside employment wh en he worked at the Las
Cruces Police D epartment, IAF, Tab 11 at 139; various invoices, IAF, Tab 13
at 21, 30, Tab 14, Tab 22; and an email conversation with a potential client, IAF,
Tab 14 at 44 -48.
¶6 To prove a charge of falsification, misrepresentation, or lying, the agency
must show by preponderant evidence that the appellant supplied incorrect
information and knowingly did so with the intention of defrauding, deceiving, or
misleading the agency for his own private material gain. Gardner v. Department
of Veterans Affairs , 123 M.S.P.R. 647 , ¶ 11 (2016). The appellant contended that
he lacked the requisite intent because he was a passive partner in the business .
The administrative judge rejected this claim as false and found it implausible that
the appellant would refer to himself as a builder, use his name on the business’s
checks and contracts, use his address when registering the business with the state,
and make o ver 500 telephone calls on his G overnment telephone to people
involved in the business if he w as merely passively loaning his license for other
people to use. ID a t 19-20. The administrative judge found that the appellant
actively participated in the business , and there was no record that his wife and
brother took over the business , as the appellant had alleged. ID at 18-21.
¶7 The appellant also alleged that he had a good -faith belief that his activitie s
did not constitute “employment” because “employment,” to him, means one is an
“employee,” and he did not consider himself as such. I-2 AF , Tab 7 at 25 -26;
PFR File, Tab 2 at 17 -18. He contended that his mistaken un derstanding of what
“employment” meant to the agency is insufficient to show intent. I -2 AF, Tab 7
at 29. The appellant relies on a dictionary2 definition of the word “employment,”
2 Other dictionaries define “employment” in a way that encompasses the concept of
work in general. Black’s Law Dictionary 471 (5 th ed. 1979) (“Employment” means the
“[a]ct of employing or state of being employed; that which engages and occupies, that
which consumes time or attention; also an occupation, profession, trade, post, or
business . . . . Activity in which a person engages or is employed; normally, on a
day-to-day basis.”).
5
but the most relevant definition is contained in the agency’s policy on o utside
employment. IAF, Tab 37a at 14 -21. The agency defines “outside employment”
as “[a]ny non -federal activity performed for a source ( including self -employment )
other than the [agency] or another federal government agency involving an
employee’s efforts, services, or time for compensation.” Id. at 19. The
appellant’s interpretation of “employment” is self -serving, contrary to the
commonly understood meaning of the term, and contrary to the agency’s
definition of the term.
¶8 Intent to deceive can be inferred when a representation is made with
reckless disregard for the truth , or the totality of the circumstances supports a
finding of intent to deceive. Prather v. Department of Justice , 117 M.S.P.R. 137,
¶ 23 (2011). Here, the appellant’s allegations are inconsistent with the bulk of
the documentary evidence, which was largely obtained from his workspace, and
reflect a desire to conceal the truth. In addition, although he sought approval for
his activities and/or advice from agency ethics counsel and a former supervisor,
their positive responses were based on the incomplete and incorrect information
that the appellant provided. It appears that the appellant knew, or strongly
suspected, that he would not get a favorable answer to his ethics questions if he
told the m the truth. As the admin istrative judge correctly found, the reasonable
inference to be made from the appellant’s false statements is that he did not want
to give up his business or the money flowing from it and he did not want to be
disciplined. ID at 21. This is sufficient to establish that the appellant acted for
personal gain. Boo v. Department of Homeland Security , 122 M.S.P.R. 100, ¶ 13
(2014) (explaining that “personal gain” in th e context of a falsification charge can
mean financial gain, to avoid discipline, or to secure employ ment).
¶9 The agency specified that the appellant committed four additional
misrepresentations about his outside employ ment, one to an OPM investigator
when he failed to disclose his outside employment, and three instances in which
he stated that his wife and brother had taken over the business (once in
6
conversation with his then supervisor and twice on an Office of Govern ment
Ethics Form 450) . IAF, Tab 9 at 10 -15. The agency relied on the same evidence
as it had for the first three specifications to show that the appellant was actively
engaged in the building business, he received compensation for his services, and
he had not turned over managing the business to family members as he had
claimed. Id. The administrati ve judge likewise sustained these four
specifications for the same reasons he sustained the first two specification, ID
at 23-24, the appellant’s arguments below and on review are the same, I-2 AF ,
Tab 7 at 29 -31; PFR File, Tab 1 at 20 -21, and we find that the initial decision is
correct for the reasons noted above.
Charge 2: Violation of USMS Policy: You violated USMS policy when, while
employed as a USMS criminal investigator in the GS -1811 job series and
receiving law enforcement availability pay, you m aintained compensated, outside
employment
¶10 Agency Criminal Investigators in classification series 1811 who receive law
enforcement availability pay must make themselves “available on a ‘24/7’ basis.”
IAF, Tab 9 at 16. Accordingly, USMS Directive 1.2(D)(4) (a) prohibits these
employees from engaging in outside employment. Id. The appellant contended
that he was not engaged in outside employment with the same unpersuasive
arguments he used to defend himself against the first charge. I-2 AF , Tab 7
at 31-34; PFR File, Tab 2 at 21 -23. As the administrative judge correctly found,
the appellant’s employment as a builder therefore violated the agency’s policy,
and he correctly sustained the charge. ID at 24 -26.
Charge 3: Association with Person Connected to C riminal Activities
¶11 The agency alleged that the appellant had an improper association with
“M,” who performed jobs in the appellant’ s business. IAF, Tab 9 at 21. M had
multiple felony drug convictions. Id. at 22. On December 29, 2005, Code
Enforcement O fficer “R” of the Las Cruces Police Department attempted to issue
M multiple building permit violations. Id. at 21. M contacted the appellant , and
7
the appellant arrived displaying his badge and weapon, and he attempted to
persuade Officer R to issue a ve rbal warning to M rather than several citations.
March 20, 2014 Hearing Transcript (HT 1) at 208 -12 (testimony of Officer R );3
IAF, Tab 9 at 21 -22, Tab 17 at 34 -35.
¶12 The appellant argued that he knew M from playing baseb all, and he
believed that M was a la ndscaper who worked for his wife’s building business.
I-2 AF, Tab 7 at 35; PFR File, Tab 2 at 23. He claimed th at he was unaware of
M’s criminal history. I-2 AF , Tab 7 at 35 -36; PFR File, Tab 2 a t 24. He also
admits that he had the encounter with M and Officer R and states that M wrongly
believed that the appellant could fix his citations. I-2 AF , Tab 7 at 35; PFR File,
Tab 2 at 23 -24. The administrative judge found, however, that the agency was
not required to show that the appellant knew M was a felon, merely that a
disinterested observer with knowledge of the essential facts known to or readily
ascertained by the appellant would r easonably conclude that M was a felon. ID
at 26 (citing James v. Dale , 355 F.3d 1375 , 1379 (Fed. Cir. 2004) ). The
administrative judge found that Officer R’s testimony concerning his encounter
with the appellant was credible and the appellant’s (based on deme anor) was not.
ID at 27. The administrative judge further found that the appellant had known M
socially and professionally for years, intervened on his behalf in a local law
enforcement matte r (including helping get M to the courthouse), and therefore
knew or should have known that M was a felon. ID at 27 -28. The appellant
attempts on review to downplay his years -long connection with M and states that
he could not ha ve reasonably known that M was a felon, but he identifies no
3 In fact, Offi cer R testified that the appellant told him, “I’ll handle this. I’ll take care
of this. He works for me now. If you want to go ahead and issue those citations that
you have, the remaining, I’ll take care of it. He’s working for me.” HT 1 at 213
(testi mony of Officer R). That the appellant acknowledged M as an employee undercuts
his current assertion that he does not run the business. See April 28, 2014 Hearing
Transcript at 106 (“He may have been a contractor worker but never an employee of
mine.”) ( testimony of the appellant).
8
evidence on this point that the administrative judge failed to discuss , and he
offers no reason to set aside the administrative judge’s credibility finding s.
Haebe v. Department of Justice , 288 F.3d 1288 , 1301 (Fed. Cir. 2002) ( holding
that the Board must defer to an administrative judge’ s credibility determinations
when they are based, explicitly or implicitly, on observing the demeanor of
witnesses testifying at a hearing; the Board may overturn such determinations
only when it has “sufficiently sound” reasons for doing so).
Charge 4: Misuse of a Government -Owned Vehicle (GOV)
¶13 The agency contended that the appellant misused his GOV when, on five
occasions, he drove the GOV with no official reason for doing so. IAF, Tab 9
at 23-28. The appellant alleged that he was on call all the time so he frequently
drove the GOV off duty so as to make himself available if needed. I-2 AF, Tab 7
at 36; PFR File, Tab 2 at 25. He further argued that he had a reasonable belief
that his use of the GOV while off duty was officially sanctioned because he
allegedly had received authorization from a prior supervisor to use it off duty .
I-2 AF , Tab 7 at 36 -37; PFR File, Tab 2 at 25.
¶14 Both the pertinent agency policy and the local policy provide that a GOV is
for official government business only. IAF, Tab 18 at 38, Tab 29 at 58. The
agency -wide GOV policy permits series 1811 employees, with app ropriate
authorization, home -to-work (HTW ) use of the GOV “to allow for 24-hour
immediate response .” IAF, Tab 29 at 57. The policy is ambiguous as to whether
HTW drivers may make the minor deviations from their commutes for personal
reasons that are allo wed when the employee is on duty. Compare IAF, Tab 29
at 58, ¶ D(2)(c), with id. , ¶ D(2)(d). Assuming that minor deviations are
permitted, the policy is very clear that “ [o]nce the employee arrives at his/her
residence, the employee may not use the GOV t o conduct any personal business.”
Id., ¶ D(2)(e). There is nothing in either policy to suggest that HTW employees
should drive or are permitted to drive their GOVs off duty for personal reasons so
that they are instantly available if they are called back to duty. There also is no
9
evidence to support the appellant’s contention that his former supervisor
authorized him to use the vehicle off duty, and the supervisor denied doing so.
The administrative ju dge found it implausible that the appellant obtained the
authorization he claimed, particularly because the authorization would have been
contrary to agency policy. ID at 29. The administrative judge thus correctly
sustained charge 4.
Charge 5: Conduct Unbecoming a DUSM
¶15 The agency alleged that the appellant engaged in conduct unbecoming a
DUSM when he fac ilitated his business by using G overnment resources (duty
time, computer, email account, cell phone, fax machine, and GOV). IAF, Tab 9
at 29. The agen cy relied on the same instances of misuse of his GOV and the
same docu ments found on the appellant’s G overnment computer that it used to
support the earlier charges. Id. at 29 -30. In addition, the agency subm itted
evidence showing that many of the docume nts had been created during duty time
and that the appellant made or received more than 500 calls related to his
business in a 6 -month period. Id.
¶16 The appel lant contended that his use of G overnment time and resources to
run his business was de minimis an d amounted to permitted minor personal use
allowed by agency policy. I-2 AF , Tab 7 at 37 -38; PFR File, Tab 2 at 25 -26. The
administrative judge correctly found that the number of telephone calls, among
other things, showed that the appellant’s misconduct was more than a negligible
use of G overnment resources. ID at 31 -32. We agree.
Charge 6: Displaying Poor Judgment
¶17 The agency brought two specifications under this charge. The first involved
the appellant’s financial relationship with a subordinate emp loyee. The appellant
sold a house to the subordinate and financed a portion of the purchase price by
offering an interest -free mortgage. IAF, Tab 9 at 31 -33. In other words, he
entered into a contractual relationship in which he was his employee’s credi tor.
10
¶18 The appellant contended that the agency was required to prove that his
actions violated the Office of Government Ethics regulation at 5 C.F.R.
§ 2635.402 , which was inapplicable t o this type of transaction. I-2 AF , Tab 7
at 38; PFR File, Tab 2 at 26. The appellant may be correct in his interpretation of
the regulation, but that is immaterial because the agency did not charge him with
violating th at regulation. The agency’s mere mention ing of the re gulation several
paragraphs into its discussion section of this specification in the proposal letter
does not elevate the regulation to an element of the charge. In any event, the
administrative judge correctly found that, regardless of the circumstances, the
transactions created either a conflict of interest or the appearance of a conflict of
interest and constituted very poor judgment. ID at 32 -33.
¶19 The second specification concerns the appellant’s intervention in the
incident between M and Officer R. IAF, Tab 9 at 30 -31. For the reasons stated
above under charge 3, the administrative judge sustained this specification. In
doing so, he credited Officer R’s testimony over the appellant’s testimony. The
appellant disagrees with the administrative judge’s assessment, but he has not
presented sufficiently sound reasons for dis turbing the discretion affo rded to
administrative judges’ credibility determinations. Haebe , 288 F.3d at 1301 .
Charge 7: Misuse of Position
¶20 The agency alleged that the appellant induced a subordinate employee , “O,”
to serve process for his business partner on the partner’s wife in a divorce case.
IAF, Tab 9 at 34 -35. The appellant asserted that he merely passed along O’s
telephone number and did nothing that could constitute “inducement.” I-2 AF ,
Tab 7 at 38 -39; PFR File, Tab 2 at 27 -28. However, O testified that the appellant
asked him to serve process. HT 1 at 55 (testimony of O) . The administrative
judge credited the testimony of O over the appellant’s testimony and found that
the agency demonstrated that the appellant asked a subordinate to serve process.
ID at 35. The administrative judge further found that agency policy prohibits
employees from engaging in outside employment that involves serving process,
11
whether paid or not. IAF, Tab 37 at 15. By repeating the same argument he
made below and not raising any particul ar challenge to the administrative judge’s
findings, the appellant has not identified any basis on which to disturb the initial
decision. Moreover, as noted above, the appellant has not proffered a sufficiently
sound reason for the Board to intrude upon t he deference afforded to
administrative judges’ credibility determinations. Haebe , 288 F.3d at 1301 .
Whistleblower Reprisal: Clear and Convincing Evidence Test
¶21 The administrative judge found, and the parties do not dispute, that the
appellant proved by preponderant evidence that he made a protected disclosure
when he disclosed that an Assistant Chief DUSM (the appellant’s first -line
supervisor) instructed his subordinate supervisors not to issue any “Outstanding”
ratings to their employees, an instructio n the A ssistant Chief DUSM attributed to
the Chief USM (the appellant’s second -line supervisor). The administrative judge
also found that the appellant’s disclosure was a contributing factor in a personnel
action taken against him. The issue before the B oard, therefore, is whether the
agency has shown by clear and convincing evidence that it would have removed
the appellant even absent any protected activity.
¶22 In determining whether an agency has shown by clear and convincing
evidence that it would have ta ken the same personnel action in the absence of
whistleblowing, the Board will consider the following facto rs: the strength of the
agency’ s evidence in support of its action; the existence and strength of any
motive to retaliate on the part of the agency officials who were involved in the
decision; and any evidence that the agency takes similar actions against
employees who are not whistleblowers but who are otherwise similarly situated.
Carr v. Social Security Administration , 185 F.3d 1318 , 1323 (Fed. Cir. 1999).
12
Carr Factor 1: Strength of Evidence
¶23 The appellant contends that the evidence against him is weak because, in his
view, none of the charges against him should be sustained. The administrative
judge, however, rejected the appellant’s arguments concerning the merits of the
appeal and found tha t the agency’s case was “robust.” ID at 41. We agree with
the administrative judge . The appellant concealed his outside employment for
years. Aside from his false statements, the administrative judge correctly found
that the appellant had a number of o pportunities to confess, so to speak, and he
failed to avail himself of any of those opportunities but instead continued to
repeat the lie. Even the purportedly exculpatory evidence that the appellant
proffered was either not relevant or tended to support the agency’s case. This
first Carr factor weighs heavily in the agency’s favor.
Carr Factor 2: Retaliatory Motive
¶24 The administrative judge found that there was no evidence of retaliatory
motive on the part of either the proposing or the deciding officia l. ID at 41. The
appellant contends that the Chief DUSM had motive to retaliate and that his
motive should be imputed to the proposing and deciding officials. PFR File,
Tab 2 at 8 -9. His argument is not persuasive.
¶25 First, there is little evidence tha t the Chief DUSM had a retaliatory motive.
When the Chief DUSM learned independently of the appellant’s disclosures about
the A ssistant Chief D USM ’s instructions not to issue “Outstanding” ratings, he
took swift action to reassign the A ssistant Chief D USM to a non supervisory
position. May 13, 2014 Hearing Transcript (HT 4) at 71 -76 (testimony of the
Chief DUSM) . He also had his subordinate supervisors adjust employee ratings
to the extent they had been given lower ratings than their performance warranted ,
and he personally adjusted upwards the ratings of some of the A ssistant Chief
DUSM ’s direct reports. Id. at 77 -79. Because the Chief DUSM independently
determined that the A ssistant Chief DUSM ’s actions were wrong and took
immediate steps to correct th e situation, it makes little sense that he would harbor
13
a retaliatory motive against the appellant for reporting that the A ssistant Chief
DUSM’ s actions were wrong. In any event, to the extent the Chief DUSM may
have harbored retaliatory animus against th e appellant because of possible
concerns that the conduct that the appellant disclosed reflected badly on the
agency, we find that any such motive was slight. See, e.g. , Robinson v.
Department of Veterans Affairs , 923 F.3d 1004 , 1019 (Fed. Cir. 2019) (finding
that the Board’s administrative judge erred by failing to consider whether the
deciding official had a “professional retaliatory motive” ag ainst the appellant
because his disclosures “implicated the capabilities, performance, and veracity of
[agency] managers and employees and implied that the [agency] deceived [a]
Senate Committee”).
¶26 Even if the Chief DUSM did possess retaliatory animus, the particular facts
of this case make it unlikely that his motive can be imputed to the deciding
official. There is no indication that the investigation was not carried out by
neutral investigators in an impartial manner. In addition, a separation existed
between the appellant’s immediate managers in New Mexico and the deciding
official , given that t he agency has designate d one person, a “Chief Inspector,” to
be the deciding official in all cases. The deciding official in the appellant’s case,
the U.S. Mar shal for the Southern District of Ohio, testified that she had decided
approximately 200 cases. March 21, 2014 Hearing Transcript at 7 (testimony of
the deciding official) . She also testified as to who m she consulted when deciding
the appellant’s case, and she explicitly stated that she had no contact with anyone
from New Mexico about the matter and made an independent decision based on
the documents in the investigative report she received. Id. at 8-10. The appellant
was unable to refute this testimony.
¶27 The Board will consider claims of retaliation by investigation when the
investigation was so closely related to the personnel action that it could have been
a pretext for gathering evidence to retaliate against an employe e for
whistleblowing activity. Johnson v. Department of Justice , 104 M.S.P.R. 624, ¶ 7
14
(2007) . However, when , as here, the refe rring official did not specify who was to
do the investigation, how it was to be done, or who should be interviewed and
took no actions to influence the direction or outcome of the investigation, there
was an insufficient basis on which to conclude that th e investigation was initiated
as a pretext for retaliation.4 Marano v. Department of Justice , 2 F.3d 1137 , 1142
n.5 (Fed. Cir. 19 93). Thus, we find that any motive to retaliate under Carr
factor 2 is very slight.
Carr Factor 3: Treatment of Similarly Situated Comparators
¶28 The agency asserted that there were no similarly situated comparators who
were not whistleblowers. The appellant contends that he is his own comparator.
He asserts t hat, in 2010, the agency had an opportunity to investigate him and
chose not to , but in 2012, after his prote cted disclosures, the agency chose to
investigate him. He asserts that the only difference between 2010 and 2012 is
that he blew the whistle after 2010, so the reason for his removal is likely reprisal
for whistleblowing.
¶29 In fact, in 2010, the Chief DUSM received a written complaint about the
appellant’s conduct , which he duly passed along to Internal Affairs. HT 4
at 89-90 (testimony of the Chief DUSM ). Aside from providing testimony during
the investigation, the Chief DUSM had no involvement with the i nvestigation or
any decisions about whether to discipline. Id. at 90 -91. He testified that he was
unaware of the appellant’s outside employment until after the 2010 investigation
was completed. Id.
4 The National Defense Authorization Act for Fiscal Year 2018, Pub. L. No. 115 -91,
131 Stat. 1283 (NDAA for 2018), was signed into law on December 12, 2017. The
NDAA for 2018 amended 5 U.S.C. § 1214 to allow the Office of Special Counsel (OSC)
to petition the Board for corrective action concerning damages reasonably incurred by
an employee due to an agency’s investigation of the employee if it was commenced,
expanded, o r extended in retaliation for protected whistleblowing activity. NDAA for
2018, § 1097(c)(4), 131 Stat. at 1619 (codified at 5 U.S.C. § 1214 (i)). Regardless of
questions concerning retroactivity, the provision does not apply to the instant appeal
because OSC has not petitioned the Board for such relief.
15
¶30 Thus, while the appellant implies that the Chief DUSM knew about his
misconduct all along and did nothing until after the appellant made protected
disclosures, the truth is that the Chief DUSM did not know about the appellant’s
outside employment until after the 2010 investigation was closed. It is simply n ot
true that the Chief DUSM chose not to report the appellant’s outside employment
in 2010. The fact that the appellant was investigated before he blew the whistle
as well as after tends to show that the agency treated him the same way before he
made his disclosures and that his example does not show the disparate treatment
of whistleblowers. To the extent evidence on Carr factor 3 exists, the agency is
required to come forward with all reasonably pertinent evidence; the failure to do
so may be at the agency’s peril. Whitmore v. Department of Labor ,
680 F.3d1353 , 1374 (Fed. Cir. 2012). Absent relevant comparator evidence, Carr
factor 3 cannot weigh in favor of the Government. Siler v. Environmental
Protection Agency , 908 F.3d 1291 , 1299 (Fed. Cir. 2018). Although the agency
contends that there is no relevant comparator evidence, we cannot find on this
record that Carr factor 3 favors the agency.
¶31 We fin d that the administrative judge considered all of the record evidence
both in favor of and detracting from the appellant’s claim of reprisal in
accordance with Whitmore , 680 F.3d at 1367 -70, and correctly conclu ded that the
agency would have removed the ap pellant absent any protected activity. The
seriousness of the appellant’s misconduct greatly outweighs the very slight
evidence of possible retaliatory motive.
Penalty
¶32 When , as here, the Board sustains all of the agency’s charges, it will review
the agenc y-imposed penalty only to determine if the agency considered all the
relevant factors and exercised its management discretion within the tolerable
limits of reasonableness. Powell v. U.S. Postal Service , 122 M.S.P.R. 60 , ¶ 12
(2014) . In making this determination, the Board must give due weight to the
agenc y’s primary discretion in maintaining employee discipline and efficiency,
16
recognizing that the Board’ s function is not to displace management’s
responsibility but to ensure that managerial judgment has been properly
exercised. Id. The Board will modify or mitigate an a gency -imposed penalty
only when it finds the agency failed to weigh the relevant factors , or the penalty
clearly exceeds the bounds of reasonableness. Id.
¶33 As the administrative judge correctly found, the deciding official properly
considered the aggravating and mitigating factors most relevant to this case and
determined that the penalty of removal was appropriate. We see no basis to
interfere with the agency’s exercise of management judgment here. In particular,
the appellant was a supervisory law enforcement officer , and the agency is
entitled to hold him to a high standard of conduct . Wilson v. Department of
Veterans Affairs , 74 M.S.P.R. 65 , 69 (1997 ). The appellant’s misconduct was
very serious and was exacerbated by his status as a law enforcement officer and
as a supervisor. We therefore agree with the administrative judge that the penalty
of removal is within the tolerable bounds of reasonableness.
NOTICE OF APPEAL RIG HTS5
You may obtain review of this final decision. 5 U.S.C. § 7703 (a)(1). By
statute, the nature of your claims determines the time limit for seeking such
review and the appropriate forum with which t o file. 5 U.S.C. § 7703 (b).
Although we offer the following summary of available appeal rights, the Merit
Systems Protection Board does not provide legal advice on which option is most
appropriat e for your situation and the rights described below do not represent a
statement of how courts will rule regarding which cases fall within their
jurisdiction. If you wish to seek review of this final decision, you should
immediately review the law applica ble to your claims and carefully follow all
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.
17
filing time limits and requirements. Failure to file within the applicable time
limit may result in the dismissal of your case by your chosen forum.
Please read carefully each of the three main possible choice s of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703 (b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
18
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful d iscrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703 (b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. ____ , 137 S. Ct. 1975 (2017). If you have a
representative in this case, and your representative receives this decision before
you do, then you must file with the district court no later than 30 calendar da ys
after your representative receives this decision. If the action involves a claim of
discrimination based on race, color, religion, sex, national origin, or a disabling
condition, you may be entitled to representation by a court -appointed lawyer and
to waiver of any requirement of prepayment of fees, costs, or other security. See
42 U.S.C. § 2000e -5(f) and 29 U.S.C. § 794a .
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed thr ough the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702 (b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receiv e
this decision. 5 U.S.C. § 7702 (b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is:
19
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Wash ington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5S W12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302 (b)(8) or
other protected activities listed in 5 U.S.C. § 2302 (b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no cha llenge to the Board’s
disposition of allegations of a prohibited personnel practice described in section
2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i),
(B), (C), or (D),” then you may file a petition for judicial review either with the
U.S. Court of Appeals for the Federal Circuit or any court of appeals of
competent jurisdiction.6 The court of appeals must receive your petition for
review within 60 days of the date of issuance of this decision. 5 U.S.C.
§ 7703 (b)(1)(B).
6 The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expi red on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Ap peals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115 -195,
132 Stat. 1510.
20
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “G uide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit , you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor war rants that
any attorney will accept representation in a given case.
21
Contact information for the courts of appeals can be found at their
respective websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
FOR THE BOARD:
Washington, D.C. /s/ for
Jennifer Everling
Acting Clerk of the Board | HOLLISTER_BYRON_DE_0752_14_0040_I_2_FINAL_ORDER_(VC_OP_2)_1957029.pdf | 2022-09-01 | null | DE-0752-14-0040-I-2 | NP |
4,156 | https://www.mspb.gov/decisions/nonprecedential/VELAZQUEZ_MUNOZ_CARLOS_J_NY_0752_21_0100_I_1_FINAL_ORDER_1956540.pdf | UNITED STATES OF AME RICA
MERIT SYSTEMS PROTEC TION BOARD
CARLOS J VELAZQUEZ M UNOZ,
Appellant,
v.
DEPARTMENT OF THE TR EASURY,
Agency.
DOCKET NUMBER
NY-0752 -21-0100 -I-1
DATE: August 31, 2022
THIS FINAL ORDER IS NONPRECEDENTIAL1
Carlos J Velazquez Munoz , Toa Alta, Puerto Rico, pro se.
Byron D. Smalley , Esquire and Davina Minnix , Esquire, Washington, D.C.,
for the agency.
BEFORE
Cathy A. Harris, Vice Chair man
Raymond A. Limon, Member
Tristan L. Leavitt, Member
FINAL ORDER
¶1 The appellant has filed a petition for review of the initial decision, which
sustained his 15-day suspension for the charge of conduct unbecoming towards a
subordinate . On petition for review, the appellant primarily challenges the
penalty, requesting that the Board decrease the length of his suspension. Petition
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117 (c).
2
for Review (PFR) File, Tab 1 at 5. He also repeats his arguments that he did not
purposefully send the explicit text message from his cell phone , that he was
remorseful about what had happene d, and that he had a strong record both at the
agency and in the military. Id. at 4-5; Initial Appeal File (IAF) , Tab 7 at 4-6.
Generally, we grant petitions such as this one only in the following
circumstances: the initial decision contains erroneous f indings 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 t he initial decision
were not consistent with required procedures or involved an abuse of discretion,
and the resulting error affected the outcome of the case; or new and material
evidence or legal argument is available that, despite the petitioner’s due
diligence, was not available when the record closed. Title 5 of the Code of
Federal Regulations, section 1201.115 ( 5 C.F.R. § 1201.115 ). After fully
considering the filings in this appea l, we conclude that 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 the penalty of a 15 -day suspension is reasonabl e for the sustained
misconduct, without regard to the letter of admonishment improperly considered
as prior discipline by deciding official, we AFFIRM the initial decision.
¶2 On review, the appellant repeats his argument that the agency should have
treat ed the misconduct in the present appeal as a first offense, but that he “was
told several times that the 15 days suspension was due that this was [his] second
offense.” PFR File, Tab 1 at 4; IAF, Tab 7 at 4. Regarding the penalty, it is
undisputed that t he deciding official considered a letter of admonishment as prior
discipline that was no longer a matter of record as of the date of the issuance of
3
the proposed notice of removal and decision letter.2 IAF, Tab 5 at 17 -19, 57; see
Bolling v. Department of the Air Force , 9 M.S.P.R. 335 , 339 -40 (1981)
(explaining the limited scope of the Board’s review of a prior disciplinary action
as a factor in the agency’s penalty selection, including determini ng whether the
prior discipline is a matter of record). In an initial decision affirming the
appellant’s 15 -day suspension, the administrative judge noted that the proposing
and deciding o fficials both considered as prior discipline a letter of
admonishment that was no longer a matter of record because more than 2 years
had passed since its issuance. IAF, Tab 29, Initial Decision (ID) at 4. However,
she did not address the impact of this error in her penalty determination. ID at 6.
¶3 When, as here, an agency errs in considering prior discipline, the Board
determines whether the agency’s penalty selection may be affirmed without
regard to the improperly considered discipline. Prather v. De partment of Justice ,
117 M.S.P.R. 137 , ¶ 35 (2011). For the following reasons, we find that the
agency’s penalty of a 15 -day sus pension is well within the tolerable limits of
reasonablenes s for the sustained misconduct. As noted by the administrative
judge, the deciding official testified that he would have imposed a 15 -day
suspension even in the absence of the prior letter of adm onishment. ID at 5; IAF,
Tab 27, Hearing Recording (HR ). The appellant has not challenged the deciding
official’s testimony on review and instead generally repeats his prior arguments
about the fairness of the penalty. PFR File, Tab 1 at 4 -5; IAF, Tab 7 at 4-6. The
deciding official’s written decision and hearing testimony demonstrate that he
considered the relevant factors in determining the appropriate penalty. HR; IAF,
Tab 5 at 18 -19; see Pinegar v. Federal Election Commission , 105 M.S.P.R. 677 ,
2 The March 5, 2019 admonishment stated that management would retain a copy of the
letter for a period of 2 years, after which it would no longer be a matter of record. IAF,
Tab 5 at 57. Both the March 25, 2021 notice of proposed removal and May 17, 2021
decision were issued more than 2 years later. Id. at 17, 25. In its prehearing statement,
the agency acknowledged that the deciding official had considered a letter of
admonishment that was expired. IAF, Tab 6 at 9 .
4
¶ 53 (2007) (stating that, when all of the agency’s charges are sustained, the
Board will review the agency -impose d penalty only to determine if the agency
considered all of the relevant factors and exercised management discretion within
the tolerable limits of reasonableness); Douglas v. Veterans Administration ,
5 M.S.P.R. 280 , 305 -06 (1981).
¶4 Regarding the nature and seriousness of the offense, the deciding official
testified that sending a “lewd, pornographic message” to a subordinate employee
was a serious offense and “totally unacceptable.” HR; IAF, Tab 5 at 18.
Moreover, he testified that, although he should not have considered the
admonishment as prior discipline , the prior discipline demonstrate d that the
appellant was on notice about the type of misconduct involved in the present
appeal.3 HR; IAF, Tab 5 at 18; see Jinks v. Department of Veterans Affairs ,
106 M.S.P.R. 627, ¶ 25 (2007) (stating that regardless of whether a prior
disciplinary action is considered as an enhancing factor in the penalty
determination, the agency can consider the prior action as notice that the
appellant had been warned about the type of misc onduct involved). Finally, the
deciding official tes tified that the appellant had received preventative sexual
harassment training and equal employment opportunity training. HR; IAF, Tab 5
at 18. Therefore, we find that the 15 -day suspension remains a r easonable
penalty for the sustained charge of conduct unbecoming toward a subordinate
without regard to the improperly considered letter of admonishment that was no
longer a matter of record. See Prather , 117 M.S.P.R. 137 , ¶ 35.
3 The March 5, 2019 letter of admonishment informed the appellant that an email
message that he had sent violated a provision of the agency’s ethics handbook, which
states that “employees should not create any disturbances that would result in a
negative im pact on morale.” IAF, Tab 5 at 57.
5
NOTICE OF APPEAL RIG HTS4
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 fa ll within their jurisdiction. If you wish to seek review of
this final decision, you should immediately review the law applicable to your
claims and carefully follow all filing time limits and requirements. Failure to file
within the applicable time limi t may result in the dismissal of your case by your
chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is t he appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Cour t of Appeals for the Federal Circuit, which must be 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.
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 ab out the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice , and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono repres entation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, yo u may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703 (b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. ____ , 137 S. Ct. 1975 (2017). If you have a
representative in this case, and your representative receives this decision before
you do, then you must file with the district court no later than 30 calendar days
after your representative receives this decision. If the a ction involves a claim of
7
discrimination based on race, color, religion, sex, national origin, or a disabling
condition, you may be entitled to representation by a court -appointed lawyer and
to waiver of any requirement of prepayment of fees, costs, or oth er security. See
42 U.S.C. § 2000e -5(f) and 29 U.S.C. § 794a .
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702 (b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702 (b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEO C via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302 (b)(8) or
8
other protect ed activities listed in 5 U.S.C. § 2302 (b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
disposition of allegations of a prohibited p ersonne l practice described in
section 2302(b) other than practices described in section 2302(b)(8), or
2302(b)(9)(A)(i), (B), (C), or (D),” then you may file a petition for judicial
review either with the U.S. Court of Appeals for the Federal Circuit or a ny court
of appeals of competent jurisdiction.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 wit hin the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for info rmation regarding pro bono representation
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 com petent 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/Court Websites.aspx .
FOR THE BOARD:
Washington, D.C. /s/ for
Jennifer Everling
Acting Clerk of the Board | VELAZQUEZ_MUNOZ_CARLOS_J_NY_0752_21_0100_I_1_FINAL_ORDER_1956540.pdf | 2022-08-31 | null | NY-0752-21-0100-I-1 | NP |
4,157 | https://www.mspb.gov/decisions/nonprecedential/OBASOGIE_BUTLER_O_DC_0731_18_0419_I_2_FINAL_ORDER_1955987.pdf | UNITED STATES OF AME RICA
MERIT SYSTEMS PROTEC TION BOARD
BUTLER O. OBASOGIE,
Appellant,
v.
OFFICE OF PERSONNEL
MANAGEMENT,
Agency.
DOCKET NUMBER
DC-0731 -18-0419 -I-2
DATE: August 30, 2022
THIS FINAL ORDER IS NONPRECEDENTIAL1
John S. Blazek , Stratford, Connecticut, for the appellant.
Darlene M. Carr , Esquire, Washington, D.C., for the agency.
BEFORE
Cathy A. Harris , Vice Chairman
Raymond A. Limon , Member
Tristan L. Leavitt , Member
FINAL ORDER
¶1 The appellant has petitioned for review of the October 19, 2018 initial
decision in this appeal. Petition for Review (PFR) File, Tab 1. For the reasons
set forth below, we DISMISS the petition for review 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
require d to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117 (c).
2
¶2 After the filing of the pe tition for review, the parties submitted a document
entitled “SETTLEMENT AGREEMENT” signed and dated by the parties on
April 22, 2019. PFR File, Tab 18. The document provides, among other things,
that the appellant agreed to withdraw his petition for rev iew in exchange for the
promises made by the agency. Id. at 4.
¶3 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 th e 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 a ddition, 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
Massey v. Office of Personnel Management , 91 M.S.P.R. 289 , ¶ 4 (2002) ,
overruled on other grounds by Delorme v. Department of the Interior ,
124 M.S.P.R. 123 , ¶¶ 11 -21 (2017) ( holding that the Board may enforce
settlement agreements that have been entered into the record, independent of any
prior finding of Board jurisdiction over the underlying matter being settled).
¶4 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 enforceme nt by the Board. PFR File, Tab 18 . In addition, we find that the
agreement is lawful on its face and that the parties freely entered into it. Id.
¶5 Accordingly, we find that dismissing the petition for review “with prejudice
to refiling” (i.e., the parties normally may not refile this appeal) is appropriate
under these circumstances, and we accept the settlement agreement into the
record for enforceme nt purposes.
¶6 This is the final decision of the Merit Systems Protection Board in this
appeal. Title 5 of the Code of Federal Regulations, section 1201.113 ( 5 C.F.R.
§ 1201.113 ).
3
NOT ICE TO THE PARTIES O F 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 of fice 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 a ny
communications between the parties. 5 C.F.R. § 1201.182 (a).
NOTICE OF APPEAL RIG HTS2
You may obtain review of this final decision. 5 U.S.C. § 7703 (a)(1). By
statute, the nature of your claims determines the time limit for seeking such
review and the appropriate forum with which to file. 5 U.S.C. § 7703 (b).
Although we offer the following summary of available appeal rights, the Merit
Systems Protection Board does not provide legal advice on which option is most
appropriate for your situation and the rights described b elow do not represent a
statement of how courts will rule regarding which cases fall within their
jurisdiction. If you wish to seek review of this final decision, you should
immediately review the law applicable to your claims and carefully follow all
filing time limits and requirements. Failure to file within the applicable time
limit may result in the dismissal of your case by your chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies t o your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
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 w hich option is most appropriate in any matter.
4
(1) Judicial review in general . As a general rule, an appellant seeking
judic ial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703 (b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any a ttorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and tha t such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
5
receive this decision. 5 U.S.C. § 7703 (b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. ____ , 137 S. Ct. 1975 (2017). If you have a
representative in this case, and your representative receives this decision before
you do, then you must file with the district court no later than 30 calendar days
after your representative receives this decision. If the action involves a claim of
discrimination based on race, color, religion, sex, national origin, or a disabling
condition, you may be entitled to representation by a court -appointed lawyer and
to waiver of any requirement of prepayment of fees, costs, or other security. See
42 U.S.C. § 2000e -5(f) and 29 U.S.C. § 794a .
Contact information for U.S. district courts can be found at their resp ective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employm ent
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702 (b)(1). You must file any such request with the
EEOC’s Office of Federal Operation s within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702 (b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is:
Office of Federal Operations
Equal Employment Op portunity Commission
P.O. Box 77960
Washington, D.C. 20013
If 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 Opportunit y Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302 (b)(8) or
other protected activities listed in 5 U.S.C. § 2302 (b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
disposition of allegations of a prohibited personnel practice described in section
2302(b) other than practices described in se ction 2302(b)(8), or 2302(b)(9)(A)(i),
(B), (C), or (D),” then you may file a 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 Fede ral Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
3 The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit cou rt 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 intere sted in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appel lants before the 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:
Washington, D.C. /s/ for
Jennifer Everling
Acting Clerk of the Board | OBASOGIE_BUTLER_O_DC_0731_18_0419_I_2_FINAL_ORDER_1955987.pdf | 2022-08-30 | null | DC-0731-18-0419-I-2 | NP |
4,158 | https://www.mspb.gov/decisions/nonprecedential/ANDERSON_ALYCE_R_CH_0752_22_0145_I_1_FINAL_ORDER_1956004.pdf | UNITED STATES OF AME RICA
MERIT SYSTEMS PROTEC TION BOARD
ALYCE R. ANDERSON,
Appellant,
v.
UNITED STATES POSTAL SERVICE,
Agency.
DOCKET NUMBER
CH-0752 -22-0145 -I-1
DATE: August 30, 2022
THIS FINAL ORDER IS NONPRECEDENTIAL1
Alyce R. Anderson , Gary, Indiana, pro se.
Maryl R. Rosen , Esquire, St. Louis, Missouri, for the agency.
BEFORE
Cathy A. Harris, Vice Chairman
Raymond A. Limon, Member
Tristan L. Leavitt, Member
FINAL ORDER
¶1 The a ppellant has filed a petition for review of the initial decision,
which dismissed the appeal of her termination for lack of jurisdiction.
On petition f or review, the appellant argues that the Board has jurisdiction over
her termination appeal because she has raised claims of discrimination 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
require d to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117 (c).
2
retaliation based on her whistleblowing and prior equal employment opportunity
activities. 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 RIG HTS2
You may obtain review of this final decision. 5 U.S.C. § 7703 (a)(1). By
statute, the nature of your claims determines the time limit for seeking such
review and the appropriate forum with which to file. 5 U.S.C. § 7703 (b).
Although we offer the following summary of available appeal rights, the Merit
Systems Protection Board does not provide legal advice on which option is most
appropriate for your situation and the rights described below do not represent a
statement of how cour ts will rule regarding which cases fall within their
jurisdiction. 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 w hich 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 p etition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703 (b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D .C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the 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, o n unlawful discrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit ), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703 (b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. ____ , 137 S. Ct. 1975 (2017). If you have a
representative in this case, and your representative receives this decision before
you do, then you must file with the district court no later than 30 calendar days
after your representative receives this decision. If the action involves a claim of
discrimination based on race, color, religion, sex, national origin, or a disabling
condition, you may be entitled to representation by a court -appointed lawyer and
to waiver of any requirement of prepayment of fees, costs, or other security. See
42 U.S.C. § 2000e -5(f) an d 29 U.S.C. § 794a .
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed t hrough the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702 (b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you r eceive
this decision. 5 U.S.C. § 7702 (b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later tha n 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is:
5
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302 (b)(8) or
other protected activities listed in 5 U.S.C. § 2302 (b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial pet ition for review “raises no challenge to the Board’s
disposition of allegations of a prohibited personnel practice described in section
2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i),
(B), (C), or (D),” then you may file a 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 deci sion. 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 cou rt 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 addr ess:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particul ar
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of A ppeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services pr ovided by any attorney nor warrants that
any attorney will accept representation in a given case.
Contact information for the courts of appeals can be found at their
respective websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
FOR THE BOARD:
Washington, D.C. /s/
Jennifer Everling
Acting Clerk of the Board | ANDERSON_ALYCE_R_CH_0752_22_0145_I_1_FINAL_ORDER_1956004.pdf | 2022-08-30 | null | CH-0752-22-0145-I-1 | NP |
4,159 | https://www.mspb.gov/decisions/nonprecedential/WILLIAMS_ERIC_AT_3330_17_0518_I_1_FINAL_ORDER_1956035.pdf | UNITED STATES OF AME RICA
MERIT SYSTEMS PROTEC TION BOARD
ERIC WILLIAMS,
Appellant,
v.
DEPARTMENT OF THE NA VY,
Agency.
DOCKET NUMBER
AT-3330 -17-0518 -I-1
DATE: August 30, 2022
THIS FINAL ORDER IS NONPRECEDENTIAL1
Eric Williams , North Charleston, South Carolina, pro se.
Patricia Reddy -Parkinson , Portsmouth , Virginia , for the agency.
BEFORE
Cathy A. Harris , Vice Chairman
Raymond A. Limon , Member
Tristan L. Leavitt , Member
FINAL ORDER
¶1 The appellant has filed a petition for review of the initial decision, which
dismissed some of his Veterans Employment Opportunit ies Act (VEOA) of 1998
claims regarding his nonselection for a position for lack of jurisdiction and
denied corrective action on his remaining claims . Generally, we grant petitions
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required t o follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117 (c).
2
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 requ ired procedures or
involved an abuse of discretion, and the resulting error affected the outcome of
the case; or new and material evidence or legal argument is available that, despite
the petitioner’s due diligence, was not available when the record closed . Title 5
of the Code of Federal Regulations, section 1201.115 ( 5 C.F.R. § 1201.115 ).
After fully considering the filings in this appeal, we conclude that the petitioner
has not establ ished any basis under section 1201.115 for granting the petition for
review. Therefore, we DENY the petition for review. Except as expressly
MODIFIED to find that the appellant exhausted his claims concerning his
eligibility for the position at issue , we AFFIRM the initial decision.
BACKGROUND
¶2 The appellant, a 30% disabled, preference -eligible veteran, applied for a
GS-0510 -09 Accountant position at four separate locations under vacancy
announcement number SE7051 0-12-1913 757M3598787D . Initial Appeal File
(IAF), Tab 6 at 6, 11 , 28 , 33 . Based on his online responses to the
self-assessment questionnaire, he self-certified in the Highly Qualified ( HQ)
category with a score of 87. IAF, Tab 6 at 40 -48, Tab 17 at 23 . The appellant
was notified that his applic ation was not referred to the selecting official for any
of the locations because he did not rank in the Best-Qualified (BQ) category.
IAF, Tab 6 at 51, 53 -56. Subsequently, the agency merged the BQ and HQ
categories for one of the locations because it did not have a sufficient number of
names to pass along to the selecting official. IAF, Tab 17 at 15-16, 23. The
appellant initially was included in that merged category based on his self -certified
rating . Id. at 23. As wit h all of the candidates in the merged category, the
3
agency conducted a more extensive review of the appellant’s qualifications to
ensure that he met the specialized experience requirements of the position. Id.
At that time, the agency determined that the appellant lacked the requisite
experience, rated him ineligible, and removed him from the certificate and from
consideration for the position. Id.
¶3 The appellant filed a complaint with the Department of Labor (DOL),
alleging that the agency violated his r ights under 5 U.S.C. § 3309 and 5 C.F.R.
§ 337.101 (b)(1) by failing to credit him with 10 additional points in accordance
with his veterans’ preference; under 5 U.S.C. § 3313 for failing to place his name
on a certificate ; under 5 U.S.C. § 3317 by failing to provide the hiring official
three names for each individual vacancy ; and under 5 U.S.C. § 3318 by selecting
nonveterans over him . IAF, Tab 18 at 6. DOL advised the appellant that it had
completed its investigation into his complaint and determined that his allegat ions
had “no merit.” IAF, Tab 6 at 13 .
¶4 The appellant then filed a timely appeal, reasserting the alleged violations
of his veterans’ preference rights that he raised before DOL and raising additional
VEOA claims. IAF, Tab 1 at 4 -6, Tab 7. He requested a hearing, which the
administrative judge denied as untimely . IAF, Tab 7 at 1 , Tabs 11, 13.
¶5 After the close of the recor d, the administrative judge issued an initial
decision on the written record . IAF, Tab 19, Initial Decision (ID). He found that
the appellant exhausted the claims raised in his DOL complaint: (1) that he was
denied additional points consistent with his veterans’ preference; (2) that the
agency failed to place him on the certificate; (3) that the hiring official failed to
include enough names on the certificate; a nd (4) that the agency selected
nonveterans over him without follow ing the passover procedures . ID at 1, 3-4.
However, he found that the appellant did not prove those alleged violations and
denied the appellant corrective action as to those claims. ID at 5-10. He also
considered the appellant’s remaining claims, which he summarized as follow s:
(1) the agency failed to credit all of his relevant experience, in violation of
4
5 U.S.C. § 3311 (2) and 5 C.F.R. § 302.3 02(d); (2) the agency improperly rated
him ineligible or unqualified; (3) the agency violated 5 U.S.C. § 3319 by failing
to apprise applicants of its intent to use category rating and to include a
description of those categories in the vacancy announcement ; (4) the agency
discontinued consideration of his application without advanced notice ; and (5 ) the
agency violat ed 5 C.F.R. p art 330 by selecting candidates for the positions at
Charleston Air Force Base , South Carolina , from outside of the local commuting
area. ID at 4-5; IAF, Tab 1 at 4 -6, Tab 7 at 2-7, Tab 10 at 2-7. The
administrative judge dismissed those claims for lack of jurisdiction because the
appellant did not prove that he exhauste d them with DOL . ID at 4 -5.
¶6 The appellant has filed a petition for review and attached documents , which
were entered into the record below . Petition for Review (PFR) File, Tab 1. The
agency has not submitted a response.
DISCUSSION OF ARGUME NTS ON REVIEW
The appellant only exhausted those VEOA claims that he explicitly raised in his
DOL complaint.
¶7 On review, the appellant challenges the administrative judge’s finding that
he did not exhaust his remaining claims , ID at 4 -6, apparently arguing that his
general assertion in his DOL complaint that the agency violated his veterans ’
preference rights in connection with the selection process at issue was broad
enough to encompass those specific claims. PFR File, Tab 1 at 3-6. That is not
the correct standar d for assessing exhaustion. See Graves v. Department of
Veterans Affairs , 117 M.S.P.R. 491, ¶¶ 8-11 (2012) ( finding that an appel lant’s
reference to the pertinent vacan cy announcement, by itself, is not sufficient to
inform DOL of any particular , alleged veterans’ preference violation ). However,
as discussed below, we find that the appellant did in fact exhaust his claims
regarding his eligibility for the position.
¶8 To establish Board jurisdiction over a VEOA appeal an appellant must,
among other things, show that he exhausted his administrative remedy with DOL .
5
Id., ¶ 8 . A DOL complaint must include a summary of the allega tions that form
the basis of a VEOA claim, from which DOL has the opportunity to conduct an
investigation that might lead to corrective action before involving the Board. Id.
Thus, the appellant exhausted those claims raised in his summary of allegations.
Id. By alleging that the agency was required to follow the passover procedures
outlined in 5 U.S.C. § 3318 because he was a “ qualified 30% disabled [v]eteran, ”
IAF, Tab 18 at 6 (emphasis added) , the appellant expressly raised the issue of his
eligibility before DOL . In his Board appeal, the appellant further alleged that the
agency did not consider all of his relevant experience, as required by 5 U.S.C.
§ 3311 and 5 C.F.R. § 302.302 (d). IAF, Tab 7 at 2 -3. His eligibility claims
encompass the alleged violations of these provisions. Because the appellant
afforded DOL the opp ortunity to conduct an investigation into those issues , we
find that he exhausted those claims . See Graves , 117 M.S.P.R. 491, ¶ 8. We
therefore modify the initial decision accordingly and consider the appellant’s
eligibility arguments on review.
¶9 As to the appellant’s remaining claims, we agree with the administrative
judge that he did not exhaust them before DOL because he did not raise them in
his DOL complaint. ID at 4-5; see Graves , 117 M.S.P.R. 491, ¶ 11 (explaining
that the exhaustion requirement is man dated by statute and evidence and
argument as to exhaustion is not to be liberally construed) . The appellant offers
no new proof on review that he satisfied the exhaustion requirement with respect
to those claims ; therefore, the Board has no jurisdiction to consider them.
The appellant is not entitled to corrective action.
¶10 The appellant further alleges that the administrative judge failed to consider
two of the claims over which e xhaustion was found —that the agency violated his
rights under 5 U.S.C. § 3313 by failing to place his name on the certificate and
under 5 U.S.C. § 3318 by passing him over without proper notice or approval
6
from the Office of Personnel Management ( OPM ).2 PFR File, Tab 1 at 6-7. As to
those claims, the appellant asserts that his initial rating of “eligible” should
control. Id. He thereby reasons that he had a right, under 5 U.S.C. § 3313 , to be
placed on the certificate. He further argues that his disqualification from
selection should be treated as a nonselection of a qualified 30% disabled veteran,
effectively equating the agency’s decision to change his rating to ineligible and
remove him from the certificate to a passover of a qualified preference eligible
without notice or OPM approval —a violation of 5 U.S.C. § 3318 . Id. at 7-10.
¶11 While the appellant argues that 5 U.S.C. § 3318 applies, he has not alleged
that the administrative judge erred in finding that the agency utilized category
rating . ID at 7 . We dis cern no error in that finding. IAF, Tab 17 at 4 -24; see
5 U.S.C. § 3319 (a)-(b) (authorizing agencies to eval uate candidates for
competitive -service positions using category rating, the process of grouping
candidates into two or more quality categories, rather than ordering candidates
based on their assigned numerical ratings) . T he administrative judge properly
analyzed the appellant’s passove r claim under 5 U.S.C. § 3319 , the provision
governing a preference eligible’s passover rights under category rating.
¶12 As to the appellant’s eligibility claims, a s a preference eligible, he is
entit led to have all of his relevant, material experience considered, when
experience is a qualification measure . 5 U.S.C. § 3311 ; Kirkendall v. Department
of the Army , 573 F.3d 1318 , 1324 (Fed. Cir. 2009) (explaining that , “[a]t the very
least, ‘credited’ must mean ‘considered’ ”); 5 C.F.R . § 302.302 (d). Moreover, if
the appellant is qualified for the position, he would be entit led to be placed on the
certificate , 5 U.S.C. § 3313 ; and he could not be passed over for candidates “ in
the same cate gory from which a selection [wa] s made ,” unless the agency first
satisf ied the passover procedures outlined in 5 U.S.C. §§ 3317 (b) and 3318(c) and
2 The appellant has not expressly challenged the administrative judge’s denial of
corrective action relating to the remaining claims over which he found Board
jurisdiction. We therefore need not discuss those issues on review.
7
5 U.S.C. § 3319 (c)(7) . For the reasons below, we find that the appellant has
failed to show that he was eligible for the positions .
¶13 We discern no basis for finding that the appellant’s self-certification of
highly qualified established that he was eligible for the position . Nothing in the
statute governing category rating or its impleme nting regulations required the
agency to rely on the appellant’s self-assess ment of eligibility or pr ohibited its
human resources specialist from conducting a review of his application to ensure
that he wa s qualified for the position. See 5 U.S.C. § 3319; 5 C.F.R. part 337,
subpart C; cf. Russell v. Department of Health & Human Services , 120 M.S.P.R.
42, ¶¶ 9 -13 (2013) (scrutinizing an agency’s decision to subsequently rate a
preference -eligible applicant ineligible because it already had found , based upon
an individualized assessment of his application, him qualified).
¶14 Moreover, t he appellant has not shown that the agency erred in rating him
ineligible for failing to meet the specialized experience requirement . Under
OPM ’s classification and qualifi cation standards for a GS-0510 -09 position ,
applicants must meet the basic entry qualifications , which the appellant met
because he earned a bachelors’ degree in Accounting. IAF, Tab 6 at 29, 60, 62.
He also needed 1 year of specialized experience equivalent to at least the GS -07
level. Id. at 61-62. Generally, an applicant can meet that specialized experience
requirement based on his prior experience, qualifying graduate -level education , or
a combination of both. Id. at 62 -65; see generally Elliott v. Department of the
Air Force , 102 M.S.P.R. 364 , ¶ 10 (2006) ( applying the specialized experience
requirement to a preference -eligible candidate ). However, the appellant had no
graduate education on which to rely . IAF, Tab 6 at 20-31.
¶15 The agency also found that the appellant could not qualify for the position
at the GS -09 level based on hi s experience. IAF, Tab 17 at 23 . It was
appropriate for the administrative judge to rely on that finding , ID at 9 -10,
because the agency made that determination after considering th e entirety of the
appellant’s r ésum é, which included his military and work history , and assessing
8
that exper ience against OPM standards . IAF, Tab 6 at 20 -26, Tab 17 at 23 ; see
Miller v. Federal Deposit Insurance Corporation , 818 F.3d 1361 , 1365 -67 (Fed.
Cir. 2016 ) (finding that 5 U.S.C. § 3311 and 5 C.F.R. § 302.302 (d) require the
Board to determine whether , based on evide nce in the record, the agency
reviewed and adequately considered the entirety of a preference eligible’s
experience listed in his application ). The appellant h as not identified any other
relevant application materials that the agency should have considere d but did not
or other error in the scope of the agency’s review . Cf. Kirkendall , 573 F.3d
at 1323 -25 (reversing the Board decision and finding that the agency violated the
appellant ’s veterans’ preference rights by failing to consider his military
experience included in documentation appended to his application for a position ).
Instead, he effectively sought an independent eligibility determination from the
Board based on its own qualitative analysis of his experience . IAF, Tab 10
at 3-6. VEOA do es not authorize the Board to undertake that substantive review .
See Miller , 818 F.3d at 1367 . Therefore, we find that the appellant has not shown
that he had the required 1 year of specialized experience as identified in the
vacancy announcement. IAF, Tab 6 at 7, 20 -31, 60 -65.
¶16 As a result, even considering the appellant’s eligibility arguments, we agree
with the administrative judge that the appellant was ineligib le for the position.
ID at 9 -10; 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 fo r reversal of an initial decision).
Consequently, the appellant was not entitled to be placed on any of the
certificates . See Clarke v. Department of the Navy , 94 M.S.P.R. 604 , ¶ 8 (2003)
(explaining that VEOA does not provide that veterans will be considered eligible
for positions for which they are not qualified ). We therefore find that the agency
did not violate the appellant’s veterans ’ preference rights under 5 U.S .C. §§ 3311 ,
3313, and 3319(c )(7), or 5 C.F.R. § 302.302 (d), and that the administrative judge
properly denied the appellant’s request for corrective action .
9
The appellant has not shown that the administrative judge was biased.
¶17 Finally, the appellant argues on review that the administrative judge was
disingenuous and unfair to him during the c ourse of the proceedings and exhibited
bias by denying his request for corrective action. PFR File, Tab 1 at 5-9. In
making a claim of bias or prejudice against an administrative judge, a party must
overcome the presumption of honesty and integrity that accompanies
administrative adjudicators . Oliver v. Department of Transportation , 1 M.S.P.R.
382, 386 (1980). An administrative judge’s conduct duri ng the course of a Board
proceeding warrants a new adjudication only if his comments or actions evidence
“a deep -seated favoritism or antagonism that would make fair judgment
impossible.” Bieber v. Department of the Army , 287 F.3d 1358 , 1362 -63 (Fed.
Cir. 2002) (quoting Liteky v. United States , 510 U.S. 540 , 555 (1994)). The
appellant’s claims, which do not relate to any extrajudicial conduct by the
administrative judge, neither overcome that presumption , nor establish a
deep -seated favoritism or antagonism.
¶18 Accordingly, we deny the appe llant’s petition for review and affirm the
initial decision, as modified.
NOTICE OF APPEAL RIGHTS3
The initial decision, as supplemented by this Final Order, constitutes the
Board’s final decision in this matter. 5 C.F.R. § 1201.113 . You may obtain
review of this final decision. 5 U.S.C. § 7703 (a)(1). By statute, the nature of
your cla ims determines the time limit for seeking such review and the appropriate
forum with which to file. 5 U.S.C. § 7703 (b). Although we offer the following
summary of available appeal rights, the Mer it Systems Protection Board does not
provide legal advice on which option is most appropriate for your situation an d
3 Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise which option is most appropriate in any matter.
10
the rights described below do not represent a statement of how courts will rule
regarding which cases fall within their jurisdiction. If y ou wish to seek review of
this final decision, you should immediately review the law applicable to your
claims and carefully follow all filing time limits and requirements. Failure to file
within the applicable time limit may result in the dismissal of yo ur case by your
chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circ uit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703 (b)(1)(A).
If you submit a petition for review to the U.S. Court of Appe als for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
11
for Merit Systems Protec tion Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703 (b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. ____ , 137 S. Ct. 1975 (2017). If you have a
representative in this case, and your representative receives this decision before
you do, then you must file with the district court no later than 30 calendar days
after your representative receives this decision. If the action involves a claim of
discrimination based on race, color, religion, sex, national origin, or a disabling
condition, you may be entitled to representation by a court -appointed lawyer and
to waiver of any requirement of prepayment of fees, costs, or other security. See
42 U.S.C. § 2000e -5(f) and 29 U.S.C. § 794a .
Contact information for U.S. district courts can be found at their resp ective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employm ent
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702 (b)(1). You must file any such request with the
EEOC’s Office of Federal Operation s within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702 (b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
12
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is:
Office of Federal Operations
Equal Employment Op portunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunit y Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclos ures under 5 U.S.C. § 2302 (b)(8) or
other protected activities listed in 5 U.S.C. § 2302 (b)(9)(A)(i), (B), (C), or (D).
If so, and your j udicial petition for review “raises no challenge to the Board’s
disposition of allegations of a prohibited personnel practice described in section
2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i),
(B), (C), or (D),” then yo u may file a 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 Re view Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other ci rcuit court 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
review within 60 days of the date of issuance of this decision. 5 U.S.C.
§ 7703 (b)(1)(B).
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov . Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U .S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses t he services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
Contact information for the courts of appeals can be found at their
respective websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
FOR THE BOARD:
Washington, D.C. /s/ for
Jennifer Everling
Acting Clerk of the Board | WILLIAMS_ERIC_AT_3330_17_0518_I_1_FINAL_ORDER_1956035.pdf | 2022-08-30 | null | AT-3330-17-0518-I-1 | NP |
4,160 | https://www.mspb.gov/decisions/nonprecedential/SMITH_SHERI_DC160330I1_FINAL_ORDER_1956058.pdf | UNITED STATES OF AME RICA
MERIT SYSTEMS PROTEC TION BOARD
SHERI SMITH,
Appellant,
v.
DEPARTMENT OF THE AR MY,
Agency.
DOCKET NUMBER
DC-0752 -16-0330 -I-2
DATE: August 30, 2022
THIS FINAL ORDER IS NONPRECEDENTIAL1
Christopher D. Vaughn , Esquire, Decatur, Georgia , for the appellant.
Erika McPherson , Redstone Arsenal, Alabama, for the agency.
Kelly Lack , Rock Island, Illinois, for the agency.
Todd A. Messinger , Shaw A ir Force Base , Sout h Carolina, for the agency.
BEFORE
Cathy A. Harris , Vice Chairman
Raymond A. Limon , Member
Tristan L. Leavitt , Member
FINAL ORDER
¶1 The agency has filed a petition for review , and the appellant has filed a
cross petition for revie w of the initial decision, which sustained only some of the
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
require d to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117 (c).
2
agency ’s charges and underlying specifications; found that the appellant failed to
estab lish her affirmative defenses of race, sex, and age discrimination; found that
the appellant proved her affirmative defense of whistleblower retaliation ; and
mitigated the removal penalty to a 45 -day suspension . For the reasons discussed
below, we DENY the agency ’s petition for review and GRANT the appellant ’s
cross petition for review. Except as expressly MODIFIED by this Final Order to
not sustain specification 4 of charge 6, find that —in light of our findin g of
whistleblower retaliation —no disciplinary action taken against the appellant can
be sustained , and clarify the basis for finding that the agency did not prove by
clear and convincing evidence that it would have removed the appellant absent
her protected whistleblower disclosure and activity , we AFFIRM the initial
decision . The removal is NOT SUSTAINED.
BACKGROUND
¶2 The appellant was employed as a Lead Contract Specialist. Smith v.
Department of the Army , MSPB Docket No. DC -0752 -16-0330 -I-1, Initial Appeal
File (IAF), Tab 12 at 25. On November 19, 2015, the agency proposed the
appellant ’s removal based on the following char ges: (1) insubordination with two
underlying specifications; (2) failure to observe written regulations, orders, rules,
or proce dures and failure to follow instructions with two underlying
specificatio ns; (3) submission of inaccurate in formation on a time card with five
underlying specifi cations; (4) fail ure to follow established leave procedure s with
five underlying specifications; (5) misrepresen tation for personal gain with two
underlying specifications; and (6) conduct unbec oming a Federal employee with
seven underlying specifications. Id. at 26 4-74. The appellant responded in
writing and also provided a supplement al written response. Id. at 54-75, 77 -95.
The deciding official did not sustain specification 2 of charge 2 , specification 4 of
charge 3 , or specifications 1 and 4 of char ge 4 . Id. at 31. However, he sustained
3
the remaining charges and specifications and imposed the removal , effective
January 22, 2016 . Id. at 31 -34.
¶3 The appellant filed the instant appeal and requested a hearing. IAF, Tab 1.
Upon the appellant ’s request, the appeal was dismissed without prejudice . IAF,
Tab 25 . After the appeal was refiled, the appellant requested a decision based on
the written record , and the administrati ve judge granted her request. Smith v.
Department of the Army , MSPB Docke t No. DC -0752 -16-0330 -I-2, Appeal File
(I-2 AF ), Tabs 1, 6 -7. The administrative judge issued an initial de cision
mitigating the appellant ’s removal to a 45 -day suspension. I -2 AF, Tab 21, Initial
Decision ( I-2 ID). He found that the agency had not prov en the following charges
and specifications : (1) specification 1 of charge 1, insubordination;
(2) specification 1 of charge 2, failure to observe written regulations, orders,
rules, or procedures, failure to follow instructions , and thus the charge as a
whole ; (4) specifications 2 -3, and 5 of charge 4, failure to follow established
leave pro cedures , and thus the charge as a whole ; (5) specifications 1 -2 of
charge 5, misrepresenta tion for personal gain , and thus the charge as a whole ; and
(6) specification s 3 and 7 of charge 6, conduct unbecoming a Federal employee.
I-2 ID at 5-9, 12 -20, 24 -25, 28. He also found that the appellant failed to
establish her affirmative defenses of ra ce, sex, and age discrimination but that she
established her affirmative defense of retaliation for her protected whistleblower
disclosure activity. I-2 ID at 30 -38. Nevertheless, he mitigated the penalty to a
45-day suspension. I-2 ID at 29-30.
¶4 The agency has filed a petition for review, the appellant has filed a cross
petition for review and response , and the agency has filed a response to the
appellant ’s cross petition for review . Petition for Review (PFR) File, Tabs 1 , 4,
8.2
2 The appellant has filed an additional pleading, which the Acting Clerk of the Board
rejected, in which she attempted to respond to the agency’s April 3, 2017 pleading.
PFR File, Tabs 9 -10. The ag ency has filed a petition for review, the appellant has filed
4
DISCUSSION OF ARGUME NTS ON REVIEW
We modify the initial decision to the extent that it sustain ed specification 4 of
charge 6 but otherwise affirm the decision to sustain only certain charges and
underlying specifications .
¶5 The agency asserts that the administrative judge should have sustained
charge 1, specification 1, insubordination. PFR File, Ta b 1 at 20 -27. In this
specification , the agency asserted that, on October 22, 2015, the appellant would
not relocate her office from the second floor to the first floor at the direction of
her “superv isory chain. ” IAF, Tab 12 at 264. As the administrative judge stated,
insubordination is the willful and intentional refusal to obey an authorized order
of a superior officer that the offi cer is entitled to have obeyed. I-2 ID at 5; see
Parbs v. U.S. Postal Service , 107 M.S.P.R. 559, ¶ 13 (2007), aff’d , 301 F. App’x
923 (Fed. Cir. 2008) . When the agency’s evidence is equally worthy of belief as
that of the appellant ’s regarding any charge or specification, the agency has failed
to meet its burden. Cook v. Department of the Army , 105 M.S.P.R. 17 8, ¶ 19
(2007).
¶6 We have considered the agency ’s arguments, including that the appellant
was originally directed to move her office, the statements that the agency
submitted that she may not have moved her office on the specified date, and the
agency ’s attempts to impeach the appellant and her first-level supervisor. PFR
File, Tab 1 at 20-27. We note, however, that the language of the specification
specifically mentions the appellant ’s “supervisory chain,” which includes her
first-level supervisor , who stated that the appellant followed her instructions to
relocate to the first floor . I-2 AF, Tab 1 1 at 65 -66. Because t here is a dispute as
to whether the appellant was actually insubordinate and failed to follow the
a cross petition for review/response to the petition for review, and the agency has filed
a response to the cross petition for review. PFR File, Tabs 1, 4, 8. The Board’s
regulations do not pr ovide for additional pleadings other than these, and thus, the
Acting Clerk of the Board properly rejected the appellant’s pleading. 5 C.F.R.
§ 1201.114 .
5
instructions of her supervisors, we agree with the administrative judge that the
agency has not prove n this charge by preponderant evidence .
¶7 The agency next asserts that the administrative judge should have sustained
charge 2, specification 1, failure to follow instructions , which asserted that the
appellant failed to accept one of the designated o ffices on the first floor. PFR
File, Tab 1 at 27 -28. Similar to the previous charge, the appellant ’s first-level
supervisor disputed whether the appellant failed to follow her instructions and
was actually insubordinate . I-2 AF, Tab 11 at 65 -66. Accordingly, as with the
prior charge, we agree that the agency failed to prove the charge by preponderant
evidence.
¶8 The agency challenges the administrative judge ’s failure to sustain the three
remaining specifications of charge 4 ,3 failure to follow established leave
procedures by failing to properly request leave and failing to submit the proper
leave forms . PFR File, T ab 1 at 28-29. In charge 4, the agency asserted that the
appellant failed to follow agency policy to properly request leave via its time and
attendance system , thus failing to complete a Form 71 (“Request for Leave or
Approved Absences”) , which would have been generated by the system . IAF,
Tab 12 at 265-66. An agency may not discipline an employee for failure to
follow leave procedures unless she is clearly on notice of the applicable
requirements and that discipline for continued noncompliance is likely . Allen v.
U.S. Postal Service , 88 M.S.P.R. 491, ¶ 10 (2001). Pursuant to the agency’s
standard operating procedures, an employee who is requesting unplanned sick
leave must do so by notifying her supervisor. IAF, Tab 12 at 450-51. The policy
states that the employee should complete Form 71 “upon return to work.” Id.
The agency’s 2015 memorandum regarding the usage of the agency’s time and
attendance program states that , when an employee is sick, she is responsible for
requesting leave from her supervisor. Id. at 443. The appellant’s first-level
3 As previously noted, the deci ding official did not sustain two of the five specifications
underlying charge 4.
6
supervisor state d that she gave the appellant permission for her absence during
the relevant time period. I -2 AF, Tab 1 1 at 67-68. The agency policy indicate d
that this was all that the appellant was required to do on the dates when she was
sick. Accordingly, we agree with the administrative judge that this charge cannot
be sustained because the appellant was not on notice that she could be disciplined
after having received leave approval from her first-level supervisor .
¶9 The agency also asserts that it proved charge 5, specification 1,
misrepresentation for personal gain. PFR File, Tab 1 at 29 -30. In this
specification, the agency asserted that the appellant misrepresented to her
supervisor that the Workers’ Compensation Specialist told her she could claim
regular duty hours for her absence on September 28, 2015 , due to an injury during
work hours despite the fact that she had never been provided this guidance. IAF,
Tab 12 at 26 6, 368. To prove a charge of falsification, the agency must prove, by
preponderant evid ence that, inter alia, the employee intended to defraud the
agency for her own private material gain. Boo v. Department of Homeland
Security , 122 M.S.P.R. 100 , ¶ 12 (2014).
¶10 We agree with the agency that the appellant knew that she wa s incorrectly
recording her time because the Workers’ Compensation Specialist credibly stated
that she told the appellant that, before claiming leav e due to a work -related
injury, she was required to file a workers’ compensation claim for her injury .
IAF, Tab 12 at 349. The appellant did not file a claim for her injury until
October 15, 2015. Id. at 363 -65. However, we find the appellant was credible
when she stated that the claim was eventually approved for her ankle injury and
the agency has not provided evidence to dispute this . I-2 AF, Tab 11 at 53. Thus,
although the appellant may have known that she was improperly recording her
time , it is possible that this constituted a mere failure to follow agency procedures
as opposed to an attempt to acquire payment to which she was not entitled and
eventually received . Accordingly, we agree with the administrative judge that the
agency failed to prove this specification. See Raco v. Social Security
7
Administration , 117 M.S.P.R. 1, ¶ 7 (2011) (stat ing that, although the agency
asserted that the appellant falsified her time when she departed prior to her
recor ded sign -out time, it did not prove the necessary intent for a falsification
charge and, regardless, it had only charged her with conduct unbecoming a
Federal employee).
¶11 Next, the agency alleges that the administrative judge should have sustained
specification 2 of the misrepresentation charge . PFR File, Tab 1 at 30 -31. This
charge state d, “[i] n an official e -mail to [the Workers’ Compensation Specialist]
regarding your Workers’ Compensation claim, you misrepresented your condition
and the circumstances surrounding your arrival to work on September 28, 2015.”
IAF, Tab 12 at 266. The appellant sent an email to the Workers’ Compensation
Specialist in which she stated that she had to wait in a vehicle for over an hour in
100-degree weather and that, by the time she received help, she was ill. Id.
at 353. The appellant’s first-level supervisor’s st atement was consistent with the
appellant’s statement in the email and indic ated that the air conditioning in the
agency car in which the appellant had been sitting was not working , as was
common with many agency cars . I -2 AF, Tab 11 at 69. The Logistics
Management Specialist’s statement reflects that the appellant exaggerat ed the
amount of time she had to wait and that the air conditioning was working in her
vehicle upon his arrival . IAF, Tab 1 2 at 411. The administrative judge found
that the agency did not prove this specification because he credited the statements
of the app ellant’s first-level supervisor and the appellant as to the events detailed
in the email and thus found that the agency did not prove its charge by
preponderant evidence. I-2 ID at 20.
¶12 On review, the agency asserts that the administrative judge should have
made credibility determination s as to why he believed the version of events
presented by the appellant and her first-level supervisor over that of the Workers’
Compensation Specialist and the Logistics Man agement Specialist. PFR File ,
Tab 1 at 30 -31. However, the Workers’ Compensation Specialist did not witness
8
the relevant events on September 28, 2015, and thus was not in the best position
to determine whether the appellant was misrepresenting the facts in her email.
Further, the evidence is inconclusive regarding which version of events to
believe. Accordingly, we find that the agency’s argument does not provide a
basis for disturbing the administrative judge’s finding that the agency failed to
meet it s burden by preponderant evidence .
¶13 The agency also challenges the administrative judge ’s failure to s ustain
specification 3 of charge 6, conduct unbecoming a Federal employee, asserting
that the appellant sent an email knowing that the allegations containe d therein
were false . PFR File, Tab 1 at 31 -32. In this specification , the agency asserted
that the appellant sent a derogatory email that was “an emotional attempt” to
suggest that senior leaders of her organization were mistreating her. IAF, Tab 12
at 267-68. The administrative judge found, among other things, that the agency
failed to prove that this email was “an emotional attempt” by the appellant , and
we find no reason to disturb this finding. I-2 ID at 24 -25.
¶14 The agency also argues that the administrative judge should have sustained
charge 6, specification 7 , which is based upon the appellant’s emails to the
Secretary of the Department of Veterans Affairs (VA) regarding her second -level
supervisor . PF R File, Tab 1 at 12 -16; IAF, Tab 12 at 26 9. As discussed below,
we agree with the administrative judge that this specification is grounded in the
appellant’s protected disclosure. I-2 ID at 28. Accordingly, it cannot be
sustained. See Chambers v. Department of the Interior , 602 F.3d 1370 , 1380
(Fed. Cir. 2010).4
¶15 The appellant challenges the administrative judge ’s decision to sustain
charge 1 , specification 2 , insubordination , which i s based upon her failure to
attend a meeting with her second -level supervisor . PFR File, Tab 4 at 11; IAF,
4 Chambers was decided prior to the enactment of the Whistleblower Protection
Enhancement of Act 2012 , Pub. L. No. 112 -199, 126 Stat. 1465 . However, subsequent
changes in th e law do not affect the relevant holding.
9
Tab 12 at 264. She asserts that she did not refuse to attend but instead requested
that another individual be present with her during the meeting because of her
discomfort . PFR File, Tab 4 at 11. The appellant emailed her second -level
supervisor, stating that she would not meet with him unless another individual
was present. IAF, Tab 12 at 397. We find that this constituted her refusal to
attend the meeting and her mere assertion that she was uncomfortable did not
excuse her refusal . Thus, we affirm the administrative judge’s finding sustaining
this specification.
¶16 The appellant also argues that the administrative judge improperly sustained
charge 3—submitting inaccurate information on her time and attendance
records —because her first-level supervisor allowed her to vary her sch edule in
certain respects. PFR File, Tab 4 at 11 -13; IAF, Tab 265. As the administrative
judge stated, regardless of the appellant’s first-level supervisor’s permission, the
appellant’s time and attendance records did not reflect the hours that she had
worked. I-2 ID at 10 -12. Accordingly, we affirm the administrative judge’s
finding sustaining this charge .
¶17 The appellant next asserts that the administrative judge improperly
sustai ned charge 6, specifications 1 -2 and 4-6 of the conduct unbecoming charge.
PFR File, Tab 1 at 14 -16. In specification 1, the agency asserted that the
appellant did not provide accurate informati on to her healthcare provider to
obtain a Non -Availability statement to return home . IAF, Tab 12 at 267. The
appellant sent an email to a m ajor from the medical clinic requesting a
Non-Availability Letter because her “agency is sending [her] home,” but h er
second -level supervisor stated that, at no point did he state that he was sending
her home. Id. at 267, 287, 292. The appellant generally asserts that she was not
seeking the document, as implied by the specification. PFR File, Tab 4 at 14.
However, we find this argument is not reflected in the record and does not
provide a basis for disturbing the initial decision .
10
¶18 Specifications 2, 5, and 6 each describe portions of emails that the appellant
sent to agency officials that the agency asserts are unbe coming in that they were
somehow untruthful, inaccurate, disruptive, or offensive . IAF, Tab 12 at 267-69.
The administrative judge sustained these specifi cations as unbecoming , and,
based upon our review of the text of the emails , we agree with the admin istrative
judge’s well -reasoned analysis and findings . I-2 ID at 23 -28; IAF, Tab 12 at 268,
328-29, 425 -26.
¶19 Regarding specification 4, we agree with the appellant that this charge
cannot be sustained. PFR File, Tab 4 at 15. In this specification, the ag ency
asserte d that the appellant provided inaccurate statements in an email that were
disruptive to the agency and its mission and offensive to her second -level
supervisor. IAF, Tab 12 at 26 8. Specifically, the agency asserted that, in an
email to a commanding general dated November 5, 2015, the appellant alleged
that her second -level supervisor was causing issues with her and her first-level
supervisor, manipulating doctors to understate her medical condition, violating
her Health Insurance Portability and Accountability Act of 1996 (HIPAA) rights,
making slanderous remarks about her, and deliberately delaying her trip home.
Id. The agency stated that the appellant’s HIPAA and Privacy Act rights were not
violated because the information requested, obtained, and shared with those with
a “need to know ” pertained to an injury for which she had filed a workers’
compensation claim. Id.
¶20 We modify the initial decision and find that this specific ation cannot be
sustained because it is based in part upon a protected disclosure to a commanding
general . As discussed below, we find that the appellant reasonably believed that
the agency was violating her HIPAA and Privacy Act rights. Here, the
specif ication specifically charges the appellant with disclosing what she believed
was a HIPAA and the Privacy Act violation . Accordingly, we do not sustain the
specification. Chambers , 602 F.3d at 1380. Based on the above, we find that the
agency has proven only charge s 1, 3, and 6.
11
The appellant proved her affirmative defense of retaliation for her pro tected
whistleblower disclosure and activity , and thus the removal action must be
canceled .
¶21 In a removal appeal, an appellant ’s claim of whistleblow er reprisal is
treated as an affirmative defense. Ayers v. Department of the Army , 123 M.S.P.R.
11, ¶ 12 (2015) ; see 5 U.S.C. § 1221 (e)(1) . In such an appeal, once the agency
proves its initial case by a preponderance of the evidence, the appellant must
show by a preponderance of the evidence that she made a protected whistleb lower
disclosure under 5 U.S.C. § 2302 (b)(8) or participated in protected whistleblower
activity 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 agency ’s personnel action.
5 U.S.C. § 1221 (e)(1); Ayers , 123 M.S.P.R. 11, ¶ 12; Alarid v. Department of the
Army , 122 M.S.P.R. 600, ¶ 12 (2015) . If the appellant establishes a prima facie
case of whistleblow er reprisal, then the burden of persuasion shifts to the agency
to show by clear and convincing evidence that it would have taken the same
personnel action absent any protected whistleblower disclosures or activity.
5 U.S.C. § 1221 (e)(2); Carr v. Social Security Administration , 185 F.3d 1318 ,
1323 (Fed. Cir. 1999); Alarid , 122 M.S.P.R. 600, ¶ 14.
The appellant ’s whistleblower disclosure and activity were a contributing
factor to the agency’s decision to remove her .
¶22 Here, the appellant asserted that she made two protected whistleblower
disclosure s in the form of two emails to the Secretary of the VA and partici pated
in protected activity by disclosing information to the Inspector General . IAF,
Tab 10 at 5 -10. Her disclosure s and activity involved information about her
second -level supervisor , who had accepted a position at the VA. On October 23,
2015, the appellant sent the first email anonymously and asserted that her
second -level supervisor was telling people that he was selected for his position
because he knew someone “on the inside, ” that he had a history of discriminating
against women and African Americans, and that he had previous and pending
equal employment opportunity (EEO) complaints filed against him . Id. at 6-7.
12
The email was forwarded to the Executive Director of Office of Ac quisition
Operations at the VA , who contacted the appellant ’s second -level supervisor. I -2
AF, Tab 10 at 94. She determined that she would still proceed with selecti ng the
appellant ’s second -level supervisor for the position at the VA . Id.
¶23 The appellant sent a second email to the Secretary of the VA on
November 6, 2015 , in which she asserted that she believed that her second -level
supervisor was violating her Privacy Act and HIPAA rights and that she both
reported his actions to the Inspector General5 and decided to file an EEO
complaint regarding the matter . IAF, Tab 10 at 9 . The Executive Director’s
office received a copy of this email on November 9, 2015. I -2 AF, Tab 10 at 94.
This email included the appellant ’s name and an unredacted copy of th e prior
email . Id.
¶24 The appellant filed a n Inspector General complaint in which she stated that
an agency employee and her second -level supervisor violated the Privacy Act and
HIPAA rights by contacting the agency medical clinic to obtain medical
information about her without her authorization and then misused and
inappropriately distributed this information . IAF, Tab 12 at 280. She also stated
that these individuals attempted to manipulate her doctors and unders tated her
medical condition such that she would not be approved for emergency travel. Id.
Additionally, she asserted that her second -level supervisor and others had not
properly accommodated her ankle injury, tried to force her to work in a storage
room, and threatened to discipline her when she refused to work in the storage
room. Id.
5 The administrative judge stated that the appellant filed a complaint with the VA
Inspector General. I -2 ID at 37. However, the appellant stated in her email that she
reported her second -level supervisor’s actio ns to “our” Inspector General’s office. IAF,
Tab 10 at 9. Further, the “Inspector General Action Request” is on the agency’s form ,
and, in her response to the proposal notice, the appellant stated that she filed an
Inspector General complaint consistent with the agency’s regulations. IAF, Tab 12
at 64, 280.
13
¶25 It is undisputed that the appellant filed a n Inspector General complaint and
thus engaged in protected activity under 5 U.S.C. § 2302 (b)(9)(C) .6 We also find
that the appellant made a protected whistleblow er disclosure. A protected
whistleblow er disclosure is a disclosure of information that the appellant
reasonably believes evidences any violation of any law, rule, or regulation, gross
mismanagement, a gross waste of funds, an abuse of authority, or a substantial
and specific danger to public health or safety. Bradley v. Department of
Homeland Security , 123 M.S.P.R. 547, ¶ 7 (2016) . The test to determine if 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 conclud e
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. While motive may
be relevant to d eterminin g a reasonable belief, a disclosure is not excluded from
protection based on an appellant ’s motive in making it. Ayers , 123 M.S.P.R. 11,
¶¶ 20-21.
¶26 In the appellant ’s second email, she stated that her second -level supervisor
was violating her HIPAA and Privacy Act rights. IAF, Tab 10 at 9 . On
October 21, 2015, the following email exchange occurred between the appellant
and a major from the medical clinic. IAF, Tab 12 at 332 -35. The appellant
notified him that she did not authorize anyone, other than her first-level
6 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 in to law on
December 12, 2017. The NDAA expanded the activities protected under 5 U.S.C.
§ 2302 (b)(9)(C) to include coo perating or disclosing information to “any . . . component
responsible for internal investigations or review.” Pub. L. No. 115 -91, § 1097(c)(1)(A),
131 Stat. at 1618. That expansion does not affect the outcome of this appeal because all
of the relevant e vents occurred prior to December 12, 2017. See Edwards v.
Department of Labor , 2022 MSPB 9 , ¶¶ 29-33 (finding that the changes to sect ion
2302(b)(9)(C) do not apply retroactively).
14
supervisor, to obtain her medical records , and he responded that her personal
health information could not be released without her written authorization or a
court order. Id. at 334 -35. She responded by asking why her second -level
supervisor was able to obtain her medical profile and medical limitations in an
email without her authorization. Id. at 334. The major responded that profiles
are viewable by the Commander for those within his unit and if requested by “the
provider ” and that physical limitations due to injury are reportable by agency
regulations . Id. at 333. The appellant disputed this , stating that, pursuant to
agency regulations, only civilian supervisors should have access to her medical
profile and that, because her second -level supervisor was not a civilian, he should
not have had the ability to access her profile . Id. The agency asserted tha t the
appellant ’s rights were not violated because the agency could release her
information to those individuals who had a “need to know, ” such as when the
information related to a workers ’ compensation claim, her medical status within
and fitness to remai n in theater operations , and travel home. Id. at 269.
¶27 We find that it was reasonable for the appellant not to take the agency
officials at their word in this situation and that she reasonably could have
concluded that her second -level supervisor improperly obtained her medical
information without her consent . See Hupka v. Department of Defense ,
74 M.S.P.R. 406, 410 (1997) (finding that the appellant reasonably believed that
the agency violated the Privacy Act when it disclosed informa tion about his
illness and injuries to the Department of Health & Human Services without his
permission). We have considered the appellant ’s potential motive for making the
disclosure , including animus for her second -level supervisor with whom she did
not get along, but we still find that her belief regarding her rights was reasonable
15
in the situation. Thus, w e conclude that the appellant reasonably believed that
she was disclosing a violation of her rights under HIPAA and the Privacy Act.7
¶28 Next, we find that, because specification 7 of charge 6 is actually grounded
in the protected whistleblower disclosure and activity , the proposing official and
deciding official had constructive knowledge of them .8 IAF, Tab 12 at 269; see
Parikh v. Department of Vetera ns Affairs , 116 M.S.P.R. 197, ¶ 35 (2011) (finding
that the appellant ’s disclosure s were a contributing factor to his removal when the
proposing and deciding officials testified that they took the action, in part,
because of the appellant ’s disclosure , which were identified in the notice of
proposed removal). Accordingly, we find that the appellant ’s disclosure and
activity were a contributing factor to the appellant ’s removal. Id.
The agency did not prove by clear and convincing evidence that it would
have removed the appellant absent her protected disclosure and activity .
¶29 In determini ng whether the agency has shown by clear and convincing
evidence that it would have taken the same personnel action absent the
appellant ’s protected disclosure and activity , the Board generally 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 reta liate on the part of the
agency ’s officials who were involved in the decision; and (3) any evidence that
the agency takes similar actions against employees who did not make protected
disclosure s or engage in protected activity but who are otherwise similarly
7 Because we find that the appellant engaged in protected whistleblower activity under
5 U.S.C. § 2302 (b)(9)(C) and made a protected whistleblower dis closure in the second
email that were contributing factors to her removal, we need not address whether her
disclosure in the first email was a contributing factor in her removal.
8 The appellant also has established the contributing factor element on the basis of the
constructive knowledge of the proposing and deciding officials . See Nasuti v.
Department of State , 120 M.S.P.R. 588 , ¶ 7 (2014) . Her second -level supervisor and
the Program Specialist knew about her protected whistleblower disclosure and activity
and influenced the proposal after their knowledge by providing information that served
as the basis for the charges and for crafting the charges. IAF, Tab 12 at 287 -88,
345-47; I -2 AF, Tab 10 at 12 -13, 25, 92 -95.
16
situated. See Carr , 185 F.3d at 1323; Elder v. Department of the Air Force ,
124 M.S.P.R. 12, ¶ 42 (2016). The Board must consider all pertinent record
evidence in making this determination. Whitmore v. Department of Labor ,
680 F.3d 1353 , 1368 (Fed. Cir. 2012); Elder , 124 M.S.P.R. 12, ¶ 42. The Board
does not view these factors as discrete elements, each of which the agency must
prove by clear and convincing evidence, but rather weighs these factors together
to determine whether the evidence is clear and convincing as a whole . Alarid ,
122 M.S.P.R. 600, ¶ 14.
¶30 Regarding the first Carr factor, we find that the agency had strong reasons
for removing the appellant but that these reasons are diminished by the number of
charges that were not sustained. The sustained charges and specifications are
quite serious. They include insubordination by failing to attend a meeting as
directed, inaccurate ly completi ng time and attendance records, providing
misleading information in an effort to get a healthcare provider to obligate the
Government to pay for her travel expenses home, and sending emails with
inaccurate and deceitful statements that were disruptive to the agency. The
agency has submitted numerous emails, records , and statements from multiple
agency officials in support of these charges. Howeve r, the large number of
charges and specifications that were not sustained demonstrates overreach by the
agency, which diminishes the otherwise strong evidence that the agency has
presented . See Ayers , 123 M.S.P.R. 11 , ¶ 28. Additionally, that the conduct
unbecoming charge was based upon two specifications grounded in protected
disclosures further detracts from the strength of the ag ency’s evidence . See
Chambers , 602 F.3d at 1380.
¶31 Next, we conclude that the agency had a strong motive to retaliate against
the appellant. In particular, t he appellant ’s second -level supervisor had a strong
motive to retaliate. The proposal notice expressly states that the appellant ’s
disclosure was “offensive” to him and that the appellant acted in a “deliberate
manner” to interfere with his employment. IAF, Tab 12 at 269. In her
17
declaration, the Executive Director stated that the appellant ’s al legations
unnecessarily delayed his appointment and “raised concern and generated
substantial interest within the highest levels of our [a]gency.” I -2 AF, Tab 10
at 94-95. The appellant ’s second -level supervisor also stated that her actions
were disrupti ve to him and to his family. Id. at 24-25. In addition, although the
content of the appellant ’s disclosures ultimately may not have cast the agency or
its officials in a negative light because the appellant ’s actions affected another
agency , both the dec iding and the proposing official s had a possible motive to
demonstrate to the other agency that they were properly disciplining the appellant
for her actions. See Ayer s, 123 M.S.P.R. 11 , ¶ 29 (finding that agency officials
had a possible motive to retaliate when the appellant ’s disclosures reflected on
their capacity as managers and employees).
¶32 Last, we find that the third Carr factor is not particul arly significant in this
case. Our reviewing court has held that, although an agency does not have an
affirmative burden to produce evi dence concerning eac h and every Carr factor,
“the absence of any evid ence relating to Carr factor three can effectively remove
that factor from the analysis,” but that the failure to produce such evidence if it
exists “may be at the agency’s peril,” and “may well cause the ag ency to fa il to
prove its case overall.” Whitmore , 680 F.3d at 1374 -75. Here, t he agenc y did not
produce evidence regarding similarly situated individuals who did not make
whistleblow er disclosures or engage in protected activity . The Program
Specialist stated that she conducted a broad search for cases similar to the
appellant’s but could not find any. I -2 AF, Tab 10 at 17. The appellant has
submitted an extensive list of employees and the penalties that were imposed on
them for the single charges of insubordination, attendance -related offenses, false
statements, and failure to follow instructions , respectively. I-2 AF, Tab 16. We
have reviewed this list , but because the appellant did not identify which
employees were whistleblowers, we ar e unable to determine if this evidence
supports a finding that the agency took similar actions against employees who are
18
similarly situated but not whistleblowers . Thus, we give very little weight to this
evidence . We therefore find that Carr factor 3 cannot weigh in favor of the
agency . See Soto v. Department of Veterans Affairs , 2022 MSPB 6, ¶ 18 (citing
Smith v. General Services Admini stration , 930 F.3d 1359 , 1367 (Fed. Cir. 2019);
Siler v. Environmental Protection Agency , 908 F.3d 1291 , 1299 (Fed. Cir. 2018) ).
¶33 Based on the above, we find that the agency has failed to prove by clear and
convincing evidence that it would have removed the appellant absent her
protected whistleblower disclosure and activity. We find that the agency’s
motive to retaliate is strong. We acco rd great weight to the agency’s specific
mention of the appellant’s disclosure s in the proposal notice and that the agency
specifically described the motive that resulted on the basis of the appellant’s
disclosures . We also find that the agency’s failure to prove all of its charges is ,
under the circumstances, a sign of overreach. Accordingly, we conclude that the
agency failed to prove by clear and convincing evidence that it would have
sustained the appellant’s removal absent her protected disclosure an d activity , and
we affirm the administrative judge’s finding in this regard .
¶34 Because the appellant proved her claim of whistleblower reprisal, the
removal penalty must be reversed .9 See Ayers , 123 M.S.P.R. 11 , ¶ 30.
9 On review, the agency has submitted evidence that it asserts is material to the issue of
whether it has proven, by clear and convincing evidence, that it would hav e taken the
same action absent the appellant’s whistleblower disclosures and activity. PFR File,
Tab 1 at 17 n.4, Tab 8 at 5 -10. This evidence includes the Program Specialist’s
declaration, dated January 28, 2017, discussing knowledge and motive from the time of
the appellant’s removal, emails from October and November 2015 , another copy of the
appellant’s complaint s to the VA, November 2015 personnel documents regarding the
appellant’s first -level supervisor, and May 2015 information regarding the appell ant’s
prior misconduct. PFR File, Tab 1 at 36-38, 40 -42, 43 -46, 48 -51, 53 -57, 58-63. We
have not considered this evidence because it is either not new or the information
contained in the documents is not new. Grassell v. Department of Transportation ,
40 M.S.P.R. 554 , 564 (1989); Avansino v. U.S. Postal Service , 3 M.S.P.R. 211 , 214
(1980). Additionally, the evidence that the agency has submitted attempting to impeach
the appellant’s first -level supervisor’s credibility is not new because evidence offered
on review merely to impea ch a witness’s credibility generally is not considered new and
material. Bucci v. Department of Education , 42 M.S.P.R. 47 , 55 (1989).
19
ORDER
¶35 We ORDER the agency to cancel the appellant ’s removal and to restore her
effective January 22, 2016. 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.
¶36 We also ORDER the agenc y to pay the appellant the correct amount of back
pay, interest on back pay, and other benefits under the Office of Personnel
Management ’s regulations, no later than 60 calendar days after the date of this
decision. We ORDER the appellant to cooperate in good faith in the agency ’s
efforts to calculate the amount of back pay, interest, and benefits due, and to
provide all necessary information the agency requests to help it carry out the
Board ’s Order. If there is a dispute about the amount of back pay, in terest 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.
¶37 We further ORDER the agency to tell the appellant promptly in writing
when it believes it ha s 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).
¶38 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 appel lant
believes that the agency did not fully carry out the Board ’s Order. The petition
should contain specific reasons why the appellant belie ves that the agency has not
fully carried out the Board ’s Order, and should include the dates and results of
any c ommunications with the agency. 5 C.F.R. § 1201.182 (a).
¶39 For agencies whose payroll is administered by either the National Finance
Center of the Department of Agriculture (NFC) or the Def ense Finance and
Accounting Service (DFAS), two lists of the information and documentation
necessary to process payments and adjustments resulting from a Board decision
20
are attached. The agency is ORDERED to timely provide DFAS or NFC with all
documentati on 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 APPELL ANT REGARDING
YOUR RIGHT TO REQUES T
ATTORNE Y 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 CALENDA R 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 APPELL ANT REGARDING YOUR R IGHT
TO REQUEST CONSEQUEN TIAL 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 Whistlebl ower 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).
If you believe you meet these requirements, you must file a motion for
consequential damages and/or compensatory damages WITHIN 60 CALENDAR
21
DAYS OF THE DATE OF THIS DECISION. You must file your motion with the
office that issued the initial decision in your appeal.
NOTICE TO TH E 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 RIG HTS10
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 l imit for seeking such review and the appropriate
forum with which to file. 5 U.S.C. § 7703 (b). Although we offer the following
summary of available appeal rights, the Merit Systems Protection Boa rd does not
provide legal advice on which option is most appropriate for your situation and
the rights described below do not represent a statement of how courts will rule
regarding which cases fall within their jurisdiction. If you wish to seek review of
this final decision, you should immediately review the law applicable to your
claims and carefully follow all filing time limits and requirements. Failure to file
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.
22
within the applicable time limit may result in the dismissal of your case by your
chosen fo rum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact t hat forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703 (b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 2043 9
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within t he court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for informati on regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
23
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawfu l discrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703 (b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. ____ , 137 S. Ct. 1975 (2017). If you have a
representative in this case, and your representative receives this decision before
you do, then you must file with the district court no later than 30 calendar days
after your representative receives this decision. If the action involves a claim of
discrimination based on race, color, religion, sex, national origin, or a disabling
condition, you may be entitled to representation by a court -appointed lawyer and
to waiver of any requirement of prepayment of fees, costs, or other security. See
42 U.S.C. § 2000e -5(f) and 29 U.S.C. § 794a .
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702 (b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision . 5 U.S.C. § 7702 (b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is:
24
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 2 0013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washingto n, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302 (b)(8) or
other protected activities listed in 5 U.S.C. § 2302 (b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the B oard’s
disposition of allegations of a prohibited personnel practice described in section
2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i),
(B), (C), or (D),” then you may file a 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 sta tutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently al lows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court 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
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “G uide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit , you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor war rants that
any attorney will accept representation in a given case.
Contact information for the courts of appeals can be found at their
respective websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
FOR THE BOARD:
Washington, D.C. /s/ for
Jennifer Everling
Acting Clerk of the Board
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 Tick et. 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) Settle ment 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 docum ents/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).
NATION AL FINANCE CENTER CH ECKLIST 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 Diffe rential, 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 agen cy.
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, certi fication 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 com putation must be provided.
c. Lump Sum amount of Settlement, and if taxable or non -taxable.
If you have any questions or require clarification on the above, please contact NFC’s
Payroll/Personnel Operations at 504 -255-4630. | SMITH_SHERI_DC160330I1_FINAL_ORDER_1956058.pdf | 2022-08-30 | null | DC-0752-16-0330-I-2 | NP |
4,161 | https://www.mspb.gov/decisions/nonprecedential/GREENE_ROCHELLE_EDWINA_DC_0432_15_0708_I_1_REMAND_ORDER_1956114.pdf | UNITED STATES OF AME RICA
MERIT SYSTEMS PROTEC TION BOARD
ROCHELLE EDWINA GREE NE,
Appellant,
v.
DEPARTMENT OF VETERA NS
AFFAIRS,
Agency.
DOCKET NUMBER
DC-0432 -15-0708 -I-1
DATE: August 30, 2022
THIS ORDER IS NONPRECEDENTIAL1
Rochelle Edwina Greene , Forestville , Maryland , pro se .
Xan DeMarinis , Esquire, Washington, D.C., for the agency.
BEFORE
Cathy A. Harris , Vice Chairman
Raymond A. Limon , Member
Tristan L. Leavitt , Member
REMAND ORDER
¶1 The appellant has filed a petition for review of the initial decision, which
sustained her removal for unacceptable performance under 5 U.S.C. chapter 43.
For the reasons discussed below, we GRANT the appellant’s petition for review ,
VACATE the init ial decision, and REMAND the case to the Washington 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
require d to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117 (c).
2
Office for further adjudication in accordance with this Remand Order and
Santos v. National Aeronautics & Space Administration , 990 F.3d 1355 (Fed. Cir.
2021).
DISCUSSION OF ARGUME NTS ON REVIEW
¶2 Effective April 13, 2015, the agency removed the appellant from her
GS-0996 -11 Veterans Service Representative (Rating) position based on her
unacceptable performance in one critical element of her performance standards.
Initial Appeal File (IAF), Tab 5 at 19, 21 -23, 32 -33.2 The appellant appealed,
and, after she withdrew her request for a hearing, IAF, Tab 15, the administrative
judge issued a d ecision based on the written record in which he found that the
agency proved its action by substantial evidence and the appellant failed to prove
her affirmative defenses, IAF, Tab 25, Initial Decision (ID) at 5 -20. The
appellant petitions for review.
¶3 At the time the initial decision was issued, the Board’s case law stated that,
to prevail in a performa nce-based removal appeal under chapter 43, the agency
must establish by substantial evidence that: (1) the agency communicated to the
appellant the perform ance standa rds and critical elements of her position; (2) the
appellant’s performance standards are valid under 5 U.S.C. § 4302 (c)(1); (3) the
agency warned the appellant of her performance inadequacies during the appraisal
period and gave her an adequate opportunity to improve; and (4) after an adequate
improvement period, the appellant’s performance remained unacceptable in at
least one critical element.3 Towne v. Department of the Air For ce, 120 M.S.P.R.
2 As a Veterans Service Representative (Rating), the appellant was responsible for
assigning disability levels for disability claims filed by veterans. IAF, Tab 21 at 11.
3 The agency also has the b urden of proving that the Office of Personnel Management
has approved the agency’s performance appraisal system and any significant changes
thereto, if the appellant specifically raises such a challenge. Daigle v. Department of
Veterans Affairs , 84 M.S.P.R. 625 , ¶¶ 11-12 (1999 ). The agency has submitted
documentation, which the appellant does not challenge, sufficient to meet this bu rden.
ID at 4 n.3; IAF, Tab 14 at 12, 14, 16.
3
239, ¶ 6 (2013) ;4 Lee v. Environmental Protection Agency , 115 M.S.P.R. 533 , ¶ 5
(2010 ). Substantial evidence is the “degree of relevant evidence that a reasonable
person, considering the record as a whole, might accept as adequate to support a
conclus ion, even though other reasonable persons might disagree.” 5 C.F.R.
§ 1201.4 (p). Substantial evidence is a lesser standard of proof than
preponderance of the evidence and, to meet this s tandard, the agency’s evidence
need not be more persuasive than that of the appellant. See Mahaffey v.
Department of Agriculture , 105 M.S.P.R. 347 , ¶ 7 (2007) .
¶4 As addressed below, we discern no basis to disturb the administrative
judge’s findings in the initial decision . As discussed at the end of our analysis,
this appeal must nevertheless be remanded to address an additional element of the
agency’s burden of proof as set forth in Santos v. National Aeronautics & Space
Administration . 990 F.3d at 1360 -61.
The appellant ’s performance standards are valid , and the agency properly
communicated them to her at the beginning of the performance appraisal period.
¶5 Performance standards must, to the maximum extent feasible, permit the
accurate appraisal of performance based on obj ective criteria. 5 U.S.C.
§ 4302 (c)(1); Guillebeau v. Department of the Navy , 362 F. 3d 1329 , 1335 -36
(Fed. Cir. 2004). Standards must be reasonable, realistic, attainable, and clearly
stated in writing. Thomas v. Department of Defense , 95 M.S.P.R. 123 , ¶ 12
(2003), aff’d , 117 F. App’x 722 (Fed. Cir. 2004) ; Greer v. Department of the
Army , 79 M.S.P.R. 477 , 483 (1998). Performance standards should be specific
enough to provide an employee with a firm benchmark toward which to aim her
performance, Greer , 79 M.S.P.R. at 483, and must be sufficiently precise so as to
invoke general consensus as t o their meaning and content, Henderson v. National
4 Although Towne provides that performance standards must be valid under
5 U.S.C. § 4302 (b)(1) , the National Defense Authorization Act of 2018 redesignated
subsection 4302(b) as subsection 4302(c). Pub. L. No. 115 -91, § 1097(d)(1)(A),
131 Stat. 1283, 1619 (2017). Accordingly, 5 U.S.C. § 4302 (c)(1) now sets forth the
statutory requirements for a valid performance standard.
4
Aeronautics & Space Administration , 116 M.S.P.R. 96 , ¶ 20 (2011). Performance
standards are not valid if they do not set forth the minimum level of performance
that an employee must achieve to avoid removal for unacceptable performance
under chapter 43. Id.
¶6 The administrative judge found, and the parties do not dispute, that the
agency communicated the appellant’s performance standards to her on several
occasions. ID at 9. The standards set forth in the appellant’s Performance
Improvement Plan ( PIP) were the same stand ards contained in her position
description of recor d. Compare IAF, Tab 5 at 65 -66, with IAF, Tab 14 at 31. The
agency used a three -tiered rating system in which the possible ratings were
“exceptional, ” “fully successful, ” and “unacceptable,” and the standards identify
the level of performance the appella nt had to achieve to reach the “ fully
successful ” level. IAF , Tab 5 at 65 -66; see Sherrell v. Department of the Air
Force , 47 M.S.P.R. 534, 539 (1991) (finding that performance standards must be
written at the “Fully Successful” level for all critical and noncritical elements and
may be written at other levels), aff’d , 956 F.2d 1174 (Fed. Cir. 1992) (Table).
We find that the agency prope rly communicated the relevant standard to the
appellant.
¶7 We also find that the standard was valid. More specifically, the critical
element at issue in this appeal is number 3, “Output.” Under critical element 3 ,
the standard provided that employees wer e required to produce a particular
amount of average cumulative output, measured by a formula that takes into
account the complexity of the assignment and the experience of the employee,
with more experienced employees expected to produce at a higher avera ge rate.
IAF, Tab 5 at 66. Because the appellant had been in her position for more than
2 years, id. at 97, she had to produce 3.25 weighted actions per day to achieve the
“Fully Successful” level of performance.
¶8 The appellant does not challenge the va lidity of her performance standard ,
and we find, as did the administrative judge, that the standard is precise, specific,
5
and objective and clearly put the appellant on notice of what she was required to
do to achieve “Fully Successful” performance. ID at 8-9; see Jackson v.
Department of Veterans Affairs , 97 M.S.P.R. 13 , ¶¶ 12-14 (2004) (emphasizing
that the Board’s fo cus under 5 U.S.C. § 4302 (c)(1) is on accurately measuring
performance based on objective criteria) . Thus, we agree with the administrative
judge that the agency has met its burden of proving by s ubstantial evidence that
the appellant’s performance standards are valid and were properly communicated
to her.
The agency afforded the appellant a reasonable opportunity to demonstrate
acceptable performance.
¶9 Before initiating an action for unacceptable performance under 5 U.S.C.
§ 4303 , an agency must give the employee a reasonable opportunity to
demonstrate acceptable performance. Greer , 79 M.S.P.R. at 480. The agency is
required by regulation to offer the appellant assistance in improving her
performance as part of her opportunity to demonstrate acceptable performance.
Goodwin v. Department of the Air Force , 75 M.S.P.R. 204 , 208 (1997); 5 C.F.R.
§ 432.104 . However, there is no mechanical requirement regardi ng the form this
assistance must take. Gjersvold v. Department of the Treasury , 68 M.S.P.R. 331 ,
336 (1995). The employee’s ri ght to a reasonable opportunity to improve is a
substantive right and a necessary prerequisite to all chapter 43 actions. Lee,
115 M.S.P .R. 533 , ¶ 32. In determining whether the agency has afforded the
appellant a reasonable opportunity to demonstrate acceptable performance,
relevant factors include the nature of the duties and responsibilities of the
appellant’s position, the performance deficiencies involved, and the amount of
time that is sufficient to enable the employee to demonstrate acceptable
performance. Id.; Satlin v. Department of Veterans Affairs , 60 M.S.P.R. 218 , 225
(1993) ( determining that the administrative judge properly considered the
appellant’s length of service and experience in concluding that the appellant had
6
received both adequate instruction and time in which to demonstrate
improvement).
¶10 Here, the record shows that the appellant was afforded 90 days to improve
her performance. IAF, Tab 5 at 70. The agency stated in the PIP that it would
meet with the appellant bi weekly to discuss her performa nce, address any areas of
concern, and answer her questions. Id. at 69. The agency followed through on its
promises. During the opportunity to improve, it documented seven meetings held
between the appellant and her supervisor to discuss the appellant’s performance
and submitted monthly performance notices containing her production numbers.
Id. at 42, 53 -54, 59 -60. We agree with the administrative judge that the agency
established by substantial evidence that it afforded the appellant a reasonable
oppo rtunity to demonstrate acceptable performance. Towne , 120 M.S.P.R. 239,
¶ 20 (finding that the agency met its burden of showing that it provided the
appellant with a reasonable opportunity to demonstrate acceptable performance
by holding regular meetings with her during the opportunity to improve and
giving her written feedback).
The appellant’s performance was unacceptable in one critical element of her
performance standards.
¶11 An agency’s burden of providing substantial evidence of an appellant’s
unacceptable performance can be met largely by the submission of documentation
through the charges and the appellant’s working papers. Fernand v. Department
of the Treasury , 100 M.S.P.R. 259 , ¶ 10 (2005) , aff’d , 210 F. App’x 992 (Fed.
Cir. 2006). A proposal notice can constitute val id proof of an agency’s charges
when the notice is not merely conclusory but sets forth in detail an employee’s
error s and deficiencies and when the notice is corroborated by other evidenc e. Id.
¶12 Here, the agency provided substantial evidence showing that the appellant
produced a cumulative average production rate of 2.95 weighted actions per day.
IAF, Tab 5 at 32. To successfully complete the PIP, the appellant had to achieve
3.25 weigh ted actions per day. Id. at 32, 65. The appellant conceded that her
7
output was not at the acceptable level. IAF, Tab 19 at 4. We find, therefore, that
the agency proved by substantial evidence that the appellant’s performance was
unsuccessful at the co nclusion of the PIP.
The appellant failed to prove her affirmative defenses.
¶13 The appellant contended that the agency discriminated against her when it
failed to accommodate her disability. The appellant had abdominal surgery in
May 2014, but was cleared by her physician to return to duty on July 7, 2015,
with restrictions on heavy lifting, low seating, bending/lifting/pushing/pulling,
and excessive standing or walking. IAF, Tab 17 at 35, Tab 19 at 3. When she
returned from surgery, she used a walker to get around. However, there is no
evidence that her job, which appears to be sedentary, required her to perform any
of the physical actions prohibited by her physician. Moreover, the appellant did
not identify any accommodation of her limited mobility th at would have helped
her achieve the required production rate.
¶14 The appellant contends for the first time on review that there were
workplace distractions during the PIP, such as tra ining courses, noise, meetings,
broken equipment, new software, and frequ ent changes in the way her work
product was weighted, and she implies that these factors impeded her ability to
successfully complete the PIP. Petition for Review (PFR) File, Tab 1 at 11. The
Board generally will not consider an argument raised for the f irst time in a
petition for review absent a showing that it is based on new and material evidence
not previously available despite the party’s due diligence. Banks v. Department
of the Air Force , 4 M.S.P.R. 268 , 271 (1980). Although the appellant has not
made the required showing, we note in any event that she failed to substantiate
any of her claims and, in particular, she failed to substantiate the claim that there
were frequent changes in the way the agency weighted her work product. These
arguments do not persuade us that the initial decision should be disturbed.
¶15 The appellant further alleges for the first time on review that the agency
denied h er request to adjust her workspace so she had better lighting and room to
8
store her walker. PFR File, Tab 1 at 14. She also alleges that the agency
relocated her cubicle so she had to travel a greater distance to the restroom. Id.
Again, however, the a ppellant has not substantiated her allegations or shown why
she could not have raised these issues below. We also fail to see why a larger
workspace, better than the usual lighting (she does not claim that the lighting was
inadequate or that the lighting over her workspace was dimmer than that of her
peers), and closer proximity to the restroom would have allowed her to raise her
rate of production to the “Fully Successful” level. We find, therefore, that these
arguments also provide no basis to disturb t he initial decision.
¶16 Finally, the administrative judge found that the appellant failed to prove her
affirmative defense of race discrimination. ID at 18-20. The appellant challenges
this finding on review but concedes that she has no evidence to support her claim
because she filed untimely discovery requests that the agency was not bound to
answer. PFR File, Tab 1 at 16. As a result, we find no reason to question the
administrative judge’s finding on this issue. To the extent the appellant is
alleging improprieties in the agency’s handling of her request for inclusion in the
voluntary leave transfer program, PFR File, Tab 1 at 15 -16, that matter is beyond
the Board’s purview. Cf. Fesler v. Department of the Interior , 52 M.S.P.R. 660 ,
663 (1992) (finding that the Board generally lacks jurisdiction to restore sick
leave other than as part of the relief granted in an otherwise appealable action).
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.
¶17 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. During the pendency of the petition for review in this case,
the U.S. Court of Appeals for 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 in
the initial decision, the agency must also justify the institution of a PIP by
proving by substantial evidence that the emp loyee’s performance was
9
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
in this appeal already contains evidence suggesting that the appellant’s
performance leading up to the PIP was indeed un acceptable, 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.
¶18 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 at least one critical element
was at an unacceptable level prior to her placement on the PIP, the administrative
judge may incorporate his prior findings on the other elements of the agency’s
case and the appellant’s affirmative defense s in the remand initial decision. See
id. 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 defense s, 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).
10
ORDER
¶19 For the reasons discussed above, we remand this case to the Washington
Regional O ffice for further adjudication in accordance with this Remand Order.
FOR THE BOARD:
Washington, D.C. /s/ for
Jennifer Everling
Acting Clerk of the Board | GREENE_ROCHELLE_EDWINA_DC_0432_15_0708_I_1_REMAND_ORDER_1956114.pdf | 2022-08-30 | null | DC-0432-15-0708-I-1 | NP |
4,162 | https://www.mspb.gov/decisions/nonprecedential/WILLIAMS_ERIC_DC_3330_18_0427_I_1_FINAL_ORDER_1954885.pdf | UNITED STATES OF AME RICA
MERIT SYSTEMS PROTEC TION BOARD
ERIC WILLIAMS,
Appellant,
v.
DEPARTMENT OF DEFENS E,
Agency.
DOCKET NUMBER
DC-3330 -18-0427 -I-1
DATE: August 26, 2022
THIS FINAL ORDER IS NONPRECEDENTIAL1
Eric Williams , North Charleston, South Carolina, pro se.
Katherine Largo Yourth , Esquire, Richmond, Virginia, for the agency.
BEFORE
Cathy A. Harris , Vice Chairman
Raymond A. Limon , Member
Tristan L. Leavitt , Member
FINAL ORDER
¶1 The appellant has filed a petition for review of the initial decision, which
denied his request for corrective action under the Veterans Employment
Opportunit ies Act (VEOA) of 1998 . On petition for review, the appellant argues
that he is entitled to corrective action because he proved that the agency violated
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been id entified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117 (c).
2
his veterans’ preference rights , under 5 U.S.C. §§ 3311 (2) and 3319 ,2 5 C.F.R.
§ 302.302 (d), and another provision that appears to be from the Office of
Personnel Management (OPM) Delegated Examining Operations Handbook
(DEOH) ,3 by rating him ineligible based only on his occupational assessme nt; by
rating him ineligible, regardless, because his response to Question #1 of the
assessment showed that he rated himself as minimally qualified ; by failing to
place him in the highest category ; and by selecting a nonveteran over him without
following t he passover procedures. Petition for Review (PFR) File, Tab 2 at 5, 9-
12. He also argues that the administrative judge was biased because he ruled for
the agency, declined his request for a hearing, failed to issue a cl ose of record
order, and denied him an opportunity to respond to the agency’s evidence before
issuing the in itial decision. Id. at 6-10.
¶2 Generally, we grant petitions such as this one only in the following
circumstances: the initial decision contains erroneous findings of material fac t;
the initial decision is based on an erroneous interpretation of statute or regulation
or the erroneous application of the law to the facts of the case; the administrative
judge’s rulings during either the course of the appeal or the initial decision
were not consistent with required procedures or involved an abuse of discretion,
and the resulting error affected the outcome of the case; or new and material
evidence or legal argument is available that, despite the petitioner’s due
2 The appellant argues that the agency violated the passover procedures identifi ed in
5 U.S.C. § 3318 , which apply to the traditional rating and ranking process. H ere, the
agency utilized category rating in making a selection for the position at issue. Initial
Appeal File, T ab 5 at 49. Section 3319 sets forth the process for utilizing category
rating, including the procedures for placing preference -eligible candidates in categories
in accordance with their veterans’ preference and passing over preference -eligible
candidates . 5 U.S.C. § 3319 (a), (b), (c)(7). We therefore construe the appellant ’s
argument as raising a section 3319 claim.
3 See Office of Personnel Management , Delegated Examining Operations Handbook,
chapter 5, section B at 105 (May 2007) , https://www.opm.gov/policy -data-
oversight/hiring -information/ competitive -hiring/deo_handbook.pdf (last visited Aug.
19, 2022 ).
3
diligence, was not availa ble when the record closed. Title 5 of the Code of
Federal Regulations, section 1201.115 ( 5 C.F.R. § 1201.115 ). After fully
considering the filings in this appeal, we conclude that the appellant has not
established any basis under section 1201.115 for granting the petition for review.
Therefore, we DENY the petition for review. Except as expressly MODIFIED to
address the appellant’s claims that the administrative judge committed rever sible
procedural errors and to consider in more detail his arguments that were not
addressed below , we AFFIRM the initial decision.
¶3 The administrative judge did not address whether the agency allowed the
appellant to credit all of his experience when compl eting the assessment. Under
5 U.S.C. § 3311 , a preference eligible is entitled to have a broad range of prior
experience considered, including relevant military experience and experience
gained “in religious, civic, welfare, service, and organizational activities.” No
aspect of the application materials restrict ed the appellant from considering that
type of experience in assessing whether he met the specialized experience
requirement for the position and in selecting the most appropriate response to
Question #2 of the assessment . Initial Appeal File (IAF), Tab 5 at 21 , 47-48; see
5 U.S.C. § 3311 ; cf. Kirkendall v. Department of the Army , 573 F.3 d 1318 ,
1324 -25 (2009) (finding that the agency violated the veterans’ preference rights
afforded to the preference -eligible applicant under 5 U.S.C. § 3311 by failing to
consider his relevant mili tary experience in determining his eligibility ). Rather,
the announcement apprised applicants that such experience would be credited.
IAF, Tab 5 at 47 -48. To the extent that the appellant did not consider those
experiences in selecting an answer to Ques tion #2, that error is attributable to
him, not the agency.
¶4 Further, t he appellant’s claim that the DEOH required the agency to
consider his application attachments in determining his eligibility is without
merit . PFR File, Tab 2 at 11 -12; I nitial Appeal File (I AF), Tab 8 at 4 . T he
DEOH is not a statute or regulation and therefore cannot support a claim for
4
corrective action under VEOA. Cf. Graves v. Department of Veterans Affairs ,
117 M.S.P.R. 491 , ¶ 9 (2012) (finding that, to the extent the appellant alleged that
the agency violated OPM’s VetGuide, he failed to nonfrivolously allege a
violation of statute or regulation relating t o veterans’ preference). Because the
appellant rated himself not minimally qualified in his assessment, he was not
entitled t o be considered for the next phase s of the selection process , such as
being placed in a category in accordance with his veterans’ preference . IAF, Tab
6, Initial Decision (ID) at 5 -6; IAF, Tab 5 at 10 -12, 18, 20-21, 47 -48; see
Harellson v. U.S. Postal Service , 113 M.S.P.R. 534 , 539 (2010) (observing that
no authority requires that a preference eligible be considered at every stage of the
selection process ); Dale v. Department of Veterans Affairs , 102 M.S.P.R. 646 ,
¶ 13 (2006) ( explaining that VEOA does not provide that veterans will be
considered for positions for which they are not qualified ).
¶5 In addition , we agree with the administrative judge that a hearing was
unnecessary , as the parties did not dispute the dispositive factual issue s—that the
appellant indicated in his online assessment that he lacked the specialized
experien ce and/or education for the position at the advertised level s and that h is
application was automatically removed from consideration as a result . ID at 5;
see Jarrard v. Department of Justice , 113 M.S.P.R. 502 , ¶ 10 (2010) (explaining
that the Board may decide the merits without a hearing when there is no genuine
dispute of material fact and one party must prevail as a matter of law ). However,
as correctly argued by the appellant, the administrative judge erred by failing to
advise him that she would not be holding his requested hearing, set a date on
which the recor d would close, or allow the parties to submit further argument and
evidence on the merits of the appeal before the close of the record .4 See Jarra rd,
4 The appellant cites to Schucker v. Federal Deposit Insurance Corporation , 401 F.3d
1347 (Fed. Cir. 2005) , as support for his contention that the administrative judge
committed reversible error in denying him an opportunity to submit rebuttal evidence .
PFR File, Tab 2 at 9 -10. In Schucker , the Federal Circuit found that the Board had a
longstanding policy of finding that an administrative judge has committed error by
5
113 M.S.P.R. 502 , ¶ 11. Because of that error, we have considered all of the
appellant’s submission s from below and on review , including his May 7, 2018
response that he submitted to the administrative judge after the initial decision’s
issuance. PFR File, Tabs 2, 4; IAF, Tabs 1, 4, 8. Accordingly, t he appellant has
not shown how , under these circumstances, the administrative judge’s procedural
errors p rejudiced his substantive rights ; therefore , those error s do not provide a
basis for review . See Heckman v. Department of the Interior , 106 M.S.P.R. 210,
¶ 13 (2007) (finding no reversible error because the appellant did not show that
the cancellation of his requested hearing prejudiced his substantive rights under
VEOA) ; see generally Karapinka v. Department of Energy , 6 M.S.P.R. 124 , 127
(1981) (finding that an administrative judge’s procedural error is of no legal
consequence unless it is shown to have adversely affect ed a party’s substantive
rights) .
¶6 Finally, in making a claim of bias or prejudice against an administrative
judge, a party must overcome the presumption of honesty and integrity that
accompanies administrative adjudicators . Oliver v. Department of
Transpo rtation , 1 M.S.P.R. 382 , 386 (1980) . An administrative judge’s conduct
during the course of a Board proceeding warrants a new adjudication only if his
comments or actions evidence “a deep -seated favoritism or antagonism that would
make fair judgment impossible.” Bieber v. Department of th e Army , 287 F.3d
1358 , 1362 -63 (Fed. Cir. 2002) (quoting Liteky v. United States , 510 U.S. 540 ,
555 (1994)). The appellant’s claims, which do not relate to any extrajudicial
conduct by the administrative judge, neither overcome that presumption, nor
establish a deep -seated favoritism or antagonism.
closing the record without allowing the parties an opportunity to submit rebuttal
evidence . 401 F.3d at 1355 -57. Although Schucker did not invol ve a VEOA appeal,
the Board’s approach in VEOA appeals is consistent with the Federal Circuit’s holding
in that case .
6
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 obta in
review of this final decision. 5 U.S.C. § 7703 (a)(1). By statute, the nature of
your claims determines the time limit for seeking such review and the appropriate
forum with which to file. 5 U.S.C. § 7703 (b). Although we offer the following
summary of available appeal rights, the Meri t Systems Protection Board does not
provide legal advice on which option is most appropriate for your s ituation an d
the rights described below do not represent a statement of how courts will rule
regarding which cases fall within their jurisdiction. If you wish to seek review of
this final decision, you should immediately review the law applicable to your
claims and carefully follow all filing time limits and requirements. Failure to file
within the applicable time limit may result in the dismissal of your case by your
chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be 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 deci sions. 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. 2043 9
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within t he court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for informati on regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawfu l discrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703 (b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. ____ , 137 S. Ct. 1975 (2017). If you have a
representative in this case, and your representative receives this decision before
you do, then you must file with the district court no later than 30 calendar days
after your representative receives this decision. If the action involves a claim of
8
discrimination based on race, color, religion, sex, national origin, or a disabling
condition, you may be entitled to representation by a court -appointed lawyer and
to waiver of any requirement of prepayment of fees, costs, or other security. See
42 U.S.C. § 2000e -5(f) and 29 U.S.C. § 794a .
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702 (b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702 (b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a r equest for review to the EEOC by regular U.S. mail, the
address of the EEOC is:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Pr otection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302 (b)(8) or
9
other protected activities lis ted in 5 U.S.C. § 2302 (b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
disposition of allegations of a prohibited personnel practice described in section
2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i),
(B), (C), or (D),” then you may file a petition for judicial review either with the
U.S. Court of Appeals for the Federal Circuit or any court of appea ls 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 peti tion for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Addition al information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regardin g pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
6 The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdicti on expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Cour t of Appeals
for the Federal Circuit or any other circuit court 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 infor mation for the courts of appeals can be found at their
respective websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
FOR THE BOARD:
Washington, D.C. /s/ for
Jennifer Everling
Acting Clerk of the Board | WILLIAMS_ERIC_DC_3330_18_0427_I_1_FINAL_ORDER_1954885.pdf | 2022-08-26 | null | DC-3330-18-0427-I-1 | NP |
4,163 | https://www.mspb.gov/decisions/nonprecedential/YOUNG_BLAKE_NY_0752_17_0024_I_1_FINAL_ORDER_1954910.pdf | UNITED STATES OF AME RICA
MERIT SYSTEMS PROTEC TION BOARD
BLAKE YOUNG,
Appellant,
v.
UNITED STATES POSTAL SERVICE,
Agency.
DOCKET NUMBER
NY-0752 -17-0024 -I-1
DATE: August 26, 2022
THIS FINAL ORDER IS NONPRECEDENTIAL1
Blake Young , White Plains, New York, pro se.
David S. Friedman , Esquire, New York, New York, for the agency.
BEFORE
Cathy A. Harris , Vice Chairman
Raymond A. Limon , Member
Tristan L. Leavitt , Member
FINAL ORDER
¶1 The app ellant has filed a pet ition for review of the initial decision, which
dismissed for lack of jurisdiction his appeal of his placement in an off -duty status
without pay for less than 14 days . 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).
2
findings of material fact; the initial decision is based on an erroneous
interpretation of statute or regulation or the erroneou s application of the law to
the facts of the case; the administrative judge’s rulings during either the course of
the appeal or the initial decision were not consistent with required procedures or
involved an abuse of discretion, and the resulting error af fected the outcome of
the case; or new and material evidence or legal argument is available that, despite
the petitioner’s due diligence, was not available when the record closed. Title 5
of the Code of Federal Regulations, section 1201.115 ( 5 C.F.R. § 1201.115 ).
After fully considering the filings in this appeal, we conclude that 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
FORWARD to the New York Field Office for docketing as a new appeal the
appellant’s claim that he has been suspended for more than 14 days since the time
that he filed this appeal .
BACKGROUND
¶2 The appellant holds a City Carrier position at the agency’s Port Chester
Post Office in Port Chester, Ne w York. Initial Appeal File (IAF), Tab 11 at 16.
On October 18, 2016, the appellant failed to complete a scheduled medical
examination that was necessary to be certified to drive the agency’s new postal
vehicles. Id. at 18-22. After an alleged confrontation between the appellant and
the Postmaster partly concerning his failure to complete the medical examination ,
the Postmaster placed him in an emergency off -duty status without pay effective
October 20, 2016 , until further notice . Id. at 16 -18.
¶3 On October 25, 2016, the appellant filed a Board appeal of his placement in
an emergency off -duty status without pay . IAF, Tab 1 at 6-7, 14-17. He disputed
the agency’s reasons for placing him in such status and raise d claims of harmful
procedural error and discrimination . Id. at 14-16. In a letter dated October 27,
3
2016, the agency notified the appellant that he had been rescheduled for a medical
examination on November 1, 2016, and that he was obligated to complete it . IAF,
Tab 11 at 15.
¶4 In an Order to Show Cause, the administrative judge informed the appellant
that jurisdiction was an issue in his appeal because it appeared that he had been
placed in an off-duty status without pay for less than 14 days , which is not an
appealable action . IAF, Tab 3 at 1. She apprised him of his burden of proving
jurisdiction over his appeal and ordered him to file evidence on the jurisdictional
issue. Id. at 2. In response , the appellant alleged that he has remained in a leave
without pay (LWOP) status , has taken annual and sick leave, and was denied
holiday pay . As proof, he submitted pay stubs for pay periods 23 of 2015, and
22 and 23 of 2016 , covering October 17 through 30, 2015, and October 15
through November 11, 2016 . IAF, Tab 5 at 4, 26, Tab 9 at 1, 4; 2016 Pay Dates
and Leave Year, Postal Bulletin 22429 (Nov. 26, 2015),
https://about.usps.com/postal -bulletin/201 5/pb224 29/html/info_001.htm (last
visited Aug. 25, 2022 ) (2016 Pay Dates ); 2015 Pay Dates and Leave Year, Postal
Bulletin 22403 (Nov. 27, 2014), https://about.usps.com/postal -
bulletin/2014/pb22403/html/info_001.htm (last visited Aug. 25, 2022 ) (2015 Pay
Dates) .2 He also submitted , among other things, documentation concerning his
request for a reasonable accommodation in 2016, his claims for workers’
compensation benefits that were denied in 2011 and 2016 , the former
Postmaster’s apology to Port Chester letter carriers for the workplace climate in
August 2016 , customer complaints in 2015 , a letter of warning in 2013 that was
based partly on his conduct towards the former Postmaster , his grievance of the
letter of warning that was denied in 2013 , his off -duty arrest in 2012, and an
arbitration decision in 2000 that mitigated a 7 -day suspension to a 3 -day
suspension . IAF, Tab 5 at 8-9, 11-12, 14 -16, 18 -23, 27 -29, 3 1-35, Tab 9 at 3.
2 Pursuant to 5 C.F.R. § 1201 .64, we take official notice of the time periods covered by
these pay periods.
4
The agency replied to the appellant’s response and moved to dismiss the a ppeal
for lack of jurisdiction . IAF, Tab 11 at 4 -11.
¶5 Based on the written record , the administrative judge issued an initial
decision dismissing the appeal for lack of jurisdiction. IAF, Tab 12, Initial
Decision (ID) at 2, 4. In particular, s he found that the record was devoid of
evidence that, as of the date the appellant filed his appeal, he was suspended for
more than 14 days. ID at 4. She further found that the appellant’s allegations
regarding stale claims, a reasonable accommodation request, a denial of holiday
pay, and mistreatment by the current and former Postmasters faile d to list any
action within the Board’s jurisdiction. ID at 2 -3. She concluded that the
appellant failed to raise a nonfrivol ous claim that he was suspended in excess of
14 days or otherwise was subjected to an appealable adverse action . ID at 4. One
day after the issuance of the initial decision, the appellant filed a response to the
agency’s motion to dismiss.3 IAF, Tab s 13-14.
¶6 The appellant has filed a petition for review. Petition for Review (PFR)
File, Tab 1. The agency has not filed a response to his petition for review .
DISCUSSION OF ARGUME NTS ON REVIEW
The appellant has failed to make a nonfrivolous allegation of the Board ’s
jurisdiction over his appeal .
¶7 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). A suspension for more than
14 days is an appealable action. 5 U.S.C. §§ 7512 (2), 7513(d) ; Abbott v.
3 Because the Board could not locate the appellant’s response to the agency’s motion to
dismiss, the Clerk of the Board directed the agency to submit its copy of the pleading
on review. Petition for Review (PFR) File, Tab 4. The agency submitted its copy of
the appellant’s pleading, which we have included in the official record. PFR File,
Tab 5; IAF, Tab 14. The appellant has not filed any comment on the missing pleading
as submitted by the agency. In reaching our decision, we have considered the
appellant’s response to the agency’s motion, which was filed only 1 day after the
issuance of the initial decision. See 5 C.F.R. § 1201.59 (c)(2).
5
U.S. Postal Service , 121 M.S.P.R. 294 , ¶ 6 (2014). A “suspension” is the
temporary placement of an employee in a nonpay, nonduty status. 5 U.S.C.
§§ 7501 (2), 7511(a)(2) ; Abbott , 121 M.S.P.R. 294 , ¶ 6. The appellant bears the
burden of proving the Board’s jurisdiction by preponderant evidence. 5 C.F.R.
§ 1201.56 (b)(2)(i)(A). Generally, an appellant is entitled to a jurisdictional
hearing if he raises a nonfrivolous allegation4 of the Board ’s jurisdiction over his
appeal. Edwards v. Departmen t of the Air Force , 120 M.S.P.R. 307 , ¶ 6 (2013).
¶8 Here , it is undisputed that the appellant was placed in a nonpay, nonduty
status on October 20, 2016, and he filed his appeal on October 25, 2016.5 IAF,
Tab 1 at 17, Tab 11 at 16. Moreover, the agency did not reschedule the
appellant’s medical examination until after he filed his appeal . IAF, Tab 11
at 15. As properly noted by the administrative judge, the Board’s jurisdiction is
determined by the nature of an agency’s action against an appellant at the time his
appeal is filed . Lefavor v. Department of the Navy , 115 M.S.P.R. 120 , ¶ 10
(2010) ; ID at 3 . When the appellant filed his appeal , he had been suspended for
only 6 days , which is not an appealable action . See Lefavor , 115 M.S.P.R. 120 ,
¶ 5 (recognizing that a suspension of 14 days or less is not an appealable action ).
Therefore , we agree with the administrative judge’s finding that the appellant
failed to raise a nonfrivolous claim that he was suspended for more than 14 days .
ID at 4.
¶9 In addition, w e agree with the administrative judge’s finding s that the
appellant’s claims made in response to the Order to Show Cause failed to list any
4 A nonfrivolous allegation is an assertion that, if proven, could establish the matter at
issue. 5 C.F.R. § 1201.4 (s).
5 The appellant mailed his initial Board appeal on October 25, 2016, to the Office of the
Clerk of the Board , which then forwarded his appeal to the Board’s New York Field
Office . IAF, Tab 1 at 17 -18. A pleading submitted by mail generally is considered
filed on the postmark date , even when submitted to the wrong Board office . Branch v.
Department of the Army , 110 M.S.P.R. 663 , ¶¶ 6-7 (2009 ); 5 C.F.R. § 1201.4 (l). Thus,
we find that the filing date of the appellant’s initial appeal is the October 25, 2016
postmark date contained on his mailing to the Clerk of the Board. IAF, Tab 1 at 17 .
6
action within the Board ’s jurisdiction and that he failed to raise a nonfrivolous
claim that he was subjected to an appealable adverse action . ID at 2-4; IAF,
Tabs 5, 9; see Pridgen v. Office of Management and Budget , 117 M.S.P.R. 665,
¶ 7 (2012) (stating that the Board does not have jurisdiction over discrimination
claims absent an otherwise appealable action); Marks v. U.S. Postal Service ,
78 M.S.P.R. 451 , 454 (1998) (finding that the Board lack ed jurisdiction over a n
appeal of a letter of warning or a suspension of 14 days or less ), overruled on
other grounds by Abbott , 121 M.S.P.R. 294 ; Lee v. Department of Labor ,
76 M.S.P.R. 142 , 146 (1997) (finding that the Board lacks jurisdiction to review
decisions of the Office of Workers’ Compensation Programs regarding an
employee’s entitlement to workers’ compensation benefits); Wren v. Department
of the Army , 2 M.S.P.R. 1 , 2 (1980) (explaining that prohibited personnel
practices under 5 U.S.C. § 2302 (b) are not an independent so urce of Board
jurisdiction), aff’d, 681 F.2d 867 , 871 -73 (D.C. Cir. 1982 ). To the extent the
appellant attempted to appeal the grievance decision concerning a letter of
warning and the arbitration decision concerning a 7-day suspension , we find that
Postal Service employees may not request Board review of such decisions
because 5 U.S.C. § 7121 does not apply to the Postal Service . IAF, Tab 5 at 22,
32-34; see Anderson v. U.S. Postal Ser vice, 109 M.S.P.R. 558 , ¶ 4 (2008) .
¶10 For the following reasons, we find that the arguments raised in the
appellant’s petition for review fail to provide a reason to disturb the initial
decision . Specifically , he disputes the administrative judge ’s finding that he had
a confrontation with the Postmaster before his placement in an emergency
off-duty status without pay. PFR File, Tab 1 at 1; ID at 2 , 4. However, the
appellant has not described how any factual error in that regard is material to the
dispositive jurisdictional issue in his appeal or is of sufficient weight to warrant a
different outcome . See 5 C.F.R. § 1201.115 (a)(1). Next, he asserts that he was
denied a hearing . PFR File, Tab 1 at 1. We note that he did not request a hearing
below. See 5 C.F.R. § 1201.24 (e) ( explaining that the right to a hearing before
7
the Board is waived if an appellant fails to timely request a hearing). In any
event , we find that he is not entitled to a jurisdictional hearing because he has
failed to raise a nonfrivolous allegation of the Board ’s jurisdiction over his
appeal . See Edwards , 120 M.S.P.R. 30 7, ¶ 6.
¶11 Additionally , the appellant asserts that the administrative judge erroneously
separated from his appeal the March 20 “false [confrontation ] charge ” involving
the former Postmaster. PFR File, Tab 1 at 1. It appears that he is referring to his
allega tion that his claim for workers’ compensation benefits, based on a
March 20, 2015 injury, was denied because the former Postmaster submitted a
“false ” challenge letter . IAF, Tab 5 at 1, 8-9, 15 -17, 23, Tab 9 at 1, 5. He further
contends on review that the administrative judge failed to investigate why the
former Postmaster was relieved of her duty for mistreating employees and
violating their rights . PFR File, Tab 1 at 1 ; IAF, Tab 5 at 2, 10, 12 . We find that
the administra tive judge did not separate any of the appellant’s claims from the
instant appeal and did not have an obligation to investigate his claims . See
Moody v. Department of the Air Force , 30 M.S.P.R. 9, 11 (1985) (explaining that
the Board does not solicit, investigate, or prosecute appeals, and it is the parties’
obligation t o create the record upon which the Board will adjudicate the appeal ).
As described above, t he administrative judge acknowledged the appellant’s
allegation that he was mistreated by the former Postmaster and found that he
failed to list any action within the Board’s jurisdiction or make a nonfrivolous
claim of an appealable adverse action . ID at 2-4. Based on our review of the
record, we find no reason to disturb that finding .
¶12 Further , the appellant argues that the administrative judge failed to admit
his rebuttal to the agency’s motion to dismiss. PFR File, Tab 1 at 2. As
explained supra n.3, the rebuttal has been included in the record. A fter
considering the appellant’s rebuttal on review, we find that it presents no reason
to disturb the initial decision. In his rebuttal, the appellant alleged that he did not
receive paperwork informing him that his suspension had ended and that his pay
8
stubs show that he was suspended for 6 weeks. IAF, Tab 14 at 1. He also
responded on the merits of his claims , including his allegation that he suffered
compensable work injuries. Id. at 1-4. We find that these assertions fail to raise
a nonfri volous allegation of jurisdiction . In particular, his submission of pay
stubs for pay periods 23 of 2015, and 22 and 2 3 of 2016, does not support a
finding that, when he filed his appeal on October 25, 2016 , he had been
suspended for more than 14 days.6 IAF, Tab 1 at 17, Tab 5 at 26, Tab 9 at 4. The
appellant reiterates on review his assertion that he was suspended for 6 weeks .
PFR File, Tab 1 at 2. In addition, for the first time on review, he claims that he
has over 800 hours of missing pay , but he does not specify from which time
periods he is missing pay .7 Id. We find that these assertions, without more, fail
to nonfrivolously allege the Board ’s jurisdiction over his appeal at the time he
filed his appeal .
¶13 Next, the a ppellant claims that the Board is “getting revenge for the
2013 -2014 decision to grant [him] back pay” because “it has denied all [his]
charge[s]” since then. Id. It is unclear to which decision the appellant is
6 The appellant’s pay stub for pay period 23 of 2015 shows that, from October 17 to 30,
2015, he worked 15.15 hours and 0.56 hours of overtime , and he took 8.85 hours of
annual leave and 56 hours of LW OP. IAF, Tab 5 at 26; 2015 Pay Dates. To the extent
he is arguing that he was suspended in pay period 23 of 2015 , we find that he has failed
to nonfrivolously allege that he was suspended for more than 14 days . We further find
that there is no basis upo n which to combine such an alleged suspension with the 6-day
suspension in 2016 at issue in this appeal when the suspensions are nonconsecutive and
the circumstances surrounding his LWOP status in October 2015 , are unclear . See
Edwards v. U.S. Postal Serv ice, 112 M.S.P.R. 196 , ¶¶ 7-8 (2009) (recognizing that,
although there exists no precedent for combining nonconsecutive suspensions for
purposes of finding Board jurisdiction, the Board has left open the possibility that
nonconsec utive suspensions may be combined when they are based on the same reason
and there is evidence that the agency attempted to circumvent Board jurisdiction by
imposing multiple suspensions of 14 days or less) .
7 To the extent the appellant is referring to the sum of the cumulative amounts of LWOP
and annual and sick leave taken in 2015 and 2016 as reflected in his pay stubs in the
record , we note that the cumulative amounts in pa y period 23 of 2016 already include
the amounts in pay period 22 of 2016. IAF, Tab 5 at 26, Tab 9 at 4. Nevertheless, his
cumulative amounts of leave d o not provide a reason to disturb the initial decision.
9
referring ; however, we note that the Board has dismissed all of his prior Board
appeals. MSPB Docket No. NY -752S -16-0232 -I-1, Final Order at 1-2 (Sept. 22,
2016) ( affirming the initial de cision that dismissed his appeal for lack of
jurisdiction ); MSPB Docket No. NY -3443 -16-0181 -I-1, Initial Decision at 1-2
(Mar. 25, 2016) (dismissing the appeal as withdrawn) ; MSPB Docket
No. NY-0752 -15-0248 -C-1, Compliance Initial Decision at 1-2 (Nov. 9, 2015)
(dismissing the petition for enforcement as withdrawn); MSPB Docket
No. NY-0752 -15-0248 -I-1, Initial Decision at 2-3 (Aug. 19, 2015) (dismissing the
appeal as settled); MSPB Docket No. NY -0752 -14-0166 -I-1, Initial Decision at 2,
5 (May 5, 2014) (dismissing the appeal for lack of jurisdiction) . To the extent the
appellant is asserting retaliation for filing a prior Board appeal, we note that
prohibited personnel practice s are not an independent source of Board
jurisdiction, Wren , 2 M.S.P.R. at 2, and Postal Service employees may not file an
individual right of action (IRA) appeal because they are not covered under the
Whistleblower Protection Act , 5 U.S.C. § 2302 (a)(2)(C); Matthews v. U.S. Postal
Service , 93 M.S.P.R. 109 , ¶ 13 (2002) .8
¶14 Moreover, t he appellant asserts that the administrative judge allowed the
agency representative to mistreat him and that both the administrative judge and
the agency representative took management’s side . PFR File, Tab 1 at 2. We
find that these broad allegation s of bias are 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) (observing that, in making a claim of
bias or prejudice against an administrative judge, a party must overcome the
presumption of honesty and integrity that accompanies administrative
adjudicators) . Further , the Board will not infer bias based on an administrative
8 Although this appeal was filed after the effective date of the Whistleblower Protection
Enhancement Act of 2012, Pub. L. No. 112 -199, 126 Stat. 1465, we find nothing in the
Act that would permit a P ostal Service employee to file an IRA appeal.
10
judge’s case -related rulings. Vaug hn v. Department of the Treasury ,
119 M.S.P.R. 605 , ¶ 18 (2013) .
¶15 Finally, the appellant requests the Board to combine all of his cases and to
determine why the agency and the union have not rendered a decision on his
claims involving the issues of “back pay, false c harges, and denied medical care ”
on March 20 and October 20, 2016. PFR File, Tab 1 at 2. To th e extent the
appellant is requesting the Board to combine any ongoing equal employment
opportunity complaint, claim for workers’ compensation benefits, or grievance
with his Board appeal , we decline his request because we do not have such
authority . IAF, Tab 5 at 36, Tab 14 at 4 ; see 5 U.S.C. § 1204 (a). Alternatively, if
he is requesting the Board to reopen and to join his prior Board appeals with this
case, we deny his request because the circumstances do not warrant doing so .
See, e.g. , Metallo v. Department of Defense , 110 M.S.P.R. 229, ¶¶ 15-17 (2008)
(denying the appellant’s request to reopen and to join her appeals). Moreover, we
decline to investigate the agency and the union because the Board does not have
investigative authority . See Moody , 30 M.S.P.R. at 11 .
¶16 Accordingly, we affirm the administrative judge’s decision to dismiss this
appeal for lack of jurisdiction.
We forward to the field office for docketing as a new appeal the appellant’s claim
that he has been suspended for more than 14 days since the time that he filed the
instant appeal.
¶17 The appellant submi tted below pay stubs for pay periods 22 and 23 of 2016
show ing that, from October 15 to 28, 2016, he worked 18.46 hours and 2.69 hours
of overtime , and he took 61.54 hours of LWOP , and that, from October 29 to
November 1 1, 2016, he took 76 hours of LWOP and 4 hours of sick leave . IAF,
Tab 5 at 26, Tab 9 at 4; 2016 Pay Dates . The administrative judge and the agency
did not address these hours of LWOP and sick leave. Moreover, the appellant
submitted below a letter in which the agency scheduled a meeting on
November 22, 2016 , to discuss his reasonable accommodation request, IAF, Tab 9
11
at 3, and he has alleged that he was suspended for 6 weeks, he did not receive
written notification that his suspension had ended , and he has over 800 hours of
missing pay , PFR File, Tab 1 at 2; IAF, Tab 14 at 1. We find that his allegations ,
when viewed in light of the aforementioned evidence, constitute a claim that,
since the time that he filed the instant appeal, he might have been suspended for
more than 14 days. See Abbott , 121 M.S.P.R. 294 , ¶ 6 (finding that a suspension
covers both unpaid absences and an employee’s placement on sick or annual leave
against his will). In order to adjudicate the appellant’s claim , we forward the
matter to the Board’s New York F ield Office for docketing as a new appeal .
NOTICE OF APPEAL RIGH TS9
You may obtain review of this final decision. 5 U.S.C. § 7703 (a)(1). By
statute, the nature of your claims determines the time limit for seeking such
review and t he appropriate forum with which to file. 5 U.S.C. § 7703 (b).
Although we offer the following summary of available appeal rights, the Merit
Systems Protection Board does not provide legal advice o n which option is most
appropriate for your situation and the rights described below do not represent a
statement of how courts will rule regarding which cases fall within their
jurisdiction. If you wish to seek review of this final decision, you should
immediately review the law applicable to your claims and carefully follow all
filing time limits and requirements. Failure to file within the applicable time
limit may result in the dismissal of your case by your chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
9 Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise which option is most appropriate in any matter.
12
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703 (b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, w ww.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation fo r an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Boar d neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have cla imed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
13
receive this decision. 5 U.S.C. § 7703 (b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. ____ , 137 S. Ct. 1975 (2017). If you have a
representative in this case, and your representative rece ives this decision before
you do, then you must file with the district court no later than 30 calendar days
after your representative receives this decision. If the action involves a claim of
discrimination based on race, color, religion, sex, national or igin, or a disabling
condition, you may be entitled to representation by a court ‑appointed lawyer and
to waiver of any requirement of prepayment of fees, costs, or other security. See
42 U.S.C. § 2000e -5(f) and 29 U.S.C. § 794a .
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702 (b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702 (b)(1). If you have a representative in this case,
and your representative rec eives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
14
Office o f Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302 (b)(8) or
other protected activities listed in 5 U.S.C. § 2302 (b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
disposition of allegations of a prohibited personnel practice described in
section 2302(b) other than practices described in se ction 2302(b)(8), or
2302(b)(9)(A)(i), (B), (C), or (D),” then you may file a petition for judicial
review either with the U.S. Court of Appeals for the Federal Circuit or any court
of appeals of competent jurisdiction.10 The court of appeals must receive your
petition for review within 60 days of the date of issuance of this decision.
5 U.S.C. § 7703 (b)(1)(B).
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Fede ral Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
10 The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed int o law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appea ls of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115 -195,
132 Stat. 1510.
15
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are intere sted in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appel lants before the 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:
Washington, D.C. /s/ for
Jennifer Everling
Acting Clerk of the Board | YOUNG_BLAKE_NY_0752_17_0024_I_1_FINAL_ORDER_1954910.pdf | 2022-08-26 | null | NY-0752-17-0024-I-1 | NP |
4,164 | https://www.mspb.gov/decisions/nonprecedential/WILLIAMS_ERIC_DC_3330_18_0427_I_1_FINAL_ORDER_1955047.pdf | UNITED STATES OF AME RICA
MERIT SYSTEMS PROTEC TION BOARD
ERIC WILLIAMS,
Appellant,
v.
DEPARTMENT OF DEFENS E,
Agency.
DOCKET NUMBER
DC-3330 -18-0427 -I-1
DATE: August 26, 2022
THIS FINAL ORDER IS NONPRECEDENTIAL1
Eric Williams , North Charleston, South Carolina, pro se.
Katherine Largo Yourth , Esquire, Richmond, Virginia, for the agency.
BEFORE
Cathy A. Harris , Vice Chairman
Raymond A. Limon , Member
Tristan L. Leavitt , Member
FINAL ORDER
¶1 The appellant has filed a petition for review of the initial decision, which
denied his request for corrective action under the Veterans Employment
Opportunit ies Act (VEOA) of 1998 . On petition for review, the appellant argues
that he is entitled to corrective action because he proved that the agency violated
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been id entified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117 (c).
2
his veterans’ preference rights , under 5 U.S.C. §§ 3311 (2) and 3319 ,2 5 C.F.R.
§ 302.302 (d), and another provision that appears to be from the Office of
Personnel Management (OPM) Delegated Examining Operations Handbook
(DEOH) ,3 by rating him ineligible based only on his occupational assessme nt; by
rating him ineligible, regardless, because his response to Question #1 of the
assessment showed that he rated himself as minimally qualified ; by failing to
place him in the highest category ; and by selecting a nonveteran over him without
following t he passover procedures. Petition for Review (PFR) File, Tab 2 at 5, 9-
12. He also argues that the administrative judge was biased because he ruled for
the agency, declined his request for a hearing, failed to issue a cl ose of record
order, and denied him an opportunity to respond to the agency’s evidence before
issuing the in itial decision. Id. at 6-10.
¶2 Generally, we grant petitions such as this one only in the following
circumstances: the initial decision contains erroneous findings of material fac t;
the initial decision is based on an erroneous interpretation of statute or regulation
or the erroneous application of the law to the facts of the case; the administrative
judge’s rulings during either the course of the appeal or the initial decision
were not consistent with required procedures or involved an abuse of discretion,
and the resulting error affected the outcome of the case; or new and material
evidence or legal argument is available that, despite the petitioner’s due
2 The appellant argues that the agency violated the passover procedures identifi ed in
5 U.S.C. § 3318 , which apply to the traditional rating and ranking process. H ere, the
agency utilized category rating in making a selection for the position at issue. Initial
Appeal File, T ab 5 at 49. Section 3319 sets forth the process for utilizing category
rating, including the procedures for placing preference -eligible candidates in categories
in accordance with their veterans’ preference and passing over preference -eligible
candidates . 5 U.S.C. § 3319 (a), (b), (c)(7). We therefore construe the appellant ’s
argument as raising a section 3319 claim.
3 See Office of Personnel Management , Delegated Examining Operations Handbook,
chapter 5, section B at 105 (May 2007) , https://www.opm.gov/policy -data-
oversight/hiring -information/ competitive -hiring/deo_handbook.pdf (last visited Aug.
19, 2022 ).
3
diligence, was not availa ble when the record closed. Title 5 of the Code of
Federal Regulations, section 1201.115 ( 5 C.F.R. § 1201.115 ). After fully
considering the filings in this appeal, we conclude that the appellant has not
established any basis under section 1201.115 for granting the petition for review.
Therefore, we DENY the petition for review. Except as expressly MODIFIED to
address the appellant’s claims that the administrative judge committed rever sible
procedural errors and to consider in more detail his arguments that were not
addressed below , we AFFIRM the initial decision.
¶3 The administrative judge did not address whether the agency allowed the
appellant to credit all of his experience when compl eting the assessment. Under
5 U.S.C. § 3311 , a preference eligible is entitled to have a broad range of prior
experience considered, including relevant military experience and experience
gained “in religious, civic, welfare, service, and organizational activities.” No
aspect of the application materials restrict ed the appellant from considering that
type of experience in assessing whether he met the specialized experience
requirement for the position and in selecting the most appropriate response to
Question #2 of the assessment . Initial Appeal File (IAF), Tab 5 at 21 , 47-48; see
5 U.S.C. § 3311 ; cf. Kirkendall v. Department of the Army , 573 F.3 d 1318 ,
1324 -25 (2009) (finding that the agency violated the veterans’ preference rights
afforded to the preference -eligible applicant under 5 U.S.C. § 3311 by failing to
consider his relevant mili tary experience in determining his eligibility ). Rather,
the announcement apprised applicants that such experience would be credited.
IAF, Tab 5 at 47 -48. To the extent that the appellant did not consider those
experiences in selecting an answer to Ques tion #2, that error is attributable to
him, not the agency.
¶4 Further, t he appellant’s claim that the DEOH required the agency to
consider his application attachments in determining his eligibility is without
merit . PFR File, Tab 2 at 11 -12; I nitial Appeal File (I AF), Tab 8 at 4 . T he
DEOH is not a statute or regulation and therefore cannot support a claim for
4
corrective action under VEOA. Cf. Graves v. Department of Veterans Affairs ,
117 M.S.P.R. 491 , ¶ 9 (2012) (finding that, to the extent the appellant alleged that
the agency violated OPM’s VetGuide, he failed to nonfrivolously allege a
violation of statute or regulation relating t o veterans’ preference). Because the
appellant rated himself not minimally qualified in his assessment, he was not
entitled t o be considered for the next phase s of the selection process , such as
being placed in a category in accordance with his veterans’ preference . IAF, Tab
6, Initial Decision (ID) at 5 -6; IAF, Tab 5 at 10 -12, 18, 20-21, 47 -48; see
Harellson v. U.S. Postal Service , 113 M.S.P.R. 534 , 539 (2010) (observing that
no authority requires that a preference eligible be considered at every stage of the
selection process ); Dale v. Department of Veterans Affairs , 102 M.S.P.R. 646 ,
¶ 13 (2006) ( explaining that VEOA does not provide that veterans will be
considered for positions for which they are not qualified ).
¶5 In addition , we agree with the administrative judge that a hearing was
unnecessary , as the parties did not dispute the dispositive factual issue s—that the
appellant indicated in his online assessment that he lacked the specialized
experien ce and/or education for the position at the advertised level s and that h is
application was automatically removed from consideration as a result . ID at 5;
see Jarrard v. Department of Justice , 113 M.S.P.R. 502 , ¶ 10 (2010) (explaining
that the Board may decide the merits without a hearing when there is no genuine
dispute of material fact and one party must prevail as a matter of law ). However,
as correctly argued by the appellant, the administrative judge erred by failing to
advise him that she would not be holding his requested hearing, set a date on
which the recor d would close, or allow the parties to submit further argument and
evidence on the merits of the appeal before the close of the record .4 See Jarra rd,
4 The appellant cites to Schucker v. Federal Deposit Insurance Corporation , 401 F.3d
1347 (Fed. Cir. 2005) , as support for his contention that the administrative judge
committed reversible error in denying him an opportunity to submit rebuttal evidence .
PFR File, Tab 2 at 9 -10. In Schucker , the Federal Circuit found that the Board had a
longstanding policy of finding that an administrative judge has committed error by
5
113 M.S.P.R. 502 , ¶ 11. Because of that error, we have considered all of the
appellant’s submission s from below and on review , including his May 7, 2018
response that he submitted to the administrative judge after the initial decision’s
issuance. PFR File, Tabs 2, 4; IAF, Tabs 1, 4, 8. Accordingly, t he appellant has
not shown how , under these circumstances, the administrative judge’s procedural
errors p rejudiced his substantive rights ; therefore , those error s do not provide a
basis for review . See Heckman v. Department of the Interior , 106 M.S.P.R. 210,
¶ 13 (2007) (finding no reversible error because the appellant did not show that
the cancellation of his requested hearing prejudiced his substantive rights under
VEOA) ; see generally Karapinka v. Department of Energy , 6 M.S.P.R. 124 , 127
(1981) (finding that an administrative judge’s procedural error is of no legal
consequence unless it is shown to have adversely affect ed a party’s substantive
rights) .
¶6 Finally, in making a claim of bias or prejudice against an administrative
judge, a party must overcome the presumption of honesty and integrity that
accompanies administrative adjudicators . Oliver v. Department of
Transpo rtation , 1 M.S.P.R. 382 , 386 (1980) . An administrative judge’s conduct
during the course of a Board proceeding warrants a new adjudication only if his
comments or actions evidence “a deep -seated favoritism or antagonism that would
make fair judgment impossible.” Bieber v. Department of th e Army , 287 F.3d
1358 , 1362 -63 (Fed. Cir. 2002) (quoting Liteky v. United States , 510 U.S. 540 ,
555 (1994)). The appellant’s claims, which do not relate to any extrajudicial
conduct by the administrative judge, neither overcome that presumption, nor
establish a deep -seated favoritism or antagonism.
closing the record without allowing the parties an opportunity to submit rebuttal
evidence . 401 F.3d at 1355 -57. Although Schucker did not invol ve a VEOA appeal,
the Board’s approach in VEOA appeals is consistent with the Federal Circuit’s holding
in that case .
6
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 obta in
review of this final decision. 5 U.S.C. § 7703 (a)(1). By statute, the nature of
your claims determines the time limit for seeking such review and the appropriate
forum with which to file. 5 U.S.C. § 7703 (b). Although we offer the following
summary of available appeal rights, the Meri t Systems Protection Board does not
provide legal advice on which option is most appropriate for your s ituation an d
the rights described below do not represent a statement of how courts will rule
regarding which cases fall within their jurisdiction. If you wish to seek review of
this final decision, you should immediately review the law applicable to your
claims and carefully follow all filing time limits and requirements. Failure to file
within the applicable time limit may result in the dismissal of your case by your
chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be 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 deci sions. 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. 2043 9
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within t he court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for informati on regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawfu l discrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703 (b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. ____ , 137 S. Ct. 1975 (2017). If you have a
representative in this case, and your representative receives this decision before
you do, then you must file with the district court no later than 30 calendar days
after your representative receives this decision. If the action involves a claim of
8
discrimination based on race, color, religion, sex, national origin, or a disabling
condition, you may be entitled to representation by a court -appointed lawyer and
to waiver of any requirement of prepayment of fees, costs, or other security. See
42 U.S.C. § 2000e -5(f) and 29 U.S.C. § 794a .
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702 (b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702 (b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a r equest for review to the EEOC by regular U.S. mail, the
address of the EEOC is:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Pr otection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302 (b)(8) or
9
other protected activities lis ted in 5 U.S.C. § 2302 (b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
disposition of allegations of a prohibited personnel practice described in section
2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i),
(B), (C), or (D),” then you may file a petition for judicial review either with the
U.S. Court of Appeals for the Federal Circuit or any court of appea ls 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 peti tion for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Addition al information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regardin g pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
6 The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdicti on expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Cour t of Appeals
for the Federal Circuit or any other circuit court 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 infor mation for the courts of appeals can be found at their
respective websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
FOR THE BOARD:
Washington, D.C. /s/ for
Jennifer Everling
Acting Clerk of the Board | WILLIAMS_ERIC_DC_3330_18_0427_I_1_FINAL_ORDER_1955047.pdf | 2022-08-26 | null | DC-3330-18-0427-I-1 | NP |
4,165 | https://www.mspb.gov/decisions/nonprecedential/WILLIAMS_ERIC_AT_3330_18_0517_I_1_FINAL_ORDER_1955048.pdf | UNITED STATES OF AME RICA
MERIT SYSTEMS PROTEC TION BOARD
ERIC WILLIAMS,
Appellant,
v.
DEPARTMENT OF DEFENS E,
Agency.
DOCKET NUMBER
AT-3330 -18-0517 -I-1
DATE: August 26, 2022
THIS FINAL ORDER IS NONPRECEDENTIAL1
Eric Williams , North Charleston, South Carolina, pro se.
Sally R. Bacon , Esquire, Fort Belvoir, Virginia, for the agency.
BEFORE
Cathy A. Harris , Vice Chairman
Raymond A. Limon , Member
Tristan L. Leavitt , Member
FINAL ORDER
¶1 The appellant has filed a petition for review of the initial decision, which
denied his request for corrective action under the Veterans Employment
Opportunit ies Act (VEOA) of 1998 . On petition for review, he argues that the
administrative judge erred in f inding that the agency did not violate his 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
require d to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117 (c).
2
preference rights by removing him from consideration without prior notice and
approval, passing him over, placing him in a “not -qualified” category, failing to
certify enough names for the hiring official’s consideration, failing to consider
his application, and imposing a minimum education requirement . Generally, we
grant petitions such as this one only in the following circumstances: the initial
decision contai ns 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 t he appeal or the initial decision were not consistent with required
procedures or involved an abuse of discretion, and the resulting error affected the
outcome of the case; or new and material evidence or legal argument is available
that, despite the petit ioner’s due diligence, was not available when the record
closed. Title 5 of the Code of Federal Regulations, section 1201.115 ( 5 C.F.R.
§ 1201.115 ). After fully considering the filings in this appeal, we conclude that
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 consider the appellant’s claims that t he agency failed to
certify enough names for the hiring official’s consideration, failed to consider his
application before finding him unqualified for the position , and improperly
imposed an education requirement, we AFFIRM the initial decision.
¶2 On review , the appellant reasserts that the agency violated 5 U.S.C.
§ 3317 (a) because it did not prove that it certified at least three names for each of
the locations identified in the vacancy announcemen t. Petition for Review (PFR)
File, Tab 1 at 4. The administrative judge addressed this argument below, finding
that, even if 5 U.S.C. § 3317 (a) were a veterans’ preference statute, the appellant
did not show that the agency violated his veterans’ preference rights thereunder
because he was not qualified for the position. Initial Appeal File (IAF) , Tab 15,
Initial Decision at 5; see generally Easter v. Department of the Army ,
99 M.S.P.R. 288 , ¶ 8 (2005) (explaining that VEOA does not provide that
3
veterans will be considered eligible for positions for which they are not
qualif ied). While we agree that the appellant was unqual ified for the position, we
resolve this issue on alternative grounds.
¶3 For positions in the competitive service, a certificate must include enough
names “from the top of the appropriate register to permit a nominating or
appointing authority . . . to consider at least three names for appointment to each
vacancy .” 5 U.S.C. § 3317 (a). The Board has found that an agency’s failure to
apply section 331 7(a) constituted a violation of an appellant’s veterans’
preference rights. Graves v. Department of Veterans Affairs , 114 M.S.P.R . 245 ,
¶¶ 18 -20 (2010). The requirements of 5 U.S.C. §§ 3308 through 3318 apply to
excepted service examinations . 5 U.S.C. § 3320 ; see 5 U.S.C. § 3319 (c)(1)
(providing that “[a] n appointing official may select any applicant in the highest
quality category or, if fewer than 3 candidates have been assigned to the highest
quality cat egory, in a merged category consisting of the highest and the second
highest quality categories ”). To the extent that the agency was required to
provide at least three names of qualified individuals to the selecting official for
consideration for each vac ancy when filling the excepted service position at issue
using category rating, we find that the agency met this requirement. The record
reflects that the agency considered seven candidates from the highest category to
fill the two vacancies. IAF, Tab 8 at 8, 22. We therefore modify the initial
decision to find that the agency complied with the requirements of section
3317(a) , and thus, the appellant did not prove that the agency violated his
veterans’ preference rights in this regard .
¶4 The administrative judge did not address the appellant’s remaining two
arguments in the initial decision —that the agency failed to consider his
application and improperly imposed a minimum education requirement .
PFR File, Tab 1 at 6, 9 . We find that this error is harmless because these
arguments do not provide a basis for granting the petition for review. Karapinka
v. Department of Energy , 6 M.S.P.R. 124 , 127 (1981) (explaining that the
4
administrative judge’s procedural error is of no legal consequence unless it is
shown to have adversely affected a party’s substantive rights).
¶5 As a preference eligible, the appellant is entitled to have all of his relevant,
material experience considered when experience is a qualification measure.
5 U.S.C. § 3311 ; Kirkendall v. Department of the Army , 573 F.3d 1318 , 1324
(Fed. Cir. 2009) (explaining that, “[a]t the very least, ‘credited’ must mean
‘considered’”); 5 C.F.R. § 302.302 (d). The re cord reflects that the Defense
Acquisition University (DAU) hiring panel considered the appellant’s application
materials before finding him not qualified for the position. IAF, Tab 8 at 8. The
appellant has not identified any evidence showing otherwise. Instead, he requests
an independent review of his application to determine whether he qualified under
the standards of the Office of Personnel Management (OPM) . PFR File, Tab 1 at
6. However, the Board’s review is limited to assessing whether the agenc y
considered all of an appellant’ s experience that is material to the position ; how
the agency adjudges and weighs those experiences is beyond the purview of the
Board’ s review in a VEOA appeal . Miller v. Federal Deposit Insurance
Corporation , 121 M.S.P.R. 88 , ¶ 9 (2014) , aff’d , 818 F.3d 1361 (Fed. Cir. 2016 );
see 5 U.S.C. § 3311 (2); 5 C.F.R. § 302.302 (d). Accordingly, we find that the
appe llant did not prove that the agency violated his veterans’ preference rights
under 5 U.S.C. § 3311 and 5 C.F.R. § 302.302 (d).
¶6 Finally, t he agency is statutorily restricted from including minimum
education requirements for an examination in the excepted service. Dean v.
Department of Labor , 808 F.3d 497 , 506 ( Fed. Cir. 2015); see 5 U.S.C. § 3308
(setting forth the minimum educa tion restriction in co mpetitive service
examinations); 5 U.S.C. § 3320 . Pursuant to OPM’s implementing regulations,
“[a]n agency shall not include a minimum educational requirement in
qualificatio n standards , except for a scientific, technical, or professional position
the duties of which the agency decides cannot be performed by a person who does
not have a prescribed minimum education. ” 5 C.F.R. § 302.202 (emphasis
5
added). As the U.S. Court of Appeals for the Federal Circuit concluded, “ OPM’s
regulations do not prohibit a minimum educational requirement as a program
eligibility condition. ” Dean , 808 F.3d at 508 (emphasis in or iginal) . Here, the
agency did not impose an educational requirement to be qualified for the position
but, rather , to be eligible for the position’s pay band, Pay Band B.2 IAF, Tab 8 at
7-8, 25 -26; see generally Dean , 808 F.3d at 506-08 (finding that the agency did
not violate section 3308 when filling an excepted service position for which there
was no examination because the requirement that the appellant be a recent
graduate was an eligibility requirement for the Recent Graduate Progr am in
general and not a qualification standard for the Recent Graduates Wage and Hour
Specialist position). The agency found the appellant ineligible for Pay Band B
based on his lack of skills, education, and experience. IAF, Tab 8 at 8 . It is
undispute d that he did not meet all of the eligibility requirements . IAF, Tab 8
at 7-8, 13 -20, 25 -26. Accordingly, we find that the appellant did not prove that
the agency violated his veterans’ preference rights under 5 U.S.C. § 3308 and
5 C.F.R. § 302.202 by imposing minimum education standards for Pay Band B.
NOTICE OF APPEAL RIGHTS3
The initial decision, as supplemented by this Final Order, constitutes the
Board’s final decision in this matter. 5 C.F.R. § 1201.113 . You may obtain
review of this final decision. 5 U.S.C. § 7703 (a)(1). By statute, the nature of
your claims determines the time limit for seeking such review and the appropriate
forum with which to file. 5 U.S.C. § 7703 (b). Although we offer the following
summary of available appeal rights, the Meri t Systems Protection Board does not
2 Congress authorized the agency to create an alternative pay band for DAU employees .
See 10 U.S.C. § 1746 (b)(4 ) (providing that the Secre tary of Defense may prescribe the
compensation of DAU employees).
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
provide legal advice on which option is most appropriate for your situation an d
the rights described bel ow do not represent a statement of how courts will rule
regarding which cases fall within their jurisdiction. If you wish to seek review of
this final decision, you should immediately review the law applicable to your
claims and carefully follow all filin g time limits and requirements. Failure to file
within the applicable time limit may result in the dismissal of your case by your
chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703 (b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of partic ular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
7
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by a n action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703 (b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. ____ , 137 S. Ct. 1975 (2017) . If you have a
representative in this case, and your representative receives this decision before
you do, then you must file with the district court no later than 30 calendar days
after your representative receives this decision. If the action involves a claim of
discrimination based on race, color, religion, sex, national origin, or a disabling
condition, you may be entitled to representation by a court -appointed lawyer and
to waiver of any requirement of prepayment of fees, costs, or other security. See
42 U.S.C. § 2000e -5(f) and 29 U.S.C. § 794a .
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702 (b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702 (b)(1 ). If you have a representative in this case,
8
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for rev iew to the EEOC by regular U.S. mail, the
address of the EEOC is:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhan cement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302 (b)(8) or
other protected activities listed in 5 U.S.C. § 2302 (b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
disposition of allegations of a prohibited personnel practice described in section
2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i),
(B), (C), or (D),” then you may file a petition for judicial review either with the
U.S. Court of Appeals for the Federal Circuit or any court of appeals of
competen t 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 Re view Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other ci rcuit court of appeals of competent jurisdiction.
9
review within 60 days of the date of issuance of this decision. 5 U.S.C.
§ 7703 (b)(1)(B).
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D .C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115 -195,
132 Stat. 1510.
10
Contact information for the courts of appeals can be found at their
respective websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator /CourtWebsites.aspx .
FOR THE BOARD:
Washington, D.C. /s/ for
Jennifer Everling
Acting Clerk of the Board | WILLIAMS_ERIC_AT_3330_18_0517_I_1_FINAL_ORDER_1955048.pdf | 2022-08-26 | null | AT-3330-18-0517-I-1 | NP |
4,166 | https://www.mspb.gov/decisions/nonprecedential/MOSS_LEWIS_DC_1221_13_0151_W_2_FINAL_ORDER_1955067.pdf | UNITED STATES OF AME RICA
MERIT SYSTEMS PROTEC TION BOARD
LEWIS MOSS,
Appellant,
v.
DEPARTMENT OF DEFENS E,
Agency.
DOCKET NUMBER
DC-1221 -13-0151 -W-2
DATE: August 26, 2022
THIS FINAL ORDER IS NONPRECEDENTIAL1
Lewis Moss , Kaiserslautern, APO/ AE, pro se.
Sally R. Bacon , Esquire, Fort Lee, Virginia, for the agency.
BEFORE
Cathy A. Harris , Vice Chairman
Raymond A. Limon , Member
Tristan L. Leavitt , Member
FINAL ORDER
¶1 The appellant has fil ed a petition for review of the initial decision, which
dismissed the appeal in part for lack of jurisdiction and in part due to res judicata
and collateral estoppel. Generally, we grant petitions such as this one only in the
following circumstances: the initial decision contains erroneous findings of
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
require d to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117 (c).
2
material fact; the initial decision is based on an erroneous interpretation of statute
or regulation or the erroneous application of the law to the facts of the case; the
administrative judge’s rulings during either the course of the appeal or the initial
decision were not consistent with required procedures or involved an abuse of
discretion, and the resulting error affected the outcome of the case; or new and
material evidence or legal argument is available that, despite the petitioner’s due
diligence, was not available when the record closed. Title 5 of the Code of
Federal Regulations, section 1201.115 ( 5 C.F.R. § 1201.115 ). After fully
considering the filings in this appeal, we conclude that the petitioner has not
established any basis under section 1201.115 for granting the petition for review.
Therefore, we DENY the petition for review . We MODIFY the initial decision to
vacate the ad ministrative judge’s analysis of collateral estoppel . We FIND
instead that the appellant has not show n that his June 12, 2008 disclosure was a
contributing factor in the agency’s decision to take a personnel action against
him, and therefore he is not entitled to corrective action . Except as expressly
MODIFIED by this Final Order , we AFFIRM the initial decision.
BACKGROUND
¶2 The relevant background information, as recited in the initial decision, is
generally undisputed. Effective August 1, 2009, t he agency removed the
appellant based on a single charge of assault in the workplace. Moss v.
Department of Defense , MSPB Docket No. DC -1221 -13-0151 -W-2, Appeal File
(W-2 AF) , Tab 44, Initial Decision (ID) at 2; see Moss v. Department of Defense ,
MSPB Dock et No. DC -0752 -09-0823 -I-1 (0823 removal appeal) , Initial Decision
at 3 (Dec. 30, 2009) . The appellant filed a Board appeal claiming , among other
things, that the removal was in retaliation for whistleblowing. ID at 2. The
administrative judge in the 08 23 removal appeal sustained the misconduct charge,
found that the appellant did not prove any of his affirmative defenses including
3
reprisal for whistleblowing, and upheld the removal. Id. The Board denied the
appellant’s petition for review. Id.
¶3 The ap pellant subsequently filed an individual right of action ( IRA) appeal
in which he alleged that , in retaliation for his whistleblowing, the agency took
several actions against him, including removal. ID at 2; Moss v. Department of
Defense , MSPB Docket No. DC-1221 -12-0192 -W-1 (0192 IRA appeal) , Initial
Decision at 6 (Jan. 27, 2012) . The administrative judge dismissed the 0192 IRA
appeal for lack of jurisdiction finding, among other things, that the appellant
failed to establish that he sought corrective act ion from the Office of Special
Counsel (OSC) before he appealed to the Board. ID at 2. The Board denied the
appellant’s petition for review and noted that he was precluded by res judicata
from raising claims involving his removal because it already had issued a final
decision in that matter. ID at 2 -3.
¶4 The appellant subsequently filed this IRA appeal alleging that his removal
and other personnel actions were taken in retaliation for filing a March 4, 2008
equal employment opportunity (EEO) complaint an d for sending a June 12, 2008
email to the agency’s European Region D irector . ID at 3 . The appeal was
dismissed without prejudice and refiled. Id.; see Moss v. Department of Defense ,
MSPB Docket No. DC -1221 -13-0151 -W-1, Initial Appeal File (IAF), Tab 14 ;
W-2 AF , Tab 1. The administrative judge found that the appellant exhausted his
administrative remedies with OSC and made nonfrivolous allegations sufficient to
establish jurisdiction regarding the alleged personnel actions except the removal
action, which was barred by res judicata. ID at 9. The appellant withdrew his
hearing request. Id. In the initial decision for the IRA appeal , the administrative
judge made the following findings: (1) the appellant’s retaliation claims
stemming from his March 4, 2008 EEO complaint must be dismissed for lack of
jurisdiction; (2) his claim that the agency removed him in retaliation for his
June 12, 2008 disclosure was barre d by res judicata; (3) he wa s barred by
collateral estoppel from relitigating whether he made a protected disclosure on
4
June 12, 2008; (4) the Board lacks jurisdiction to adjudicate his claim of harmful
procedural error in an IRA appeal; and (5) the Board cannot issue or compel a
decision on his March 4, 2008 EEO complaint. ID at 4 -13.
¶5 The appellant has filed a petition for review and a supplemental petition.
Petition for Review (PFR) File, Tabs 1, 3. The agency has not filed a response.
DISCUSSION OF ARGUME NTS ON REVIEW2
¶6 The a ppellant does not appear to challenge the administrative judge’s
conclusion regarding harmful error or the Board’s authority to compel a decision
on his March 2008 EEO complaint, and we affirm these findings. The appellant ,
though, appears to challenge all of the administrative judge’s remaining
conclusions. PFR File, Tabs 1, 3.
The administrative judge properly determined that the Board lacks jurisdiction
over his March 4, 2008 EEO complaint.
¶7 The Board’s jurisdiction is limited to those matters over wh ich it has been
given jurisdiction by law, rule , or regulation . Maddox v. Merit Systems
Protection Board , 759 F.2d 9 , 10 (Fed. Cir. 1985). As the administrative judge
noted in the initial decision, t he Whistleblower Protection Enhancement Act of
2012 (WPEA), Pub. L. No. 112 -199, 126 Stat. 1465, expanded the Board’s
jurisdiction in IRA appeals to claims arising under 5 U.S.C. § 2302 (b)(9)(A)(i)
(which involve remedying a violation of section 2302(b)(8)), but not to those
claims arising under section 2302 (b)(9)(A)(ii) (which do not involve remedying a
violation of section 2302(b)(8)). ID at 4 -6; see WPEA § 101(b)(1)(A) . We
discern no error with the administrative judge’s conclusion that the appellant’s
March 4, 2008 EEO activity was not protected under the law in effect at the time
the alleged personnel actions occurred , and the relev ant provision of the WPEA is
not entitled to retroactive effect. ID at 4 -5; see Hicks v. Merit Systems Protection
2 We have reviewed the relevant legislation enacted since the filing of this appeal and
find that it does not impact the outcome.
5
Board , 819 F.3d 1318 , 1320 (F ed. Cir. 2016) ( stating that “even assuming
arguendo that Hicks’ claim of reprisal for filing a previous [B]oard appeal falls
within the scope of section 2302(b)(9)(A)(i) , the WPEA does not apply
retroactively to provide the [B]oard with a uthority to review an agency removal
action which occurred more than two decades before its enactment”). Even if the
WPEA provision was somehow entitled to retroactive effect, we agree with the
administrative judge that the appellant has not nonfrivolousl y alleged that his
March 4, 2008 EEO complaint was intended to remedy a violation of 5 U.S.C.
§ 2302 (b)(8). Indeed, other than generic references to a “race discrimination”
complaint, e.g., IAF, T ab 1 at 9, the appellant did not provide a ny description or
summary of his allegations or any persuasive explanation as to how this
complaint involved remedying a violation of section 2302(b)(8). In the absence
of any such information, we find that the administrative judge properly dismissed
this claim for lack of jurisdiction. See Young v. Merit Systems Protection Board ,
961 F.3d 1323 , 1329 ( Fed. Cir. 2020) (stating that “[s]ection 2302(b)(9)(A)(ii),
which is not included in the list of prohibited personnel practices for which the
Board can issue corrective action, covers retaliation for exercising any appeal,
complaint, or grievance right oth er than one seeking to remedy a violation of
section 2302(b)(8) [,] [r]etaliation for filing those other types of complaints is
remediable through different mechanisms, and not by an IRA appeal to the
Board”) .
The administrative judge properly determined that the appellant is barred by res
judicata from asserting that the removal action was retaliatory .
¶8 Res judicata precludes parties from relitigating issues that were, or could
have been, raised in the prior ac tion and is applicable if : (1) the prior judgment
was rendered by a forum with competent jurisdiction ; (2) the prior judgment was
a final judgment on the merits; and (3) the same cause of action and the same
parties or their privies were involved in both cases. Peartree v. U.S. Postal
Service , 66 M.S.P.R. 332 , 337 (1995). The appellant argues on review that the
6
administrative jud ge’s decision in the 0823 removal appeal was not a final
decision on the merits, PFR File, Tab 1 at 8 -16, but this argument is unavailing.
Notably, the Board’s Final Order in the 0823 removal appeal was decided on the
merits, and it specifically stated that the initial decision was the “final” decision
except for minor modifications that were not related to the appellant’s claim of
reprisal for whistleblowing. Moss v. Department of Defense , MSPB Docket
No. DC-0752 -09-0823 -I-1, Final Order at 2 (Jul. 27, 2010). We agree with the
administrative judge that the elements of res judicata are satisfied, and the
appellant is therefore precluded from challenging the removal action once again
in this IRA appeal .3
Because the appellant has not proven that his June 12, 2008 disclosure was a
contributing factor in the agency’s decision to take any of the remaining
personnel actions against him , he is not entitled to corrective action .
¶9 After establishing the Board ’s jurisdiction in an IRA appeal, t he appellant
must establish a prima facie case of whistleblower retaliation by proving 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); Lu v.
Department of Homeland Security , 122 M.S.P.R. 335 , ¶ 7 (2015) . If the appellant
makes out a prima facie case, then the agency is given an opportunity to prove, by
clear and convincing evidence, that it would have taken the same personnel action
in the absence of the protected disclosure. 5 U.S.C. § 1221 (e)(1) -(2); Lu,
122 M.S.P.R. 335 , ¶ 7.
¶10 Although the appellant contends that t he administrative judge erred in
applying collateral estoppel to preclude him from asserting that his June 12, 2008
disclosure was a protected disclosure , PFR File, Tab 1 at 17-22, the Board may
analyze the elements of a prima facie case in any order it de ems most efficient,
3 Likewise, to the extent that the appellant challenges any of the other findings in the
0823 removal appeal initial decision, e.g., PFR F ile, Tab 1 at 6 -16, the Board already
has issued a final decision in that matter, and we will not consider such claims in this
IRA appeal.
7
see Parikh v. Department of Veterans Affairs , 116 M.S.P.R. 197, ¶ 7 (2011) . In
this case, we find it most effici ent to start with contributing factor. One way of
proving contributing factor is to show that the official(s) taking the personnel
action(s) knew of the disclosure and the personnel action (s) occurred within a
period of time such that a reasonable person could conclude that the disclosure
was a contributing factor in the personnel action (s). 5 U.S.C.
§ 1221 (e)(1) (A)-(B). The app ellant asserted below that the Operation Support
Chief , who was also his first-line supervisor, the Deputy Chief , and the Chief , had
knowledge of his June 12, 2008 disclosure and were responsible for various
personnel actions . W-2 AF, Tab 1 at 8, Tab 6 at 6, Tab 34 at 12 -13. For the
following reasons, we find that he has not satisfied his prima facie burden in this
regard .
¶11 The appellant offers no evidence whatsoever to support his assertion that
his first -line supervisor had actual or constructive knowledge of his June 12, 2008
disclosure. The record further reflects th at the Deputy Chief was questioned as
part of an agency investigation relating to the allegations in his June 12, 2008
email. IAF, Tab 6 at 38-39. However, there is no evidence that the Deputy Chief
knew the source of the allegations or even suspected th at it was the appellant who
made the initial disclosure that led to the investigation .4 In fact, in the portion of
her written statement responding to allegations about unauthorized consumption
of alcohol by agency officials , the Deputy Chief explained th at she was aware of
such an allegatio n. IAF, Tab 6 at 38. Indeed, the Deputy Chief identified the
appellant by name and mentioned that he previously had informed her that the
canteen was selling beer, and as a result of learning this information, she bri efed
all employees and advised them that they were not to buy or consume any alcohol
4 In the 0823 removal appeal, the administrative judge noted that the Deputy Chief was
never asked at the hearing if she had any knowledge of the disclosures. Moss v.
Department of Defense , MSPB Docket No. DC -0752 -09-0823 -I-1, Initial Decision at 20
(Dec. 30, 2009).
8
purchased from the canteen, and she directed the canteen not to sell any alcoholic
beverages. Id. In the absence of any evidence that the appellant’s first -line
supervisor and/or the Deputy Chief had knowledge of the appellant’s June 12,
2008 email disclosure or the allegations contained therein , we need not consider
the personnel actions in which they were involved.
¶12 By contrast, the Chief was aware of the appella nt’s June 12, 2008 email
disclosure . IAF, Tab 6 at 41-43. Based on our review of the record and the
personnel actions identified by the appellant on review, it appears that the Chief
was involved in the decision to relieve the appellant of some of his du ties and
responsibilities on June 12, 2008 , and the decision to remove him. Id. at 34 -35,
41-43. We already have affirmed the administrative judge’s conclusion that the
appellant was precluded by res judicata from challenging his removal in this IRA
appe al, and we need not consider this personnel action further . Moreover, the
appellant is not entitled to corrective action based on the Chief’s decision to
relieve him of some of his duties and responsibilities on June 12, 2008 , because
that action was referenced in the email disclosure and could not have occurred as
a result of the disclosure . See Finston v. Health Care Financing Administration ,
83 M.S.P.R. 100, ¶ 5 (1999) (finding that if an agency takes an action before the
appellant makes a disclosure , the Board may find t hat the disclosure was not a
contr ibuting factor in the action) .5
¶13 We have considered the appellant’s remaining arguments on review, but
none persuade us that a different outcome is warranted. For instance, regarding
his assertion that the administrative j udge did not consider the entire record, PFR
File, Tab 1 at 21, Tab 3 at 5 -6, the administrative judge’s failure to mention all of
5 In light of this finding , we need not determine whether the administrative judge
properly applied collateral estoppel , and we vacate her analysis of this issue in the
initial decision. It also is unnecessary to determine whether the agency proved by clear
and convincing evidence that it would have taken the actions at issue in the absence of
the disclosure. Scoggins v. Department of the Army , 123 M.S.P.R. 592 , ¶ 28
(2016).
9
the evidence of record does not mean that she did not consider it in reaching her
decision , Marques v. Department of Health & Human Services , 22 M.S.P.R. 129 ,
132 (1984), aff’d, 776 F.2d 1062 (Fed. Cir. 1985) (Table). Additionally, the
appellant challenges the a dministrative judge’s statement that he filed an IRA
appeal on April 4, 2014. PFR File, Tab 1 at 23, Tab 3 at 4. Contrary to his
contention, the Board’s record in Moss v. Department of Defense , MSPB Docket
No. DC -1221 -14-0567 -W-1, reflects that the Washington Regional Office
docketed the appellant’s submission as an IRA appeal, the administrative judge
dismissed the IRA appeal for lack of jurisdiction, and the Board denied the
appellant’s petition for review. Ev en if we assume for the purpose of our analysis
that the administrative judge erred , the appellant has not explained how he was
prejudiced by any such error. 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 does not provide a basis for reversal of
the initial decision) .
¶14 Accordingly, we affirm the initial decision.
NOTICE OF APPEAL RIG HTS6
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 o f this final decision. 5 U.S.C. § 7703 (a)(1). By statute, the nature of
your claims determines the time limit for seeking such review and the appropriate
forum with which to file. 5 U.S.C. § 7703 (b). Although we offer the following
summary of available appeal rights, the Meri t Systems Protection Board does not
provide legal advice on which option is most appropriate for your situation an d
the rights described below do not represent a statement of how courts will rule
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. A s indicated in the notice, the
Board cannot advise which option is most appropriate in any matter.
10
regarding which cases fall within their jurisdiction. If you wish to seek review of
this final decision, you should immediately review the law applicable to your
claims and carefully follow all filing time limits and requirements. Failure to file
within the applicable time limit may result in the dismissal of your case by your
chosen forum.
Please read carefully each of the three main possible choices of review
below to de cide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703 (b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of A ppeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the co urt’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
11
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appeala ble to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S . district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703 (b)(2); see Perry v. Merit Systems
Protection Boar d, 582 U.S. ____ , 137 S. Ct. 1975 (2017). If you have a
representative in this case, and your representative receives this decision bef ore
you do, then you must file with the district court no later than 30 calendar days
after your representative receives this decision. If the action involves a claim of
discrimination based on race, color, religion, sex, national origin, or a disabling
condition, you may be entitled to representation by a court -appointed lawyer and
to waiver of any requirement of prepayment of fees, costs, or other security. See
42 U.S.C. § 2000e -5(f) and 29 U.S.C. § 794a .
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebs ites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702 (b)(1) . You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702 (b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
12
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, th e
address of the EEOC is:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302 (b)(8) or
other protected activities listed in 5 U.S.C. § 2302 (b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
disposition of allegations of a prohibited personnel practice described in section
2302(b) other than practices des cribed in section 2302(b)(8), or 2302(b)(9)(A)(i),
(B), (C), or (D),” then you may file a 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 m ust receive your petition for
7 The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expire d on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appe als
for the Federal Circuit or any other circuit court 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
review within 60 days of the date of issuance of this decision. 5 U.S.C.
§ 7703 (b)(1)(B).
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D .C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the 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/C ourtWebsites.aspx .
FOR THE BOARD:
Washington, D.C. /s/ for
Jennifer Everling
Acting Clerk of the Board | MOSS_LEWIS_DC_1221_13_0151_W_2_FINAL_ORDER_1955067.pdf | 2022-08-26 | null | DC-1221-13-0151-W-2 | NP |
4,167 | https://www.mspb.gov/decisions/nonprecedential/LEBEAU_KEVIN_J_PH_0752_20_0001_I_1_FINAL_ORDER_1955106.pdf | UNITED STATES OF AME RICA
MERIT SYSTEMS PROTEC TION BOARD
KEVIN J. LEBEAU,
Appellant,
v.
DEPARTMENT OF THE NA VY,
Agency.
DOCKET NUMBER
PH-0752 -20-0001 -I-1
DATE: August 26, 2022
THIS FINAL ORDER IS NONPRECEDENTIAL1
Noelle Clapham , Esquire, Providence, Rhode Island, for the appellant.
Colleen M. Shook , Norfolk, Virginia, for the agency.
BEFORE
Cathy A. Harris , Vice Chair man
Raymond A. Limon, Member
Tristan L. Leavitt, Member
FINAL ORDER
¶1 The appellant has filed a petition for review of the initial decision, which
affirmed his removal based on the charges of unauthorized removal of
Government property, unauthorized sale of Government property, and misuse of a
Government vehicle. 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).
2
following ci rcumstances: 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 judg e’s rulings during either the course of the appeal or the initial
decision were not consistent with required procedures or involved an abuse of
discretion, and the resulting error affected the outcome of the case; or new and
material evidence or legal argu ment is available that, despite the petitioner’s due
diligence, was not available when the record closed. Title 5 of the Code of
Federal Regulations, section 1201.115 ( 5 C.F.R. § 1201.115 ). After fully
considering the filings in this appeal, we conclude that 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 M ODIFIED to
find that the agency established a nexus between the appellant’s misconduct and
the efficiency of the service, we AFFIRM the initial decision.
¶2 On petition for review, the appellant challenges the administrative judge’s
fact and credibility findi ngs regarding the charges of unauthorized removal and
unauthorized sale of G overnment property. Petition for Review (PFR) File, Tab 1
at 4 -10. He largely repeats his arguments from his prehearing submission,
including his assertion that he never took and sold any Government -owned scrap
metal from the naval base . Id.; Initial Appeal File (IAF), Tab 27 at 4 -5. He does
not challenge the misuse of a n assigned Government vehicle ( GOV ) charge and
admits again to “negligible use” of his GOV for personal reason s to transport
scrap metal, which he maintains that he obtained off -base. PFR File, Tab 1 at 5,
8; IAF, Tab 27 at 5. Finally, regarding the penalty, he argues that misuse of a
GOV, the only misconduct to which he admits, warrants only a suspension and
not removal. PFR File, Tab 1 at 9.
¶3 The appellant’s arguments on review constitute mere disagreement with the
administrative judge’ s findings and are unavailing. The administrative judge
thoroughly reviewed the record evidence and made reasoned credibility findings
3
in sustaining all three charges ,2 including the misuse of GOV charge that the
appellant does not challenge on review, and we find that the appellant has
presented no basis for disturbing the initial decision. IAF, Tab 38, Initial
Decision ( ID) at 14 -17; 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. Departmen t of
Health & Human Services , 33 M.S.P.R. 357 , 359 (1987). Although the appellant
raises an argument about the maximum reasonable p enalty for his misuse of a
GOV , PFR File, Tab 1 at 5, 8 -9, the administrative judge properly sustained all
three charges, ID at 14 -17. The record supports the administrative judge’s
finding that the penalty of removal was reasonable and that the deciding official
had considered the relevant factors. ID at 17-18; see Pinegar v. Federal Election
Commission , 105 M.S.P.R. 677 , ¶ 53 (2007) (stating that, when all of the
agency’s charges are sustained, the Board will review the agency -imposed penalty
only to determine if the agency considered all of the relevant factors and
exercised management discretion within the tolerable limits o f reasonableness);
Douglas v. Veterans Administration , 5 M.S.P.R. 280 , 305 -06 (1981 ).
2 The agency charged the appellant with 25 specifications of unauthorized sale of
Government property between August and December 2018, all concerning scrap metal
sold to the same private company. IAF, Tab 7 at 39 -41. On review, the appellant
generally denies ever selling any Government property . PFR File, Tab 1 at 4 -8. The
documentary evidence in the record contains detailed receipts from the company to
which the appellant sold the scrap metal, and he has not challenge d their authenticity.
IAF, Tab 36 at 4-23; PFR File, Tab 1 at 4 -9. Rather, he disputes the origin of the scrap
metal , maintaini ng throughout his appeal that he did not obtain it on the naval base .
PFR File, Tab 1 at 4 -5; IAF, Tab 27 at 4 -5. The administrative judge considered this
argum ent below, and after assessing record and testimonial evidence including the
appellant’s own testimony, the administrative judge found that the weight of the
evidence was sufficient to support the deciding official’s finding that the scrap metal in
questio n had come from the naval base. IAF, Tab 38, Initial Decision at 16 -17. The
appellant has not provided a basis for disturbing this well -reasoned finding on review.
4
¶4 In addition to the requirement that an agency prove its charges against the
appellant, the agency must also prove that there is a nexus, i.e., a clear and direct
relationship between the articulated ground for the adverse action and either the
appellant’s ability to accomplish his duties satisfactoril y or some other legitimate
interest. Ellis v. Department of Defense , 114 M.S.P.R. 407 , ¶ 8 (2010); see
5 C.F.R. § 752.403 (a) (stating that an agency may take an adverse action only for
such cause as will promote the efficiency of the service). Here, the
administrative judge did not make an explicit finding regarding th e nexus
between the sustained misconduct and the efficiency of the service. ID at 14 -19.
Neither party raised this issue on review . Nonetheless, we find that the appellant
was not prejudiced by the administrative judge’s omission because the record
clearly supports a finding of nexus. PFR File, Tab 1 at 4 -10, Tab 4 at 4 -10; 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).
¶5 It is well established that a nexus exists between the efficiency of the
service and the charge of misuse of Government property. See Els v. Department
of the Army , 82 M.S.P.R. 27 , ¶ 11 (1999). The Board has a lso found nexus for an
employee’s off -duty misuse of a GOV. See Hoofman v. Department of the Army ,
118 M.S.P.R. 532, ¶ 16 (2012) (finding a nexus between the appellant’s use of a
Government -owned vehicle for other than of ficial purposes while off duty) , aff’d,
526 F. App’x 982 (Fed. Cir. 2013) . Moreover, as the administrative judge
discussed, the deciding official found in his written Dougl as factors analysis that
appellant’s position involved responsibility for over 350 pieces of equipment on
the base an d that his multiple acts of serious misconduct “significantly erode[d]
the ability of the chain of command to trust” him. ID at 10; IAF, Tab 7 at 12; see
Doe v. Department of Justice , 113 M.S.P.R. 128 , ¶ 20 (2010) (noting that one
method by which agency can prove nexus between noncriminal off-duty
misconduct and the effici ency of the service is to demonstrate that the misconduct
5
adversely affects the agency’s trust and confidence in the appellant’s job
performance). Therefore, we find that the agency established a nexus between the
sustained off-duty misconduct and the eff iciency of the service.
NOTICE OF APPEAL RIG HTS3
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 appropria te for your situation and
the rights described below do not represent a statement of how courts will rule
regarding which cases fall within their jurisdiction. If you wish to seek review of
this final decision, you should immediately review the law applic able to your
claims and carefully follow all filing time limits and requirements. Failure to file
within the applicable time limit may result in the dismissal of your case by your
chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
3 Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise which option is most appropriate i n any matter.
6
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703 (b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following addr ess:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particul ar
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of A ppeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services pr ovided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision —including a disposition of you r discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703 (b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. ____ , 137 S. Ct. 1975 (2017). If you have a
representative in this case, and your repres entative receives this decision before
7
you do, then you must file with the district court no later than 30 calendar days
after your representative receives this decision. If the action involves a claim of
discrimination based on race, color, religion, sex , national origin, or a disabling
condition, you may be entitled to representation by a court -appointed lawyer and
to waiver of any requirement of prepayment of fees, costs, or other security. See
42 U.S.C. § 2000e -5(f) and 29 U.S.C. § 794a .
Contact informa tion for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702 (b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702 (b)(1). If you have a representative in th is case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it mu st be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
8
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option appli es to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302 (b)(8) or
other protected activities listed in 5 U.S.C. § 2302 (b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
disposition of allegations of a prohibited personne l practice described in
section 2302(b) other than practices d escribed in section 2302(b)(8), or
2302(b)(9)(A)(i), (B), (C), or (D),” then you may file a 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 th e Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
4 The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisd iction.
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 Protectio n Board appellants before the 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/CourtWeb sites.aspx .
FOR THE BOARD:
Washington, D.C. /s/ for
Jennifer Everling
Acting Clerk of the Board | LEBEAU_KEVIN_J_PH_0752_20_0001_I_1_FINAL_ORDER_1955106.pdf | 2022-08-26 | null | PH-0752-20-0001-I-1 | NP |
4,168 | https://www.mspb.gov/decisions/nonprecedential/MILES_UNYQUE_DA_3443_21_0349_I_1_FINAL_ORDER_1955115.pdf | UNITED STATES OF AME RICA
MERIT SYSTEMS PROTEC TION BOARD
UNYQUE MILES,
Appellant,
v.
DEPARTMENT OF HOMELA ND
SECURITY,
Agency.
DOCKET NUMBER
DA-3443 -21-0349 -I-1
DATE: August 26, 2022
THIS FINAL ORDER IS NONPRECEDENTIAL1
Unyque Miles , Duncanville, Texas, pro se.
Beverlei E. Colston , Esquire, Irving, Texas, for the agency.
BEFORE
Cathy A. Harris, Vice Chairman
Raymond A. Limon, Member
Tristan L. Leavitt, Member
FINAL ORDER
¶1 The appellant has filed a petition for review of the initial decision, which
dismissed for lack of jurisdiction her appeal challenging her nonselection for a
promotion . For the reasons set forth below, the appellant’s petition for review 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).
2
DISMISSED as untimely filed withou t good cause shown. 5 C.F.R.
§ 1201.114 (e), (g).
BACKGROUND
¶2 On July 26, 2021, the appellant filed an appeal challenging the agency’s
failure to select her for a Mission Support Speciali st position at the Dallas
Field Office in Dallas, Texas. Initial Appeal F ile (IAF), Tab 1. On
September 15, 2021, the administrative judge issued an initial decision on the
written record, dismissing the appeal for lack of jurisdiction, finding that it did
not fall within any recognized exception to the gener al rule that the Board lacks
jurisdiction over nonselection decision s. IAF, Tab 13, Initial Decision (ID) at 1,
3-4. Specifically, she determined that the appellant failed to exhaust her
administrative remedies with the Office of Special Counsel (OSC) as to her claim
of whistleblower reprisal and failed to nonfrivolous ly alleg e that her nonselection
was the product of discrimination based on uniformed service . ID at 3-4.
The initial decision included instructions that i t would become final on
October 20, 2021, unless a petition for review was filed by that date. ID at 4.
¶3 On January 9, 2022, the appellant electronically filed a pleading titled
“Response to Request for Reopening” in the aforementioned appeal.2 Petition for
2 We need not forward the appellant’s allegation , submitted for the first time on review,
that she filed a complaint with OSC . Petition for Review (PFR) File, Tab 1 at 4, 14.
Generally, we wil l consider an allegation such as this on review because it implicate s
the Board’s jurisdiction, an issue that is always before the Board and may be raised by
any party or sua sponte by the Board at any time during a Board proceeding. See Lovoy
v. Department of Health & Human Services , 94 M.S.P.R. 571 , ¶ 30 (2003). However,
the appellant has already filed a separate individual right of action ( IRA) appeal, Miles
v. Department of Homeland Security , MSPB Docket No. DA-1221 -22-0112 -W-1, Initial
Appeal File (0112 IAF), submitt ing the same documents from the instant petition for
review , PFR File, Tab 1 at 11-62. On April 21, 2022, the administrative judge issued
an initial decision in the IRA appeal, dismissing her claim for lack of jurisdiction. 0112
IAF, Tab 21, Initial Decision (0112 ID) at 1, 9 -11. The initial decision became final
on May 26, 2022, when neither party filed a petition for review . 0112 ID at 11. Thus,
3
Review (PFR) File, Tab 1. Because it was unclear whether the appellant intended
her pleading as a petition for review of the initial decision in this case, the Office
of the Clerk of the Board sought clarification of the intent of the appellant’s
filing. PFR File, Tab 2 at 1 n.*. She clarified via email on January 10, 2022, that
she intended her pleading as a petition for review of the September 15, 2021,
initial decision. Id. Consequently, the Clerk’s office issued an acknowledgement
order, acknowledg ing the appellant’s January 9, 2022, filing as a petition for
review of the initial decision in this case. PFR File, Tab 2.
¶4 Because the pleading was received after the October 20, 2021 initial
decision finality date, the Clerk’s office informed the appell ant that her petition
for review was untimely and that she must submit a “Motion to Accept Filing as
Timely or to Waive Time Limit” either by an affidavit or a statement signed
under penalty of perjury. Id. at 1-2. A blank sample motion was attached to t he
acknowledgment letter. Id. at 7-8. The acknowledgment letter further stated that
the appellant’s motion must be submitted on or before January 26, 2022. Id. at 2.
The appellant has not filed a motion to accept her untimely petition for review or
to waive the time limit. The agency has not responded to the petition for review.
DISCUSSION OF ARGUME NTS ON REVIEW
¶5 The Board’s regulations provide that a petition for review must be filed
within 35 days after the date of the issuance of the initial decision , or, if the
petitioner shows that the initial decision was received more than 5 days after the
date of issuance, within 30 days after the date the petitioner received the initial
decision. See 5 C.F.R. § 1201.114 (e); see also Palermo v. Department of the
Navy , 120 M.S.P.R. 694 , ¶ 3 (2014). Here, the administrativ e judge issued the
initial decision on September 15, 2021, and correctly informed the appellant that
we decline to forward this allegation for docketing and adjudication to the Dallas
Regional Office.
4
she was required to file any petition for review no later than October 20, 2021.
ID at 1, 4. The appellant filed her petition for review on January 9, 20 22.
PFR File, Tab 2 at 8 , Tab 3 at 1. As such, we find that the petition for review is
untimely filed by 2 months and 20 days.
¶6 The Board may waive its timeliness regulations only upon a showing of
good cause for the untimely filing. Palermo , 120 M.S.P.R. 694 , ¶ 4; 5 C.F.R.
§§ 1201.12 , 1201.114(g). The party who s ubmits an untimely petition for review
has the burden of establishing good cause by showing that she exercised due
diligence or ordinary prudence under the particular circumstances of the case.
Palermo , 120 M.S.P.R. 694, ¶ 4; Alonzo v. Department of the Air Force ,
4 M.S.P.R. 180 , 184 (1980). To determine whether an appellant has shown good
cause, the Board will consider the length of the delay, the reasonableness of her
excuse and her showing of due diligence, whether she is proceeding pro se, and
whether she has presented evide nce of the existence of circumstances beyond her
control that affected her ability to comply with the time limits or of unavoidable
casualty or misfortune which similarly shows a causal relationship to her inability
to timely file her petition. Palermo , 120 M.S.P.R. 694 , ¶ 4; Moorman v.
Department of the Army , 68 M.S.P.R. 60 , 62-63 (1995), aff’d , 79 F.3d 1167 (Fed.
Cir. 1996) (Table).
¶7 We conclude that the appellant has failed to show good cause for a waiver
of the filing deadline. Even considering the appella nt’s pro se status, the
appellant’s over 2 month delay is not minimal. See Wright v. Department of the
Treasury , 113 M.S.P.R. 124 , ¶ 8 (2010) (concluding that an 11 -day delay is not
minimal); Allen v. Office of Personnel Management , 97 M.S.P.R. 665 , ¶¶ 8, 10
(2004) (declining to excuse a pro se appellant’s 14 -day, unexplained delay in
filing a petition for review); Crozier v. Department of Transportation ,
93 M.S.P.R. 438 , ¶ 7 (2003) (noting that a 13 -day delay in filing is not minimal).
Additionally, the appellant has not presented evidence of due diligence or the
5
existence of circumstances beyond her control that affected her ability to file h er
petition. Further, despite being afforded the opportunity to do so, the appellant
has not offered any explan ation for her delay in filing.
¶8 Accordingly, we dismiss the petition for review as untimely filed. This is
the final decision of the Merit Syste ms Protection Board regarding the timeliness
of the petition for review. The initial decision remains the final decision of the
Board regarding the appellant’s nonselection appeal .
NOTICE OF APPEAL RIG HTS3
You may obtain review of this final decision. 5 U.S.C. § 7703 (a)(1). By
statute, the nature of your claims determines the time limit for seeking such
review and the appropriate forum with which to file. 5 U.S.C. § 7703 (b).
Although we offer the following summary of available appeal rights, the Merit
Systems Protection Board does not provide legal advice on which option is most
appropriate for your situation and the rights described bel ow do not represent a
statement of how courts will rule regarding which cases fall within their
jurisdiction. If you wish to seek review of this final decision, you should
immediately review the law applicable to your claims and carefully follow all
filing time limits and requirements. Failure to file within the applicable time
limit may result in the dismissal of your case by your chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to yo ur particular case. If 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 m atter, the Board may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise which option is most appropriate in any matter.
6
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703 (b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circ uit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Peti tioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attor ney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that su ch action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
7
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703 (b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. ____ , 137 S. Ct. 1975 (2017). If you have a
representative in this case, and your representative receives this decision before
you do, then you must file with the district court no later than 30 calendar days
after your representative receives this decision. If the action involves a claim of
discrimination based on race, color, religion, sex, national origin, or a disabling
condition, you may be entitled to representation by a court -appo inted lawyer and
to waiver of any requirement of prepayment of fees, costs, or other security. See
42 U.S.C. § 2000e -5(f) and 29 U.S.C. § 794a .
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed thr ough the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702 (b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receiv e
this decision. 5 U.S.C. § 7702 (b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
8
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302 (b)(8) or
other protected activities listed in 5 U.S.C. § 2302 (b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no c hallenge to the Board’s
disposition of allegations of a prohibited personne l practice described in
section 2302(b) other than practices described in section 2302(b)(8), or
2302(b)(9)(A)(i), (B), (C), or (D),” then you may file a petition for judicial
revie w 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 Appea ls
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
4 The original statutory provision that provided for judicial re view of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115 -195,
132 Stat. 1510.
9
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
Conta ct information for the courts of appeals can be found at their
respective websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites .aspx .
FOR THE BOARD:
Washington, D.C. /s/ for
Jennifer Everling
Acting Clerk of the Board | MILES_UNYQUE_DA_3443_21_0349_I_1_FINAL_ORDER_1955115.pdf | 2022-08-26 | null | DA-3443-21-0349-I-1 | NP |
4,169 | https://www.mspb.gov/decisions/nonprecedential/WILLIAMS_ERIC_DC_3330_16_0292_B_1_FINAL_ORDER_1954512.pdf | UNITED STATES OF AME RICA
MERIT SYSTEMS PROTEC TION BOARD
ERIC WILLIAMS,
Appellant,
v.
DEPARTMENT OF THE NA VY,
Agency.
DOCKET NUMBER
DC-3330 -16-0292 -B-1
DATE: August 25, 2022
THIS FINAL ORDER IS NONPRECEDENTIAL1
Eric Williams , North Charleston, South Carolina, pro se.
Kiley Anne Holshey , Norfolk, Virginia, for the agency.
James M. Metcalfe , Portsmouth, Virginia, for the agency.
BEFORE
Cathy A. Harris , Vice Chairman
Raymond A. Lim on, Member
Tristan L. Leavitt , Member
FINAL ORDER
¶1 The appellant has filed a petition for review of the remand initial decision,
which denied his request for corrective action under the Veterans Employment
Opportunities Act (VEOA) of 1998 . 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
require d to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117 (c).
2
findings of material fact; the initial decision is based on an erroneous
interpretation of statute or regulation or the erroneous a pplication of the law to
the facts of the case; the administrative judge’s rulings during either the course of
the appeal or the initial decision were not consistent with required procedures or
involved an abuse of discretion, and the resulting error affec ted the outcome of
the case; or new and material evidence or legal argument is available that, despite
the petitioner’s due diligence, was not available when the record closed. Title 5
of the Code of Federal Regulations, section 1201.115 ( 5 C.F.R. § 1201.115 ).
After fully considering the filings in this appeal, we conclude that the petitioner
has not established any basis under section 1201.115 for granting the petition for
review. Therefore, we DENY the petition for review and AFFIRM the initial
decision, which is now the Board ’s final decision. 5 C.F.R. § 1201.113 (b).
BACKGROUND
¶2 In Jul y 2015, the appellant applied for a GS -9/11 Contract Specialist
position advertised under vacancy ID 1460254 (job announcement number
EA51102 -12-1460254L Z122318D). Williams v. Department of the Navy , MSPB
Docket No. DC -3330 -16-0292 -I-1, Initial Appeal File (IAF), Tab 1 at 9, 16.
After receiving the referral certificates, however, the agency decided to fill the
position using the Expedited Hiring Authority (EHA) program2 and did not select
any candidate from the referral certificates. IAF, Tab 6 at 6. The appellant
subsequently r eceived notice indic ating that the agency had “cance lled this
vacancy. ”3 IAF, Tab 1 at 9. The appellant filed a complaint with the Department
2 Under the EHA program, agencies are authorized “to recruit and appoint qualified
persons directly to positions [designated by the Secretary of Defense] ” “as positions for
which there exists a short age of candidates or there is a critical hiring need.” 10 U.S.C.
§ 1705 (f). The agency submitted internal guidance reflecting that contracting positions
within the Defense Acquisition Workforce have been designated as positions that may
be filled using the EHA program under section 1705(f ). IAF, Tab 6 at 17.
3 During the hearing, the agency’s Human Resource Specialist clarified that the agency
did not “cancel ” the vacancy announcement. Williams v. Department of the Navy ,
3
of Labor (DOL) alleging that the agency violated his veterans’ preference rights
in failing to select him for th e Contract Specialist position . Id. at 1. O n
January 5, 2016, DOL notified him that it had determined that the evidence did
not support his allegation that the agency violated his veterans’ preference rights ,
informed him of his right to appeal the deter mination to the Board, and closed its
investigation into his complaint . Id. at 1-3.
¶3 The appellant timely filed a VEOA appeal with the Board and requested a
hearing .4 IAF, Tab 1. Without holding the requested hearing, the administrative
judge issued an initial decision dismissing the appeal for lack of jurisdiction.
IAF, Tab 7, Initial Decision. The appellant petitioned for review of the initial
decision, and t he Board found that he had established jurisdiction over his VEOA
appeal and remand ed the appeal for further adjudication. Williams v. Department
of the Navy , MSPB Docket No. DC -3330-16-0292 -I-1, Remand Order (Aug. 12,
2016). After holding a hearing, the administrative judge issued a remand initial
decision denying the appellant’s requ est for corrective action on the merits.
Williams v. Department of the Navy , MSPB Docket No. D C-3330 -16-0292 -B-1,
Remand File (RF), Tab 12, Remand Initial Decision (RID). The appellant has
filed a petition for review of the remand initial decision, the a gency has
MSPB Docket No. DC -3330 -16-0292 -B-1, Remand File, Tab 9, Hearing Compact Disc
(testimony of Human Resource Specialist). Rather, she explained that the hiring
officials returned the referral certificates to human resourc es without action after
deciding not to select any candidate from the referral certif icates. Id.
4 The appellant subsequently attempted to challenge his nonselection for the Contract
Specialist position under job announcement number EA51102 -12-1460254LZ12 2318D
in another VEOA appeal, which the administrative judge dismissed as barred by
collateral estoppel. See Williams v. Department of Navy , MSPB Docket No. AT -3330 -
16-0663 -I-1, Initial Decision (Aug. 4, 2016). The initial decision became the final
decis ion of the Board when n either party petitioned for review. He also filed an appeal
under the Uniformed Services Employment and Reemployment Rights Act of 1994,
alleging that his nonselection for this position was based on his uniformed service,
which is c urrently pending before the Board on the appellant’s petition for review
following issuance of an initial decision . See Williams v. Department of Navy , MSPB
Docket No. AT -4324 -16-0662 -I-1, Initial Decision (Aug. 29, 2016).
4
responded in opposition, and the appellant has replied to the agency’s response.
Williams v. Department of the Navy , MSPB Docket No. DC -3330 -16-0292 -B-1,
Remand Petition for Review (RPFR) File, Tabs 1, 3, 5. The appellant also filed a
motion fo r leave to submit additional evidence. PFR File, Tab 6. In this motion,
the appellant is seeking leave to submit “a one page written statement” regarding
an exhibit which was provided on appeal, which the appellant admits is “not new
information but expa nds on information already provided.” Id. The Board will
not consider 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. Avansino v. U.S. Postal Service , 3 M.S.P.R.
211, 214 (1980). The appellant has made no such showing here. Accordingly,
the appellant’s motion fo r leave is denied.
DISCUSSION OF ARGUME NTS ON REVIEW
¶4 The Board has jurisdiction over two types of VEOA claims: (1) the denial
of a right to compete; and (2) the violation of a statute or regulation relating to
veterans’ preference. See 5 U.S.C. § 3330a (a)(1)(A) (veterans’ preference
claims); 5 U.S.C. §§ 3304 (f)(1), 3330a(a)(1)(B), (right -to-compete claims); see
generally Piirainen v. Department of the Army , 122 M.S.P.R. 194 , ¶ 8 (2015).
The appellant has raised both types of claims here .
¶5 To est ablish Board jurisdiction over a right -to-compete VEOA claim, the
appellant must show that he exhausted his remedy with DOL and make
nonfrivolous allegations as to the following factors: (i) he is a veteran within the
meaning of 5 U.S.C. § 3304 (f)(1); (ii) the actions at issue took place on or after
the December 10, 2004 enactment date of the Veterans’ Benefits Improvement
Act of 2004; and (iii) the agency denied him the opportunity to compete unde r
merit promotion procedures for a vacant position for which the agency accepted
applications from individuals outside its own workf orce in violation of 5 U.S.C.
§ 3304 (f)(1). Becker v. Department of Veterans Affairs , 115 M.S.P.R. 409 , ¶ 5
5
(2010). To establish Board jurisdiction over a veterans’ preference claim, the
appellant must show that he exhausted his remedy with DOL and make
nonfrivolous allegations as to the following factors: (i) he is a preference eligible
within the meaning of VEOA; (ii) the action at issue took place on or after the
October 30, 1998 enact ment date of VEOA; and (iii) the agency violated his
rights under a statute or regulation relating to veterans’ preference. Miller v.
Federal Deposit Insurance Corporation , 121 M.S.P.R. 88 , ¶ 6 (2014), aff’d ,
818 F.3d 13 61 (Fed. Cir. 2016). To prevail on the merits in a right -to-compete or
veterans’ preference claim, the appellant must prove the jurisdictional ele ments
by preponderant evidence. See Graves v. Department of Veterans Affairs ,
114 M.S.P.R. 209 , ¶¶ 10, 19 (2010).
¶6 Previously, t he Board found that the appellant established jurisdiction over
his right -to-compete and veterans’ preference claims by proving that he exhausted
his remedy with DOL and making the following nonfrivolous allegations : (1) he
was a preference eligible; (2) the events took place after the enactment dates
mentioned above ; and (3) the agency denied him the right to compete under merit
promoti on procedures for a vacant position for which the agency accepted
applications from individuals outside its own workforce and violated his rights
under a statute or regulation relating to veterans’ preference . Williams , MSPB
Docket No. DC -3330 -16-0292 -I-1, Remand Order at ¶¶ 12, 18 . After holding a
hearing, however, the administrative judge concluded that the appellant failed to
establish his right -to-compete claim or his veterans’ preference claim by
preponderant evidence. RID at 6 -19. For the reasons set forth below, we agree.
The administrative judge correctly determined that the appellant failed to prove
his right -to-compete claim by preponderant evidence.
¶7 Pursuant to 5 U.S.C. § 3304 (f)(1) , agencies must afford preference eligibles
and other covered individuals “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 promotio n procedures.” The
6
requirement that agencies afford covered individuals the right to compete
pursuant to 5 U.S.C. § 3304 (f)(1) is not limited merely to situations in which an
agency elects to use merit promotion procedures but , rather , is triggered when an
agency accepts applications from individuals outside its own workforce.
Montgomery v. Department of Health & Human Services , 123 M.S.P.R. 216 , ¶ 7
(2016). An agency may violate a covered individual’s right to compete under
section 3304(f)(1) when it de prives him of the right to apply by filling a position
without the required public notice. Id., ¶ 5 .
¶8 Here, it is undisputed that the agency accepted ap plications from
individuals outside of its own work force to fill the Contract Specialist vacancies
and that the appellant applied to, but was not selected for, the position. IAF,
Tab 1 at 9, Tab 6 at 6 -7. He argued, however, that he was denied the right to
compete for this position because the agency failed to follow its internal guidance
to specify that the position would be filled using the EHA program in the vacancy
announcement and failed to coincide its recruitment efforts under the EHA
program with an open vacancy announcement . RF , Tab 2 at 1-2, Tab 6 at 3-6,
Tab 10 at 2-5.
¶9 The agency’s Expedited Hiring Authority for Select Acquisition Positions
Pilot Guidance (EHA Guidance) provides that the agency may use the EHA
program to fill select acquisition positions and describes the procedures and
requirements for doing so. IAF, Ta b 6 at 16 -21. In relevant part, the EHA
Guidance states that a vacancy announcement must be advertised on the
USAJOBs website to satisfy public notice requirements and that the
announcement must, among other things, identify use of the EHA program. Id.
at 18. Selections under the EHA may be made from a referral certificate
comprised of applications submitted through the vacancy announcement or
through a name request , which enables hiring managers to appoint qualified
candidates identified through their o wn targeted recruitment methods . Id. at 19.
When using the referral certificate method, hiring managers must give
7
preferenc e-eligible candidates first consideration. Id. When using the name
request method, hiring managers must submit a “name request” R equest for
Personnel Action to human resources , who will verify the candidate’s
qualifications and review the vacancy announcement for eligible applicants under
the Interagency Career Transition Assistance Program (ICTAP). Id. at 19 -20.
Hiring managers also may make on -the-spot tentative job offers at job fairs and
other recruiting events under the EHA program, provided that public notice
requirements have been met and priority programs have been cleared . Id. at 20.
Such selectees are handled in the same manner as a name request . Id. The EHA
Guidance further states that job fair and recruiting events must coincide with
either a short -term or long -term vacancy announcement to meet public notice
requirements. Id. at 18.
¶10 At the hearing, the Contract R esource and Policy Division Manager testified
that the agency used the name request method to fill the Contract Specialist
positions under the EHA and that it obtained the names of the candidates from
targeted recruitment efforts at job fairs and from refe rrals from current employees
and other agency contracting offices. RF, Tab 9, Hearing Compact Disc (HCD)
(testimony of Division Manager ). A Supervisory Human Resources Specialist
(HR Specialist) testified that the agency satisfied public notice requireme nts here
by advertising the position under vacancy announcement number EA51102 -12-
1460254LZ122318D from July 20, 2015, to July 30, 2015. HCD (testimony of
HR Specialist ); IAF, Tab 1 at 16-25. Although she acknowledged that the
vacancy announcement did n ot identify use of the EHA program , as required by
the agency’s EHA Guidance , she asserted that this requirement was merely
administrative and had no effect on the appellant’s ability to compete for the
position. HCD ( testimony of HR Specialist ). She exp lained that the appellant did
apply for the position but that he was not referred to the hiring official because
only Best -Qualified candidates were refer red, and the appellant was rated as Well
Qualified on the basis of his self -assessment . Id.
8
¶11 In the remand initial decision, the administrative judge found that the
agency established the following : (1) it had the authority to fill, and did fill, the
Contract Specialist positions using the EHA name request method; (2) it obtained
the names of the applic ants through target recruitment efforts, including job fairs
and name referrals; and (3) that, while the agency acknowledged that the vacancy
announcement did n ot identify use of the EHA authority, the appellant had not
established that he was harmed by th e omission . RID at 19. The appellant
challenges these findings on review, arguing again that the agency failed to
comply with its internal guidance for hiring under the EHA program and failed to
provide adequate public notice for new Contract Specialist hires under the EHA
program from December 2015 through July 2016. RP FR File, Tab 1 at 4-5, Tab 5
at 5-6, 9, 13 -17.
¶12 VEOA does not guarantee the preference -eligible appellant a position; the
statute only affords him the right to compete for the position. See Abell v.
Department of the Navy , 92 M.S.P.R. 397 , 400 -01 (2002), aff’d , 343 F.3d 1378
(Fed. Cir. 2003). In this case, it is undisputed that the appellant had an
opportunity to, and did, apply for t he Contract Specialist position . RF, Tab 7
at 96. The HR Specialist testifi ed that human resources reviewed the appellant ’s
application but that, on the basis of his self -assessment score , he was not rated
Best Qualified , and his application was not referred to the hiring official. HCD
(testimony of HR Specialist ); RF, Tab 7 at 106 -07. Because the appellant was
permitted to apply for the position and was considered, he has received the right
to compete to which he is entitled under VEOA . See Abell , 92 M.S.P.R.
at 400-01 (stating that “ 5 U.S.C. § 3304 (f) permits the appellant and others in like
circumstances to apply, but otherwise they receive no special treatment in the
process of filling a position under merit promotion procedures ”). Therefore ,
althoug h the appellant has identified potential public notice problems with the
9
vacancy announcement,5 he has failed to show by preponderant evidence that the
agency denied him the right to compete. Accordingly, we find no basis to disturb
the administrative jud ge’s determination that the appellant failed to establish his
right -to-compete claim.
The administrative judge correctly determined that the appellant failed to prove
his veterans’ preference claims by preponderant evidence.
¶13 The appellant also raised a v eterans’ preference claim , alleging that the
agency failed to credit him with all experience and education material to the
position pursuant to 5 U.S.C. § 3311 (2) and 5 C.F.R. § 302.302 (d) and selected
nonpreference eligibles over him, a preference eligible, in violation of the
pass-over procedures of 5 U.S.C. § 3318 . RF, Tab 2. To prevail in a veterans’
preference claim under VEOA, the appellant must prove by preponderant
evidence that the agency’s action violated one or more of his statutory or
regulatory veterans’ preference rights in its s election process. Graves ,
114 M.S.P.R. 209 , ¶ 10. Generally, in filling a vacancy in the competitive
service, an agency must sel ect from among the three , top-ranked candidates
referred for consideration, and it may not “pass over” a preference eligible to
5 The HR Specialist testified th at the agency has since corrected the vacancy
announcements to identify, when appropriate, the use of the EHA program to fill the
Contract Specialist positions. HCD (testimony of HR Specialist). Nonetheless, the
agency’s failure to identify the use of th e EHA program to fill the Contract Specialist
positions in the vacancy announcement at issue is troubling, as is the fact that the
agency contends that it relied on the vacancy announcement for public notice for
120 days even though it appeared to all pote ntial preference -eligible applicants on
USAJOBs that the vacancy announcement was closed o r canceled. IAF, Tab 1 at 9,
16-26. While the EHA Guidance provides that vacancy announcements that are
“currently open or that have closed within the previous 120 days can be used to identify
any ICTAP eligible candidates,” IAF, Tab 6 at 19-20, the agency has not provided any
authority to support its contention that a closed vacancy announcement satisfies all
public notice requirements for 120 days and allows the ag ency to hire during that time
under the EHA program. However, because we find that the appellant was afforded an
opportunity to compete in this particular case, we need not address the agency’s public
notice deficiencies further.
10
select a candidate not entitled to preference. 5 U.S.C. § 3318 (a); Goodin v.
Department of the Army , 123 M.S.P.R. 316 , ¶ 3 n.1 (2016).
¶14 On remand, t he administrative judge found that the appellant did not prove
that the agency violated his veterans’ preference rights by failing to credit him
with all material experience and education . RID at 8 -12. In so finding , she
credited the HR Specialist’s test imony that the appellant’s answers to the
Occupational Questionnaire placed him in the “Well Qualified” category of
applications and that, in accordance with Category Rating procedures, his
application was not referred to the hiring official because a suff icient number of
“Best Qualified” applicants had applied for the position. RID at 12; HCD
(testimony of HR Specialist ). The appellant does not challenge this finding on
review, RPFR File, Tabs 1, 5, and we find no basis to disturb it. See Crosby v.
U.S. Postal Service , 74 M.S.P.R. 98 , 106 (1997) (finding no reason to d isturb the
administrative judge’ s findings when she considered t he evidence as a whole,
drew appropriate inferences, and made reasoned conclusions on issues of
credibility ); Broughton v. Department of Health & Human Services ,
33 M.S.P.R. 357, 359 (1987) (same).
¶15 The administrative judge also found that the appellant failed to show that
the agency violated the pass -over procedures of section 3318 . RID at 12 -13.
Specifically, she found as follows : (1) the agency did not make any selection
from the referral certificates , which it returned without action ; and (2) the agency
filled the Contract Specialist positions using the EHA name request method,
which permits agencies to appoint qualified individuals without regard to
veterans ’ preference rights. The appellant generally challenges this finding on
review. E.g., RPFR File, Tab 1 at 3-4, 8, 10, 12 -13, 15, Tab 5 at 8, 12.
¶16 First, we agree w ith the administrative judge that the appellant failed to
show that the agency violated the pass -over procedures of section 3318 by
selecting a nonpreference eligible over him, a preference eligible, because, as
discussed above, the agency did not select a ny candidate referred under the
11
vacancy announcement. See Abell v. Department of the Navy , 343 F.3d 1378 ,
1384 (Fed. Cir. 2003) (finding that a n agency did not violate a preference -eligible
veteran ’s right to compete under VEOA when it canceled a vacancy
announcement); Scharein v. Department of the Army , 91 M.S.P.R. 329 , ¶ 10
(2002) (finding that an agency is not required to fill a particular vacancy an d does
not violate an applicant’s veterans’ preference rights when it chooses not to make
a selection) , aff’d , No. 02 -3270 , 2008 WL 5753074 (Fed. Cir. Jan. 10, 2008) .
¶17 Second, we agree with the administrative judge that the agency did not
violate the appellant’s veterans’ preference rights when it appointed
nonpreference eligibles to the Contract Specialist positions under the EHA
program through the name request method. Under 10 U.S.C. § 1705 (f), for
purposes of 5 U.S.C. § 3304 and other statutes not implicated here, the Secretary
of Defense m ay “designate any category of position s in the acquisition workforce
as positions for which there exists a shortage of candidates or there is a critical
hiring need,” and he may use the authorities in such sections to recruit and make
direct hires . 10 U.S.C. § 1705 (f)(1)-(2). Section 3304(a)(3) of title 5, in turn,
provides authority for agencies to hire candidates “without regard to the provision
of sections 3309 through 3318” for positions for which public notic e has been
given and for which the Office of Personnel Management has determined “that
there exists a severe shortage of candidates . . . or that there is a cr itical hiring
need.” 5 U.S.C. § 3304 (a)(3). Considering these statutes together, we find that
appointments under the EHA name request method may be made without regard
to veterans’ preference , including the pass -over procedures under section 3318 .
See Isabella v. Department of State , 109 M.S.P.R. 453 , ¶ 12 (2008) (noting that
“[t]he Supreme Court has instructed that when courts are confronted with statutes
capabl e of coexistence, it is the duty of courts to regard each as effective ”).
Therefore, the agency was not obligated to comply with the pass -over provisions
under section 3318 when it filled the Contract Specialist positions , and the
appellant has failed to prove a violation of his veterans’ preference rights.
12
NOTICE OF APPEAL RIGHTS6
You may obtain review of this final decision. 5 U.S.C. § 7703 (a)(1). By
statute, the nature of your claims determin es the time limit for seeking such
review and the appropriate forum with which to file. 5 U.S.C. § 7703 (b).
Although we offer the following summary of available appeal rights, the Merit
Systems P rotection Board does not provide legal advice on which option is most
appropriate for your situation and the rights described below do not represent a
statement of how courts will rule regarding which cases fall within their
jurisdiction. If you wish to s eek review of this final decision, you should
immediately review the law applicable to your claims and carefully follow all
filing time limits and requirements. Failure to file within the applicable time
limit may result in the dismissal of your case by y our chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703 (b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
6 Since the issuance of t he initial decision in this matter, the Board may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise which option is most appropriate in any matter.
13
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
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Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful d iscrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703 (b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. ____ , 137 S. Ct. 1975 (2017). If you have a
representative in this case, and your representative receives this decision before
you do, then you must file with the district court no later than 30 calendar da ys
after your representative receives this decision. If the action involves a claim of
discrimination based on race, color, religion, sex, national origin, or a disabling
condition, you may be entitled to representation by a court -appointed lawyer and
14
to waiver of any requirement of prepayment of fees, costs, or other security. See
42 U.S.C. § 2000e -5(f) and 29 U.S.C. § 794a .
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claim s only, excluding
all other issues . 5 U.S.C. § 7702 (b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702 (b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
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If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is:
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Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 2001 3
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
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Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302 (b)(8) or
other protected activities listed in 5 U.S.C. § 2302 (b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Boar d’s
15
disposition of allegations of a prohibited personnel practice described in section
2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i),
(B), (C), or (D),” then you may file a petition for judicial review either with the
U.S. Court of Appeals for the Federal Circuit or any court of appeals of
competent jurisdiction.7 The court of appeals must receive your petition for
review within 60 days of the date of issuance of this decision. 5 U.S.C.
§ 7703 (b)(1)(B).
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Ci rcuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Pe titioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit ou r website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any att orney will accept representation in a given case.
7 The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants t o file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
The All Circuit Review Act is retroactiv e to November 26, 2017. Pub. L. No. 115 -195,
132 Stat. 1510.
16
Contact information for the courts of appeals can be found at their
respective websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
FOR THE BOARD:
Washington, D.C. /s/ for
Jennifer Everling
Acting Clerk of the Board | WILLIAMS_ERIC_DC_3330_16_0292_B_1_FINAL_ORDER_1954512.pdf | 2022-08-25 | null | DC-3330-16-0292-B-1 | NP |
4,170 | https://www.mspb.gov/decisions/nonprecedential/CORDARO_MICHAEL_NY_0432_18_0217_I_1_FINAL_ORDER_1954552.pdf | UNITED STATES OF AME RICA
MERIT SYSTEMS PROTEC TION BOARD
MICHAEL CORDARO,
Appellant,
v.
DEPARTMENT OF DEFENS E,
Agency.
DOCKET NUMBER
NY-0432 -18-0217 -I-1
DATE: August 25, 2022
THIS FINAL ORDER IS NONPRECEDENTIAL1
Michael Cordaro , Rochester, New York, pro se.
Temple L. Wilson , Fort Belvoir, Virginia, for the agency.
BEFORE
Cathy A. Harris , Vice Chair man
Raymond A. Limon , Member
Tristan L. Leavitt, Member
FINAL ORDER
¶1 The appellant ha s filed a petition for review of the initial decision, which
affirmed his removal for unacceptable performance pursuant to 5 U.S.C.
chapter 43 and denied his affirmative defense of sex discrimination. 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 dis tinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117 (c).
2
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 ad ministrative judge’s rulings
during either the course of the appeal or the initial decision were not consistent
with required procedures or involved an abuse of discretion, and the resulting
error affected the outcome of the case; or new and material evide nce or legal
argument is available that, despite the petitioner’s due diligence, was not
available when the record closed. Title 5 of the Code of Federal Regulations,
section 1201.115 ( 5 C.F.R. § 1201.115 ). After fully considering the filings in this
appeal, we conclude that the petitioner has not established any basis under
section 1201.115 for granting the petition for review. We DENY the petition for
review on the grounds of res judicata and AFFIRM the initial decision, which is
now the Board’s final de cision. 5 C.F.R. § 1201.113 (b).
BACKGROUND
¶2 Pursuant to 5 U.S.C. chapter 43, the agency removed the appellan t for
unacceptable performance in three critical elements of his position as a n auditor
with the Defense Contract Audit Agency . Initial Appeal File (IAF), Tab 5
at 16-19, Tab 16 at 6. On September 20, 2018, the appellant timely filed a
mixed -case appeal. IAF, Tab 1. After holding a hearing, the administrative judge
issued an initial decision on May 21, 2019 , which affirmed the performance -based
removal action and denied the appellant’s affirmative defense of sex
discrimination . IAF, Tab 74, Initial Dec ision . On June 23, 2019, the appellant
filed a petition for review, challenging the administrative judge’s findings about
the elements of the removal action and his discrimination claim. Petition for
Review (PFR) File, Tab 3.
¶3 Subsequently, o n June 28, 2019 , the appellant appealed the initial decision
to the U.S. Court of Appeals for the F ederal Circuit . PFR File, Tab 9 at 11-12.
The appellant filed an exact copy of his petition for review in his appeal to the
3
Federal Circuit. PFR File, Tab 3 at 4-31, Tab 9 at 13-40. The Federal Circuit
issued an order to show cause, noting that the appellant had a pending petition for
review before the Board, and therefore it might not yet have jurisdiction over the
case in the absence of a final order or decision of the Board . PFR File, Tab 9
at 58-59. The Federal Circuit noted that, if the appellant wished to proceed
before the court rather than the Board, he could file a motion with the Board to
withdraw his petition for review. Id. at 59. Although the Federal Circuit ordered
the parties to show cause why the case should not be dismissed as premature, the
appellant did not respond. Id. at 59, 62. He also did not file a motion to
withdraw h is petition for review with the Board.
¶4 On August 16, 2019, the Federal Circuit issued a decision finding that,
pursuant to Perry v. Merit Systems Protection Board , 582 U.S. ____ , 137 S. Ct.
1975 , 1985 (2017 ), it lacked jurisdic tion over the appellant’s mixed -case appeal
involving a sex discrimination claim. Id. at 62-63. The Federal Circuit
transferred the case to the U.S. District Court for the Western D istrict of
New York (Western District of New York ), stating that it lacked jurisdiction over
the mixed -case appeal of a personnel action and discrimination c laim, which must
be pursued in F ederal district court. Id. at 63. The Federal Circuit noted that,
although the agency had argued that the court sho uld dismiss the appeal as
premature, the district court may have jurisdiction despite the pending petition for
review before the Board u nder 5 U.S.C. § 7702 (e)(1)(B), which permits an
employee to f ile a civil action if there has been no judicially reviewable action
more than 120 days after filing his Board appeal involving a discrimination claim.
Id. at 62-63.
¶5 The case was docketed by the Western District of New York. Id. at 135-41.
On September 9, 2021, the district court granted the agency’s motion for
summary judgment. Id. at 95, 120. The judge found that there was no basis for
disturbing the Board’s determination, in t his case the initial decision, affirming
the chapter 43 removal pursuant to 5 U.S.C. § 7703 (c). Id. at 116-17. The judge
4
found that the agency was entitled to summary judgment on the claim of sex
discrimination because the appellant did not meet his initial burden of
establishing a prima facie case of discrimination . Id. at 109-16. The judge
agreed with the agency that the appellant could not establish that the agency
removed him from his employment under circumstances giving rise to an
inference of discrim inatory intent. Id. at 111. On October 6, 2021, t he appellant
filed an appeal of the district court’s decision with the U.S. Court of Appeals for
the Second Circuit , arguing that the district court had failed to address his
disability discrimination clai m. Id. at 122, 124.
¶6 On March 11, 2022, the agency filed a motion to dismiss the petition for
review with prejudice. PFR File, Tab 9 at 4-7. The agency argued that the
appellant had availed himself of the sta tutory right to seek review in F ederal
distr ict court when more than 120 days had elapsed since the filing of his Board
appeal without a final decision. Id. at 6. The agency asserted that the appellant’s
petition for review was barred under the doctrine of collateral estoppel and should
be dismissed in the interest of judicial efficiency and economy . Id. at 7.
¶7 The appellant filed a response and motion for sanctions, arguing that his
petition for review remained pending before the Board. PFR File, Tab 10 at 4-5.
He challen ged the agency’s characterization of his affirmative defense as only sex
discrimination and argued that, as of the issuance of the initial decision, his
“claims of hostile work environment and disability discrimination had not even
been investigated, let a lone reviewed and decided upon” by the Board. Id. at 6.
He also submitted extensi ve documentation concerning a separate equal
employment opportunity (EEO) complaint. Id. at 9-124. We further address the
agency’s motion below and deny the appellant’s mo tion in light of our finding
that the petit ion for review is barred by res judicata.
5
DISCUSSION OF ARGUME NTS ON REVIEW
The petition for review is barred by res judicata.
¶8 Under 5 U.S.C. § 7702 (e)(1)(B), an employee may file a civil action in
Federal court if there is no final order more than 120 days after the filing of a
mixed -case appeal with the Board involving an allegation of pr ohibited
discrimination. In its order transferring the appellant’s case to the Western
District of New York, the Federal Circuit noted that, despite the fact that the
appellant had a pending petition for review before the Board, the district court
may have jurisdiction over the matter pursuant to this statutory provision. PFR
File, Tab 9 at 63. The Board has held that an appellant may exercise his right to
file a civil action under 5 U.S.C. § 7702 (e)(1)(B) and simultane ously pursue a
mixed -case appeal before the Board and a U.S. district court. Hooker v.
Department of Veterans Affairs , 122 M.S.P .R. 551, ¶ 6 (2015 ).
¶9 Here, the appellant challenged the May 21, 2019 initial decision affirming
his performance -based removal and denying his affirmative defense of
discrimination both in a petition for review with the Board and a civil action. He
filed his Board appeal challenging his removal on September 20, 2018. IAF,
Tab 1. More than 120 days later, and 5 days after he filed his petition for review,
he appealed the initial decision to the Federal Circuit on June 28, 2019, which
transferred the matt er to the Western District of New York. PFR File, Tab 3,
Tab 9 at 11-12. Therefore, we find that the appellant exercised his right under
5 U.S.C. § 7702 (e)(1)(B) to file a civil action in U.S. di strict court and that the
Western District of New York had jurisdiction t o consider both the
performance -based removal and discrimination claim. See Hooker , 122 M.S.P.R.
551, ¶ 9.
¶10 The agency argues that the appellant’s petition for review is barred by
collateral estoppel because the district court granted summary judgment in favor
of the agency on both the removal action and discrimination affirmative defense .
PFR File, Tab 9 at 5, 7. Collateral estoppel, or issue preclusion, is appropriate
6
under the following circumstances: (1) the issue is identical to that in volved in
the prior action; (2) the issue was actually lit igated 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 precl usion 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, we find that the elements for applying res judicata are
present in th is appeal.
¶11 Under the doctrine of res judicata, a valid, final judgment on the merits of
an action bars a second action involving the same parties based on the same cause
of action. Encarnado v. Office of Personnel Management , 116 M.S.P.R. 301,
¶ 10 (2011); Peartree v. U.S. Postal Service , 66 M.S.P.R. 332, 337 (1995).
Res judicata precludes parties from relitigating issues that were, or could have
been, raised in the prior act ion and is applicable if: (1) the prior action was
rendered by a forum with competent juri sdiction; (2) the prior judgment was a
final judgment on the merits; and (3) the same cause of action and the same
parties were involved in both cases. Encarnado , 116 M.S.P.R. 301, ¶ 10;
Peartree , 66 M.S.P.R. at 337. Here, the appellant raised the same issues ,
concerning his performance -based removal under chapter 43 and affirmative
defense o f sex discrimination , in his petition for review before the Board and his
judicial filing . PFR File, Tab 3 at 4-31, Tab 9 at 13-40. In fact, the appellant
filed an exact copy of his petition for review in his appeal to the Federal Circuit.
PFR File, Tab 3 at 4-31, Tab 9 at 13-40.
¶12 The present appeal, on petition for review, satisfies all three elements of the
doctrine of res judicata. The U.S. district court was a forum with competent
jurisdiction under 5 U.S.C. § 7702 (e)(1)(B) since more than 120 days had passed
since the appellant’ s filing of his initial appeal with the Board and a final
decision had not been issued . See Hooker , 122 M.S.P.R. 551, ¶ 10. The district
7
court’s order granting the agency’s motion for summary judgment on both the
performance -based removal and discrimination claim was a final decision on the
merits. IAF, Tab 9 at 95-118; see New v. Department of Veterans Affairs ,
99 M.S.P.R. 404 , ¶ 31 (2005) (finding that the Board was precluded by the
doctrine of res judicata from revisiting the appellant’s discrimination and
retaliation claims for which a U.S. district court had granted summary judgment
on behalf of the agency). Finally, the same cause of action and the same parties
were involved in both the civil action and Board appeal. See Frias v. U.S. Postal
Service , 63 M.S.P.R. 276, 280, aff’d , 43 F.3d 1486 (Fed. Cir. 1994 ) (Table)
(stating that, for the purposes of res judicata, a cause of action is the set of facts
that gives an appellant t he right to seek relief from an agency).
¶13 The appellant asserts that his petition for review “rema ins valid and open.”
PFR File, Tab 10 at 5. However, because the Board finds that the appellant’s
claim challenging his performance -based removal and his sex discrimination
claim are barred by res judicata, we do not address any of his specific argument s
on review regarding the purported erroneous findings or omissions made by the
administrative judge in the initial decision. PFR File, Tab 3 at 4-28. The
appellant’s election to file a civil action under 5 U.S.C. § 7702 (e)(1)(B) and the
district court’s issuance of a final decision on the merits precludes the Board from
considering his petition for review. See Hooker , 122 M.S.P.R. 551, ¶ 12.
Finally, the additional discrimination claims to which he refers on review,
arguing that they had not been investigated in the EEO process “as of the issuance
of the initial decision, ” are outside the scope of the present appeal and seem to
concern a separate EEO complaint for which both the appellant and the agency
submitted documentation into the record. PFR File, Tab 9 at 68-93, 168-75,
188-90, Tab 10 at 5, 9-124.
8
NOTICE OF APPEA L 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 summar y of available appeal rights, the Merit
Systems Protection Board does not provide legal advice on which option is most
appropriate for your situation and the rights described below do not represent a
statement of how courts will rule regarding which cases fall within their
jurisdiction. If you wish to seek review of this final decision, you should
immediately review the law applicable to your claims and carefully follow all
filing time limits and requirements. Failure to file within the applicable time
limit may result in the dismissal of your case by your chos en forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703 (b)(1)(A).
If you submit a petition for 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 m ost appropriate in any matter.
9
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional informatio n about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Prac tice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono re presentation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC revie w of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so , you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703 (b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. ____, 137 S. Ct. 1975 (2017). If you have a
representative in this case, and your representative receives this decision before
you do, then you must file with the district court no later than 30 calendar days
after your represen tative receives this decision. If the action involves a claim of
discrimination based on race, color, religion, sex, national origin, or a disabling
condition, you may be entitled to representation by a court -appointed lawyer and
10
to waiver of any requirem ent of prepayment of fees, costs, or other security. See
42 U.S.C. § 2000e -5(f) and 29 U.S.C. § 794a .
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702 (b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702 (b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative re ceives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C . 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302 (b)(8) or
other protected activities listed in 5 U.S.C. § 2302 (b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
11
disposition of allegations of a prohibited personnel practice described in
section 2302(b) other than practices described in section 2302(b)(8), or
2302(b)(9)(A)(i), (B), (C), or (D),” then you may file a 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 Circui t
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petiti oners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our we bsite at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorne y 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 j urisdiction expired on
December 27, 2017. The All Circuit Review Act, signed in to law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115-195,
132 Stat. 1510.
12
Contact information for the courts of appeals can be found at their
respective websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
FOR THE BOARD:
Washington, D.C. /s/ for
Jennifer Everling
Acting Clerk of the Board | CORDARO_MICHAEL_NY_0432_18_0217_I_1_FINAL_ORDER_1954552.pdf | 2022-08-25 | null | NY-0432-18-0217-I-1 | NP |
4,171 | https://www.mspb.gov/decisions/nonprecedential/LILLY_PATRICIA_A_CH_0353_16_0244_I_1_FINAL_ORDER_1954565.pdf | UNITED STATES OF AME RICA
MERIT SYSTEMS PROTEC TION BOARD
PATRICIA A. LILLY,
Appellant,
v.
UNITED STATES POSTAL SERVICE,
Agency.
DOCKET NUMBER
CH-0353 -16-0244 -I-1
DATE: August 25, 2022
THIS FINAL ORDER IS NONPRECEDENTIAL1
Patricia A. Lilly , Evanston, Illinois, pro se.
Deborah W. Carlson , Chicago, Illinois, for the agency.
BEFORE
Cathy A. Harris , Vice Chairman
Raymond A. Limon , Member
Tristan L. Leavitt , Member
FINAL ORDER
¶1 The appellant has filed a petition for review of the initial decision, which
dismissed the appeal for lack of jurisdiction. For the reasons set forth below, the
appellant’s petition for review is DISMISSED as untimely filed without good
cause shown. 5 C.F.R. § 1201.114 (e), (g).
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
require d to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117 (c).
2
¶2 In an initial decision dated May 19, 2016 , the administrative judge
dismissed the appellant’s restoration appeal for lack of jurisdiction, finding that
the appe llant had waived her right to appeal under a prior settlement agreement.
Initial Appeal File (IAF), Tab 15, Initial Decision (ID) at 3-4. On July 20, 2016,
the appellant filed a petition for review, arguing that the Board has jurisdiction
over her appeal and reasserting her restoration claim . Petition for Review (PFR)
File, Tab 1 at 1-4. The agen cy responded to the appellant’s petition , arguing that
it is untimely filed and asserting that the initial decision properly dismissed the
appellant’s claim for lack of jurisdiction. PFR File, Tab 3 at 8 -10. In accordance
with the Office of the Clerk of the Board’s acknowledgment letter, PFR File,
Tab 2, the appellant also has filed a motion to accept the filing as timely and/or to
ask the Board to waive or set aside the time limit, asserting that she missed the
filing deadline due to the recent death s of her aunt and father and because she was
not represented by an attorney , PFR File, Tab 4 at 1 -2.
¶3 The Board’s regulations provide that a petition for review must be filed
within 35 days of the issuance of the initial decision or, if the appellant shows
that the initial decision was received more than 5 days after the issuance, within
30 days after the date she received the initial decision. 5 C.F.R. § 1201.114 (e).
Here, the appellant has not alleged or established that she received the initial
decision more than 5 days after its iss uance on May 19, 2016. PFR File, Tab 4
at 1-2. Thus, any petition for review was due no later than June 23, 2016, making
her petition for review untimely by 27 days . ID at 4.
¶4 The Board will waive its filing deadline only upon a showing of good cause
for the delay in filing. 5 C.F.R. § 1201.114 (g). To determine if 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 abili ty to comply with the time
limits or of unavoidable casualty or misfortune which similarly shows a causal
3
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).
¶5 Applying the relevant factors set forth in Moorman , we find that the
appellant has not made a showing of g ood cause. Here, the appellant’s delay of
almost 1 month is significant . See Summers v. U.S. Postal Service , 87 M.S.P.R.
403, ¶¶ 6, 12 (2000) (finding that a delay of nearly 1 month and a delay of
15 days were significant), aff’d , 25 F. App’x 827 (Fed. Cir. 2001). Further, we
find that the appellant ’s inability to secure an attorney due to the financial cost is
not good cause for an untimely filing. See Georgeoplous v. U.S. Postal Service ,
61 M.S.P.R. 411 , 413 (1994).
¶6 The appellant’s mot ion states that the death s of her aunt and father , the
attendant circumstances , and her subsequent grieving were factors in her
untimeliness and constitute good cause. PFR File, Tab 4 at 1-2. She submitted
evidence of her f ather’s death on April 22, 2016 , id. at 3, which was just under
1 month before the issuance of the initial decision, 2 months before the deadline
to file a petition, and 3 months before she ultimately filed her petition for review.
While we are sympathetic toward her situation, we find that her explanation does
not provide good cause for the delay in filing her petition. See Stephens v.
Department of Health & Human Services , 95 M.S.P.R. 600 , ¶ 6 (200 4) (finding
that family difficulties that predated the initial decision did not establish go od
cause for a 1 -month delay in filing a petition for review) , aff’d , 128 F. App’x 147
(Fed. Cir. 2005) .
¶7 Further, the appellant has failed to show that her father’s death , while
unfortunate, created any circumstances beyond her control that affected her
ability to comply with the time limits. See Alonzo v. Department of the Air
Force , 4 M.S.P.R. 180 , 184 (1980). She did not assert any details, such as
whether she had to leave the area, and, if so, when she returned. She also has not
explained why no one else coul d have assumed the duties of making the
4
appropriate arrangements for filing a petition for review in her absence. See
Taylor v. U.S. Postal Service , 53 M.S.P.R. 27 , 28 (1992) . Furthermore, while the
appellant’s distress from losing family member s is understandable, we find that
such dis tress does not itself establish good cause for the 27 -day filing delay. See
Cunningham v. Department of Transportation , 35 M.S.P.R. 674, 677 -78 (1987)
(finding that, in the absence of corroborating evidence, an appellant’s allegation
that he was emotionally upset over a friend’s death is insufficient to establish
good cause for an untimely filing); Ruoff v. Federal Aviation Administra tion,
16 M.S.P.R. 249 , 250-52 (1983) (finding that the appellant’s bare assertion that
he was in “serious mental trauma” due to his daught er’s death was insufficient to
establish good cause for failing to fo llow orders and timely prosecuting his
appeal ).
¶8 We further find that the appellant has failed to demonstrate due diligence in
filing her petition. The record shows, and the appellant h as not alleged
otherwise, that she was aware of the time limit and procedure for filing a petition
for review. ID at 4; see Moles v. Office of Personnel Management , 43 M.S.P.R.
89, 90 (1989) (considering as a factor in a good cause analysis that the initial
decision explicitly provided the appellant with t he deadline for petitioning the
Board for full review). Prior to the due date, she failed to request an extension of
the filing deadline or notify the Board of any extenuating circumstances that
would have prohibited her from filing a timely petition . As such, we find that she
failed to take the diligent steps that would be expected of a reasonably prudent
person under the circumstances. See Alonzo , 4 M.S.P.R. at 184 n. 1.
¶9 We acknowledge the appellant’s allegation s that she called the Clerk’s
Office seve ral times but was not provided with the assistance she sought . PFR
File, Tab 4 at 1 . However, she alleges that the telephone calls occurred on
August 4, 2016 , approximately 6 weeks after the filing deadline . Id. The alleged
phone calls, therefore , do not provide an explanation as to why the appellant
missed the deadline. Moreover, the Clerk’s Office did notify the appellant that
5
her filing was untimely , informing her that an untimely filing must be
accompanied by a motion to accept the filing as timely or to waive the time limit
for good cause, and providing her with the appropriate form to file such a motion.
PFR File, Tab 2 at 1-2, 7-8.
¶10 Finally, the appellant references a Department of Labor (DOL) ruling that
occurred in September 2015, appro ximately 8 months before the issuance of the
initial decision. PFR File, Tab 1 at 1 -2. However, the appellant has not
established that the document, or the information provided within it, was
previously unavailable to her despite her due diligence . See Parkin v.
Department of Justice , 91 M.S.P.R. 411 , ¶ 7 (2002) , aff’d , 55 F. App’x 559 (Fed.
Cir. 2003) ; 5 C.F.R. § 1201.115 (d). To the contrary, the appellant’s own
statements in the record suggest that she was aware of the DOL ruling when it
occurred in 2015. IAF, Tab 8 at 2, 4 -5. Ther efore , we find there is no newly
discovered evidence here that could be a basis for finding good cause for the
untimely filing of the petition for review. See Parkin , 91 M.S.P.R. 411 , ¶ 7.
¶11 For these reasons, we deny the appellant’s motion to accept her filing as
timely and/or to ask the Board to waive or set aside the time limit, and we dismiss
the appeal as untimely filed without good cause shown for the delay .2 See
5 C.F.R. § 1201.114 (g). This is the final decision of the Merit Systems Protection
Board regarding the timeliness of the petition for review. The initial decision
remains the final decision of the Board regarding the dismissal of the appeal for
lack of jurisdiction.
2 On July 5, 2018, and May 16, 2022, the appellant filed two separate motion s for leave
to file additional pleading s. PFR File, Tab s 6, 8. Because we have dismissed the
appellant’s petition for rev iew as untimely filed without good cause shown, and the
appellant’s motions do not allege that the new evidence and argument discussed therein
relate to the timeliness issue, we deny the motion s. To the extent the appellant’s
May 16, 2022 pleading is atte mpting to raise a new restoration claim, she may file a
new appeal with the Board, consistent with applicable regulations.
6
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 of fer the following summary of available appeal rights, the Merit
Systems Protection Board does not provide legal advice on which option is most
appropriate for your situation and the rights described below do not represent a
statement of how courts will rul e regarding which cases fall within their
jurisdiction. If you wish to seek review of this final decision, you should
immediately review the law applicable to your claims and carefully follow all
filing time limits and requirements. Failure to file withi n the applicable time
limit may result in the dismissal of your case by your chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whe ther a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition f or review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703 (b)(1)(A).
If you submit a petition for 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 fin al decisions. As indicated in the notice, the
Board cannot advise which option is most appropriate in any matter.
7
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 2043 9
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within th e court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for informatio n regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703 (b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. ____ , 137 S. Ct. 1975 (2017). If you have a
representative in this case, and your representative receives this decision before
you do, then you must file with the district court no later than 30 calendar days
after your representative receives this decision. If the action involves a claim of
discrimination based on race, color, religion, sex, national origin, or a disabling
condition, you may be entitled to representation by a court -appointed lawyer and
8
to waiver of any requirement of prepayment of fees, costs, or other security. See
42 U.S.C. § 2000e -5(f) and 29 U.S.C. § 794a .
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed thr ough the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702 (b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receiv e
this decision. 5 U.S.C. § 7702 (b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302 (b)(8) or
other protected activities listed in 5 U.S.C. § 2302 (b)(9)(A)(i), (B), (C), or (D) .
If so, and your judicial petition for review “raises no challenge to the Board’s
9
disposition of allegations of a prohibited personnel practice described in section
2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i),
(B), ( C), or (D),” then you may file a 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 a n appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our 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, 201 8, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
The Al l Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115 -195,
132 Stat. 1510.
10
Board n either endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
Contact information for the courts of appeals can be found at their
respective websites, which can be accessed through the li nk below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
FOR THE BOARD:
Washington, D.C. /s/ for
Jennifer Everling
Acting Clerk of the Board | LILLY_PATRICIA_A_CH_0353_16_0244_I_1_FINAL_ORDER_1954565.pdf | 2022-08-25 | null | CH-0353-16-0244-I-1 | NP |
4,172 | https://www.mspb.gov/decisions/nonprecedential/WALKER_ERIKA_D_DC_1221_21_0374_W_1_REMAND_ORDER_1954619.pdf | UNITED STATES OF AME RICA
MERIT SYSTEMS PROTEC TION BOARD
ERIKA D. WALKER,
Appellant,
v.
DEPARTMENT OF THE AR MY,
Agency.
DOCKET NUMBER
DC-1221 -21-0374 -W-1
DATE: August 25, 2022
THIS ORDER IS NONPRECEDENTIAL1
James R. Walker , Garden City, New York, for the appellant.
Randy Ramirez , Esquire, Fort Sam Houston, Texas, for the agency.
BEFORE
Cathy A. Harris, Vice Chairman
Raymond A. Limon, Member
Tristan L. Leavitt, Member
REMAND ORDER
¶1 The appellant has filed a petition for review of the initial decision, which
dismissed her individual right of action (IRA) appeal for lack of jurisdiction . For
the reasons discussed below, we GRANT the appellant’s petition for review ,
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
require d to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117 (c).
2
REVERSE the initial decision, and REMAND the case to the regional office for
further adjudication in accordance with this Remand Order.
BACKGROUND
¶2 On April 26, 2021 , the appellant, a GS -12 Physician Assistant (Readiness) ,
filed an appeal with the Board alleging that she had “suffered retaliation and
disparate treatment as a direct result of making a protected disclosure and/or
reporting protec ted activity that she reasonably believed evidenced wrongdoing .”
Initial Appeal File (IAF), Tab 1 at 8-9, Tab 13 at 42 . The appellant requested a
hearing on the matter. IAF, Tab 1 at 2. The administrative judge thereafter
issued a n order wherein he explained the circumstances under which the Board
has jurisdiction to adjudicate IRA appeals, and he ordered her to file specific
evidence and argument regarding jurisdiction. IAF, Tab 3 at 1 -9.
¶3 In response, the appellant asserted that, in February 2020, she disclosed to
various agency personnel that a specific agency nurse had “allowed double using
of vacutainer adapters in the lab when processing . . . armed forces personnel ”
patients .2 IAF, Tab 9 at 5, Tab 13 at 13 -20. She alleged that , despite her
disclosure, no action was taken against the nurse because the nurse had a personal
relationship with an agency management official. IAF, Tab 9 at 6-7. She also
alleged that, following her disclosure , on April 29, 2020, the agency rated her as
“fully successful” in lieu of “outstanding” in the “ administrative responsibilities
and committee membership” element of her performance appraisal . IAF, Tab 9
at 7, Tab 13 at 42, 45, 48. The appellant also alleged the following: (1) on
May 15, 2020, an agency management official purposefully excluded her from a
meeting regarding a topic for which she was the subject matter expert; (2) in
2 A “vacutainer” is a “proprietary blood collection tube with a vacuum [used] to
facilitate blood collection.” The Free Dictionary, Medical Dictionary, https://medical -
dictionary.thefreedictionary. com/ Vacutainer (last visited Aug. 25 , 2022); IAF, Tab 13
at 14. A “vacutainer adapter” facilitates the use of a vacutainer during a blood draw but
does not come in direct contact with the skin. IAF, Tab 13 at 14.
3
October/Nov ember 2020 , an agency management official attempted to make her
the subject of an investigation in an attempt to remove her from her job duties ;
(3) in May 2020, she was assigned a new supervisor who began to micromanage
her and enact a series of changes , to include removing some of her supervisory
responsibilities , informing her that she had certain responsibilities only “on
paper,” and “intending to micromanage and negatively impact” her duties with
the U.S. Army Reserves. IAF, Tab 9 at 7-9, Tab 13 at 4-8. With her filings, t he
appellant provided a co py of a February 18, 2021 close -out letter from the Office
of Special Counsel (OSC). IAF, Tab 9 at 12-13. In this letter, OSC indicated that
it was terminating its inquiry into the appellant’s allegations that agency officials
had given her a rating of “3” on a performance evaluation,3 failed to provide her
with meaningful supervisory responsibilities, and significantly changed her duties
and working conditions after she emailed agency supervisors regarding an
incident involving a nurse’s improper use of medical equipment. Id. at 12.
¶4 Without holding the appellant’s requested hearing, the administrative judge
issued an initial decision dismissing the appeal for lack of jurisdiction. IAF,
Tab 15, Initial Decision (ID) at 1, 7 . In so doing , the administrative judge
reasoned that the ap pellant had identified f ive potential perso nnel actions: (1) the
agency ’s purported failure to discipline another employee; (2) the agency having
rated appellant as “fully successful” in lieu of “outstanding” in one element of her
performance appraisal4; (3) the agency changing the appellant’s duties and job
title; (4) the agency initiating an investigation into the appellant; and (5) the
agency attempt ing to influence the appellant’s duties with the U.S. Army
Reserve s. ID at 4 -7. He concluded, however, that none of these alleged actions
3 Documentation provided by the appellan t indicated that a rating of “3” equates to
“fully successful.” IAF, Tab 13 at 45.
4 The initial decision erroneously indicated that the appellant received the sub ject rating
in 2018 in lieu of in 2020. ID at 5.
4
amounted to “colorable personnel actions for which cor rective action could be
granted ” and, therefore, that the Board lacks jurisdiction over the matter. ID at 7.
¶5 The appellant has filed a petition for review, and the agency has filed a
response. Petition for Review File, Tabs 1, 3.
DISCUSSION OF ARGUME NTS ON REVIEW
¶6 To establish jurisdiction in a typical IRA appeal, an appellant must show by
preponderant evidence5 that she exhausted her remedies before OSC and make
nonfrivolous allegations of the following: (1) she made a disclosure described
under 5 U.S.C. § 2302 (b)(8) or engaged in a protected activity described under
5 U.S.C. § 2302 (b)(9)(A)(i), (B), (C), or (D); and (2) the disclosure or protected
activity was a contributing factor in the agency’s decision to take or fail to take a
personnel ac tion as defined by 5 U.S.C. § 2302 (a). Corthell v. Department of
Homeland Security , 123 M.S.P.R. 417 , ¶ 8 (2016). A nonfrivolous allegation is
an assertion that, if proven, could establish t he matter at issue. 5 C.F.R.
§ 1201.4 (s). The U.S. Court of Appe als for the Federal Circuit has found that , in
the context of an IRA appeal, a nonfrivolous allegation is an allegation of
“sufficient factual matter, accepted as true, to state a claim that is plausible on its
face.” Hessami v. Merit Systems Protection B oard , 979 F.3d 1362 , 1364, 136 9
(Fed. Cir. 2020). Any doubt or ambiguity as to whether the appellant made
nonfrivolous jurisdictional allegations should be resolved in favor of affording
the appellant a hearing . Grimes v. Department of the Navy , 96 M.S.P.R. 595 , ¶ 12
(2004).
¶7 For the following reasons , we disagree with the administrative judge’s
conclusion that the appellant failed to establish Board jurisdiction and we remand
the matter f or adjudication of the merits.
5 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).
5
The appellant exhausted her administrative remedies before OSC.
¶8 An appellant must exhaust her administrative remedies by first seeking
corrective action from OSC before seeking corrective action from the Board in an
IRA appeal. 5 U.S.C. § 1214 (a)(3). The appellant must provide OSC with a
sufficient basis to pursue an investigation into a whistleblower reprisal claim.
E.g., Mount v. Department of Homeland Security , 937 F.3d 37 , 47-48 (1st Cir.
2019); Acha v. Department of Agriculture , 841 F.3d 878 , 883 -84 (10th Cir. 2016);
Ward v. Merit Systems Protection Board , 981 F.2d 521 , 526 ( Fed. Cir. 1992);
Tute n v. Department of Justice , 104 M.S.P.R. 271 , ¶ 5 (2006), aff’d ,
No. 2007 -3145, 2007 WL 2914787 (Fed. Cir. Oct. 5, 2007 ). However, an
appellant is not prohibited from providing a more detailed account before the
Board than she did to OSC. Briley v. National Archives & Records
Administration , 236 F.3d 1373 , 1377 -78 (Fed. Cir. 2001); see Delgado v. Merit
Systems Protection Board , 880 F.3d 913 , 924-26 (7th Cir. 2018). An appellant
may demonstrate exhaustion through, among other things, her initial OSC
complaint or correspondence from OSC. Mason v. Department of Homeland
Security , 116 M.S.P.R. 135 , ¶ 8 (2011).
¶9 OSC’s close -out letter in this matter reflects that the appellant alleged to
OSC that agency officials issued her a rating of 3 on her performance evaluation,
failed t o provide her with meaningful supervisory responsibilities, and
significantly changed her duties and working conditions after she emailed
supervisors about an incident involving a nurse’s improper use of medical
equipment. IAF, Tab 9 at 12. Thus, we find that the appellant has exhausted her
administrative remedies regarding the allegations we discuss in more detail
below.
The appellant made a nonfrivolous allegation of a protected disclosure under
5 U.S.C. § 2302 (b)(8) .
¶10 The appellant alleged that, in February 2020, she disclosed to various
agency personnel that an agency nurse improperly permitted agency employees to
6
reuse vacutainer adapters in a laboratory setting . IAF, Tab 9 at 5, Tab 13 at 4.
The appellant also provided to the administrative judge a copy of an email dated
February 12, 2020 , wherein she inform ed numerous agency employees that
“single -use vacutainer adapters” had improperly been reused by medics
conducting blood draws on “over 100 [s]oldiers .” IAF, Tab 13 at 13 , 16. In these
emails, the appellant identified a particular nurse as having erroneously informed
agency employees that such reuse was permissible . Id. The appellant also
provided subseq uent emails sent amongst agency personnel discussing whether
the reuse of the adaptors had posed a health risk to both patients and staff ,
including an email wherein an agency specialist indicated that “[t]he risk is
clearly h igher for the healthcare worke r” and , although the cross -cont amination
risk for the patient wa s “very low ,” it was “not zero. ” Id. at 14.
¶11 A protected disclosure is one that an appellant reasonably believes
evidences a ny violation of any law, rule, or regulation, gross mismanagement, a
gross waste of funds, an abuse of authority, or a substantial and specific danger to
public health and safety. Mudd v. Department of Veterans Affairs , 120 M.S.P.R.
365, ¶ 5 & n.3 (2013). The proper test for determining whether an employee had
a reasonable belief that h er disclosures were protected is whether a disinterested
observer with knowledge of the essential facts known to and readily ascertainable
by the employee could reasonably conclude that the actions evidenced a ny of the
conditions set forth in 5 U.S.C. § 2302 (b)(8). Id., ¶ 5.
¶12 We find the appellant made a nonfrivolous allegation of a protected
disclosure under 5 U.S.C. § 2302 (b)(8) . Indeed, a disinterested observer could
reasonably conclude that the matters di sclosed by the appellant , through her
February 12, 2020 email regarding vacutainer adapter reuse , disclosed a
substantial and specific danger to public health and safety. See Chavez v.
Department of Veterans Affairs , 120 M.S.P.R. 285 , ¶¶ 19-20 (2013) (concluding
that an appellant’s disclosure that medical carts were not properly cleaned and
restocked constituted a protected disclosure of a substantial and specific danger to
7
public health and safety) ; see also Smith v. Department of Agriculture ,
64 M.S.P.R. 46, 52-54 (1994) (concluding that the appellant had made a protected
disclosure when he informed the Occupational Safety and Health Administration
that he believed agency employees were using in appropriate safety equipment in a
laboratory setting) .
The appel lant made a nonfrivolous allegation of a personnel action insofar as she
alleged that the agency lowered her performance rating in one element .
¶13 The definition of “personnel action” includes a perform ance evaluation.
5 U.S.C. § 2302 (a)(2)(A)(vii i). T he administrative judge considered whether the
appellant’s claim that the agency had lowered her performance rating to “fully
successful” in lieu of “outstanding” in one element of her performance appra isal
constituted a person nel action. ID at 5 -6. He found , however, that it did not
because the Board “has traditionally looked to the overall performance evaluation
as the relevant personnel actio n for purposes of an IRA appeal. ” ID at 5. He
reasoned that, despite the appellant’s lower rating in the subject element, her
“overall performance evaluation was rated as outstanding , the highest level .” Id.
He concluded that “advancing a challenge to a superlative rating of outstanding
[would be] facially inconsistent with the remedial purposes of the Whistleblower
Protection Act, which is designed to encourage employees to pursue remedies for
alleged wrongdoing and disc ourage employing agencies from taking such actions,
thus enhancing good government.” Id. We disagree.
¶14 The statutory provision identifying a performance evaluation as a personnel
action , i.e., 5 U.S.C. § 2302 (a)(2)(A)(viii), contains no qualifying language
requiring that the contested performance evaluation have a less-than -superlative
overall rating . See Rumsey v. Department of Justice , 120 M.S.P.R. 259 , ¶ 16
(2013) (reasoning that the administrative judge had erred in finding that the
appellant’s 2008 performance appraisal did not constitute a personnel action when
the appellant received the same rating as she had in 2007 because the statutory
language did not contain any qualifying language requiring that an appellant’s
8
rating decline in order to constitute a personnel action ). Moreover, w e disagree
with the administra tive judge’s conclusion that challenging an undesir able rating
in a single element of an employe e’s formal performance evaluation is contrary to
the remedial purposes of the statute ; indeed, such a rating could have practical
consequence s for an employee . See Keefer v. Department of Agriculture ,
82 M.S.P.R. 6 87, ¶ 13 (1999 ) (explaining that the Whistleblower Protection Act is
a remedial statute intended to improve protections for Federal employees and
should be construed to effectuate that purpose ). For instance , were the appellant
to apply for a promotion or for another position altogether , she could conceivably
be competing ag ainst another candidate or candidates with an “outstanding”
rating in all elements and, therefore, be placed at a disadvantage. Accordingly ,
we find th at the appellant made a nonfriv olous of a person nel action under
5 U.S.C. § 2302 (a)(2)(A)(viii).
The appellant made a nonfrivolous allegation of a personnel action insofar as she
made a nonfrivolous allegation that the agency significantly changed h er working
conditions.
¶15 The definition of “personnel action” also includes a “significant change in
duties, responsibilities, or working conditions .” 5 U.S.C. § 2302 (a)(2)(A)(xii) .
The administrative judge considered whether the appellant’s allegations amounted
to such a personnel action but concluded that they did not because the record was
devoid of sufficient “elaboration or explanation ” as to how the agency’s alleg ed
actions constitute d significant changes i n duties or working conditions. ID at 6.
We disagree.
¶16 The Board has found that, a lthough “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
9
end, the agency actions must have a significant effect on the overall nature and
quality of the appellant’s working conditions, duties, or responsibilities . Id.
¶17 Here, the appellant alleged that, in May 2020, approximately 3 months after
her disclosure regarding adapter reuse , she was purposefully excluded from a
meeting regarding medical readiness, which is her area of expertise . IAF, Tab 9
at 7. She also alleged that, during this same timeframe, she was assigned a new
supervisor. Id. at 8. She asserted that, although her position required her to
serve as the Chief of Soldier Medical Readiness, her new supervisor informed he r
that she was “chief on paper” only and began to micromanage her by requiring
her to place “all task [sic] on a cal endar and shared [sic] with the group ,” and
precluded her from supervising the nurse who was the subject of her disclosure.6
Id. at 7-8. We find that these c ontentions collectively amount to a nonfrivolous
allegation of a significant change in working conditions. See Skarada ,
2022 MSPB 17, ¶¶ 17-18 (concluding that the appellant made a nonfrivolous
allegation that the agency had subjected him to a sign ificant change in duties,
responsibilities, or working conditions when he alleged , among other things , that
supervisory personnel both directed him to stop attending leadership meetings and
performing certain extra duties and subjected him to multiple inve stigations ).
6 The appellant also alleged that the agency had, in retaliation for her disclosure,
(1) subjected her to an investigation , and (2) interfered with her duties with the U.S.
Army Reserves. IAF, Tab 9 at 7 -9. Although a retaliatory inve stigation is not specified
in the definition of “ personnel action ” at 5 U.S.C. § 2302 (a)(2)(A), such an
investigation might contribute towards a significan t change in working conditions as
defined at 5 U.S.C. § 2302 (a)(2)(A)(xii). Sistek v. Department of Veterans Affairs ,
955 F.3d 948, 955 (Fed. Cir. 2020); Spivey v. Department of Justice , 2022 MSPB 24,
¶ 10. Thus, on remand, the administrative judge shall consider the appellant’s
investigation -related allegations in assessing the subject personnel action. Moreover,
although the nature of the appellant’s claims regarding her duties with the U.S. Army
Rese rves is unclear, to the extent any purported interference impacted the appellant’s
civilian Federal employment, such interference coul d similarly contribute towards a
significant chan ge in her working conditions.
10
The appellant satisfied the contributing factor jurisdictional criterion via the
knowledge/timing test .
¶18 An appellant’s protected activity is a contributing factor if it in any way
affects an agency’s decision to take , or fail to take, a person nel action. See
Dorney v. Department of the Army , 117 M.S.P.R. 480 , ¶ 14 (2012). One way to
satisfy the contributing factor criterion is the knowledge/timing test. Wadhwa v.
Department of Veterans Affairs , 110 M.S.P.R. 615 , ¶ 12, aff’d , 353 F. App’x 435
(Fed . Cir. 2009) . Under this test, an appellant can prove the contributing factor
element through evidence showing that the official taking the personnel action
knew of her protected disclosure and that the personnel action occurred within a
period of time su ch that a reasonable person could conclude that the disclosure
was a contributing factor in the personnel action. Id.; see 5 U.S.C. § 1221 (e)(1).
¶19 We find that the appellant made nonfrivolous al legations that, if proven,
would satisfy the contributing factor criterion via the knowledge/timing test . As
set forth above , she alleged that , on February 12, 2020 , she made a protected
disclosure via email to numerous agency management officials , including a
management official with whom the subject nurse had a “personal relationship .”
IAF, Tab 9 at 5. She alleged that this official was the individual who sought to
exclude her from a May 2020 meeting. Id. at 7. She also alleged that this offici al
“briefed” the supervisor to whom she was reassigned in May 2020 . Id. at 8. She
further asserted that this official, along with another official to whom she sent the
subject email, attempted to make her “th e subject of an [i]nvestigation ” in an
effort to thwart her from performing her job duties. Id. at 7-8. Moreover, the
appellant submitted documents reflecting that both the rating official and the
higher -level reviewer of the appellant’s April 29, 2020 “rating of record” were
recipients of the appel lant’s February 12, 2020 email. IAF, Tab 13 at 13, 42.
Insofar as the appellant has nonfrivolously alleged both (1) a close temporal
proximity , i.e., approximately 3 months, between her protected disclosure and the
two personnel actions at issue , and (2) that the relevant agency management
11
officials had knowledge of the same, we find that she met her burden at this
jurisdictional stage regarding the c ontributing factor element . See Wadhwa ,
110 M.S.P.R. 615 , ¶ 12 (explaining that, if an appellant satisfies the
knowledge/timing test, the appellant has demonstrated that a protec ted disclosure
was a contributing factor in a personnel actio n); see also Berkowitz v. Department
of the Treasury , 94 M.S.P.R. 658 , ¶ 12 (2003) (finding that the appellant made a
nonfrivolous allegation that the disclosure was a contributing factor in a
personnel action that occurred only 5 months after the disclosure ).
¶20 Accordingly, we find that the appellant made a nonfrivolous alle gation that
she made a protected disclosure under 5 U.S.C. § 2302 (b)(8) that contributed to
both (1) her April 29, 2020 performance evaluation and (2) a significant change
in her duties, responsibi lities, or working conditions . Thus, we find that she is
entitled to her requested hearing and a decision on the merits of her appeal. IAF,
Tab 1 at 2; see Salerno v. Department of the Interior , 123 M.S.P.R. 230 , ¶ 5
(2016). Prior to conducting a hearing, the administrative judge shall afford the
parties a reasonable opportun ity to complete discovery and order the parties to
submit any other evidence that he deems necessary to adjudicate the merits of this
appeal. See Lewis v. Department of Defense , 123 M.S.P.R. 255 , ¶ 14 (2016).
ORDER
¶21 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:
Washingt on, D.C. /s/ for
Jennifer Everling
Acting Clerk of the Board | WALKER_ERIKA_D_DC_1221_21_0374_W_1_REMAND_ORDER_1954619.pdf | 2022-08-25 | null | DC-1221-21-0374-W-1 | NP |
4,173 | https://www.mspb.gov/decisions/nonprecedential/WILLIAMS_ERIC_AT_4324_16_0662_I_1_REMAND_ORDER_1954783.pdf | UNITED STATES OF AME RICA
MERIT SYSTEMS PROTEC TION BOARD
ERIC WILLIAMS,
Appellant,
v.
DEPARTMENT OF THE NA VY,
Agency.
DOCKET NUMBER
AT-4324 -16-0662 -I-1
DATE: August 25, 2022
THIS ORDER IS NONPRECEDENTIAL1
Eric Williams , North Charleston, South Carolina, pro se.
Kristin A. Martin , Norfolk, Virginia , for the agency.
Mary Kate DeMane , Portsmouth, Virginia , for the agency.
BEFORE
Cathy A. Harris , Vice Chairman
Raymond A. Limon , Member
Tristan L. Leavitt , Me mber
REMAND ORDER
¶1 The appellant has filed a petition for review of the initial decision, which
dismissed for lack of jurisdiction his request for corrective action under the
Uniformed Services Employment and Reemployment Rights Act of 1994
(codified as amended at 38 U.S.C. §§ 4301-4335) (USERRA) . For the reasons
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and ad ministrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117 (c).
2
discussed below, we GRANT the appellant’s petition for re view , VACATE the
initial decision, and REMAND the case to the regional office for further
adjudication in accordance with this Remand Order.
¶2 In July 2016, the appellant file d a USERRA appeal alleging that he is a 30%
disabled veteran and that the agency discriminated against him on the basis of
his uniformed mi litary service when it did not select him for the GS -9/11
Contract Specialist position advertised under vacancy ID 1460254 (job
announcement number EA51102 -12-1460254LZ 122318D).2 Initial Appeal File
(IAF), Tab 1 at 1-5. The appellant requested a hearing. Id. at 1. The
administrative judge issued an order informing the appellant of his jurisdictional
burden and proof requirements and directed him to submit evidence and
argument amounting to a nonfrivolous allegation of jurisdiction. IAF, Tab 3
at 2-5, 7. In response, the appellant alleged that the agency took the following
improper actions, which led to his nonselection, because of his status as a
veteran: (1) violate d the pass over provisions of 5 U.S.C. § 3318 (b); (2) failed to
give appropriate consideration to his disability rating; (3) violated his veterans’
preference rights under the category rating procedures; (4) inappropriately used
Expedited Hiring Authority to make its selection s for the Contract Specialist
position; (5) failed to properly rate and rank his application; (6) failed to credit
him with all valuable experience for the position; (7) failed to properly advertise
the position; (8) denied him the opportunity to compete f or the position ; and
(9) committed other procedural irregularities. IAF, Tabs 6, 8.
2 The appellant also has challenged this nonselection in two separate appeals before the
Board under the Veterans Employment Opportunities Act of 1998. In Williams v.
Department of the Navy , MSPB Docket No. AT -3330 -16-0663 -I-1, Initial Decision
(Aug. 4, 2016) , the administrative judge dismissed the appeal for lack of jurisdiction.
The initial decision became the final decision of the Board when n either party
petitioned for review. In Williams v. Department of the Navy , MSPB Docket
No. DC-3330 -16-0292 -B-1, on remand the administrative judge denied the appellant’s
request for corrective action , and the Board denied the appellant’s petition for revi ew of
the remand initial decision . Williams v. Department of the Navy , MSPB Docket No.
DC-3330 -16-0292 -B-1, Final Order (Aug. 25, 2022 ).
3
¶3 In the initial decision, the administrative judge dismissed the appeal for
lack of jurisdiction, finding that the appellant failed to make more than bare
allegations that his rights under USERRA were violated and instead merely
catalogued how he believed his veterans’ preference rights were violated. IAF,
Tab 10, Initial Decision ( ID).
¶4 The appellant has filed a petition for review of the initial decision, and the
agency has responded in opposition. Petition for Review (PFR) File, Tabs 1, 3.
¶5 Two typ es of cases arise under USERRA: (1) reemployment cases, in
which the appellant claims that an agency has not met its obligations under
38 U.S.C. §§ 4312 -4318 following the appellant’s absence from civilian
employment to perform uniformed service; and (2) “discrimination” cases, in
which the appellant claims that an agency has taken an action prohibited by
38 U.S.C. § 4311 (a) or (b). Clavin v. U.S. Postal Service , 99 M.S.P.R. 61 9, ¶ 5
(2005). The Board has adopted, and the U.S. Court of Appeals for the Federal
Circuit has endorsed, a “liberal approach in determining whether jurisdiction
exists under USERRA.” Yates v. Merit Systems Protection Board , 145 F.3d
1480 , 1484 (Fed. Cir. 1998) ; Beck v. Department of the Navy , 120 M.S.P.R. 504,
¶ 8 (2014). Under this approach, the relative weakness of the specific factual
alleg ations initially made by an appellant in his USERRA claim should not serve
as the basis for dismissing the appeal for lack of jurisdiction; rather, if he fails to
develop those allegations, his USERRA claim should be denied on the merits.
Beck , 120 M.S.P. R. 50 4, ¶ 8. Thus, to establish jurisdiction over his USERRA
claim, the appellant need only allege the following : (1) he served in the military;
(2) he was denied initial employment, reemployment, retention in employment,
promotion, or a benefit of emplo yment; and (3) the denial was due to his service
in the military. Id.
¶6 As noted above, the administrative judge found that the appellant failed to
establish Board jurisdiction over his USERRA claim. ID at 3. However, in light
of the liberal pl eading standard applied in such cases, we find that the appellant’ s
4
contentions that the agency denied him initial employment on the basis of his
status as a veteran are sufficient to establish jurisdiction over his USERRA
appeal. See Beck , 120 M.S.P.R. 504, ¶ 8; Searcy v. Department of Agriculture ,
115 M.S.P.R. 260 , ¶ 8 (2010) (findi ng that, although the appellant’ s allegations
were vague and lack ed specificity, he established jurisdiction by alleging that the
agency was aware of his prior uniformed service and denied him employment
because of it, and denied him a benefit of employment when it withdrew funds
from his c ivil service retireme nt account ).
¶7 An appellant who establishes jurisdiction over a USERRA appeal has an
unconditional right to a hearing if he requests one. Kirkendall v. Department of
the Army , 479 F.3d 830 , 844-46 (Fed. Cir. 2007); Searcy , 115 M.S.P.R. 260 , ¶ 7 .
Because the appellant requested a hearing and made sufficient allegations under
the liberal pleading standard applied in USERRA cases to establish jurisdiction ,
we remand the appeal for a hearing on his USE RRA claim .
ORDER
¶8 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:
Washington, D.C. /s/ for
Jennifer Everling
Acting Clerk of the Board | WILLIAMS_ERIC_AT_4324_16_0662_I_1_REMAND_ORDER_1954783.pdf | 2022-08-25 | null | AT-4324-16-0662-I-1 | NP |
4,174 | https://www.mspb.gov/decisions/nonprecedential/SIPE_HOWARD_DE_0752_15_0513_I_1_FINAL_ORDER_1954120.pdf | UNITED STATES OF AME RICA
MERIT SYSTEMS PROTEC TION BOARD
HOWARD SIPE,
Appellant,
v.
DEPARTMENT OF VETERA NS
AFFAIRS,
Agency.
DOCKET NUMBER
DE-0752 -15-0513 -I-1
DATE: August 24, 2022
THIS FINAL ORDER IS NONPRECEDENTIAL1
Bonnie Brownell , Esquire, and Christopher Landrigan , Esquire,
Washington, D.C., for the appellant.
Patrick A. Keen , Shreveport , Louisiana , for the agency.
BEFORE
Cathy A. Harris , Vice Chairman
Raymond A. Limon , Member
Tristan L. Leavitt , Member
FINAL ORDER
¶1 The appellant has filed a petition for review of the initial decision, which
sustained his chapter 75 removal . Generally, we grant petitions such as this one
only when: the initial decision contains erroneous findin gs of material fact; the
initial decision is based on an erroneous interpretation of statute or regulation or
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or dis tinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board ’s case law. See 5 C.F.R. § 1201.117 (c).
2
the erroneous application of the law to the facts of the case; the administrative
judge ’s rulings during either the course of the appeal or the in itial decision were
not consistent with required procedures or involved an abuse of discretion, and
the resulting error affected the outcome of the case; or new and material evidence
or legal argument is available that, despite the petitioner ’s due diligen ce, was not
available when the record closed. Title 5 of the Code of Federal Regulations,
section 1201.115 ( 5 C.F.R. § 1201.115 ). After fully considering the filings in this
appeal, we conclude that the petitioner has not established any basis under
section 1201.115 for granting the petition for review. Therefore, we DENY the
petition for review and AFFIRM the initial decision, which is now the Board ’s
final decision. 5 C.F.R. § 1201.113 (b).
BACKGROUND
¶2 The appellant was employed as a GS -4 Mail Clerk. Initial Appeal File
(IAF), Tab 5 at 16. The agency proposed his remov al based on five charges :
(1) conduct unbe coming a F ederal employee due to his “loud, heated verbal
altercation ” on or near U.S. Postal Service property concerning parking his
Government vehicle in a prohibited area ; (2) lack of candor supported by
two spec ifications due to his failure to be fully candid during a fact -finding
meeting about the altercation ; (3) failure to follow his supervisor ’s instruction not
to engage in altercations; (4) privacy violation and/or failure to safeguard
confidential material for mislabeling a package con taining confidential patient
records in vio lation of the agency ’s handbook; and (5) failure to fo llow certain
agency procedures by failing to report a potential privacy breach within an hour
of discovery o f the error when the package was returned . Id. at 46-48. The
appellant r esponded, stating, among other things, that he wished to retire in lieu
of removal if the agency decided to remove him. Id. at 45. The agency issued a
decision sustaining charges 1, 2, 3, and 5 and imposing the removal effective
3
July 2, 2015.2 Id. at 17 -20. On June 30, 2015, after the issuance of the removal
decision and prior to its effective date , the appellant retired in lieu of removal .3
Id. at 16.
¶3 The appellant filed the instant appeal challenging his removal and requested
a hearing . IAF, Tab 1. After holding a videoconference hearing, the
administrative judge issued an initial decision , sustaining all of the charges and
affirming the agency ’s removal action. IAF, Tab 17, Initial Decision (ID).
DISCUSSION O F ARGUMENTS ON REVIE W
¶4 On review, the appellant asserts that the deciding official did not consider
all of the relevant mitigating factors in determining the penalty and that the
administrative judge , therefore, should have independently weighed the relevan t
factors and mitigated to a lesser penalty. E.g., Petition for Review ( PFR ) File,
Tab 1 at 13-29, Tab 4 at 4 .4 For the reasons discussed below, we find that the
administrative judge properly found that the deciding official considered the
appropriate factors and reasonably exercised management discretion .
¶5 Whe n, as here, all of the agency ’s charges have been sustained, the Board
will review an agency -imposed penalty only to determin e if the agency
2 The agency did not sustain charge 4 because the deciding official found that the
appellant may not have been responsible for mislabeling the package that contained the
confidential information. IAF, Tab 5 at 18, 47 .
3 Although the appellant retired after the date that the agency issued the removal
decision, but prior to its effective date, the Board retains jurisdiction over this removal
appeal . See 5 U.S.C. § 7701 (j); Mays v. Department of Transportation , 27 F.3d 1577 ,
1579 -81 (Fed. Cir. 1994 ); Tizol -Coimbre v. U.S. Postal Service , 70 M.S.P.R. 382 , 384
(1996 ); cf. Jenkins v. Merit Systems Protection Board , 911 F.3d 1370 , 137 3-75 (Fed.
Cir. 2019) (holding that an appeal in which a removal has been cancelled and its
consequences eliminated does not implicate 5 U.S.C. § 7701 (j) because the case no
longer involves a removal).
4 The appellant does not appear to challenge the administrative judge’s decision to
sustain the charges, and we find no basis to disturb the initial decision in this regard.
See Purifoy v. Department of Veterans Affairs , 838 F.3d 1367 , 1372 -73 (Fed. Ci r.
2016 ); Haebe v. Department of Justice , 288 F.3d 1288 , 1301 (Fed. Cir. 2002).
4
considered all of the relevant factors and exercised management discretion within
tolerable limits of reasonableness. Davis v. U.S. Postal Service , 120 M.S.P.R.
457, ¶ 6 (2013). In Douglas v. Veterans Administration , 5 M.S.P.R. 280 , 305 -06
(1981), the Board articulated a nonexhaustive list of 12 factors generally
recognized as relevant to determin e the appropriateness of a penalty. There is,
however, no requirement that these factors be applied mechanistically,
formulaically, or with a ritualistic formality. Farrell v. Department of the
Interior , 314 F.3d 584 , 594 (Fed. Cir. 2002); Chavez v. Small Business
Administration , 121 M.S.P.R. 168 , ¶ 9 (2014) ; Douglas , 5 M.S.P.R. at 306 .
¶6 The appellant argues that the administrative judge should not have deferred
to the deciding official ’s consideration of the Douglas factors because the
deciding official testified that she considered some of the factors to be “neutral”
rather than mitigating in this case and that ultimately she found there were “no”
mitig ating factors. E.g., PFR File, Tab 1 at 14, 19-24. Specifically, the appellant
asserts that the following should have been considered as strong mitigating
factors in his favor rather than as “neutral” or “aggravating” factors: his long
tenure, his excel lent performance history, his ability to get along with coworkers
as evidenced by his work as a union president, the relatively “low level” (GS -4)
of his position, his expression of remorse, his proactive ly seeking assistance on
conflict management, and hi s medical condition. Id. at 15 -24. We have reviewed
the appellant’s arguments and the record on this matter, and we find that the
record clearly supports the administrative judge ’s finding that the deciding
official considered the relevant factors in determining that the penalty of removal
was reasonable . ID at 19-24; see, e.g. , Hearing Transcript ( HT) at 100-02,
104-05, 107, 110 -11, 113 -15 (testimony of the deciding official) ; IAF, Tab 5
at 18, 25 -30. For example, the deciding official stated in the decision letter tha t
she considered the appellant’s “medical issues . . . and [his] participation in an
Employee Assistance program for anger management,” but that she found that the
penalty of removal was nonetheless reasonable in light of the seriou sness of the
5
charges. IAF, Tab 5 at 18. Although the appellant disagrees with the weight the
deciding official gave to each of the factors, the deciding official clearly
considered each of them and came to the ultimate conclusion that removal was t he
appropriate penalty.5
¶7 Regarding his medi cal issues , the appellant asserts on review that his
medical condition should have been considered in mitigating the penalty as well
as regarding the administrative judge’s decision to sustain the charges . PFR File,
Tab 1 at 21 n.9; ID at 24 . The administrative judge credited the deciding
official’s testimony that she considered the appellant’s medical conditions in
determining the penalty but did not find sufficient evidence that they would not
recur. ID at 24; HT at 114 -15 (testimony of the deciding official) . The
administrative judge further noted that the appellant’s contentions regarding his
medical conditions only relate to the charges of conduct unbecoming a Federal
employee and f ailure to follow i nstructions and that t hey did not contr ibute to the
lack of candor or failure to follow instructions c harges. ID at 24. Accordingly,
the appellant’s argument regarding his medical condition does not provide a basis
for disturbing the initial decision.
¶8 The appellant also asserts that the deciding official improperly weighed his
prior disciplinary record “by inaccurately considering it to be similar to the
misconduct at issue” in this appeal. PFR File, Tab 1 at 24. He asserts that,
because the misconduct underlying his 10 -day suspension i n 2013 was not similar
to that at issue in this appeal, the discipline is of little weight in determining the
penalty. Id. (citing Skates v. Department of the Army , 69 M.S.P.R. 366 , 369
5 We find no basis for mitigating the penalty based on th e deciding official’s testimony
recalling that the appellant had “[t]wenty -something years of service,” HT at 131, when
the appellant claims he should have been credited with 33 or more years of service.
E.g., PFR File, Tab 1 at 15 -16; IAF, Tab 5 at 35, 4 1. The record as a whole reflects that
the deciding official considered the appellant to have been “a long, tenured employee,”
HT at 105 (testimony of the deciding official) , and we find that the additional years of
service cited by the appellant are not of sufficient weight to warrant mitigating the
penalty under all of the circumstances.
6
(1996) ). The Board will generally not discount a prior disciplinary record
because it is for an unrelated offense. Lewis v. Department of the Air Force ,
51 M.S.P.R. 475 , 484 (1991). However, if the nature of the prior misconduct is
sufficiently different from the charges in the proposal at is sue, this difference
may significantly diminish the weight of that prior discipline in determining a
proper penalty. Skates , 69 M.S.P.R. at 369.
¶9 Even if we exclude considering the 10 -day suspension as prior discipline,
the deciding official properly determined that the incident demonstrated the
appellant’s lack of rehabilitative potential. HT at 111 (testimony of the deciding
official) ; see Sims v. Department of Defense , 58 M.S.P.R. 131 , 137 (1993). In
any event, the deciding official found that the appellant otherwise demonstrated a
lack of rehabilitative potential because he minimized his involvement in one of
the situations in question in contrast to others’ accounts of the incident . HT
at 113-14 (testimony of the deciding official) . Accordingly, we find that the
record otherwise demonstrates a lack of rehabilitative potential. Sims ,
58 M.S.P.R. at 137. Further, considering the record as a whole, we find that,
even if we disregard consideration of this incident, this does not provide a reason
for disturbing the agency’s chosen penalty.
¶10 The appellant next challenges the deciding official’s having conside red a
letter from 2010 in which a postmaster stated that he did not want the appellant to
enter the premises of a post office. PFR File, Tab 1 at 25. The appellant asserts
that, even by the postmaster’s account, the conduct that led him to issue this let ter
is not similar to the charged misconduct in this appeal . Id. We find, however,
that the deciding official properly considered this letter in the context of the
appellant’s work history. See Williams v. Department of the Army , 102 M.S.P.R.
280, ¶ 10 (2006) (considering that the appellant’s supervisor had received several
complaints from other mail clerks regarding the appella nt’s failure to “carry[ ] his
load” in assessing the reasonableness of the agency’s penalty determination).
Further, even if we were to disregard this letter , it would not affect our decision .
7
¶11 Accordingly, we affirm the initial decision because the deciding official
considered the rele vant Douglas factors and exercised her discretion within the
toler able limits of reasonableness .
NOTICE OF APPEAL RIG HTS6
You may obtain review of this final decision. 5 U.S.C. § 7703 (a)(1). By
statute, the nature of your claims determines the time limit for seeking such
review and the appropriate forum with which to file. 5 U.S.C. § 7703 (b).
Although we offer the following summary of available appeal rights, the Merit
Systems Protection Board does not provide legal advice on which option is most
appropriate for your situation and the rights described below do not represent a
statement of how co urts will rule regarding which cases fall within their
jurisdiction. If you wish to seek review of this final decision, you should
immediately review the law applicable to your claims and carefully follow all
filing time limits and requirements. Failure to file within the applicable time
limit may result in the dismissal of your case by your chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have question s
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703 (b)(1)(A).
6 Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review rights included in final decisions. As indicated in the not ice, the
Board cannot advise which option is most appropriate in any matter.
8
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contain ed within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono fo r information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circu it), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703 (b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. ____ , 137 S. Ct. 1975 (2017). If you have a
representative in this case, and your representative receives this decision before
you do, then you must file with the district court no later than 30 calendar days
after your representative receives this decision. If the action involves a claim of
9
discrimination based on race, color, religion, sex, national origin, or a disabling
condition, you may be entitled to representation by a court -appointed lawyer and
to waiver of any requirement of prepayment of fees, costs, or other security. See
42 U.S.C. § 2000e -5(f) and 29 U.S.C. § 794a .
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimi nation claims only, excluding
all other issues . 5 U.S.C. § 7702 (b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702 (b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washi ngton, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW 12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302 (b)(8) or
10
other protected activities listed in 5 U.S.C. § 2302 (b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no chal lenge to the Board’s
disposition of allegations of a prohibited personnel practice described in section
2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i),
(B), (C), or (D),” then you may file a petition for judicial review e ither with the
U.S. Court of Appeals for the Federal Circuit or any court of appeals of
competent jurisdiction.7 The court of appeals must receive your petition for
review within 60 days of the date of issuance of this decision. 5 U.S.C.
§ 7703 (b)(1)(B).
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “G uide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit , you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
7 The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017 . The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Ci rcuit or any other circuit court of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115 -195,
132 Stat. 1510.
11
Board neither endorses the services provided by any attorney nor war rants that
any attorney will accept representation in a given case.
Contact information for the courts of appeals can be found at their
respective websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
FOR THE BOARD:
Washington, D.C. /s/ for
Jennifer Everling
Acting Clerk of the Board | SIPE_HOWARD_DE_0752_15_0513_I_1_FINAL_ORDER_1954120.pdf | 2022-08-24 | null | DE-0752-15-0513-I-1 | NP |
4,175 | https://www.mspb.gov/decisions/nonprecedential/SLAMA_ERIK_SF_531D_15_0266_I_4_FINAL_ORDER_1954270.pdf | UNITED STATES OF AME RICA
MERIT SYSTEMS PROTEC TION BOARD
ERIK SLAMA,
Appellant,
v.
DEPARTMENT OF HEALTH AND
HUMAN SERVICES,
Agency .
DOCKET NUMBER S
SF-531D -15-0266 -I-4
SF-0432 -16-0496 -I-1
DATE: August 24, 2022
THIS FINAL ORDER IS NONPRECEDENTIAL1
Terina M. Williams , Esquire, and Shaun Southworth , Esquire, Atlanta,
Georgia, for the appellant .
Melissa A. Manson , San Francisco, California, for the agency .
BEFORE
Cathy A. Harris, Vice Chairman
Raymond A. Limon, Member
Tristan L. Leavitt, Member
FINAL ORDER
¶1 The appellant has filed separate petition s for review of the initial decision s,
which sustained the denial of a within -grade increase (WIGI) and his chapter 43
removal for unacce ptable performance . 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
require d to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117 (c).
2
findings of material fact; the initial decision is based on an erroneous
interpretation of statute or regulati on or the erroneous application of the law to
the facts of the case; the administrative judge’s rulings during either the course of
the appeal or the initial decision were not consistent with required procedures or
involved an abuse of discretion, and the resulting error affected the outcome of
the case; or new and material evidence or legal argument is available that, despite
the petitioner’s due diligence, was not available when the record closed. Title 5
of the Code of Federal Regulations, section 1201. 115 ( 5 C.F.R. § 1201.115 ).
After fully considering the filings in th ese appeal s, we JOIN them under 5 C.F.R.
§ 1201.36 (b) because doing so will expedite processing without adversely
affecting the interests of the parties.2 We find that the petitioner has not
established any basis under section 1201.115 for granting the petition s for review.
Therefore, we DENY the petition s for review . Except as expressly MODIFIED to
recognize and apply the decision in Santos v. National Aeronautic s & Space
Administration , 990 F.3d 1355 (Fed. Cir. 2021), to the agency’s charge of
unacceptable performance and, as it concerns the appellant’s whistleblower
reprisal affirmative defense, find that the appellant engaged in protected activity
when he filed an Office of Special Counsel (OSC) disclosure complaint and as to
the analysis of the factors set forth in Carr v. Social Security Administration ,
185 F.3d 1318 , 1323 (Fed. Cir. 1999) , we AFFIRM the initial decision s, which
are now the Board’s final decis ion. 5 C.F.R. § 1201.113 (b).
BACKGROUND
¶2 The appellant was employed by the agency’s Food and Dru g Administration
in the Import Operations Branch of its Los Angeles District Office (LADO) .
Slama v. Department of Health & Human Services , MSP B Docket No. SF-531D -
2 We find joinder appropriate here because many of the relevant facts are the same for
both appeals and the appellant is making some of the same arguments in his petitions
for review.
3
15-0266 -I-1, Initial Appeal File ( 0266 IAF), Tab 6 at 104; Slama v. Department
of Health & Human Services , MSPB Docket No. SF-531D -15-0266 -I-4, Appeal
File ( 0266 I-4 AF), Tab 19, Nov . 30, 2016 Hearing Compact Disc (HCD1),
Track 4 at 3:32 -3:52, 8:07 -8:52 (testimony of the appellant’s supervisor) .3 In
May 2010, the Direct or of the LADO Import Operations Bran ch promoted the
appellant to the Supervisory Consumer Safety Officer (SCSO) position , becoming
his immediate supervisor in that role . 0266 IAF, Tab 6 at 104; HCD1 , Track 4
at 10:32 -11:30 (testimony of the appellant’s supervisor) . As SCSO , the appellant
was responsible for supervising Consumer Safety Officers charged with
inspecting and investigating regulated commodities and their manufacturers .
0266 I -4 AF, Tab 12 at 201-04. SCSOs are required to act as a resource for their
team members on technical matters, and to “plan[ ], assign[ ], review[ ], and
evaluat[e] the work and performance of those employees.” Id. at 203. They also
are expected to act as liaisons with outside entities su ch as state and local health
officials and other Federal agencies. Id. at 201, 204 -05.
¶3 On June 29, 2011, an agency Quality System Manager emai led an inquiry to
the appellant indicating that she had received an anonymous complaint that some
employees on a different SCSO’s team were improperly reporting the amount of
time it took to complete specific tasks. Slama v. Department of Health & Human
Services , MSPB Docket No. SF-531D -15-0266 -I-2, Appeal File (0266 I-2 AF),
Tab 10 at 152; 0266 I-4 AF, Tab 20, Dec. 1, 2016 Hearing Compact Disc
(HCD2), Track 3 at 18:20 -19:20 (testimony of the appellant). She also stated that
the SCSO for the team in question had acknowledged that the time was reported
incorrectly. 0266 I-2 AF, Tab 10 at 152. On June 30, 2011, the appellant
responded via email to the Quality System Manager that he “consider[ed] these
complaints to have merit and be of a high severity .” Id. at 151. He copied hi s
supervisor on this response. Id.
3 The appell ant’s WIGI appeal was dismissed without prejudice and refiled three times,
resulting in the four docket numbers associated with the appeal.
4
¶4 In mid -2012, the Deputy Director of the Import Operations Branch asked
the appel lant what he thought of a photo documentation system (PDS) then being
used by the branch.4 HCD 2, Track 3 at 28:05 -28:46 (testimony of the appellant).
The appellant responded that he believed PDS was not an “added benefit” because
“it was not doing optical r ecognition and it was not even connected to [the
agency’s] software – it was not online at all.” Id. Thus, the appellant believed it
was not an improvement over the hand -held cameras that already had been issued
to emp loyees. Id.
¶5 In February 2013, the appellant’s supervisor gave the appellant a summary
rating of 3 out of a possible 5 , or “achieved expected results,” for the
2012 performance year.5 0266 I -4 AF, Tab 10 at 24, 33. In February 2014, the
appellant’s sup ervisor gave the appellant a summary rating of 1 , or “achieved
unsatisfactory results,” for the 2013 performance year as a result of rating the
appellant ’s performance at a level 1 on four critical elements: communication,
administrative requirements, technical competency, and employment management
culture/leadership. 0266 IAF, Tab 6 at 65-78. Under the agency’s Performance
Management Appraisal Plan, a rating of 1 on any critical element results in a
summary rating of 1. Slama v. Department of Health & Human Services , MSPB
Docket No. SF-0432 -16-0496 -I-1, Initial Appea l File ( 0496 IAF), Tab 11
at 48-49.
¶6 In May 2014, the appellan t had completed the waiting period for his next
WIGI . 0266 IAF, Tab 6 at 24, 61. His supervisor postponed making a decisio n
regarding whether to grant the WIGI at that time. Id. In September 2014, he
4 Except during the Director of the Import Operations Branch’s absences, the Deputy
Director did not supervise the appellant. HCD1, Track 8 at 3:40 -4:16 (testimony of the
Deputy Director). The appellant’s supervisor during all relevant periods remained the
Director of the Import Operations Branch.
5 The agency’s performance year is the same as a calendar year. Slama v. Department
of Health & Human Services , MSPB Docket No. SF-0432 -16-0496 -I-1, Initial Appeal
File, Tab 11 at 48.
5
decided to deny the WIGI based on his determination that the appellant was not
performing at an acceptable level of competence (ALOC) . Id. at 24-32. The
appellant requested reconsideration from his second -level supervisor, the Acting
District Director of LAD O, and provided a detailed response to his supervisor’s
assessment of his performance. Id. at 15-22. He also alleged that he received the
low score and was subjected to a hostile work environment in reprisal for his
June 30, 2011 email response to the Quality System Manager . Id. at 22. The
Acting District Director denied the appellant’s reconsideration request , and the
agency withheld his WIGI. Id. at 12-13.
¶7 In Febru ary 2015, the appellant’s supervisor again gave the appellant a
summary rating of 1 for the 2014 performance year. 0266 I-4 AF, Tab 16 at 4.
This summary rating resulted from the appellant receiving a level 1 on the same
four critical elements at issue in his rating for the 2013 performance year . Id.
at 4-22. A month later, t he appellant’s supervisor issued the appellant a 90 -day
Performance Improvement Plan ( PIP). 0496 IAF, Tab 6 at 93, 128 -48. In
March 2015, the appellant filed an equal employment opportunity (EEO)
complaint di sagreeing with his WIGI denial, 2014 performance year rating , and
placement on a P IP. 0266 I -4 AF, Tab 12 at 160-66; 0496 IAF, Tab 21 at 19 n.9,
Tab 22 at 21.
¶8 In April 2015, the appellant filed two complaints with the Disclosure Unit
of OSC . 0496 IAF, Tab 14 at 207-32. He again raised his concerns about PDS,
asserting that employees were being required by his supervisor, who purchased
PDS on behalf of the agency , to use both traditional cameras and PDS at the same
time and that the cost of PDS “well exceeds $10,000 of wasted money.” Id.
at 212. He also indicated that in December 2011, his supervisor had installed a
voice over internet protocol system in the office’s space in San Pedro, California ,
just prior to reloc ating to Long Beach, California . Id. at 227-29. He asserted that
the installation just prior to an office move wasted “hundreds of thousands of
dollars.” Id. at 227.
6
¶9 In August 2015, the appellant’s supervisor notified the appellant that he had
failed the PIP. 0496 IAF, Tab 6 at 114-15. Three months later , the appellant’s
supervisor proposed the appellant’s removal for unacceptable performance . Id.
at 93-111. The appellant responded to the Acting District Director , who i ssued a
decision removing the appellant effective April 23, 2016. Id. at 12-90.
¶10 The appellant filed separate appeals of his WIGI denial and removal .
0266 IAF, Tab 1; 0496 IAF, Tab 1. The administrative judge held a single
hearing for both appeals. 0266 I -4 AF, Tab 15 at 2. She then issued two separate
initial decisions sustaining both agency actions . 0266 I-4 AF, Tab 23, Initial
Decision (0266 ID); 0496 IAF, Tab 25, Initial Decision (0496 ID).
¶11 The administrative judge found that the agency’s performance plan was
approved by the Office of Personnel Management (OPM) and that the appellant’s
performance standards were both valid and communicated to him. 0266 ID
at 5-7; 0496 ID at 7-8; 0266 IAF, Tab 6 at 33-41, 44 -45, 79. As to the agency’s
denial of the appellant’s WIGI , she concluded that the agency established by
substantial evidence that he failed to perform at a n acceptable level on three of
his critical elements, i.e., communication, administrative requirements, and
technic al competency. 0266 ID at 7-27. As to the appellant’s removal , she
concluded that the agency warned him that his performance was not acceptable
and gave him a reasonable opportunity to improve, and his performance remained
unacceptable on the same three critical elements . 0496 ID at 8-29. As to both
appeals, s he denied the appellant’s affirmative defenses of race and sex
discrimination, reprisal for filing an EEO complaint, and reprisal for making
protected disclosures and engaging in protected activity. 0266 ID at 27-37;
0496 ID at 29-48. Thus, the administrative judge upheld both the WIGI denial
and removal. 0266 ID at 37; 0496 ID at 49.
¶12 The appellant has filed petitions for review of the initial decision s.
Slama v. Department of Health & Human Services , MSPB Docket No. SF-531D -
15-0266 -I-4, Petition for Review File (0266 PFR File) , Tab 1; Slama v.
7
Department of Health & Human Services , MSPB Docket No. SF-0432 -16-0496 -
I-1, Petition for Review File (0496 PFR File), Tab 1. As to his WIGI appeal, he
disagrees with the administrativ e judge’s finding that the agency establish ed by
substantial evidence that his performance was less than acceptable . 0266 PFR
File, Tab 1 at 16-22. As to his removal appeal, he argues that his standards
were not valid and disagrees with the finding that his performance remained
unacceptable in three critical elements during the PIP period. 0496 PFR File,
Tab 1 at 11-13, 18 -19. In both appeals, he argues that the administrative judge
erred in finding that he failed to establish his affirmative defenses. 0266 PFR
File, Tab 1 at 22-25; 0496 PFR File, Tab 1 at 22-28. He also disputes many of
the administrative judge’s factual findings, including those based on her
credibility determinations . 0266 PFR File, Tab 1 at 11-22; 0496 PFR File, Tab 1
at 13-17, 15 -18, 25 -26. The agency has filed response s to the appellant’s
petition s for review.6 0266 PFR File, Tab 7; 0496 PFR File, Tab 7.
DISCUSSION OF ARGUME NTS ON REVIEW
The administrative judge properly found that the agency met its substantial
evidence burden as to the appellant’s WIGI denial .
¶13 A permanent General Schedule employee such as the appellant generally is
entitled to receive a WIGI in the rate of basic pay if he is performing at an ALOC
at the end of the statut ory waiting period. 5 U.S.C. § 5335 (a); see Oulianova v.
Pension Benefit Guaranty Corporation , 120 M.S.P.R. 22 , ¶ 6 (2013) (explaining
the requirements for a WIGI in greater detail) ; 0266 IAF, Tab 6 at 80. An
employee is performing at an ALOC if he received a rating of level 3, or “‘[f] ully
successful ’ or equivalent ,” on his most recent rating of record . 5 C.F.R.
§ 531.404 (a). In the case of the agency’s rating sy stem, a level 3 rating means
6 Neither party disputes the administrative judge’s finding that the agency failed to
prove that the appellant’s performance was unaccep table on the critical element of
employee manag ement culture/leadership. 0266 ID at 25-26; 0496 ID at 27-29. We
discern no reason to disturb that finding.
8
“achieved expected results.” 0496 IAF, Tab 11 at 42. Therefore, the agency must
prove by substantial evidence that the appellant’s performance warranted a rating
of less than “achieved expected results .” Afifi v. Department of the Interior ,
33 M.S.P.R. 282 , 284 -85 (1987) ; 5 C.F.R. § 1201.56 (b)(1)(i) . The admini strative
judge extensive ly analy zed the agency’s evidence and concluded that the agency
established by substantial evidence that the appellant’s performance was below
“achieved expected results ” in the critical elements of communication,
administrative req uirements, and technical competency. 0266 ID at 7-27.
We agree .
¶14 As to the critical element of communication, the administrative judge found
that the appellant’s supervisor was less than credible when he asserted that the
appellant was unresponsive to emails . 0266 ID at 17-18. She found it likely that
the supervisor conflated unresponsiveness with the appellant’s untimeliness in
responding . 0266 ID at 18. Nonetheless, she found that the agency demonstrated
that the appellant’s performance did not ac hieve expected results on this critical
element. 0266 ID at 21. For example, she found that , as alleged by the agency,
the appellant was slow in responding to emails; frequently failed to identify an
individual to back him up during his absences, or i dentified an individual who
was not available; and was ineffective in his communications with his peers ,
subordinates, and others . 0266 ID at 18-21. The appellant argues that the
administrative judge failed to support her finding that he “often did not” respond
to emails “almost immediately” as his supervisor expected. 0266 ID at 18-19;
0266 PFR File, Tab 1 at 19. He also asserts that he was unaware of this “very
vague and subjective” standard. 0266 PFR File, Tab 1 at 19.
¶15 The appellant’s 2013 performance standards described the requirements of
the communication c ritical element, including that “[g]uidance is issued in a
timely manner, as determined by the supervisor” and that “[a]d vice is . . . timely.”
0266 IAF, Tab 6 at 68. The appellant re ceived these standards in February 2013.
Id. at 65. As noted by the administ rative judge, the appellant did not respond to a
9
number of emails during the 2013 rating year in a prompt manner. For example,
it took him 6 calendar days to draft an email for his supervisor as directed ,
requesting that a package be examined at the vendor’s address to expedite
shipping. 0266 I-4 AF, Tab 11 at 5-7. In ano ther example, the appellant did not
provide a report that his supervisor requested “by [close of business] Today ,”
providing it instead at 9:29 p.m. that day. 0266 I-4 AF, Tab 10 at 210. We agree
with the administrative judge that the appellant’s failure to promptly respond to
emails in these instances did not meet the expectation of timely communications .
We also find that the appellant’s supervisor reasonably expected the appellant to
understand the urgency of a response based o n the context of the messages .
¶16 The appellant also seeks to excuse his failure to “timely and appropriately”
communicate a backup d uring his absences . 0266 PFR File, Tab 1 at 20. He
explains, “It is not always possible to know when you are going to be out sick and
out for the day in advance.” Id. However , the appe llant does not provide any
specific examples of when he was unexpect edly ill or his illness made it
impossible for him to designate someone who was available. Id. Therefore, we
decline to disturb the administrative judg e’s finding that the appellant failed to
appropriately designate his backups.7 Weaver v. Department of the Navy ,
2 M.S.P.R. 129 , 133 (1980) (explaining that before the Board will undertake a
complete review of the record, the petitioning party must explain why the
challenged factual determination is incorrect and identify the specific evidence in
the record which demonstrates the error ), review denied per curiam , 669 F.2d 613
(9th Cir. 1982) .
¶17 As to the critical element of administrative requirements, the administrative
judge found , for example, that the appellant failed to submit his employees for
awards or recognition as expected . 0266 ID at 12-13. In reaching this finding,
7 To the extent that the appellant similarly makes this claim in his petition for review of
the i nitial decision sustaining his removal, we a re similarly unpersuaded. 0496 PFR
File, Tab 1 at 21.
10
she observed that the appellant provided examples of his good performance on
this element , but only provided documentary support for four of them . 0266 ID
at 12 n.7. The appellant asserts that the administrative judge failed to
acknowledge his testimony on these examples of his good performance .
0266 PFR File, Tab 1 at 17. However, we decline to find that the adm inistrative
judge’s omitting the appellant’s testimony from her discussion of this particular
finding means that she did not consider it . Id.; see Mithen v. Department of
Veterans Affairs , 122 M.S.P.R. 489 , ¶ 14 (2015) (observing that a n administrative
judge’ s failure to mention all of the evidence of record does not mean that she
did not consider it in reaching her decision ), aff’d per curiam , 652 F. App’x 971
(Fed. Cir. 2016) . Although not specifically mentioned in reference to this factual
finding, the administrative judge cited the appellant’s testimony th roughout the
initial decision.
¶18 As to the technical competency critical element, the appellant claims that
the administrative judge failed to cite evidence in support of her conclusion that
he did not complete work within agreed -upon deadlines, quickly resolve
problems, and effectively manage with little supervision . 0266 PFR File, Tab 1
at 21-22; 0266 ID at 24-25. He also argues that the administrative judge failed to
acco unt for resource strain. 0 266 PFR File, Tab 1 at 22. We disagree. The
administrative judge’s analysis reflects that she considered both testimonial and
documentary evidence concerning backlogs on the appellant’s team in finding
that the agency establish ed by substantial evidence that the appellant’s
performance on this element was not at an ALOC . 0266 ID at 21-25. In doing
so, she considered but ultimately discounted the appellant’s claim that he
could not meet timeliness requirements due to a staffing shortage . 0266 ID
at 20, 24.
¶19 Thus, we agree with the administrative judge and find that the agency met
its burden to demonstrate by substantial evidence that the appellant’s performance
11
was not at an ALOC . Accordingly, we do not disturb her finding th at the agency
met its burde n of proof regarding the WIGI denial .
The administrative judge properly sustained the charge of unacceptable
performance in connection with the appellant’s removal .
¶20 To defend an action under chapter 43, the agency must prove by substantial
evidence tha t: (1) OPM approved its performance appraisal system and any
significant changes thereto; (2) the agency communicated to the appellant the
performance standards and critica l elements of h is position; (3) the appellant’s
performa nce 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 appella nt of the inadequacies in h is
performance during the appraisal period and gave h im an adequate opportunity to
demonstrate acceptable performance; and (6) after an adequate improvement
period, the appellant’s performance remained unacceptable in at least on e critical
element.8 Lee v. Department of Veterans Affairs , 2022 MSPB 11 , ¶ 15. The
administrative judge concluded that the agency prove d each of these requirements
by substantial evidence. 0496 ID at 7-8, 14 -15, 23, 25, 27 . Of these findings, the
appellant disputes that his standards were valid.9 0496 PFR File, Tab 1 at 11-13,
8 At the time the initial decision was issued, there was a line of Board cases holding
that, in a chapter 43 removal action, an agency is not required to p rove that an
appellant’s performance prior to the PIP was unacceptable. E.g., Thompson v.
Department of the Navy , 89 M.S.P.R. 188, ¶ 19 (2001). During the pendency of the
petition for review, the U.S. Court of Appeals for the Federal Circuit overruled that line
of cases, holdi ng that, to support a chapter 43 adverse action, an agency is required to
justify its imposition of the PIP by proving by substantial evidence that the appellant’s
pre-PIP performance was unacceptable. Santos , 990 F.3d at 1360 -61, 1363 (Fed. Cir.
2021) . Notwithstanding that line of Board case law, the administrative judge in this
appeal did, in fact, adjud icate the issue of the appellant’s pre -PIP performance.
0496 ID at 14-15. We find that the record is adequately developed on the issue and that
the parties had a full and fair opportunity to address it.
9 The appellant frames some of his challenges to the standards as a denial of a
reasonabl e opportunity to improve. 0496 PFR File, Tab 1 at 11. However, he does not
allege that the 90 -day PIP period was too short or that the agency failed to provide any
of the assistance promised in the PIP. Id. Thus, we have interpreted his arguments as
12
18-19, 21 -22. He also contests some of the administrative judge’s findings that
his performance remained unacceptable. Id. at 18-22. The appellant further
argues that he never should have been placed on a PIP because his performance
was “fully successful. ”10 Id. at 17-18.
The admin istrative judge properly concluded that the agen cy’s performance
standards were valid .
¶21 Performance standards must , “to the maximum extent feasible, permit the
accurate evaluation of job performance on the basis of objective criteria . . .
related to the job in question. ” 5 U.S.C. § 4302 (c)(1); Lee v. Environmental
Protection Agency , 115 M.S.P.R. 533 , ¶ 29 (2010) . Standards must be
reasonable, realistic, and attainable and clearly stated in writing. Lee,
115 M.S. P.R. 533 , ¶ 29. Provided those requirements are met, however, the
Board will defer to managerial discretion in determining what agency employees
must do to perform acceptably in their positions. Id.
¶22 As the administrative judge observed, the agency communicated the
appellant’s performance standards to him in writing , including the critical
elements of his position . 0496 IAF, Tab 18; 0496 ID at 7-8. Further, the PIP,
which was also in writing, identif ied the specific tasks that he needed to complete
on the identified critical elements to improve his performance to a level 2, or
“partially achieved expected results.” 0496 IAF, Tab 6 at 128-48; see Towne v.
Department of the Air Force , 120 M.S.P.R. 239 , ¶ 23 (2013) (recognizing that an
challenging the validity of the standards. In any event, the administrative judge found
that the 90 -day PIP was sufficient to provide the appellant with a reasonable
opportunity to demonstrat e acceptable performance. 0496 ID at 12-13. We discern no
basis to disturb this finding. See Towne v. Department of the Air Force , 120 M.S.P.R.
239, ¶¶ 10-12 (2013) (finding that a 7 -week period was adequate to enable a secretarial
employee to demonstrate acceptable performance); Lee v. Environmental Protection
Agency , 115 M.S.P.R. 533 , ¶ 33 (2010) (observing that a 30 -day PIP can satisfy an
agency’s obligation to provide an employee with a reasonable oppo rtunity to
demonstrate acceptable performance).
10 We decline to disturb the remaining findings that are uncontested on review.
13
agency may cure any vagueness in its standards through written or oral
communications , including the PIP) ; Diprizio v. Department of Transportation ,
88 M.S.P.R. 73, ¶ 10 (2001) (recognizing that the degree of objectivity and
specificity required in performance standards depends on the job involved and
that an employee with greater discretion and indep endence may have less
objective standards) .
¶23 On review, the appellant alleges t hat his supervisor “expected [him] to
complete all of the tasks in the PIP to almost 100% satisfaction.” 04 96 PFR File,
Tab 1 at 12-13; 0496 IAF, Tab 22 at 13. Even if the appellant’s assertions were
true, the U.S. Court of Appeals for the Federal Circui t has found that “abso lute
performance standards” are not prohibited by 5 U.S.C. § 4302 (c)(1).
Guillebeau v. Department of the Navy , 362 F.3d 1329 , 1336 -37 (Fed. Cir. 2004) .
However, this assertion is belied by the PIP itself , which allowed for a certain
number of variances. For example, under the communications critical element,
the PIP required the appellant to communicate goals and guidance to his
subordinates . 0496 IAF, Tab 6 at 138. Yet, the PIP permitted up to two
substantiated complaints from subordinates attributable to the appellant’s failure
to disseminate or share information with them. Id. As another example, under
the administrative requirements critical element, the PIP provided that the
appellant was required to submit to his supervisor draft agenda items for staff
meetings at least 24 hours in advance. Id. at 132. However, it also permitted two
instances of fail ure to meet this deadline. Id.
¶24 The appellant argues that there was not enough time to complete the PIP
requirements in additi on to his regular duties. 0496 PFR File, Tab 1 at 11-12.
The administrative judge considered this argument below, but rejected it.
0496 ID at 9-10. She found that the PIP contained specific tasks designed to
assist the ap pellant to meet his standards , not additional duties . Id. The appellant
does not point to evidence in the record to support his claim that during the PIP
“half his time was eaten b y training and meetings.” 0496 PFR File, Tab 1 at 11;
14
see Weaver , 2 M.S.P.R. at 133. Accordingly, w e agree with the ad ministrative
judge that the performance stand ards we re valid . 0496 ID at 7-8.
The appellant’s performance leading u p to the PIP was unacceptable .
¶25 The administrative judge found that the agency demonstrated by substantial
evidence that, before being placed on the PIP, the appellant’s performance in the
critical elements of administrative requirements, communication, and technical
competence was unacc eptable. 0496 ID at 14. The administrative judge based
her finding largely on the same facts and analysis under which she had affirmed
the agency’s ALOC determination in connection with the WIGI denial. Id. She
further found substantial evidence that t he appellant did not improve his
performance to an acceptable level between the August 2014 WIGI denial and the
March 2015 PIP. 0496 ID at 14-15.
¶26 On petition for review, t he appellant argues, with reference to his petition
for review in the WIGI appeal, that the agency failed to show by substantial
evidence that his performance prior to the PIP was unacceptable. 0496 PFR File,
Tab 1 at 17-18. We have already addressed those arguments above in the context
of the WIGI denial and found them unpersuasive. Supra , ¶¶ 13-18. For the same
reasons, we also find them unpersuasive in the context of the chapter 43 removal
action. For the reasons explained in the initial decision in the chapter 43 appeal
and in the administrative judge’s extensive analysis of the relevant facts in her
initial decision on the WIGI denial, we agree that the agency has proven by
substantial evidence that, prior to the PIP, the appellant’s performance was
unacceptable in the critical elements of administrative requirements,
communicat ion, and technical competence . 0226 ID at 8-27; 0496 ID at 14-15.
The appellant’s performance remained unacceptable in one or more of his
critical elements .
¶27 As indicated above, t he administrative judge found that the appellant’s
performance remained unacceptable in th ree critical elements. 0496 ID at 23, 25,
27. The appellant contests some of these findings. 0496 PFR File, Tab 1
15
at 18-22. However, he leave s many others uncontested. Id. at 19. Below, we
address only those findings the appellant h as not contested on review, as these
deficiencies sufficient ly establish that the appellant’ s performance was below a
level 2, or partially achieved expected results .
¶28 The critical element of communication essentially required timely, clear,
and documente d communications. 0496 IAF, Tab 6 at 134. As to this critical
element , the appellant does not dispute that he did not ensure that his backups
were available and aware of their backup assignments . 002 6 ID at 23-25;
0496 IAF, Tab 6 at 102, 137 ; 0266 I -4 AF, Tab 8 at 101, 123, 151-52; 0496 PFR
File, Tab 1 at 21. He also does not dispute that he did not submit draft emails for
external audiences to his supervisor for advance review as mandated by the PIP .
0496 ID at 25; 0496 IAF, Tab 6 at 102, 137 ; 0496 PFR File, Tab 1 at 21. The
purpose of this requirement was to improve the appellant’s communications with
these audiences. 0496 IAF, Tab 6 at 137.
¶29 The administrative requirements critical element related to the appellant’s
supervisory duties, reflecting his responsibility to, for example, assign work to
his team, develop his team members professional ly, and reward their
performance. Id. at 130. As to this critical element, the appellant does not
dispute that he only made one employee award submission , and not two as the
PIP required . 0496 ID at 21; 0496 IAF, Tab 6 at 96, 133. He also does not
dispute that he did not submit notes of one -on-one meet ings he held with his
subordinates or submit individual development plans for them as set forth in the
PIP. 0496 ID at 20; 0496 IAF, Tab 6 at 96, 133.
¶30 Finally , the technical competency critical element required that the
appellant understand and ensure c ompliance with applicable rules and regulations
and oversee the timeliness of the work produced by his team. 0496 IAF, Tab 6
at 138. The PIP explained that the appellant had failed to monitor his team’s
workload, which had resulted in a backlog. Id. at 138-39. Further, according to
the PIP, the appellant had failed to conduct audits of his subordinates’ work. Id.
16
at 139. The appellant does not dispute that he failed to conduct audits of his
subordinates’ work or track their workload as required by the PIP. Id. at 103-04,
138-41; 0496 ID at 27.
¶31 Even putting aside the deficiencies that the appellant continues to dispute
on review, we find that the undisputed deficiencies listed above are sufficient to
support the administrative judge’s finding that the appellant failed on all three
critical elements at issue. 0496 PFR File, Tab 1 at 18-22; 0496 ID at 14-27.
When, as her e, an appellant’s performance i s unacceptable on at least one , but not
all, components of a critical element, the agency must show substantial evidence
that the appellant’s performance warranted an unacceptable rating on the element
as a whole. Lee, 115 M.S.P.R. 533 , ¶ 36. Such evidence may include that the
appellant knew or should have known the significance of the components at issue
and evidence showing the importance of the components to the duties and
responsibilities entailed with the critical element . Id. As detailed above, we find
that the appellant was aware that his failures were central to the critical elements
at issue, and thus the agency met this burden. Accordingly, we affirm the
administrative judge’s finding that the agency established by substanti al evidence
that the appellant’s performance remained unacceptable on at least one of his
critical elements.
The administrative judge properly found the appellant failed to prove his
affirmative defenses of race and sex discrimination and retaliation for
EEO activity .
¶32 The appellant alleged that the agency denied him a WIGI and removed him
because he is a white male . 0266 I -4 AF, Tab 15 at 3-4; 0266 ID at 28; 0496 ID
at 30. He further alleged that his removal was in retaliation for his March 2015
EEO complaint. 0266 I -4 AF, Tab 15 at 4. The administrative judge found that
the appellant did not prove his discrimination or retaliation claims . 0266 ID
at 31; 0496 ID at 34, 37-38.
17
¶33 To establish such a claim of title VII discrimination or retaliation , an
appellant must prove that a prohibited consideration was a motivating factor in
the contested personnel action , even if it was not the only reason . See Savage v.
Department of the Army , 122 M.S.P.R. 612 , ¶ 41 (2015). In determining whether
an appellant has met his burden, the Board will consider as a whole all of the
evidence relevant to an imprope r motive . Gardner v. Department of Veterans
Affairs , 123 M.S.P.R. 647, ¶¶ 28-31 (2016). The administrative judge considered
the evidence below, including the appellant’s evidence that his supervisor was
harsh to him and rated another white male below what that employee expected.
0266 ID at 28-31; 0496 ID at 30-38. However, she concluded that both men and
women, and white and nonwhite employees, found the appellant’s supervisor
harsh and were disappointed by his ratings. 0266 ID at 30; 0496 ID at 33-34.
¶34 As to the appellant’s EEO reprisal claim, the administrative judge observed
that the appe llant’s supervisor and the Acting District Director had denied the
appellant a WIGI and rated him as achieving unsatisfactory results , and the
appellant’s supervisor had issued the PIP before they learned of the appellant’s
EEO complaint . 0496 ID at 35; 0266 IAF, Tab 6 at 11-13, 24 -32, 65 ; 0266
I-4 AF, Tab 16 at 4; 0496 IAF, Tab 6 at 128. Thus, the agency , without knowing
of his EEO complaint, viewed the appellant as having failed in his performance
expectations. 0496 ID at 37-38. In light of her determination that the appellant’s
performance continued to be unacceptabl e, the administrative judge was not
persuaded that the appellant’s EEO activity was a mo tivating factor in his
removal. Id.
¶35 The app ellant’s arguments on review do not suggest that the administrative
judge erred in weighing the evidence. 0266 PFR File, Tab 1 at 22-24; 0496 PFR
File, Tab 1 at 22-26. Mere ly reargu ing factual issues raised and properly resolved
by the administrative judge below do es not establish a basis for review.
Broughton v. Department of Health & Human Services , 33 M.S.P.R. 357 , 359
(1987) ; see Crosby v. U.S. Postal Service , 74 M.S.P.R. 98 , 105 -06 (1997) (finding
18
no reason to disturb the administra tive judge ’s findings when she considered the
evidence as a whole, drew appropriate inferences, and made reasoned conclusions
on issues of credibility). Although he reiterates his evidence on review , the
appellant does not provide any basis to revisit the administrative judge’ s
well-reasoned findings . 0266 PFR F ile, Tab 1 at 22-23; 0496 PFR File, Tab 1
at 23-25. Accordingly, we affirm the administrative judge’s finding that the
appellant did not prove his discrimination and EEO reprisal claims .11
The administrative judge properly found that the appellant failed to prove his
affirmative defense of retaliatio n for protected disclosures and activity .
¶36 In adverse action appeal s such as t hese, an appellant’ s claim of reprisal for
making a protected disclosure under 5 U.S.C. § 2302 (b)(8), or engaging in
protected activity under 5 U.S.C. § 2302 (b)(9)(A)(i), (B ), (C), or (D), is analyzed
under the burden -shifting scheme set forth in 5 U.S.C. § 1221 (e). Alarid v.
Department of the Army , 122 M.S.P.R. 60 0, ¶ 12 (2015). The appellant must first
prove that his disclosure or activity was protected under sections 2302(b)(8) or
(b)(9)(A)(i), (B), (C), or (D). Alarid , 122 M.S.P.R. 600, ¶¶ 12-13. He must next
prove that his protected disclosure or activity was a contributing factor in the
challenged personnel action. Id. If the appellant makes both of these showings
by preponderant e vidence, the burden of persuasion shifts to the agency to prove
by clear and convincing evidence that it would have taken the same action in the
absence of the appella nt’s disclosure or activity . Id., ¶ 14.
11 Because we affirm the administrative judge’s finding that the appellant failed to meet
his initial burden to prove that race, sex, or retaliation for EEO activity were motivating
factor s in the agency’s actions , we need not resolve the issue of whether the appellant
or the agency has the burden to prove that discrimination and/or retaliation was a “but
for” cause of the agency ’s decisions . See Babb v. Wilkie , 589 U.S. ____, 140 S. Ct.
1168 , 1173 -74, 1176 -78 (2020) (holding that, in claims of discrimination in Fe deral
employment arising under the Age Discrimination in Employment Act, an employer
engages in illegal discrimination “if age discrimination plays any part in the way a
decision is made,” but that an employee must pro ve the discrimination was a but -for
cause of the agency’s action to obtain full relief).
19
The appellant made a protected disc losure and engaged in
protected activity .
¶37 The appellant alleged that he made the following disclosures and
participated in the following activities : (1) his June 30, 2011 email response to
the Quality System Manager regarding an anonymous complaint of employees
misreporting time spent on tasks; (2) his mid -2012 disclosure to the Deputy
Director that PDS was not functioning properly; and (3) his April 2015 disclosure
complaint s to OSC regarding PDS and the voice over internet protocol system .
0266 I-4 AF, Tab 10 at 5, 13 -15; 0496 IAF, Tab 12 at 5, 13 -15. The
administrative judge determined that disclosure 1, the appellant’s June 30, 2011
email , was not protected . 0266 ID at 33-34; 0496 ID at 39-41. She found
disclosure s 2 and 3 were protected . 0266 ID at 34-35; 0496 ID at 41, 44. Neither
party co ntests these findings on review , and we decline to disturb them.12
The appellant proved that his OSC disclosure complaint s were a
contributing factor in his removal .
¶38 The administrative judge found that the appellant made disclosure 2 to the
Deputy Director in mid -2012 , more than 2 years before the agency denied him a
WIGI or removed him. 0266 ID at 34-35; 0496 ID at 41-42 & n.11 . Therefore,
she found that the appellan t did not prove contributing factor under the
knowledge/timing test. 0266 ID at 35-36; 0046 ID at 41-42. She also concluded
that the appellant did not otherwise prove contributing factor regard ing
disclosure 2. 0266 ID at 36-37; 0496 ID at 42-43. Further, she found that his
OSC disclosure complaints , activity 3 above, could not have been a contributing
factor in his WIGI denial because he submitted them after the agency denied his
12 We modify the administrative judge’s determination to also find that the appellant’s
disclosure complaint constituted engaging in protected act ivity pursuant to 5 U.S.C.
§ 2302 (b)(9)(C), which provides that it is a protected activity to disclose information to
OSC in accordance with law. Salerno v. Department of the Interior , 123 M.S.P.R. 230 ,
¶ 12 (2016).
20
WIGI . 0266 ID at 33 n.14. However, she determined that the disclosure
complaints were a contributing factor in his removal. 0496 ID at 44-45.
¶39 As discussed above, an appellant must prove by preponderant evidence that
his protected disclosure or activity was a contributing factor in the challenged
personnel action at issue . Alarid , 122 M.S.P.R. 600, ¶ 13. One way to establish
this criterion is the knowl edge/ timing test, under which an employee submits
evidence showing that the official taking the personnel action knew of the
disclosure or activity and that the personnel action occurred within a period of
time such that a reasonable person could conclude that the disclosure or activity
was a contributing factor in the personnel action. Agoranos v. Department of
Justice , 119 M.S.P.R. 498 , ¶ 20 (2013) . The Board has held that person nel
actions taken within 1 to 2 years of the protected disclosure or activity satisfy th e
timing prong of the knowledge/ timing test, but those that take place more than
2 years after the disclosure or activity are too remote to satisfy this test. Id., ¶ 21.
¶40 The appellant suggested in his testimony , and appears to assert on review ,
that he made disclosure 2 in late 2012 and 2013 . HCD2, Track 2 at 27:49 -28:04
(testimony of the appellant); 0266 PFR File, Tab 1 at 5; 0496 PFR File, Tab 1
at 6. If true, he could then establish that it occurred within 2 years of his
September 2014 WIGI denial . 0266 IAF, Tab 6 at 24-32. However, t he
administrative judge found, based on the appellant’s testimony, that the appella nt
made this disclosure in mid -2012 to the Deputy Director . 0266 ID at 35 & n.15.
We find no basis to disturb this finding. Consistent with the administrative
judge’s finding, t he appellant only identified one specific instance in his
testimony in which he made the disclosure. This instance occurred during a
discussion with the Deputy Director sometime between late April and late
June 2012 . HDC2, Track 3 at 28:05 -28:46, 30:03 -30:59 (testimony of the
appellant) . The administrative judge found that the appellant’s supervisor had
knowledge that the appellant, and other employees, had complained about PDS .
0026 ID at 34-35; 0496 ID at 41-42.
21
¶41 The appellant also argues that he met the knowledge/timing test because his
WIGI denial and removal were part of a continuing c hain of events that began
with his February 2014 rating of “achieved unsatisfactory results .” 0266 PFR
File, Tab 1 at 24-25; 0496 PFR, Tab 1 at 26-27; 0266 IAF, Tab 6 at 65-78. The
administrative judge considered whether the appellant’s WIGI denial and removal
were the culmination of a continuum of related performance -based actions , the
first of which occurred within 2 years of disclosure 2 in mid -2012. 0266 ID
at 36; 0496 ID at 43; see Agoranos , 119 M.S.P.R. 498, ¶¶ 22-23 (finding that an
appellant could satisfy the timing prong of the knowledge/timing test by showing
that the personnel action s at issue were part of a continuum of related
performance -based actions, the f irst of which occurred within 2 years of the
appellant’s disclosure ). However, she concluded that the events at issue were not
part of a continuous chain. 0266 ID at 36; 0496 ID at 43. Rather, the first
summary rating that the appellant’s supervisor gave him following his disclosure
was a level 3, or “achieved expected results, ” for the 2012 performance year.
0266 ID at 36; 0496 ID at 43; 0266 I-4 AF, Tab 10 at 24, 33.
¶42 If the appellant fails to prove contributing factor through the
knowledge/timing test, the Board must consider other evidence, such as that
pertaining to the str ength or weakness of the agency’ s reasons for taking the
personnel action, whether the whistleb lowing was personally directed at the
proposing or deciding officials and whether those individuals had a desire or
motive to retaliate against the appellant. Rumsey v. Department of Justice ,
120 M.S.P.R. 259 , ¶ 26 (2013). The administrative judge considered whether the
appellant met his burden to prove contributing factor regarding his disclosure 2
through such evidence . 0026 ID at 36; 0496 ID at 42. However, she found that
he did not, observing that the appellant was one of many employees that his
supervisor was aware had complained about PDS and the agency’s reasons for the
WIGI denial and removal were strong. 0266 ID at 36; 0496 ID at 42. The
appellant has not challenged this finding on review , and we decline to disturb it .
22
Thus, we agree with the administrative judge that the appellant did not prove
contri buting factor as to disclosure 2.
¶43 The administrative judge found that the appellant ’s April 2015 OSC
disclosure complaints were not a fa ctor in the earlier WIGI denial. 0266 ID at 33
n.14 ; see Stiles v. Department of Homeland Security , 116 M.S.P.R. 263, ¶ 21
(2011) (explaining that when an alleged personnel action occurred prior to a
disclosure, the disclosure could not have been a contributing factor in the
personnel action) . As to the appellant’s r emoval, she found that the appellant’s
supervisor was not aware of these complaints when he proposed the appellant’s
removal . 0496 ID at 44. However, she observed that the deciding official was
aware of them at the time he made his removal decision. Id.; 0496 IAF, Tab 6
at 81. Therefore, she concluded that the appellant proved that his OSC disclosure
complaints were a contributing factor in the removal decision . 0496 ID at 44-45.
Neither party disputes these findings on review , and we decline to disturb them .
The agency met its burden to prove it would have removed the appellant
absent his protected activity .
¶44 In determining whether an agency has shown by clear and convincing
evidence that it would have taken the same personn el action in the absence of
whistleblowing, the Board will consider all the relevant factors, including the
following: 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 ac tions against employees who are not whistleblowers but who are
otherwise similarly situated. Carr , 185 F.3d at 1323 . The administrative judge
found that the agency established by clear and convincing evidence that it would
have removed the appellant absen t his OSC disclosure complaints . 0496 ID
at 45-48. She based this finding on her conclusions that the agency’s evidence i n
support of its removal action was strong, there was little evidence of retaliatory
motive by the deciding official , and there was no evidence as to whether the
23
agency removed employees who did not engage in protected activity and
exhib ited unacceptable performance. Id.
¶45 The ap pellant disputes the administrative judge’s assessment of the strength
of the agency’s evidence in support of its removal action . 0496 PFR File, Tab 1
at 27-28. In doing so , he again asserts that his standard s were not valid and his
performance was accep table . Id. Because we have affirmed the administrative
judge’s finding as to the charge of unacceptable performance, we decline to
revisit these findings here . We agree with the administrative judge that the
agency presented strong evidence in support o f the removal action . 0496 ID
at 45-47.
¶46 The appellant also disputes the administrative judge’s determination that the
deciding official did not have a strong retaliatory motive . 0496 PFR File, Tab 1
at 28. He cites as evidence that the deciding official o riginally considered a
demotion instead of removal . Id. However, he elected the stronger penalty
because among the cited instances in support of the charge was that the appellant
sought to intimidate his subordinates by sitting outside his supe rvisor’s office
when they were meeting with the supervisor . Id.; 0266 I-4 AF, Tab 12 at 234.
The agency alleged that this activity was unacceptable performance considering
the administrative requirements critical element. 0496 IAF, Tab 6 at 96-97. The
sub-element at issue required the appellant to “[d]emonstrate[] support for . . .
employee work life quality.” Id. at 96.
¶47 We agree with the administrative judge that the deciding official’s
consideration of this c onduct is not evidence of retaliatory motive. 0496 ID
at 46-47. Rather, it goes to the agency’s choice of penalty, a matter which we
cannot review in connection with a chapter 43 action.13 See Lee, 115 M.S.P.R.
13 The administrative judge considered whether the deciding official had a strong
motive to retaliate because he was in the appellant’s chain of command. Ayers v.
Department of the Army , 123 M.S.P.R. 11 , ¶ 29 (2015) (observing that a substantial
retaliatory motive may be established if an appellant’s criticisms reflected on those
individuals involved in her removal both in their capaci ty as managers and employees) .
24
533, ¶ 6 (observing that the Board has no authority to mitigate a removal taken
under chapter 43). Therefore, the administrative judge properly determined that
the evidence of retaliatory m otive by the agency was weak. In light of this
finding, we find it unnecessary to reach the appellant ’s arguments that he did not
engage in the alleged behavi or and, even if he did, it does not concern his
performance . 0496 PFR File, Tab 1 at 28.
¶48 We modify the initial decision as to the weight the administrative judge
gave to the lack of evidence regarding simil arly situated employees who did not
engage in protected activity . The administrative judge found this factor neutral.
0496 ID at 48. While the absence of evidence on this factor may remove it from
the analysis, its absence may also “cut slightly against ” the agency. Miller v.
Department of Justice , 842 F.3d 1252 , 1262 (Fed. Cir. 2016) . Therefore, we have
considered whether the lack of evidence regarding comparators requires us to
reach a different conclusion. Even considering this factor , we find that the
evidence in support of th e agency’s charge of unacceptable performance is
sufficiently strong to support the administrative judge’s finding that the appellant
did not prove his affirmative defense of reprisal for pro tected activity. 0496 ID
at 48; see Miller , 842 F.3d at 1263 (observing that an agency can meet its burden
even if evidence as to a particular Carr factor or factors is lacking or does not
weigh in its favor ).
The administr ative judge made proper factual findings .
¶49 As discussed above i n connection with the appel lant’s WIGI denial, the
administrative judge found that the appellant’s supervisor gave inaccurate
testimony that the appellant failed to respond to emails. 0266 ID at 17-18.
However, she did not find the supervisor’s erroneous testimony was deliberate .
0266 ID at 18. She concluded that it was the result of his conflatin g the
However, she concluded that the April 2015 OSC disclosure complaints concerned
actions that occurred before he assumed his position. 0496 ID at 48. We discern no
basis to disturb this finding, which neither party cha llenge s on review.
25
appellant’s untimely responses with his failure to respond. Id. She considered
her finding that the supervisor gave inaccurate testimony regarding emails in
determin ing whether t he remainder of his testimony was credible. Id.; 0496 ID
at 17-18. She generally credited the remainder of his testimony because she
found it was corroborated by other evidence in the record. 0266 ID at 18-21;
0496 ID at 18-19, 22 -23. The appellant arg ues that this explanation was
inadequate . 0266 PFR File, Tab 1 at 11-22; 0496 PFR File, Tab 1 at 13-17,
15-18, 25-26. We disagree .
¶50 To resolve credibility issues, an administrative judge must identify the
factual questions in dispute, summarize the evidence on each disputed question,
state which version she believes, and explain in detail why she found the chosen
version more credible, considering such factors as : (1) the witness’s opportunity
and capacity to observe the event or act in question ; (2) his character; (3) his
prior inconsistent statement s, if any ; (4) his bias, or lack of bias; (5) the
contradiction or consistency of his version of events with other evidence; (6) the
inherent improbability of his version of events; and (7) his demeanor. Hillen v.
Department of the Army , 35 M.S.P.R. 453 , 458 (1987). The appellant claims that
the administrative judge failed to apply th ese factors in making and explaining
her credibility determinations. 0 266 PFR File, Tab 1 at 14-16.
¶51 The fact th at an administrative judge does not mention all of the evidence or
Hillen factors does not mean that she did not consider them. Mithen ,
122 M.S.P.R. 489 , ¶ 14. Further, the Board defer s to an administrative judge’s
credibility determinations when they are based, exp licitly or implicitly, on
observ ing the demeanor of witnesses testifying at a hearing; the Board may
overturn such determinations only when it has “sufficiently sound” reasons for
doing so. Haebe v. Department of Justice , 288 F.3d 1288 , 1301 (Fed. Cir. 2002) ;
see Purifoy v. Department of Veterans Affairs , 838 F.3d 1367 , 1372 -73 (Fed. Cir.
2016) (finding that the Board erred in failing to defer to an administrative judge ’s
26
implicit demeanor -based credibility findings after holding a he aring, even though
demeanor was not specifically discussed).
¶52 The administrative judge was not required to discredit all of the
supervisor’s testimony on ce she found him not credible regarding the appellant’s
responses to emails . Cross v. Department of the Army , 89 M.S.P.R. 62 , ¶ 14
(2001). However, the specific instance of lack of credibility is a proper
conside ration in assessing the witness’ s overall credibility . Id.; see Sternb erg v.
Department of Defense , 41 M.S.P.R. 46 , 54 (1989) (explaining that once an
administrative judge has discredited a witness’s testimony on one charge, he must
reason ably expla in why he accepts the testimony as credible on other charges) .
As discussed above, the administrative judge considered and gave a r easoned
explanation for why she credited some of the supervisor’s testimony . 0266 ID
at 12-14, 18 -21, 24 -25, 27 ; 0496 ID at 17-19. We find that the administrative
judge’ s analysis was su fficient to justify her factual findings .
¶53 The appellant also disag rees with a number of other factual findings, but
generally provides no record citations or refers to evidence that the administrative
judge already considered and discounted. 0266 PFR File, Tab 1 at 18-22;
0496 PFR File, Tab 1 at 11-22, 25 -28. We declin e to revisit her findings on
review . Broughton , 33 M.S.P.R. at 359; see Crosby , 74 M.S.P.R. at 105-06.
¶54 Accordingly, we affirm the initial decision, as modified above , still
sustaining the denial of the appellant’s WIGI a nd his removal for
unacceptable performance .
NOTICE OF APPEAL RIGHTS14
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 o btain
14 Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise which option is most appropriate in any matt er.
27
review of this final decision. 5 U.S.C. § 7703 (a)(1). By statute, the nature of
your claims determines the time limit for seeking such review and the appropriate
forum with which to file. 5 U.S.C. § 7703 (b). Although we offer the following
summary of available appeal rights, the Meri t Systems Protection Board does not
provide legal advice on which option is most appropriate for your situation an d
the rights described below do not represent a statement of how courts will rule
regarding which cases fall within their jurisdiction. If you wish to seek review of
this final decision, you should immediately review the law applicable to your
claims and carefully follow all filing time limits and requirements. Failure to file
within the applicable time limit may result in the dismissal of your case by your
chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703 (b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
28
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appea ls for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provid ed by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an acti on that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703 (b)(2); see Perry v. Merit Syste ms
Protection Board , 582 U.S. ____ , 137 S. Ct. 1975 (2017). If you have a
representative in this case, and your representative receives this decision before
you do, then you must file with the district court no later than 30 calendar days
after your representative receives this decision. If the action involves a claim of
discrimination based on race, color, religion, sex, national origin , or a disabling
condition, you may be entitled to representation by a court -appointed lawyer and
to waiver of any requirement of prepayment of fees, costs, or other security. See
42 U.S.C. § 2000e -5(f) and 29 U.S.C. § 794a .
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebs ites.aspx .
29
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702 (b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702 (b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
addr ess of the EEOC is:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be ad dressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to yo u only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302 (b)(8) or
other protected activities listed in 5 U.S.C. § 2302 (b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
disposition of allegations of a prohibited personnel practice described in
section 2302(b) other than practices described in section 2302(b)(8), or
2302(b)(9)(A)(i), (B), (C), or (D),” then you may file a petition for judicial
review either with the U.S. Court of Appeals for the Federal Circuit or any court
30
of appeals of competent jurisdiction.15 The court of appeals must receive your
petition for review within 60 days of the date of issuance of this decision.
5 U.S.C. § 7703 (b)(1)(B).
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Fed eral
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you ar e interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Boa rd appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
15 The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent j urisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115-195,
132 Stat. 1510.
31
Contact information for the courts of appeals can be found at their
respective websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
FOR THE BOARD:
Washington, D.C. /s/ for
Jennifer Everling
Acting Clerk of the Board | SLAMA_ERIK_SF_531D_15_0266_I_4_FINAL_ORDER_1954270.pdf | 2022-08-24 | null | S | NP |
4,176 | https://www.mspb.gov/decisions/nonprecedential/WILLIAMS_ERIC_DC_3330_18_0806_I_1_FINAL_ORDER_1953826.pdf | UNITED STATES OF AME RICA
MERIT SYSTEMS PROTEC TION BOARD
ERIC WILLIAMS,
Appellant,
v.
DEPARTMENT OF ENERGY ,
Agency.
DOCKET NUMBER
DC-3330 -18-0806 -I-1
DATE: August 23, 2022
THIS FINAL ORDER IS NONPRECEDENTIAL1
Eric Williams , North Charleston, South Carolina, pro se.
Jocelyn E. Richards , Esquire, Washington, D.C., for the agency.
BEFORE
Cathy A. Harris , Vice Chairman
Raymond A. Limon , Member
Tristan L. Leavitt , Member
FINAL ORDER
¶1 The appellant has filed a petition for review of the initial decision, which
denied his request for corrective action in connection with the appeal he filed
under the Veterans Employment Opportunities Act of 1998 . On petition for
review, the appellant challenges the administrative judge’s findings and argues
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or dis tinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117 (c).
2
that he was denied a hearing . Generally, we grant petitions such as this one only
in the following circumstances: the initial decision contains erroneous findings
of material fact; the initial decisi on is based on an erroneous interpretation of
statute or regulation or the erroneous application of the law to the facts of the
case; the administrative judge’s rulings during either the course of the appeal or
the initial decision were not consistent with required procedures or involved an
abuse of discretion, and the resulting error affected the outcome of the case; or
new and material evidence or legal argument is available that, despite the
petitioner’s due diligence, was not available when the record c losed. Title 5 of
the Code of Federal Regulations, section 1201.115 ( 5 C.F.R. § 1201.115 ). After
fully considering the filings in this appeal, we conclude that 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 d ecision. 5 C.F.R. § 1201.113 .
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).
Althoug h we offer the following summary of available appeal rights, the Merit
Systems Protection Board does not provide legal advice on which option is most
appropriate for your situation and the rights described below do not represent a
statement of how courts w ill rule regarding which cases fall within their
jurisdiction. 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.
3
filing time limits and requirements. Failure to fil e within the applicable time
limit may result in the dismissal of your case by your chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a pet ition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703 (b)(1) (A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C . 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained w ithin the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for in formation regarding pro bono representation
for Merit Systems Protection Board appellants before the 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 you r discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703 (b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. ____ , 137 S. Ct. 1975 (2017) . If you have a
representative in this case, and your representative receives this decision before
you do, then you must file with the district court no later than 30 calendar days
after your representative receives this decision. If the action involves a claim of
discrimination based on race, color, religion, sex, national origin, or a disabling
condition, you may be entitled to representation by a court -appointed lawyer and
to waiver of any requirement of prepayment of fees, costs, or other security. See
42 U.S.C. § 2000e -5(f) and 29 U.S.C. § 794a .
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702 (b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702 (b)(1 ). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for rev iew to the EEOC by regular U.S. mail, the
address of the EEOC is:
5
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhan cement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302 (b)(8) or
other protected activities listed in 5 U.S.C. § 2302 (b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
disposition of allegations of a prohibited personnel practice described in section
2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i),
(B), (C), or (D),” then you may file a petition for judicial review either with the
U.S. Court of Appeals for the Federal Circuit or any court of appeals of
competen t 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 la w by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals o f 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/C ourtWebsites.aspx .
FOR THE BOARD:
Washington, D.C. /s/ for
Jennifer Everling
Acting Clerk of the Board | WILLIAMS_ERIC_DC_3330_18_0806_I_1_FINAL_ORDER_1953826.pdf | 2022-08-23 | null | DC-3330-18-0806-I-1 | NP |
4,177 | https://www.mspb.gov/decisions/nonprecedential/MOORE_KENNETH_L_DE_0752_15_0552_X_1_FINAL_ORDER_1953147.pdf | UNITED STATES OF AME RICA
MERIT SYSTEMS PROTEC TION BOARD
KENNETH L. MOORE,
Appellant,
v.
UNITED STATES POSTAL SERVICE,
Agency.
DOCKET NUMBER S
DE-0752 -15-0552 -X-1
DE-0752 -15-0552 -C-1
DATE: August 22, 2022
THIS FINAL ORDER IS NONPRECEDENTIAL1
Kenneth L. Moore , Colorado Springs, Colorado, pro se.
Alex Rivera , Denver, Colorado, for the agency.
BEFORE
Cathy A. Harris, Vice Chairman
Raymond A. Limon, Member
Tristan L. Leavitt, Member
FINAL ORDER
¶1 In a March 18, 2022 nonfinal order , the Board found the agency in partial
noncompliance with its November 25, 2015 final decision reversing the
appellant’s removal and ordering the agency to retroactively restore him with
back pay and benefits . Moore v. U.S. Postal Service , MSPB Docket
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117 (c).
2
No. DE-0752 -15-0552 -I-1, Initial Appeal File, Tab 19, Initial Decision (ID)2;
Moore v. U.S. Postal Service , MSPB Docket No. DE -0752 -15-0552 -C-1, Order
(Mar. 18, 202 2) (Mar. 18, 2022 Order); Moore v. U.S. Postal Service , MSPB
Docket No. DE-0752 -15-0552 -C-1, Compliance P etition for Review File, Tab 8.
For the reasons discussed below, we find the agency in compliance and DISMISS
the petition for enforcement.
DISCUSSION OF ARGUME NTS AND EVIDENCE ON COMPLIANCE
¶2 In a July 11, 2016 compliance initial decision, the administrat ive judge
found the agency in full compliance with the final decision in the underlying
appeal and denied the appellant’s petition for enforcement. Moore v. U.S. Postal
Service , MSPB Docket No. DE -0752 -15-0552 -C-1, Compliance File (CF),
Compliance Initial Decision. The appellant petitioned for review, arguing again,
in relevant part, that the agency had not restored his Federal Employee
Retirement System (FERS) retirement contributions. CF, Tab 1. He explained
and provided evidence showing that, prior to his removal, he received paystub s
reflect ing a FERS retirement contribution balance of $3,715.17 ,3 but that, after
the agency cancelled his removal, his paystubs reflected a FERS retirement
contribution balance of zero. CF, Tab 1 at 34-39, 41.
¶3 In a March 18, 2022 nonfinal order , the Board found that neither the
agency, nor the compliance initial decision , had addressed the appellant’s claims
regarding the restoration of his FERS retirement contributions . Mar. 18, 2022
2 The initial decision became the final decision of the Board on December 30 , 2015,
after neith er party petitioned for review. ID at 16.
3 The appellant provided a set of undated paystubs from pay periods “06 15” to “20 15”
showing this amount for his retirement contributions; however, the agency stated that
upon his removal, his retirement contributions actually totaled $3,800.04. CF, Tab 1
at 34-39; Moore v. U.S. Postal Service , MSPB Docket No. DE -0752 -15-0552 -X-1,
Compliance Referral File (CRF), Tab 2 at 7. The agency explained that this amount
enco mpasses $3,715.17 that he cumulatively accrued through 2014, plus $84.87 that he
accrued in 2015. CRF, Tab 2 at 7.
3
Order, ¶ 13. Accordingly, the Board granted the appellant’s petition for
enforcement, in part, and ordered the agency to submit to the Clerk of Board
“proof of the amount of FERS retirement contributions it restored to the appellant
and how it arrived at that figure, including an accounting of any credits or
deductions following the August 7, 2015 removal action ” and “evidence that the
appellant’s leave and earning statements accurately reflect his FERS retirement
contributions.” Id., ¶ 15. The Board notified the appellant that he may respond
to the agency’s evidence of compliance within 20 days of the date of service of
the agency’s submissio n and cautioned him that, if he did not respond, the Board
“may assume he is satisfied with the agen cy’s action and dismiss the petition for
enforcement.” Id., ¶ 18.
¶4 In an April 7, 2022 compliance submission, the agency stated that it was in
compliance with the Board’s March 18, 2022 Order and provided as evidence a
declaration from the Acting Lead Systems Accountant and two Service History
Inquiry reports . Moore v. U.S. Postal Service , MSPB Docket No. DE-0752 -15-
0552 -X-1, Compliance Referral File, Tab 2. The declaration and reports reflect
that, upon the appellant’s removal, the agency transmitted his then -accrued FERS
retirement contribution total of $3, 800.04 to the Office of Personnel Management
(OPM) on October 1, 2015. Id. at 7, 9. The declarant explained that:
[w]hen reactivation following separation happens, and [the agency] has
already t ransmitted FERS funds to OPM on the employee’s behalf, [the
agency ] does not claw back the money from OPM. Rather, the money stays
at OPM, connected to the employee’s FERS account. OPM is responsible
for the reactivated employee’s money once it receives it, and does not give
it back to [the agency].
Id. at 7. Therefore, the declarant further explain ed, the appellant’s
post-reinstatement paystubs do not reflect the FERS retirement contributions he
made prior to his removal, as these contributions were maintained by OPM
instead of the agency. Id. at 8. The agency’s evidence additionally reflects that,
after the appellant was reinstated, he separated from the agency on February 16,
4
2018 ,4 and that the agency transferred $330.45 in newly accrued FERS retirement
contributions to OPM on March 22, 2018. Id. at 8, 11. The appellant did not
respond to the agency’s submission.
ANALYSIS
¶5 When the Board finds a personnel action unwarranted or not sustainable, it
orders that the appellant be placed, as nearly as possible, in the situation he would
have been in had the wrongful personnel action not occurred. House v.
Department of t he Army , 98 M.S.P.R. 530 , ¶ 9 (2005). The agency bears the
burden to prove its compliance with a Board order. An agency’s assertion s of
compliance must include a clear explanation of its compliance actions supported
by documentary evidence. Vaughan v. Department of Agriculture , 116 M.S.P.R.
319, ¶ 5 (2011). The appellant may rebut the agency’s evidence of compliance by
making “specific, nonconclusory, and supported assertions of continued
noncompliance.” Brown v. Office of Personnel Management , 113 M.S.P.R. 325 ,
¶ 5 (2010).
¶6 Here, as noted above, to establish compliance with the Board’s final
decision in the underlying appeal , the agency had to provide “ proof of the amount
of FERS retirement contributions it restored to the appellant and how it arrived at
that figure, including an accounting of any credits or deductions following the
August 7, 2015 removal action ” and “ evidenc e that the appellant ’s leave and
earning statements accurately reflect his FERS retirement contributions.”
Mar. 18, 2022 Order, ¶ 15. The agency’s submission reflects that the appellant
accrued $4,130.49 in FERS retirement contributions during his employ ment with
the agency and that this amount was transmitted to OPM in two separate
installments: $3,800.04 following his August 7, 2015 removal and $330.45
following his February 16, 2018 separation. In addition, the agency explained
4 The agency’s December 24, 2018 Service History Inquiry report for the appellant
includes a line item which states, in relevant part, “02 -16-18 SEPARATION -DISAB.”
5
that appellant’s post -reinstatement paystubs do not reflect his pre -removal FERS
retirement contributions because the agency does not maintain or “claw back ”
employee FERS retirement contributions that have already been transmitted to the
OPM .
¶7 The appellant has not responded to the agency’s compliance submission,
despite being notified of his opportunity to do so and being cautioned that the
Board may assume he is satisfied and dismiss his petition for enforcement if he
did not respond. Id., ¶ 18. Accordingly, we assume that the appellant is satisfied
with the agency’s compliance. See Baumgartner v. Department of Housing &
Urban Development , 111 M.S.P.R. 86 , ¶ 9 (2009).
¶8 In light of the foregoing, we find that the agency is now in compliance and
dismiss the appellant’s petition for enforcement. This is the final decision of the
Merit Systems Protection Board in thi s compliance proceeding. Title 5 of the
Code of Federal Regulations, section 1201.183(c)(1) ( 5 C.F.R. § 1201.183 (c)(1)).
NOTICE OF APPEAL RIG HTS5
You may obtain review of this final dec ision. 5 U.S.C. § 7703 (a)(1). By
statute, the nature of your claims determines the time limit for seeking such
review and the appropriate forum with which to file. 5 U.S.C. § 7703 (b).
Although we offer the following summary of available appeal rights, the Merit
Systems Protection Board does not provide legal advice on which option is most
appropriate for your situation and the rights des cribed below do not represent a
statement of how courts will rule regarding which cases fall within their
jurisdiction. If you wish to seek review of this final decision, you should
immediately review the law applicable to your claims and carefully follow all
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 i n any matter.
6
filing time limits and requirements. Failure to file within the applicable time
limit may result in the dismissal of your case by your chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one a pplies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703 (b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of partic ular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
7
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by a n action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703 (b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. ____ , 137 S. Ct. 1975 (2017). If you have a
representative in this case, and your representative receives this decision before
you do, t hen you must file with the district court no later than 30 calendar days
after your representative receives this decision. If the action involves a claim of
discrimination based on race, color, religion, sex, national origin, or a disabling
condition, you may be entitled to representation by a court -appointed lawyer and
to waiver of any requirement of prepayment of fees, costs, or other security. See
42 U.S.C. § 2000e -5(f) and 29 U.S.C. § 794a .
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http:/ /www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702 (b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702 (b)(1). I f you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review t o the EEOC by regular U.S. mail, the
address of the EEOC is:
8
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a me thod requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancemen t Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302 (b)(8) or
other protected activities listed in 5 U.S.C. § 2302 (b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
disposition of allegations of a prohibited personne l practice describe d in
section 2302(b) other than practices described in section 2302(b)(8), or
2302(b)(9)(A)(i), (B), (C), or (D),” then you may file a petition for judicial
review either with the U.S. Court of Appeals for the Federal Circuit or any court
of appeals of com petent jurisdiction.6 The court of appeals must receive your
petition for review within 60 days of the date of issuance of this decision.
5 U.S.C. § 7703 (b)(1)(B).
6 The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisd iction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115 -195,
132 Stat. 1510.
9
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D .C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
Contact information for the courts of appeals can be found at their
respective websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/C ourtWebsites.aspx .
FOR THE BOARD:
Washington, D.C. /s/ for
Jennifer Everling
Acting Clerk of the Board | MOORE_KENNETH_L_DE_0752_15_0552_X_1_FINAL_ORDER_1953147.pdf | 2022-08-22 | null | DE-0752-15-0552-C-1 | NP |
4,178 | https://www.mspb.gov/decisions/nonprecedential/CHERRY_NYSIAAVIS_M_PH_0752_18_0225_X_1_SHOW_CAUSE_ORDER_1953336.pdf | UNITED STATES OF AME RICA
MERIT SYSTEMS PROTEC TION BOARD
NYSIAAVIS M. CHERRY,
Appellant,
v.
DEPARTMENT OF THE AR MY,
Agency.
DOCKET NUMBER
PH-0752 -18-0225- X-1
DATE: August 22, 2022
THIS ORDER IS NONPRECEDENTIAL1
Conor Ahern, Esquire, Matthew D. Estes, Esquire, P. Sean Murphy ,
Esquire and Angel Juan Valencia, Esquire, Washington, D.C., for the
appellant.
James R. Herald, Esquire, Fort Meade, Maryland, for the agency.
BEFORE
Cathy A. Harris, Vice Chairman
Raymond A. Limon, Member
Tristan L. Leavitt, Mem ber
ORDER TO SHOW CAUSE
¶1 In a December 9, 2019 compliance initial decision, the administrative judge
found the agency in noncompliance with the Board’s December 3, 2018 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).
2
dismissing the appellant’s appeal based on a settlement agreement entered into
the record for purposes of enforcement by the Board. Cherry v. Department of
the Army, PH- 0752 -18-0225 -C-1, Compliance File, Tab 4, Compliance Initial
Decision (CID); Cherry v. Department of the Army, PH -0752- 18-0225 -I-1, Initial
Appeal File, Tab 19, Initial Decision. In relevant part, the administrative judge
found that the agency had failed to credit the appellant with 84 hours of annual
leave and 56 hours of sick leave pursuant to the settlement agreement. CID at 2,
4. Accordingly, the administrative judge granted the appellant’s petition for enforcement and ordered the agency to comply with its obligation under the terms of the settlement agreement. CID at 4.
¶2 In the compliance initial decision, the administrative judge informed the
agency that, if it decided to take the ordered actions, it must submit to the Clerk of the Board a narrative statement and evidence establishing compliance. CID
at 5. The c ompliance initial decision also informed the parties that they could
file a petition for review if they disagreed with the compliance initial decision.
CID at 5 -6. Neither party filed any submission with the Clerk of the Board
within the time limit set forth in 5 C.F.R. § 1201.114
. Accordingly, pursuant to
5 C.F.R. § 1201.183 (b)-(c), the administrative judge’s findings of noncompliance
became final, and the appellant’s petition for enforcement was referred to the Board for a final decision on the issues of compliance. Cherry v. Department of
the Army , PH- 0752 -18-0225- X-1, Compliance Referral File (CRF), Tab 1.
¶3 On January 16, 2020, the Board issued an acknowledgment order directing
the agency to submit evidence, within 15 days , showing that it had complied with
all actions identified in the compliance initial decision. CRF, Tab 1 at 3. The
agency filed its Interim Response to Acknowledgment Order on March 2, 2020.
CRF, Tab 3. In relevant part, the agency indicated that it was still in
noncompli ance because the Defense Finance and Accounting Service needed to
“[make] the changes required to carry out the settlement.” Id. at 4.
3
¶4 On August 25, 2020, the Board issued a second order, again directing the
agency to file evidence of compliance , within 30 days . CRF, Tab 4 at 2. We also
instructed the agency to submit (or resubmit ), within 30 days, the name of the
agency official responsible for compliance under 5 U.S.C. § 1204 (e)(2)(A). Id.
The agency failed to respond, although the appellant filed a response on
November 23, 2020, asserting that the agency still had not credited her annual
and sick leave balances as instructed. CRF, Tab 5 at 3.
¶5 On May 31, 2022, the Board issued a third order, again directing the agency
to file evidence of compliance, within 21 days . CRF, Tab 9 at 2 -3. The order
noted that this evidence of compliance must specifically address, via affidavit and
documentary evidence, whether the agency had credited the appellant with her
entitled leave pursuant to the parties’ settlement agreement, or had provided the
appellant with some other mutually agreed upon alternative relief. Id. The order
warned the agency that if it failed to file a timely and substantive response, the
Board would issue an order to show cause why the agency should not be
sanctioned for its failures to respond in this matter. The order also instructed for
the agency to file, within 21 days, the name, title, grade, and address of the
agency official responsible for compliance under 5 U.S.C. § 1204 (e)(2)(A) , and
to inform such official in writing of the potential sanction for noncompliance as set forth in
5 U.S.C. § 1204 (a)(2) and section (e)(2)(A), even if the agency asserts
it has fully complied. Id. To date, the agency has failed to file a respon se.
¶6 Pursuant to 5 U.S.C. § 1204 (e)(2)(A) and 5 C.F.R. § 1201.183 (c), the Board
has the authority to impose sanctions against the agency official responsible for noncompliance with a Board order. Such sanctions may include a ruling adverse
to the agency and certification to the Comptroller General of the United States
that no payment is to be made to certain agency employees found to be in noncompliance with the Board’s order.
5 C.F.R. § 1201.183 (e). Under 5 C.F.R.
§ 1201.183 (a)(2), if the agency fails to submit the name, title, grade, and address
of the agency official charged with complying with the Board’s order, the Board
4
will presume that the highest- ranking appropriate agency official who is not
appointed by the President by and with the consent of the Senate is charged with
compliance.
¶7 As the agency has repeatedly failed to provide us with the required
information, we must presume that Mr. William J. Koon ,2 the highest
highest- ranking appropriate agency official who is not appointed by the President
by and with the consent of the Senate , is the agency official charged with
complying with the Board’s order(s) and that he is responsible for the agency’s continued noncompliance with these orders. Id .
¶8 Accordingly, pursuant to 5 U.S.C. § 1204(e)(2)(A) and
5 C.F.R.
§ 1201.183 (c), the agency and Mr. Koon are hereby DIRECTED TO SHOW
CAUSE why sanctions should not be imposed for the agency’s failure to comply
with the Board’s August 25, 2020 and May 31, 2022 orders.3 The agency and
Mr. Koon shall submit their written responses within 14 days of the date of this
Order. If the agency or Mr. Koon fail to respond within this timeframe, the
Board will issue an order requiring them to appear in person before the
Board at MSPB Headquarters, Washington, D.C, for a show cause hearing.
See 5 C.F.R. § 1201.183 (c)(1).
¶9 The appellant shall file any response to the agency’s and Mr. Koon’s
submissions within 14 days of the date of the submissions. If the appellant fails
2 According to the United States Arm y Judge Advocate General’s Corps websites,
Mr. Koon is the Director, Civilian Personnel, Labor and Employment Law for the
Office of Th e Judge Advocate General . See https://www.jagcnet.army.mil
/Sites/JAGC.nsf/homeContent.xsp?open&documentId=491917DFD8A389CC852586150
053871D (last visited Aug. 22, 2022), and https://www.jagcnet.army.mil/Sites/
jagc.nsf/0/528CEE10D3E3CA20852584A9006E57DF/$File/Koon%20- %20Bio%20 -
%20SES%20 -%2020191101.pdf (last visited Aug. 22, 2022).
3 A copy of this order will be served to Mr. Koon via email, and to the Initial Contact
for Fort Meade electronically via e -Appeal. The Initial Contact for Fort Meade will
also be sent a courtesy copy of this order via U.S. Mail.
5
to respond to these submissions, the Board may assume she is satisfied and
dismiss the petition for enforcement.
FOR THE BOARD:
Washington, D.C. /s/ for
Jennifer Everling
Acting Clerk of the Board | CHERRY_NYSIAAVIS_M_PH_0752_18_0225_X_1_SHOW_CAUSE_ORDER_1953336.pdf | 2022-08-22 | null | PH-0752-18-0225-X-1 | NP |
4,179 | https://www.mspb.gov/decisions/nonprecedential/SIMPKINS_EDWARD_J_DC_3443_22_0190_I_1_FINAL_ORDER_1952617.pdf | UNITED STATES OF AME RICA
MERIT SYSTEMS PROTEC TION BOARD
EDWARD J. SIMPKINS,
Appellant,
v.
OFFICE OF PERSONNEL
MANAGEMENT,
Agency.
DOCKET NUMBER
DC-3443 -22-0190 -I-1
DATE: August 19, 2022
THIS FINAL ORDER IS NONPRECEDENTIAL1
Edward J. Simpkins , Greenbelt, Maryland, pro se.
Appeals Officer , Washington, D.C., for the agency.
BEFORE
Cathy A. Harris, Vice Chair
Raymond A. Limon, Member
Tristan L. Leavitt, Member
FINAL ORDER
¶1 The appellant has filed a petition for review of the initial decision,
which dismissed for lack of jurisdiction his appeal alleging that the agency
violated his rights by using the wrong terminology to refer to his separation from
Federal service . On petition for review, the appellant argues that the agency
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117 (c).
2
committed a prohibited personnel practice and that the administrative judge
wrongly changed his burden of proof to establish jurisdiction . Petition for
Review File, Tab 1 at 1-4. Generally, we grant petitions such as this one only in
the following circumstances: the initial decision contains erroneous findings of
material fact; the initial decision is based on an erroneous interpretation of statute
or regulation or the erroneous application of the law to the facts of the case; the
administrative judge’s rulings during either the course of the appeal or the initial
decision were not consistent with required procedures or involved an abuse of
discretion, and the resulting error affected the outco me of the case; or new and
material evidence or legal argument is available that, despite the petitioner’s due
diligence, was not available when the record closed. Title 5 of the Code of
Federal Regulations, section 1201.115 ( 5 C.F.R. § 1201.115 ). After fully
considering the filings in this appeal, we conclude that the petitioner has not
established any basis under section 1201.115 for granting the petition for review.
Therefore, we DE NY 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 RIG HTS2
You may obtain review of this fi nal decision. 5 U.S.C. § 7703 (a)(1). By
statute, the nature of your claims determines the time limit for seeking such
review and the appropriate forum with which to file. 5 U.S.C. § 7703 (b).
Although we offer the following summary of available appeal rights, the Merit
Systems Protection Board does not provide legal advice on which option is most
appropriate for your situation and the rig hts described below do not represent a
statement 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 not ice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise which option is most appropriate in any matter.
3
immediately review the law applicable to your claims and carefully follow all
filing time limits and requirements. Failure to file within the applicable time
limit may result in the dismissal of your case by your chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703 (b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Cou rt of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any a ttorney 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 you r discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703 (b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. ____ , 137 S. Ct. 1975 (2017). If you have a
represe ntative in this case, and your representative receives this decision before
you do, then you must file with the district court no later than 30 calendar days
after your representative receives this decision. If the action involves a claim of
discriminatio n based on race, color, religion, sex, national origin, or a disabling
condition, you may be entitled to representation by a court -appointed lawyer and
to waiver of any requirement of prepayment of fees, costs, or other security. See
42 U.S.C. § 2000e -5(f) and 29 U.S.C. § 794a .
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/ Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C . § 7702 (b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702 (b)(1). If you have a repre sentative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regu lar U.S. mail, the
address of the EEOC is:
5
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a s ignature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . Th is option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302 (b)(8) or
other protected activities listed in 5 U.S.C. § 2302 (b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
disposition of allegations of a prohibited personnel practice described in section
2302(b) other t han practices described in section 2302(b)(8), or 2302(b)(9)(A)(i),
(B), (C), or (D),” then you may file a 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 a ny court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whis tleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court 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. C ourt of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for M erit Systems Protection Board appellants before the 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 appeal s can be found at their
respective websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
FOR THE BOARD:
Washing ton, D.C. /s/ for
Jennifer Everling
Acting Clerk of the Board | SIMPKINS_EDWARD_J_DC_3443_22_0190_I_1_FINAL_ORDER_1952617.pdf | 2022-08-19 | null | DC-3443-22-0190-I-1 | NP |
4,180 | https://www.mspb.gov/decisions/nonprecedential/LEMON_WILLIAM_H_PH_0842_22_0006_I_1_FINAL_ORDER_1952653.pdf | UNITED STATES OF AME RICA
MERIT SYSTEMS PROTEC TION BOARD
WILLIAM H. LEMON,
Appellant,
v.
OFFICE OF PERSONNEL
MANAGEMENT,
Agency.
DOCKET NUMBER
PH-0842 -22-0006 -I-1
DATE: August 19, 2022
THIS FINAL ORDER IS NONPRECEDENTIAL1
William H. Lemon , Lewes, Delaware, pro se.
Michael Shipley , Washington, D.C., for the agency.
BEFORE
Cathy A. Harris, Vice Chairman
Raymond A. Limon, Member
Tristan L. Leavitt, Member
FINAL ORDER
¶1 The appellant ha s filed a petition for review of the initial decision, which
affirmed the decision of the Office of Personnel Management finding that he was
not eligible to r eceive deferred annuity benefits because he had received a refund
of his retirement contributions. On petition for review, the appellant renews his
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
require d to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117 (c).
2
argument that his former spouse forged the application requesting a refund of his
retirement contributions and that he never received the refund . 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 admini strative judge’s rulings during either
the course of the appeal or the initial decision were not consistent with required
procedures or involved an abuse of discretion, and the resulting error affected the
outcome of the case; or new and material evidence or legal argument is available
that, despite the petitioner’s due diligence, was not available when the record
closed. Title 5 of the Code of Federal Regulations, section 1201.115 ( 5 C.F.R .
§ 1201.115 ). After fully considering the filings in this appeal, we conclude that
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 RIGH TS2
You may obtain review of this final decision. 5 U.S.C. § 7703 (a)(1). By
statute, the nature of your claims determines the time limit for seeking such
review and the approp riate forum with which to file. 5 U.S.C. § 7703 (b).
Although we offer the following summary of available appeal rights, the Merit
Systems Protection Board does not provide legal advice on which o ption is most
appropriate for your situation and the rights described below do not represent a
statement 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 w hich option is most appropriate in any matter.
3
immediatel y review the law applicable to your claims and carefully follow all
filing time limits and requirements. Failure to file within the applicable time
limit may result in the dismissal of your case by your chosen forum.
Please read carefully each of the thre e main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judic ial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703 (b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the cour t at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.usc ourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither e ndorses 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 y ou
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703 (b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. ____ , 137 S. Ct. 1975 (2017). If you have a
representative in this case, and your representative receives this decision before
you do, then you must file with the district court no later than 30 calendar days
after your representative receives this decision. If the action involves a claim of
discrimination based on race, color , religion, sex, national origin, or a disabling
condition, you may be entitled to representation by a court -appointed lawyer and
to waiver of any requirement of prepayment of fees, costs, or other security. See
42 U.S.C. § 2000e -5(f) and 29 U.S.C. § 794a .
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702 (b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702 (b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is:
5
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEO C via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302 (b)(8) or
other protect ed activities listed in 5 U.S.C. § 2302 (b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
disposition of allegations of a prohibited p ersonnel practice described in section
2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i),
(B), (C), or (D),” then you may file a petition for judicial review either with the
U.S. Court of Appeals for the Federal Circuit or a ny court of appeals of
competent jurisdiction.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 cou rt 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 wit hin the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for info rmation regarding pro bono representation
for Merit Systems Protection Board appellants before the 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/Court Websites.aspx .
FOR THE BOARD:
Washington, D.C. /s/ for
Jennifer Everling
Acting Clerk of the Board | LEMON_WILLIAM_H_PH_0842_22_0006_I_1_FINAL_ORDER_1952653.pdf | 2022-08-19 | null | PH-0842-22-0006-I-1 | NP |
4,181 | https://www.mspb.gov/decisions/nonprecedential/DAHL_RYAN_A_DE_0752_21_0146_X_1_FINAL_ORDER_1952775.pdf | UNITED STATES OF AME RICA
MERIT SYSTEMS PROTEC TION BOARD
RYAN A. DAHL,
Appellant,
v.
DEPARTMENT OF THE AR MY,
Agency.
DOCKET NUMBER
DE-0752 -21-0146 -X-1
DATE: August 19, 2022
THIS FINAL ORDER IS NONPRECEDENTIAL1
Ryan A. Dahl , Colorado Springs, Colorado, pro se.
Stephen Coutant , Esquire, Fort Carson, Colorado, for the agency.
BEFORE
Cathy A. Harris, Vice Chairman
Raymond A. Limon, Member
Tristan L. Leavitt, Member
FINAL ORDER
¶1 In a F ebruary 18, 2022 compliance initial decision, the administrative judge
found the agency in partial n oncompliance with the Board’s August 30, 2021
final decision mitigating the appellant’s removal to a 30 -day suspension without
pay and ordering the agency to retroactively restore him with back pay 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 judge s are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117 (c).
2
benefits. Dahl v. Department of the Army , MSPB Docket No. DE-0752 -21-0146 -
I-1, Initial Appeal File, Tab 32 , Initial Decision (ID)2; Dahl v. Department of the
Army , MSPB Docket No. DE-0752 -21-0146 -C-1, Complia nce File, Tab 4,
Compliance Initial Decision (CID ). For the reasons discussed below, we find the
agency in compliance and DISMISS the petition for enforcement.
DISCUSSION OF ARGUME NTS AND EVIDENCE ON COMPLIANCE
¶2 In the compliance initial decision, the ad ministrative judge found the
agency in partial noncompliance with the Board’s final decision in the
underlying appeal to the extent it had failed to pay the appellant all back pay
owed, with interest . CID at 4 -5. Accordingly, he granted the appellant’s petition
for enforcement and, in relevant part, ordered the agency to pay the appellant the
appropriate amount of back pay . CID at 5.
¶3 The administrative judge informed the agency that, if it decided to take the
orde red actions, it must submit to the Clerk of the Board a narrative statement
and evidence establishing compliance. CID at 6. The compliance initial decision
also informed the parties that they could file a petition for review if they
disagreed with the co mpliance initial decision. CID at 6 -7. Neither party filed
any submission with the Clerk of the Board within the time limit set forth in
5 C.F.R. § 1201.114 . Accordingly, pursuant to 5 C.F.R. § 1201.183 (b)-(c), the
administrative judge’s findings of noncompliance have become final, and the
appellant’s petition for enforcement has been referred to the Board for a fina l
decision on the issues of compliance. Dahl v. Department of the Army , MSPB
Docket No. DE-0752 -21-0146 -X-1, Compliance Referral File (CRF), Tab 1.
¶4 On March 28, 2022, the Board issued an acknowledgment order directing
the agency to submit evidence showing that it has complied with all actions
identified in the compliance initial decision. CRF, Tab 1 at 3 . The
2 The initial decision became the final decision of the Board on October 4, 2021, after
neither party petitioned for administrative review. ID at 15.
3
acknowledgment order also notified the appellant that he may respond to any
submission from the agency by filing written arguments with the Clerk o f the
Board within 20 calendar days of the date of service of the agency’s submission.
Id. The appellant was cautioned, however, that if he did not respond to the
agency’s evidence of compliance within those 20 calendar days, the Board “may
assume you are satisfied and dismiss your petition for enforcement.” Id. at 3-4.
¶5 In its April 12, 2022 compliance submission, the agency informed the
Board , in relevant part, that it had complied with the Board’s final order by
paying the appellant his back pay with interest. CRF, Tab 2. As evidence of its
compliance, the agency provided a copy of the app ellant’s pay statement for pay
period ending March 12, 2022, showing that he received a net payment of
$9,478.06 for his back pay award ($9,146.64 in back pay plus $331.42 in
interest). Id. at 15. T he agency also provided a copy of the back pay calculati on
worksheet prepared by the Defense Finance and Accounting Service. Id. at 14.
The appellant did not respond to the agency’s submission .
ANALYSIS
¶6 When the Board finds a personnel action unwarranted or not sustainable, it
orders that the appellant be p laced, as nearly as possible, in the situation he
would have been in had the wrongful personnel action not occurred. House v.
Department of the Army , 98 M.S.P.R. 530 , ¶ 9 (2005). The agency bears the
burden to prove its compliance with a Board order. An agency’s assertions of
compliance must include a clear explanation of its compliance actions supported
by documentary evidence. Vaughan v. Department of Agriculture , 116 M.S.P.R.
319, ¶ 5 (2011) . The appellant may rebut the agency’s evidence of compliance
by making “specific, nonconclusory, and supported assertions of continued
noncompliance.” Brown v. Office of Personnel Management , 113 M.S.P.R. 325 ,
¶ 5 (2010).
4
¶7 Here, as noted above, the administrative judge found that, to establish
compliance with the Board’s final decision in the underlying appeal, the agency
must pay the appellant the appropriate amount of back pay . CID at 5. The
agency’s submission reflects that it has now paid the appellant $9,146.64 in back
pay, as well as $331.42 in interest on the back pay award. The appellant has not
responded to the agency’s compliance submission, despite being notified of his
opportunity to do so and being cautioned that the Board may assume he is
satisfied and dismiss his petition for enforcement if he did not respond. CRF,
Tab 1. Accordingly, we assume that the appellant is satisfied with the agency’s
compliance. See Baumgartner v. Department of Housing & Urban Development ,
111 M.S.P.R. 86 , ¶ 9 (2009).
¶8 In light of the foregoing, we find that the agency is now in compliance and
dismiss the appellant’s petition for enforcement. This is the final decision of the
Merit Systems Protection Board in this compliance proceeding. Title 5 of the
Code of Federal Regulations, sec tion 1201.183(c)(1) ( 5 C.F.R. § 1201.183 (c)(1)).
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 b elow do not represent a
statement of how courts will rule regarding which cases fall within their
jurisdiction. If you wish to seek review of this final decision, you should
immediately review the law applicable to your claims and carefully follow all
3 Since the issuance of the i nitial decision in this matter, the Board may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise which option is most appropriate in any matter.
5
filing time limits and requirements. Failure to file within the applicable time
limit may result in the dismissal of your case by your chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies t o your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judic ial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703 (b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any a ttorney will accept representation in a given case.
6
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and tha t such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703 (b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. ____ , 137 S. Ct. 1975 (2017). If you have a
representative in this case, and your representative receives this decision before
you do, then you must file with the district court no later than 30 calendar days
after your representative receives this decision. If the action involves a claim of
discrimination based on race, color, religion, sex, national origin, or a disabling
condition, you may be entitled to representation by a court -appointed lawyer and
to waiver of any requirement of prepayment of fees, costs, or other security. See
42 U.S.C. § 2000e -5(f) and 29 U.S.C. § 794a .
Contact information for U.S. district courts can be found at their resp ective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employm ent
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702 (b)(1). You must file any such request with the
EEOC’s Office of Federal Operation s within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702 (b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is:
7
Office of Federal Operations
Equal Employment Op portunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302 (b)(8) or
other protected activities listed in 5 U.S.C. § 2302 (b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
disposition of allegations of a prohibited personnel practice described in section
2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i),
(B), (C), or (D),” then you may file a 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 fi le petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115 -195,
132 Stat. 1510.
8
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your peti tion to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s websi te, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representati on for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the 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 throug h the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
FOR THE BOARD:
Washington, D.C. /s/ for
Jennifer Everling
Acting Clerk of the Board | DAHL_RYAN_A_DE_0752_21_0146_X_1_FINAL_ORDER_1952775.pdf | 2022-08-19 | null | DE-0752-21-0146-I-1; DE-0752-21-0146-C-1; DE-0752-21-0146-X-1 | NP |
4,182 | https://www.mspb.gov/decisions/nonprecedential/BENNETT_DANIAL_E_CH_0752_16_0463_I_1_FINAL_ORDER_1952794.pdf | UNITED STATES OF AME RICA
MERIT SYSTEMS PROTEC TION BOARD
DANIAL E. BENNETT, JR.,
Appellant,
v.
DEPARTMENT OF VETERA NS
AFFAIRS,
Agency.
DOCKET NUMBER
CH-0752 -16-0463 -I-1
DATE: August 19, 2022
THIS FINAL ORDER IS NONPRECEDENTIAL1
Danial E. Bennett, Jr. , Willowick, Ohio, pro se.
Lisa M. Clark , Esquire and Stacey Letner , Akron, Ohio, for the agency.
BEFORE
Cathy A. Harris , Vice Chairman
Raymond A. Limon , Member
Tristan L. Leavitt , Member
FINAL ORDER
¶1 The appellant has petitioned for review of the October 4, 2016 initial
decision in this appeal. Petition for Review (PFR) File, Tab 1. F or 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
require d to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117 (c).
2
¶2 After the filing of the petition for review, the parties submitted a document
entitled “SETTLEMENT AGREEMENT AND RELEASE OF CLAIMS ” signed
and dated by the agency on March 19, 2019, and by the appellant on March 21,
2019. PFR File, Tab 5. The document provides, among other things, that the
appellant agreed to withdraw the above -captioned appeal in exc hange for the
promises made by the agency. Id. at 4.
¶3 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 agreemen t 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
Massey v. Office of Personnel Management , 91 M.S.P.R. 289 , ¶ 4 (2002) ,
overruled on other grounds by Delorme v. Department of the Interior ,
124 M.S.P.R. 123 , ¶¶ 11 -21 (2017) ( holding that the Board may enforce
settlement agreements that have been entered into the record, independent of any
prior finding of Board jurisdiction over the underlying matter being settled).
¶4 Here, we find that the parties have entered into a settlement agreement,
understand its terms, and do not intend for the agreement to be entered into the
record for enforceme nt by the Board . PFR File, Tab 5 . As the parties do not
intend for the Board to enforce the settlement agreement, we need not addre ss the
additional considerations regarding enforcement, and we do not enter the
settlement agreement into the record for enforcement by the Board.
¶5 In light of the foregoing , 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.
3
¶6 This is the final decision of the Merit Systems Protection Board in this
appeal. Title 5 of the Code of Federal Regulations, section 1201.113 ( 5 C.F.R.
§ 1201.113 ).
NOTICE OF APPEAL RIG HTS2
You may obtain review of this final decision. 5 U.S.C. § 7703 (a)(1). By
statute, the nature of your claims determines the time limit for seeking such
review and the appropriate forum with which to file. 5 U.S.C. § 7703 (b).
Although we offer the following summ ary of available appeal rights, the Merit
Systems Protection Board does not provide legal advice on which option is most
appropriate for your situation and the rights described below do not represent a
statement of how courts will rule regarding which case s fall within their
jurisdiction. If you wish to seek review of this final decision, you should
immediately review the law applicable to your claims and carefully follow all
filing time limits and requirements. Failure to file within the applicable time
limit may result in the dismissal of your case by your chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular foru m is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S .
Court of Appeals for the Federal Circuit, which must be 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 w hich option is most appropriate in any matter.
4
If you submit a petiti on for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional informat ion about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Pr actice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC rev iew of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703 (b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. ____ , 137 S. Ct. 1975 (2017). If you have a
representative in this case, and your representative receives this decision before
you do, then you must file with the district court no later than 30 calendar days
after your representative receives this decision. If the action involves a claim of
5
discrimination based on race, color, religion, sex, national origin, or a disabling
condition, you may be entitled to representation by a court -appointed lawyer and
to waiver of any requirement of prepayment of fees, costs, or other security. See
42 U.S.C. § 2000e -5(f) and 29 U.S.C. § 794a .
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims onl y, excluding
all other issues . 5 U.S.C. § 7702 (b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702 (b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 2 0507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302 (b)(8) or
6
other protected activities listed in 5 U.S.C. § 2302 (b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
disposition of allegations of a prohibited personne l practice described in
section 2302(b) other than practices described in section 2302(b)(8), or
2302(b)(9)(A)(i), (B), (C), or (D),” then you may file a petition for judicial
review either with the U.S. Cour t of Appeals for the Federal Circuit or any court
of appeals of competent jurisdiction.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 Petitione rs and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our websi te at
http://www.mspb.gov/probono for information regarding pro bono representation
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, 201 8, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
The Al l Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115 -195,
132 Stat. 1510.
7
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney w ill accept representation in a given case.
Contact information for the courts of appeals can be found at their
respective websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
FOR THE BOARD:
Washington, D.C. /s/ for
Jennifer Everling
Acting Clerk of the Board | BENNETT_DANIAL_E_CH_0752_16_0463_I_1_FINAL_ORDER_1952794.pdf | 2022-08-19 | null | CH-0752-16-0463-I-1 | NP |
4,183 | https://www.mspb.gov/decisions/nonprecedential/MCCORD_MICHAEL_CB_1208_22_0017_U_1_ORDER_ON_STAY_REQUEST_1952258.pdf | UNITED STATES OF AME RICA
MERIT SYSTEMS PROTEC TION BOARD
SPECIAL COUNSEL
EX REL. MICHAEL MCCO RD,
Petitioner,
v.
FEDERAL MINE SAFETY AND
HEALTH REVIEW COMMIS SION,
Agency.
DOCKET NUMBER
CB-1208 -22-0017 -U-1
DATE: August 18, 2022
THIS STAY ORDER IS NONPRECEDENTIAL1
Elizabeth Q. McMurray , Esquire and Shoshana S. Elon , Esquire,
Washington, D.C., for the petitioner.
Ariel E. Solomon , Esquire, Washington, D.C., for the relator.
Pollyanna Hampton , Esquire and Rory Smith , Esquire, Washington, D.C.,
for the agency.
BEFORE
Cathy A. Harris , Vice Chairman
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117 (c).
2
ORDER ON STAY REQUES T
¶1 Pursuant to 5 U.S.C. § 1214 (b)(1)(A), the Office of Special Counsel (OSC)
requests that the Board retroactively stay Mr. McCord’s proposed removal for
45 days while OSC completes its investigation and legal review of the matter and
determines whether to seek corrective action. For the reasons discussed below,
OSC’s request is GRANTED.
BACKGROUND
¶2 In its August 15, 2022 stay request, OSC states that it has reasonable
grounds to believe that on July 22, 2022, the agency proposed to remove
Mr. McCord from his General Counsel position with the agency in retaliation for
whistleblowing disclosures and activity in violation of 5 U.S.C. §§ 2302 (b)(8)
and (b)(9). Stay Request File (SRF), Tab 1 at 5 -6.
¶3 OSC alleges that, on February 9, 2022, the Commission Chair sent
Mr. McCord an email with the subject line “Procedure fo r [Office of General
Counsel ( OGC )] Attorney Case Assignment.” Id. In this email, the Commission
Chair informed Mr. McCord that, going forward, the Commission Chair would
secretly select which attorney would be assigned to each new case , but it would
otherwise appear that Mr. McCord would be assigning cases, as he had always
done. Id. The email specified that Mr. McCord must keep the new procedure
“completely confidential” and that “only [he (Mr. McCord) and the Commission
Chair] know about it.” Id. The Commission Chair advised that a first offense of
violating his instruction would result in a 13-day suspension and a second offense
would result in termination. Id. Later that day, Mr. McCord shared the
Commission Chair’s email with two Commissioners. Id. at 7.
¶4 OSC alleges that on February 10, 2022, when the Commission Chair
became aware that Mr. McCord defied his order by sharing his email , he again
emailed Mr. McCord stating that “ [s]haring [his] confidential communication
with the other political a ppointees and the rest of the agency was a very[,] very
3
bad decision.” Id. OSC alleges that on an unspecified date or dates, Mr. McCord
contacted OSC. Id. at 5. Mr. McCord informed the Commission Chair in a
February 25, 2022 email that he had “filed mu ltiple claims with [OSC] addressing
[the Commission Chair’s] continuing unlawful behavior.” Id. at 8. Less than
2 weeks later, on March 9, 2022, Mr. McCord received notice that he was placed
on administrative /investigative leave pending an investigation into unspecified
“allegations of misconduct.” Id. OSC alleges that on July 22, 2022, the
Commission Chair proposed Mr. McCord’s removal for, among other reasons,
failure to follow instructions. Id. Then, o n August 5, 2022, the Commission
Chair issued a decision to remove Mr. McCord, effective August 21, 2022. Id.
¶5 OSC contends that there are reasonable grounds to believe that the agency
proposed Mr. McCord’s removal in retaliation for whistleblowing disclosures and
protected activity in violation of 5 U.S.C. §§ 2302 (b)(8) and (b)(9), and requests
that the Board retroactively stay the proposed removal for a period of 45 days.
Id. at 10, 15.
ANALYSIS
¶6 Under 5 U.S.C. § 1214 (b)(1)(A)(i), OSC “may request any member of the
Merit Systems Protection Board to order a stay of any personnel action for
45 days if [OSC] determines that there are reasonable grounds to believe that the
personnel action was taken, or is to be taken, as a result of a prohibited personnel
practice.” Such a request “shall” be granted “unless the [Board] member
determines that, under the facts and circumstances involved, such a stay would
not be appropriate.” 5 U.S.C. § 1214 (b)(1)(A)(ii). OSC’s stay request need only
fall within the range of rationality to be granted, and the facts must be reviewed
in the light most favorable to a finding of reasonable grounds to b elieve that a
prohibited personnel practice was (or will be) committed. See Special Counsel ex
rel. Aran v. Department of Homeland Security , 115 M.S.P.R. 6, ¶ 9 (2010).
Deference is given to OSC’s initial determination, and a stay will be denied only
4
when the asserted facts and circumstances appear to make the stay request
inherently unreasonable. Special Counsel v. Department of Vetera ns Affairs ,
50 M.S.P.R. 229, 231 (1991).
¶7 Under 5 U.S.C. § 2302 (b)(8), it is a prohibited personnel practice to take or
threaten to take a personnel action with respect to any employee because of any
disclosure of information by an employee, which the employee reasonably
believes evidences any violation o f any law, rule, or regulation, gross
mismanagement, a gross waste of funds, an abuse or authority, or a substantial
and specific danger to public health or safety. Under 5 U.S.C. §§ 2302 (b)(9)(A)
and (b)(9)(C), it is a prohibited personnel practice to take or threaten to take a
personnel action against an employee because the employee exercised any appeal,
complaint, or grievance right granted by any law, rule, or regulation or disclosed
informati on to OSC.
¶8 OSC alleges that Mr. McCord had a reasonable belief that his February 9,
2022 email to the two Commissioners evidenced wrongdoing within the scope of
5 U.S.C. § 2302 (b)(8) . Id. at 11-12. Specifically, OSC alleges that Mr. McCord
reasonably believed that the email was contrary to the Federal Mine Safety Act of
1977 (Mine Act), 30 U.S.C. § 823 , contrary to the agency’s mission, an abuse of
authority, and gross mismanagement. Id. at 6-7. OSC further alleges that the
Commission Chair knew about Mr. McCord’s February 9, 2022 email to the other
two Commissioners and his OSC filings when , less than 6 months later, he issued
the July 22, 2022 notice of proposed removal . Id. at 13-14. A proposed removal
is a personnel action. Bacas v. Department of the Army , 99 M.S.P.R. 464 , ¶ 5
(2005). OSC thus contends that Mr. McCord’s protected whistleblowing
disclosure and activity were a contributing factor in a personnel action . Id. at 14.
¶9 Given the deference that should be afforded to OSC and the assertions made
in its stay request, I find that there are reasonable grounds to believe that the
agency’s proposal to remove Mr. McCord is the result of a prohibited personnel
practice under 5 U.S.C. §§ 2302 (b)(8) and (b)(9).
5
ORDER
¶10 Based on the foregoing, granting OSC’s stay request would be appropriate.
Accordingly, a 45 -day stay of Mr. McCord’s proposed removal is GRANTED.
The stay shall be in effect from August 18, 2022 , through and including
October 1, 2022 . It is further ORDERED that :
(1) During the pendency of this stay, the agency is required to reinstate
Mr. McCord to the position he held prior to his proposed removal ;
(2) The agency shall not effect any changes in Mr. McCord’s duties or
responsibilities that are i nconsistent with his salary or grade level, or
impose upon him any requirement which is not required of other
employees of comparable position, salary, or grade level;
(3) The agency shall not effectuate Mr. McCord’s removal ;
(4) Within 5 working days of this Orde r, the agency shall submit
evidence to the Clerk of the Board showing that it has complied with
this Order;
(5) Any request for an extension of this stay pursuant to 5 U.S.C.
§ 1214 (b)(1)(B), as amend ed by Pub. L. No. 115 -42,2 and 5 C.F.R.
§ 1201.136 (b) must be received by the Clerk of the Board and the
agency, together with any further evidentiary support, on or before
September 16, 2022 ; and
2 As passed by the House of Representatives on May 25, 2017, passed by the Senate on
June 14, 2 017, and signed into law on June 27, 2017.
6
(6) Any comments on such a request that the agency wants the Board to
consider pursuant to 5 U.S.C. § 1214 (b)(1)(C) and 5 C.F.R.
§ 1201.136 (b) must be received by the Clerk of the Board on or
before September 23, 2022 .
FOR THE BOARD:
Washington, D.C. /s/ for
Jennifer Everling
Acting Clerk of the Board | MCCORD_MICHAEL_CB_1208_22_0017_U_1_ORDER_ON_STAY_REQUEST_1952258.pdf | 2022-08-18 | null | CB-1208-22-0017-U-1 | NP |
4,184 | https://www.mspb.gov/decisions/nonprecedential/SKEPPLE_CONRADO_W_AT_0432_16_0320_I_1_REMAND_ORDER_1952322.pdf | UNITED STATES OF AME RICA
MERIT SYSTEMS PROTEC TION BOARD
CONRADO W. SKEPPLE,
Appellant,
v.
DEPARTMENT OF DEFENS E,
Agency.
DOCKET NUMBER
AT-0432 -16-0320 -I-1
DATE: August 18, 2022
THIS ORDER IS NONPRECEDENTIAL1
Erik De L’ Etoile , Esquire, Tampa, Florida, for the appellant.
Mark Claytor , Fort Lee , Virginia, for the agency.
BEFORE
Cathy A. Harris, Vice Chairman
Raymond A. Limon , Member
Tristan L. Leavitt , Member
REMAND ORDER
¶1 The appellant has filed a petition for review of the initial decision, which
affirmed the agency’s action demoting him for unacceptable performance
pursuant to 5 U.S.C. chapter 43. For the reasons set forth below, we GRANT the
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
require d to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117 (c).
2
Atlanta R egional Office for further adjudication consistent with the U.S. Court of
Appeals for the Federal Circuit’s decision in Santos v. National Aeronautics &
Space Administration , 990 F.3d 1355 (Fed. Cir. 2021) .
BACKGROUND
¶2 The appellant filed a Board appeal from the agency’s decision to demote
him from the GS -1101 -06 Commissary Contractor Mon itor (Quality Assurance
Evaluator) (QAE) position to the WG -6914 -04 Store Worker position for
unacceptable performance. Initial Appeal File (IAF), Tab 4 at 28 -31. The record
reflects that the QAE’s primary job duties included, among other responsibilitie s:
(1) various customer service duties, to include addressing questions and concerns
from both internal and external customers; (2) monitoring and reporting the
performance of the contractor who provided various services to the commissary;
(3) various adm inistrative duties; and (4) maintaining a safe and secure work
environment at the commissary for patrons and employees. IAF, Tab 13 at 77-81.
The appellant’s performance plan for the rating period from July 1, 2014, through
June 30, 2015, contained four critical job elements (CJEs) and one noncritical job
element. Id. The appellant’s performance in each of the CJEs was rated on a
three -tier system , Exceeded, Met, or Did Not Meet. Id.
¶3 On June 7, 2015, the appellant received written notice that his per formance
was at an unacceptable level in three of the four CJEs of his performance plan,
CJE 1 —Customer Care, CJE 3 —Contract Monitoring, and CJE 5 —Safety and
Secu rity. IAF, Tab 13 at 8 -12. The notice advised the appellant that he was
being placed on a 60 -day performance improvement plan (PIP), during which
time his supervisor would monitor his performance and meet with him to review
his work and discuss his progress. Id. at 8-11. The appellant was advised that, if
his performance remained at an unacceptable level, appropriate action would be
taken to demote or remove him from Federal service. Id. Following the
conclusion of the PIP, the appellant was issued a notice of proposed demotion
3
charging him with unacceptable performance in CJEs 1, 3, and 5. IAF, Tab 4
at 48-51. The appellant provided an oral and a written response to the deciding
official (DO). Id. at 8. On January 11, 2016, the DO issued a decision letter
finding that the appellant demonstrated unacceptable performance in the three
CJEs , as charged , and he was notified that he was being demoted to Store Worker,
effective February 7, 2016. Id. at 28 -31. The appellant then filed this appeal.
IAF, Tab 1.
¶4 In his initial decision, the administrative judge found that the agency
adequately communicated the appellant’s CJEs and performance standards to him
and that the standards are valid. IAF, Tab 40, Initial Decision (ID) at 6 -8.
Regarding adequate notice of unacceptable performance, the administrative judge
performed a Hillen2 analysis on witness credibility and found the appellant’s
assertion that he was unaware that he had been placed on a PIP was inherently
improbable and was not credible. ID at 9 -10. Th e administrative judge also
found that the agency provided the appellant with a meaningful opportunity to
improve. ID at 11 -15. Regarding the appellant’s performance in CJE 1 —
Customer Care, the administrative judge found that the appellant was on notice of
the agency’s expectations under CJE 1 and that the agency specifically counseled
him over responsiveness to internal customers, including managers and
coworkers, and being professional in his interactions with these individuals. ID
at 18. The administ rative judge further found that the agency proved by
substantial evidence the three , separate incidents of unacceptable performance
2 To resolve credibility issues, an administrative judge must identify the factual
questions in dispute, summarize the evidence on each disputed question, state which
version he believes, and explain in detail why he found the chosen version more
credible, considering factors such as the following : (1) the witness ’s opportunity and
capacity to observe the event or act in question; (2) the witness ’s character; (3) any
prior inconsistent statement by t he witness; (4) a witness ’s bias, or lack of bias; (5) the
contradiction of the witness ’s version of events by other evidence or its consistency
with other evidence; (6) the inherent improbability of the witness ’s version of events;
and (7) the witness ’s demeanor. Hillen v. Department of the Army , 35 M.S.P.R. 453 ,
458 (1987).
4
under CJE 1, i.e., two distinct instances of failing to respond to his supervisor’s
request for information about product di splay shelving that needed cleaning and
one incident of sending inappropriate emails to a coworker concerning selecting a
grocery department training course. ID at 16-24. Thus, the administrative judge
found that the agency proved the charge of unaccepta ble performance in CJE 1.
Id. Because unacceptable performance in one CJE is sufficient to sustain the
agency’s action, the administrative judge found it unnecessary to analyze whether
the appellant’s performance was unacceptable in CJE 3 and CJE 5. ID at 6.
Accordingly, the administrative judge affirmed the agency’s demotion action. ID
at 24.
¶5 The appellant has filed a petition for review. Petition for Review (PFR)
File, Tab 1. The agency has filed a response. PFR File, Tab 5.
DISCUSSION OF ARGU MENTS ON REVIEW
¶6 At the time the initial decision was issued, the Board’s case law stated that,
in an appeal of a performance -based action under 5 U.S.C. chapter 43, the agency
must establish the foll owing by substantial evidence:3 (1) the Office of Person nel
Management approved its performance appraisal system and any significant
changes thereto; (2) the agency communicated to the appellant the performance
standards and critical elements of h is position; (3) the appellant’s performance
standards were valid under 5 U.S.C. § 4302 (c)(1);4 (4) the agency warned the
appellant of the inadequacies of h is performance during the appraisal period and
gave h im a reasonable opportunity to demonstrate acceptable performance; and
(5) the appellant’s performance remained unacceptable in one or more of t he
3 Substantial evidence is the “degree of relevant evidence tha t a reasonable person,
considering the record as a whole, might accep t as adequate to support a conclusion,
even though other reasonable persons might disagree.” 5 C.F.R. § 1201.4 (p).
4 As a result of the enactment of the National Defense Authorization Act for Fiscal Year
2018, Pub. L. No. 115 -91, § 1097(d)(1), 131 Stat. 1283, 1619 (2017), the criteria that
were set forth in 5 U.S.C . § 4302 (b)(1) at the time the initial decision was issued now
appear in 5 U.S.C. § 4302 (c)(1).
5
critical elements for which he was provided an opportunity to demonstrate
acceptable performance. Lee v. Envir onmental Protection Agency , 115 M.S.P.R.
533, ¶ 5 (2010) .
The appellant’s arguments do not provide a basis to disturb the initial decisio n’s
findings as to the three specifications of the unacceptable performance charge
under CJE 1 .
¶7 The appellant argues that the initial decision contains erroneous findings of
material facts that would alter the outcome of the in itial decision. PFR File,
Tab 1. Specifically, the appellant challenges the administrative judge’s
determination that he failed to respond as directed to two separate emails from his
direct supervisor.5 Id. at 5 -6. The appellant argues that the two emails in
question required a re sponse from him only if he should find issues or concerns,
and because he found no issues , he was not required to respond. Id. The
appellant also asserts that he was never “warned or told that he must respond” to
the emails. Id. The appellant also argu es that, because the emails required him to
respond only if he found issues, the agency failed to prove this specification
because it did not show that he found areas of concern and failed to bring those to
his supervisor’s attention. Id. at 7. Thus, the appellant contends that, because the
administrative judge’s findings are erroneous, his demotion was sustained based
on one email that was not intended to be unprofessional. Id.
¶8 However, after reviewing the record evidence, including the hearing record,
we find that the appellant is arguing for the first time on review that his
supervisor’s emails to him did not require a response. Because he has made no
showing that this argumen t is based on new and material evidence not previously
available despite his due diligence, we need not consider it. See Clay v.
Department of the Army , 123 M.S.P.R. 245 , ¶ 6 (2016); 5 C.F.R. § 1201.115 (d).
5 The appellant does not challenge the administrative judge’s findings that his
performance standa rds are valid and that he received adequate notice of unacceptable
performance. ID at 7-15. We see no reason to disturb those findings.
6
¶9 Nonetheless, the hearing testimony reflects that the appellant admitted that
he knew he was expected to respon d to the emails but did not do so. IAF, Tab 40,
Hearing Compact Disc (testimony of the appellant). Additionally, th e appellant
received a June 29, 2015 email, which instructed him to walk the aisles and check
the condition of the commissary shelves at th e beginning of hi s next shift and to
notify his supervisor by email about the areas found t o need the supervisor’s
attention . IAF, Tab 8 at 32 -34. His supervisor’s hearing testimony and
counseling notes for July 7, 2015, show that the appellant specifica lly was
counseled regarding his failure to respond to the June 29, 2015 email. Id. at 31.
Furthermore, the record includes a July 13, 2015 email from his supervisor to an
agency Human Resource Specialist noting that that he had specifically discussed
this issue with the appellant. Id. at 32. Similarly, the testimony and the
counseling notes documenting the appellant’s July 27, 2015 meeting with his
supervisor also reflect that the appellant was counseled concerning his failure to
respond to his supervis or’s request for correspondence. Id. at 7. Thus, the record
supports the administrative judge’s finding that the appellant received the emails
from his supervisor, that he was warned of the requirement to respond to those
emails, and that he failed to do so.
¶10 As to the specification that the appellant sent an email that he contends was
not meant to be unprofessional, the June 6, 2015 memorandum notifying the
appellant of his placement on a PIP explicitly stated that he was required to
promote a positive image , and he was not to be rude, im polite, or unprofessional
to any customer, coworker, manager, or authorized patron . IAF, Tab 13 at 8 -9.
He also was advised that he was expected to communic ate professionally with his
coworkers. Id. The administrative judge thoroughly discussed the language used
by the appellant in the two emails he sent to a coworker , in which he called
another coworker a “clown,” used symbols to represent profanity, referred to
several coworkers as “dirty people,” and accused his supervisor of “trying to
undermine” the grocery school training selection process. ID at 20 -22. We agree
7
with the administrative judge that the language the appellant used in the emails
was “unprofessional and highly inconsistent” with CJE 1 , requiring the appellant
to promote a positive agency image and improve customer relations. IAF, Tab 13
at 77, Tab 5 at 16; ID at 21.
¶11 Finally, the appellant contends that the agency did not afford him a
reasonable opportunity to improve because the agency arguabl y demonstrated that
only one of the emails was unprofessional , and so , the administrative judge
should not h ave determined that the agency established that he failed to meet the
standards of CJE 1 based on this single unprofessional email. An opportunity to
demonstrate improved performance is a substantive right afforded an employee
under chapter 43 of title 5. Martin v. Federal Aviation Administration , 795 F.2d
995, 997 (Fed. Cir. 1986). An agency may establish a prima facie case that it
afforded the appellant an opportunity to improve by documentary or testimonial
evidence showing that the appellant was offered such an opportunity, but he then
may challenge such evidence. Adorador v. Department of the Air Force ,
38 M.S.P.R. 461, 464 (1988) . The agency has the ultimate burden to prove that
the opportunity to improve was given. Id. First, as set forth above, we disagree
with the appellant’s claim that the agency demonstrated that he sent only one
unprofessional email during the 60 -day PIP. Second, the agency counseled the
appellant about what he needed to do to improve his communic ations and told
him how he was falling short during the PIP. Third, the appellant’s supervisor
provided the appellant with guidance and feedback during the PIP to try to assist
him in performing at what the agency considered an acceptable level. See
Shum an v. Department of the Treasury , 23 M.S.P.R. 620, 623 (1984) (finding that
an employee who is not given adequate instructions regarding t he manner in
which he is expected to perform the duties of his position has not been provided
with an adequate opportunity to demonstrate acceptable performance). We
therefore find that the administrative judge correctly determined that the agency
afforde d the appellant a reasonable opportunity to improve. Thus, we find that
8
the appellant has shown no basis upon which to disturb the administrative judge’s
findings and determinations regarding any of the three specifications of the
unacceptable performance charge under CJE 1.
Remand is required in light of Santos .
¶12 Although the administrative judge correctly applied the Board’s precedent
setting forth the relevant legal standard for chapter 43 actions at the time he
issued his initial decision, s ubsequent to the initial decision, the Federal Circuit
held for the first time that , to support such an action, an agency “must justify
institution ” of a PIP by showing that the employee’s performance was
unacceptable prior to the same . Santos , 990 F.3d at 1360 -61. Therefore, to
defend an action under chapter 43, an agency now also must prove by substantial
evidence that the appellant’s performance during the appraisal period prior to the
PIP was unacceptable in one or more critical elements. See Lee v. Department of
Veterans Affairs , 2022 MSPB 11, ¶¶ 15-17. The Federal Circuit’s decision in
Santos applies to all pending cases, including this one, regardless of when the
events took place. Id., ¶ 16. We therefore remand this case for further
adjudication of the appellant’s demotion . See Santos , 990 F.3d at 1363 -64
(remanding the appeal for f urther proceedings under the modified legal standard);
see also Lee, 2022 MSPB 11, ¶ 16 (remanding the appellant’s chapter 43 appeal
because the parties were not informed of the modified standard set forth in
Santos ).
¶13 On remand, the administrative judge shall accept evidence and argument on
whether the agency proved by substantial evidence that the appellant’s
performance prior to the PIP was unacceptable. The administrative judge shall
hold a supplemental hearing if appropriate. The administrative judge shall then
issue a new initial decision consistent with Santos . If the agency makes the
additional showing required un der Santos on remand that the appellant’s
performance in at least one critical element was at an unacceptable level prior to
9
his placement on the PIP , the administrative judge may incorporate h is prior
findings on other elements of the agency’s case in the remand initial decision.
ORDER
¶14 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:
Washington, D.C. /s/ for
Jennifer Everling
Acting C lerk of the Board | SKEPPLE_CONRADO_W_AT_0432_16_0320_I_1_REMAND_ORDER_1952322.pdf | 2022-08-18 | null | AT-0432-16-0320-I-1 | NP |
4,185 | https://www.mspb.gov/decisions/nonprecedential/SCHOOLEY_JOHN_SF_0752_21_0265_I_1_FINAL_ORDER_1952378.pdf | UNITED STATES OF AME RICA
MERIT SYSTEMS PROTEC TION BOARD
JOHN SCHOOLEY,
Appellant,
v.
DEPARTMENT OF THE NA VY,
Agency.
DOCKET NUMBER
SF-0752 -21-0265 -I-1
DATE: August 18, 2022
THIS FINAL ORDER IS NONPRECEDENTIAL1
James J. Cunningham , Esquire, San Diego, California, for the appellant.
Richard D. Ruppe , Esquire, San Diego, California, for the agency.
BEFORE
Cathy A. Harris , Vice Chair man
Raymond A. Limon, Member
Tristan L. Leavitt, Mem ber
FINAL ORDER
¶1 The appellant has filed a petition for review of the initial decision, which
reduced him in grade from a GS -8 Lead Police Officer to GS -7 Police Officer .
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 valu e; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’ s case law. See 5 C.F.R. § 1201.117 (c).
2
the initial decision is based on an erroneous interpretation of statute or regulation
or the erroneous application of the law to the facts of the case; the administrative
judge’s rulings d uring either the course of the appeal or the initial decision
were not consistent with required procedures or involved an abuse of discretion,
and the resulting error affected the outcome of the case; or new and material
evidence or legal argument is avail able that, despite the petitioner’s due
diligence, was not available when the record closed. Title 5 of the Code of
Federal Regulations, section 1201.115 ( 5 C.F.R. § 1201.115 ). After fully
considering the filings in this appeal, we conclude that 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 RIG HTS2
You may obtain review of this final decision. 5 U.S.C. § 7703 (a)(1). By
statute, the nature of your claims determines the time limit for seeking such
review and the appropriate forum with which to file. 5 U.S.C. § 7703 (b).
Although we offer the following summary of available appeal rights, the Merit
Systems Protection Board does not provide legal advice on which option is most
appropriate for your situation and the rights described below do not represent a
statement of how cour ts will rule regarding which cases fall within their
jurisdiction. If you wish to seek review of this final decision, you should
immediately review the law applicable to your claims and carefully follow all
filing time limits and requirements. Failure to file within the applicable time
limit may result in the dismissal of your case by your chosen forum.
2 Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise which option is most appropriate in any matter.
3
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a p etition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703 (b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D .C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
4
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, o n unlawful discrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit ), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703 (b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. ____ , 137 S. Ct. 1975 (2017). If you have a
representative in this case, and your representative receives this decision before
you do, then you must file with the district court no later than 30 calendar days
after your representative receives this decision. If the action involves a claim of
discrimination based on race, color, religion, sex, national origin, or a disabling
condition, you may be entitled to representation by a court -appointed lawyer and
to waiver of any requirement of prepayment of fees, costs, or other security. See
42 U.S.C. § 2000e -5(f) and 29 U.S.C. § 794a .
Contact information for U.S. district courts can be found at their resp ective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702 (b)(1). You must file an y such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702 (b)(1). If you have a representative in this case,
and your rep resentative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EE OC is:
5
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302 (b)(8) or
other protected activities listed in 5 U.S.C. § 2302 (b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
disposition of allegations of a prohibited personnel practice described in section
2302(b) other than practices described in section 2 302(b)(8), or 2302(b)(9)(A)(i),
(B), (C), or (D),” then you may file a 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 pe tition 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 expi red on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Ap peals
for the Federal Circuit or any other circuit court 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 Circ uit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants be fore the 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:
Washington, D.C. /s/ for
Jennifer Everling
Acting Clerk of the Board | SCHOOLEY_JOHN_SF_0752_21_0265_I_1_FINAL_ORDER_1952378.pdf | 2022-08-18 | null | SF-0752-21-0265-I-1 | NP |
4,186 | https://www.mspb.gov/decisions/nonprecedential/ALMANZA_MICHELLE_L_AT_1221_16_0232_W_4_FINAL_ORDER_1952464.pdf | UNITED STATES OF AME RICA
MERIT SYSTEMS PROTEC TION BOARD
MICHELLE L. ALMANZA,
Appellant,
v.
DEPARTMENT OF JUSTIC E,
Agency.
DOCKET NUMBER
AT-1221 -16-0232 -W-4
DATE: August 18, 2022
THIS FINAL ORDER IS NONPRECEDENTIAL1
Michelle L. Almanza , Marietta, Georgia, pro se.
Robin M. Fields , Esquire, Washington, D.C., for the agency.
BEFORE
Cathy A. Harris , Vice Chairman
Raymond A. Limon , Member
Tristan L. Leavitt , Member
FINAL ORDER
¶1 On October 26, 2018, the appellant submitted a joint stipulation providing
for dismissal of her appeal as settled and a copy of the settlement agreement .
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
require d to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117 (c).
2
Petition for Review (PFR) File , Tab 1.2 For the reasons set forth below, we
DISMISS the appeal as settl ed.
¶2 The “SETTLEMENT AGREEMENT AND GENERAL RELEASE ”
submitted by the appellant was signed and dated by the appellant on
September 13, 2018, and by the agency on September 14, 2018. PFR File, Tab 1
at 10. The settlement agreement provides, among other thin gs, that the appellant
agreed to withdraw the above -captioned appeal in exchange for the promises
made by the agency. Id. at 4-10. The joint stipulation likewise provides that the
appellant agreed to dismissal of the above -captioned appeal with prejudice . Id.
at 19 -20.
¶3 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
enforce ment by the Board. See Mahoney v. U.S. Postal Service , 37 M.S.P.R.
146, 149 (1988). In addition, before accepting a settlement agreemen t 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
2 The initial decision in this matter dismissed the appeal without prejudice and provided
that the appeal must be refiled not sooner than March 1, 2018, and not later than
October 24, 2018. MSPB Docket No. AT-1221 -16-0232 -W-4, Initial Appeal File,
Tab 2, Initial Decision. On October 26, 2018, the appellant filed a submission,
“Request to Vacate Initial Decision per Settlement Agreement.” PFR File, Tab 1. The
Office of the Clerk of the Board issued a letter acknowledging the appellant’s
submission, stating that the submission was considered a petition for review pursuant to
the Board’s regulations and processing policies and would be referred to the Board’s
settlement program to facilitate the appel lant’s request . PFR File, Tab 2. On
November 20, 2018, the agency filed a pleading asserting that the appellant’s
submission had been inappropriately docketed as a petition for review, and that it was
apparent from the submission that the appellant was attempting to comply with her
obligation under the settlement agreement to notify the Board of the settlement, not to
file a petition for review. PFR File, Tab 3. On August 12, 2022, the agency filed a
renewed motion to dismiss, reiterating these argument s. PFR File, Tab 4. To the extent
the agency may be arguing that the settlement agreement should have been entered into
the record in the refiled appeal, rather than the petition for review record, this issue is
moot in light of our finding that the appe al should be dismissed as settled.
3
Massey v. Office of Personnel Management , 91 M.S.P.R. 289 , ¶ 4 (2002) ,
overruled on other grounds by Delorme v. Department of the Interior ,
124 M.S.P.R. 123 , ¶¶ 11 -21 (2017) ( holding that the Board may enforce
settlement agreements that have been entered into the record, independent of any
prior finding of Board jurisdiction over the underlying matter being settled).
¶4 Here, we find that the parties have entered into a settlement agreement,
understand its terms, and do not intend for the agreement to be entered into the
record for enforceme nt by the Board . PFR File, Tab 5 . As the parties do not
intend for the Board to enforce the settlement agreement, we need not address the
additional considerations regarding enforcement, and we do not enter the
settlement agreement into the record for enforcem ent by the Board.
¶5 In light of the foregoing , 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.
¶6 This is the final decision of the Merit Systems Protection Board in this
appeal. Title 5 of the Code of Federal Regulations, section 1201.113 ( 5 C.F.R.
§ 1201.113 ).
NOTICE OF APPEAL RIG HTS3
You may obtain review of this final decis ion. 5 U.S.C. § 7703 (a)(1). By
statute, the nature of your claims determines the time limit for seeking such
review and the appropriate forum with which to file. 5 U.S.C. § 7703 (b).
Although we offer the following summary of available appeal rights, the Merit
Systems Protection Board does not provide legal advice on which option is most
appropriate for your situation and the rights descr ibed 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 a ll
filing time limits and requirements. Failure to file within the applicable time
limit may result in the dismissal of your case by your chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that f orum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703 (b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is availabl e at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our 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
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703 (b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. ____ , 137 S. Ct. 1975 (2017). If you have a
representative in this case, and your representative receives this decision before
you do, then you must file with the district court no later than 30 calendar days
after your representative receives this decision. If the action involves a clai m of
discrimination based on race, color, religion, sex, national origin, or a disabling
condition, you may be entitled to representation by a court -appointed lawyer and
to waiver of any requirement of prepayment of fees, costs, or other security. See
42 U.S.C. § 2000e -5(f) and 29 U.S.C. § 794a .
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http:// www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702 (b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702 (b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
6
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a met hod requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302 (b)(8) or
other protected activities listed in 5 U.S.C. § 2302 (b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
disposition of allegations of a prohibited personnel practice described in
sectio n 2302(b) other than practices described in section 2302(b)(8), or
2302(b)(9)(A)(i), (B), (C), or (D),” then you may file a petition for judicial
review either with the U.S. Court of Appeals for the Federal Circuit or any court
of appeals of competent juri sdiction.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 com petent jurisdiction.
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 re view to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, a nd Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono represent ation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115 -195,
132 Stat. 1510.
8
Contact information for the court s of appeals can be found at their
respective websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
FOR THE BOARD:
Washington, D.C. /s/ for
Jennifer Everling
Acting Clerk of the Board | ALMANZA_MICHELLE_L_AT_1221_16_0232_W_4_FINAL_ORDER_1952464.pdf | 2022-08-18 | null | AT-1221-16-0232-W-4 | NP |
4,187 | https://www.mspb.gov/decisions/nonprecedential/JEANQUART_CRAIG_T_CH_0752_14_0565_I_1_FINAL_ORDER_1952001.pdf | UNITED STATES OF AME RICA
MERIT SYSTEMS PROTEC TION BOARD
CRAIG T. JEANQUART,
Appellant,
v.
DEPARTMENT OF VETERA NS
AFFAIRS,
Agency.
DOCKET NUMBER
CH-0752 -14-0565 -I-1
DATE: August 17, 2022
THIS FINAL ORDER IS NONPRECEDENTIAL1
Craig T. Jeanquart , Grand Chute, Wisconsin, pro se.
Scott Lawrence , Esquire, Minneapolis, Minnesota, for the agency.
BEFORE
Cathy A. Harris , Vice Chairman
Raymond A. Limon , Member
Tristan L. Leavitt , Member
FINAL ORDER
¶1 The appellant has filed a petition for review of the initial decision, which
sustained his removal. Generally, we grant petitions such as this one only when:
the initial decision contains erroneous findings of material fact; the initial
decision i s based on an erroneous interpretation of statute or regulation or 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
require d to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117 (c).
2
erroneous application of the law to the facts of the case; the administrative
judge’s rulings during either the course of the appeal or the initial decision were
not consistent with req uired procedures or involved an abuse of discretion, and
the resulting error affected the outcome of the case; or new and material evidence
or legal argument is available that, despite the petitioner’s due diligence, was not
available when the record close d. Title 5 of the Code of Federal Regulations,
section 1201.115 ( 5 C.F.R. § 1201.115 ). After fully considering the filings in this
appeal, we conclude that the petitioner has not established any basis under
section 1201.115 for granting the petition for review. Therefore, we DENY the
petition for review . Except as expressly MODIFIED by this Final Order to:
(1) find that the Board will not consider the appellant’s untimely raised claim that
he was subjected to double punishment for the same misconduct ; and (2) address
the appellant’s allegations on review that the administrative judge w as biased and
failed to provide him with adequate guidance as a pro se litigant , we AFFIRM the
initial decision.
BACKGROUND
¶2 Prior to his removal, the appellant served as an Advance Medical Support
Assistant with the agency’s Milwaukee Veterans Affairs He althcare System
Community -Based Outpatient Clinic (CBOC) in Appleton, Wisconsin . Initial
Appeal File (IAF), Tab 4 at 15-16. The appell ant’s spouse at the time was also an
agency employee at the CBOC.2 IAF, Tab 18 at 7. On April 29, 2013, the
appellant was arrested and charged with multiple criminal offenses in connection
with his off-duty domestic abuse of his former spouse , including strangulation
and suffocation , intimidating a v ictim/ use of attempted force, battery , and
disorderly condu ct. IAF, Tab 4 at 93, Tab 18 at 7. The appellant ple d guilty to
and was convicted of the felony charge of strangulation and suffocation . IAF,
Tab 4 at 93, Tab 13 at 13, Tab 18 at 7. The remaining charges were dismissed ,
2 The appellant and his former spouse have s ince divorced. IAF, Tab 18 at 7.
3
but were read in to the record and considered during the appellant’s sentencing .
IAF, Tab 4 at 93, Tab 13 at 14, Ta b 18 at 7.
¶3 The appellant was sentenced to probation and 8 months of jail time with
1 month of jail time imposed and 7 months stayed.3 IAF, Tab 13 at 11, Tab 18
at 7. The appellant’s sentence permitted work release, IAF, Tab 13 at 11, Tab 18
at 7, but on December 5, 2013, the agency denied his request to return to work
and informed him that it would consider him as being absent without leave while
he was serving his jail sentence , IAF, Tab 4 at 48, Tab 18 at 8.
¶4 Thereafter, the agency removed the appellant, effective April 21, 2014 ,
based on charges of absence without leave ( AWOL ) and conduct unbecoming a
Federal employee. IAF, Tab 4 at 21-23, 43-47. The AWOL charge arose from
the appellant’s absence from work during his jail sentence. Id. at 43 -45. The
conduct unbecoming charge arose from the appellant’s domestic abuse of his
former spouse on April 29, 2013 . Id. at 45-46. In addition to strangling and
suffocating his ex -wife, the agency alleged that the appellant hit her in the head,
kneed her in the back, bit her on the arm, and threatened to kill her if she called
the police .4 Id.
¶5 The appellant filed a timely Board appeal challenging his removal and
raised affirmative defenses that the agency violate d his due process rights and
committed harmful procedural error. IAF, Tab 1 at 1, 3, 5; Tab 18 at 8 -12. At
the commencement of the appellant’s requested hearing, the agency withdrew the
3 However, after serving 2 days in jail , the appellant was transferred to serve the
remainder of his sentence under house arrest. IAF, Tab 18 at 8.
4 Although the agency alleged that the appellant th reatened to kill his ex -wife, IAF,
Tab 4 at 46, the administrative judge properly found that, because the agency did not
charge the appellant with making a threat, it was no t required to prove the elements of a
threat charge set forth in Metz v. Department of the Treasury , 780 F.2d 1001 , 1004
(Fed. Cir. 1986) . IAF, Tab 48, Initial Decision at 7 n.1 ; see Otero v. U.S. Postal
Service , 73 M.S.P.R. 198, 200, 204 (1997) (finding that an administrative judge erred in
requiring an agency to meet the burden of proof for a threat charge when it charged an
appellant with “improper conduct” based on threatening remarks ).
4
AWOL charge. Hearing Compact Disc ( HCD ), Volume 1 (statement of agency
counsel) ; IAF, Tab 1 at 2 .
¶6 Following the hearing, the administrative judge issued an initial decision
sustaining the appellant’s removal. IAF, Tab 48, Initial Decision (ID). She found
that the agency proved the charge of conduct unbecoming a Federal employee.5
ID at 5 -9. She further found that the agency established a nexus between the
appellant’s misconduct and the efficiency of the service. ID at 9 -13. She found
that the appellant failed to prove that the agency violated his due process rights,
ID at 13 -14, or committed harmful procedural error , ID at 14 -16. Finally, she
found that the penalty of removal was reasonable for the sustained charge of
conduct unbecoming a Federal employee. ID at 16 -22.
¶7 The appellant has filed a petition for review of the initial decision, and the
agency has responded in opposition to the petition for review. Petition for
Review (PFR) File, Tabs 1 -3.6
DISCUSSION OF ARGUME NTS ON REVIEW
The agency establishe d a nexus between the charge of conduct unbecoming a
Federal employee and the efficiency of the service.
¶8 On review, the appellant challenges the administrative judge’s finding that
the agency established a nexus between his off-duty misconduct and the
efficiency of the service. PFR File, Tab 1 at 4. He contends that his domestic
abuse of his former spouse “had nothing to do with” the fact that she was an
agency employee and that “any reasonable person knows that the[re] is a big
5 Specifically, the administrative judge found that th e appellant was collaterally
estopped from relitigating the facts underlying his strangulation and suffocation
conviction before the Board , ID at 5 -6, and that the agency proved the remai ning
allegations in the charge and demonstrated that they constituted conduct unbecoming a
Federal employee, ID at 6 -9.
6 On review, the appellant does not challenge the administrative judge’s findings that
the agency proved the charge of conduct unb ecoming a Federal employee or that he
failed to prove that the agency vio lated his due process rights. PFR File, Tab 1. We
discern no basis to disturb these findings.
5
difference between what happens between a husband and a wife an d what happens
outside the home. ” Id.
¶9 An agency may show a nexus between off -duty misconduct and the
efficiency of the service by three means: (1) a rebuttable presumption of nexus
that may arise in certain egregious circumstances based on the nature and gravity
of the misconduct; (2) a showing by preponderant evidence that the misconduct
affects the employee ’s or h is coworkers ’ job performance, or management ’s trust
and confidence in the em ployee ’s job performance; and (3) a showing by
preponderant evidence that the misconduct interfered with or adversely affected
the agency ’s mission . Kruger v. Department of Justice , 32 M.S.P.R. 71, 74
(1987). We agree with the administrative judge that the violent and
life-threatening nature of the appellant’s misconduct in strangling, suffocating,
hitting, kneeing, bi ting, and threatening to kill his ex -wife , an agency employee,
was so egregious that a rebuttable presumption of nexus applies . See ID at 11;
see also Hayes v. Department of the Navy , 727 F.2d 1535 , 1536, 1539 (Fed. Cir.
1984) (sustaining the Board’s finding that a rebuttable presumption of nexus
applied when an employee committed off -duty assault and battery of a child);
Backus v. Office of Personnel Management , 22 M.S.P.R. 457 , 459-60 (1984)
(finding that a rebuttable presu mption of nexus applied when an employee shot,
but did not kill, his fiancée) ; Faint v. U.S. Postal Service , 22 M.S.P.R. 495 , 497
(1984) (finding that a rebuttable presumption of nexus applied whe n an employee
committed off-duty a ssault with a deadly weapon ), aff’d , 770 F.2d 179 (F ed. Cir.
1985) (Table) .
¶10 The appellant may rebut the presumption of nexus by introducing evidence
showing an absence of adverse effect on the efficiency of the service, in which
case the agency then has the burden of proving nexus without reliance on this
presumption. Backus , 22 M.S.P.R. at 460. Here, t he administrative judge
considered the appellant’s arguments that his immediate supervisors continued to
trust him, that his coworkers were purportedly un concerned about his arrest, and
6
that he performed satisfactorily in his position for 7 months between his arrest
and his removal and concluded that the se factors were insufficient to rebut the
presumption of nexus. ID at 11 -13; see IAF, Tab 15 at 10 , Tab 47 at 4, 6. We
agree. Among ot her things, the administrative judge correctly found that both the
proposing and deciding official s lost confidence in the appellant’s ability to
behave appropriately at work and that apprehension about the appellant returning
to work did not need to be sh ared by all coworkers to support a finding of nexus
based on the rebuttable presumption arising from egregious misconduct . ID
at 12; HCD, Volume 1 (testimony of the proposing official), Volume 3 (testimony
of the deciding official) ; see Backus , 22 M.S.P.R . at 460-61 (finding that an
agency established nexus based on an employee’s egregious misconduct whe n
only some of the individuals who worked with the employee were apprehens ive
about his return to work).
¶11 On review, the appellant re peats several of the arguments that he raised
below, including his claim s regarding his immediate supervisors and his 7 months
of satisfactory performance prior to his removal . PFR File, Tab 1 at 4 -5, 7-9.
His repetition of these arguments constitute s mere disagreement with the
administrative ju dge’s well -reasoned finding s, and do es not provide a basis to
disturb the initial decision. See Yang v. U.S. Postal Service , 115 M.S.P.R. 112 ,
¶ 12 (2010) (finding that mere disagreement with the administrative judge ’s
findings is insufficient to disturb the initial decision ); Crosby v. U.S. Postal
Service , 74 M.S.P.R. 98 , 106 (1997) (finding no reason to disturb an
administrative judge ’s findings when she considered the evidence as a whole,
drew appropriate inferences, and made reasoned conclusions).
¶12 Finally, we agree with the administrative judge that, even if the rebuttable
presumption of nexus w ere not applicable, the agency established nexus on the
basis that : (1) the appellant’s misconduct eroded senior management ’s trust and
confidence in his job performance ; and (2) when , as here, the appellant’s former
spouse was also an agency employee stationed at the same facility as the
7
appellant, the appellant’s misconduct conflicted with the agency’s mission of
providing a safe environment to treat sick and injured veterans . See ID at 12 -13;
see also Kruger , 32 M.S.P.R. at 75-76 (finding that an agency is not required to
demonstrate a specific impact on an employee’s job p erformance or service
efficiency to establish nexus whe n the employee’s misconduct conflict s with the
agency’ s mission). In sum, we discern no basis to disturb the administrative
judge’s finding that the agency established a nexus between the appellant’s
sustained misconduct and the efficiency of the service.
The administrative judge correctly found that the appellant failed to prove his
affirmative defense of harmful procedural error .
¶13 On review, the appellant contests the administrative judge’s findin g that he
failed to prove his affirmative defense that the agency committed harmful
procedural error when an agency Veterans Justice Outreach (VJO) Specialist
failed to refer his criminal case t o the Veteran s’ Treatment Court for a diversion
program . PFR File, Tab 1 at 5-6, 10 ; see IAF, Tab 18 at 11-12. The
administrative judge correctly found that the appellant failed to identify any
statute, rule, or regulation requiring a VJO Specialist to make such a referral. See
ID at 16. Furthermore, the agency presented testimony from a Milwaukee
Veterans Affairs Healthcare System (VAHS) Program Manager , who explained
that VJO Specialists merely provide information about the Veterans’ Treatment
Court to veterans ’ counsel in criminal matters and that VJO Speciali sts are not
expected to make referrals to the Veterans ’ Treatment Court .7 HCD , Volume 2
(testimony of the VAHS Program Manager ).
¶14 Even assuming that the agency committed an error in failing to refer the
appellant’s criminal case to the Veterans ’ Treatment Court , however, an agency
7 She further explained that the VJO Specialist in question was unable to provide VJO
services to the appellant due to a potential conflict of interest involv ing the appellant’s
ex-wife and that another VJO Specialist was assigned to the appellant . HCD , Volume 2
(testimony of the VAHS Program Manager ).
8
error is harmful only when the record shows that the 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. Hope v. Department of the Army ,
108 M.S.P.R. 6 , ¶ 8 (2008) . The appellant bears the burden of proving that the
error was harmful. Id.; 5 C.F.R. § § 1201.4 (r), 1201.56(c)( 1). Here, t he appellant
argued that, if he had been referred to the Veterans’ Treatment Court, he would
not have been convicted of a felony, and accordingly , the agency would not have
removed him. IAF, Tab 18 at 11. However, d uring the appellant’ s criminal
proceedings, he attempted to withdraw his guilty plea, arguing that he should
have been referred to the Veteran s’ Treatment Court prior to plea negotiation s.
IAF, Tab 38 at 6-7. The State of Wisconsin responded that it would not have
agreed to de fer the appellant’s prosecution if he had asked for a referral to the
Veteran s’ Treatment Court , id. at 7, and t he Outagamie County Circuit Court
denied the appell ant’s motion to withdraw his plea, finding that he failed to show
that referral to the Veterans’ Treatment Court would have prevented his criminal
conviction, id. Based on this evidence, the administrative judge properly found
that the appellant failed to establish that the agency’s alleged error in not
refer ring his criminal case to the Veterans’ Treatment Court was likely to have
caused the agency to have reach ed a different conclusion in his removal action.
See ID at 15-16.
¶15 On review , the appellant contends that the administrative judge failed to
understand the role of the Veterans’ Treatment Court and the harm that resulted
from the agency’s failure to refer hi s criminal case there prior to plea
negotiations. PFR File, Tab 1 at 5 -6. The initial decision reflects that the
administrative judge understood the appellant’s arguments regarding the
Veterans’ Treatment Court but nevertheless, correctly concluded that he failed to
prove his harmful procedural error claim . See ID at 14 -16. We have considered
the appellant’s remaining arguments on review pertaining to his harmful
procedural error claim , including his allegation that the VJO Specialist made
9
misrepresentations to his former spouse regarding the Veterans’ Treatment Court,
and hi s assertions that the VJO Specialist neglected her duties and was
incompetent, see PFR File, Tab 1 at 5 -6, and we find that they do not provide a
basis to disturb the initial decision.
We will not consider the appellant’s untimely raised claim that the a gency
subjected him to double punishment for the same misconduct.
¶16 On review, the appellant argues that the agency improperly subjected him to
double punishment when it refused to allow him to return to work under the work
release provision of his sentenc e and subsequently removed him based on the
misconduct underlying his criminal charges and conviction. PFR File, Tab 1
at 6-8. He further contends that the administrative judge erred in failing to
address this claim in the initial decision. Id. at 7.
¶17 We find that the administrative judge did not err in failing to adjudicate the
appellant’s claim that he was subjected to double punishment . An appellant may
raise a claim or defense that was not included in the appeal at any time before the
end of the conf erence or conferences held t o define the issues in the case but may
not raise a new claim or defense after that time, except for good cause shown.
5 C.F.R. § 1201.24 (b); see Roof v. Department of the Air Force , 53 M.S.P.R. 653 ,
658 (1992). Here, prior to the prehearing conference, the appellant did not raise a
claim that he was subjected to double punishmen t. IAF, Tabs 1, 15. Moreover,
the January 21, 2015 order and summary of prehearing conference described each
of the claims and affirmative defenses raised by the appellant and did not include
a claim that the ag ency subjected him to double punishment . IAF, Tab 18. The
appellant did not object to the prehearing conference summary, although the order
and summary of prehearing conference advised him that he had the right to do so.
Id. at 14.
¶18 Furthermore, on rev iew, the appellant has not attempted to explain his
failure to timely raise his claim that he was subjected to double punishment. PFR
File, Tab 1 at 6 -8. The appellant argued he was subjected to double punishment
10
for the first time in his closing brief f ollowing the hearing . IAF, Tab 47 at 8 -9.
However, he does not contend, either below or on review, th at he became aware
of the factual basis for his claim of double punishment for the first time at or after
the hearing. Id.; PFR File, Tab 1 at 6-8. Indeed, it was apparent from the agency
file, submitted more than 15 months prior to the hearing, that the agency refused
to allow the appellant to return to work during his sentence and that it
subsequently removed him based on the conduct underlying his criminal charges
and conviction. IAF, Tab 4 at 21 -23, 43 -48. Accordingly, we find that the
appellant failed to demonstrate good cause for his failure to timely raise the claim
that he was subjected to double punishment, and that the administrative judge
properly did not address the claim in the initial decision. See Burge v.
Department of the Air Force , 82 M.S.P.R. 75 , ¶ 7 n.2 (1999) (finding that an
administrative judge properly declined to address a claim raised by an appellant
when he failed to establish good cause for his failure to timely raise the claim
prior to the end of the conference to define the issues in the case). Finally , when ,
as here, the appellant has not demonstrated good cause for his failure to timely
raise a claim below, we will not consider the appellant ’s arguments regarding the
merits of that claim on review. See 5 C.F.R. § 1201.24 (b) (providing that an
appellant may not raise a new claim or defense after the prehearing conference,
except for good cause shown).
The administrative judge correctly found that the penalty of removal was
reasonable.
¶19 As previously stated, t he agency withdrew the AWOL charge at the
beginning of the hearing, and therefore, the Board did not sustain all of the
charges that formed the basis for the agency’s decision to remove the appellant .
See HCD , Volume 1 ( statement of agency counsel). When the Board does not
sustain all of the charges, it will carefully consider whether the sustained charges
merit the penalty imposed by the agency. See Boo v. Department of Homeland
Security , 122 M.S.P.R. 100 , ¶ 17 (2014). If the agency does not indicate that it
11
desires a lesser penalty to be imposed on fewer charges, the Board may mitigate
to the maximum reasonable penalty if a careful balancing of the mitigating factors
warrants, or the Board may impose the same penalty imposed by the agency based
on justification of that penalty as the maximum reasonable penalty after balancing
those factors . Lachance v. Devall , 178 F.3d 1246 , 1260 (Fed. Cir. 1999).
¶20 Here, the agency did not indicate that it would have imposed a lesser
penalty in th e absence of the AWOL charge . To the contrary, the deciding
official testified that he would hav e removed the appellant based solely on the
charge of conduct unbecoming a Federal employee . HCD Volume 3 (testimony of
the deciding official). The administrative judge conducted a detailed analysis and
concluded that the deciding official considered the appropriate factors under
Douglas v. Veterans Administration , 5 M.S.P.R. 280 , 305 -06 (1981), and that the
penalty of removal was reasonable.8 ID at 16-22. We agree.
¶21 In evaluating whether a penalty is reasonable, the Board will consider, first
and foremost, the nature and seriousn ess of the misconduct . Neuman v. U.S.
Postal Service , 108 M.S.P.R. 200 , ¶ 23 (2008) . We agree with the deciding
official and the administrative judge that the appellant’s off-duty misconduct of
violence toward s his ex -wife, an agency employee, which included strangling and
suffocating her, was extremely serious . See HCD, Volume 3 (testimony of the
deciding official) ; IAF, T ab 4 at 24 -25; ID at 17.
¶22 We further agree wit h the administrative judge that, although the
appellant’s immediate supervisors did not believe that his removal was necessary ,
8 In so finding, the administrative judge determined that the appellant failed to prove
his disparate p enalties claim. ID at 19 -20. Our decision in Singh v. U.S. Postal
Service , 2022 MSPB 15, ¶ 14, issued after the initial decision in t his appeal, clarifies
that the relevant inquiry for assess ing a claim of disparate penalties when weighing the
reasonableness of a penalty is whether the agency knowingly and unjustifiably treated
employees who engaged in the same or similar offenses diffe rently. There is no
evidence in the record to indicate that the agency did so in this case. On review, t he
appellant does not challenge the administrative judge’s finding regarding his disparate
penalties claim , PFR File, Tab 1, and we d iscern no basis t o disturb it.
12
the fact that both the proposing and deciding officials lost confidence in the
appellant’s ability to refrain from violence in the workplace weighed in favor of
his removal.9 See ID at 19; HCD, Volume 1 (testimony of the proposing official),
Volume 3 (testimony of the deciding official) ; see also Talavera v. Agency for
International Development , 104 M.S.P.R. 445 , ¶ 12 (2007) (finding that an
agency ’s loss of trust in an employee is a significant aggravating fa ctor). The
Board has found that it is appropriate it defer to a deciding official’s opinion over
that of an immediate supervisor, when as a headquarters official, a deciding
official has an arguably broader view of the effect of the employee ’s misconduct
upon the agency as a whole. Topper v. Department of Justice , 70 M.S.P.R. 69 , 77
(1996) ; see also Ahr v. Department of Justice , 23 M.S.P.R. 238 , 241 (1984)
(sustain ing an appellant’s removal when another supervisory agency employee ,
but not the appellant’s immediate supervisor, had lost trust and confidence in the
appellant’s ability to conduct himself appropriately). In addition, the
administrative judge properly considered the fact that the appellant’s immediate
supervisors had n ot reviewed the police report or other materials pertaining to the
April 29, 2013 incident and were not fully aware of the violent and severe nature
of the appellant’s misconduct.10 See ID at 18 -19; HCD Volume 3 (testimony of
the deciding official) . We ha ve considered the appellant’s numerous arguments
on review regarding the opinio ns of his immediate supervisors and find that they
9 On review, the appellant contends that the administrative judge mistakenly stated that
his immediate supervisors asserted that they had lost confidence in his ability to
perform his duties. PFR File, Tab 1 at 9. To the contrary, the admin istrative judge
specifically recognized that the appellant’s immediate supervisors had not lost
confidence in him. ID at 19.
10 The appellant’s argument on review that the proposing and deciding officials also did
not review the police report does not provide a basis to disturb the initial decision. PFR
File, Tab 1 at 8 -9. Regardless of whether they actually read the police report, the
record reflects that the proposing and deciding official s were familiar with the details
contained in the report and the nature of the appellant’s misconduct. IAF, Tab 4
at 24-25.
13
do not provide a basis to disturb the initial decision . PFR File, Tab 1 at 4 -5, 8-9;
see Yang , 115 M.S.P.R. 112 , ¶ 12; Crosby , 74 M.S.P.R. at 106.
¶23 On review, the appellant also contends that the administrative judge and the
deciding official erred in finding that he had poor potential for rehabilitation .
PFR File, Tab 1 at 4 , 9-10. We disagree. The administrative judge and deciding
official properly found that t he appellant ’s attempts to rationalize and minimize
his violent and abusive behavior reflect ed poor potential for rehabilitation. See
ID at 20-21; HCD, Volume 3 (testimony of the deciding official) ; see also
Neuman , 108 M.S.P.R. 200 , ¶ 26 (finding that an appellant ’s rationalizations and
lack of remorse indicated little potential for rehabilitation and were aggravating
factors). For example, inexplicably, the appellant attempted to justify his abuse
of his former spouse by claiming that it was instigated by an incident in which a
coworker attempted to sexually molest her. IAF, Tab 15 at 6, Tab 47 at 9 -10. He
further argued that prior to the incident, his ex -wife “made intimidat ing jabs and
kicks” at him, yelled at him “for a number of minutes ,” and claimed that she only
required “limited” medical care for the injuries that he caused . IAF, Tab 15 at 8,
12, Tab 47 at 9-10, 12. We have considered the appellant’s arguments on review
regarding his potential for rehabilitation, including but not limited to his
assertions that he completed a domestic violence program and that his former
spouse believes that he is making progress with his mental health , his claims
regarding his successful co -parenting relationship with his ex -wife , and his
detailed description of a recent incident in which he removed a dead mouse from
her house and find that they do not provide a basis to disturb the initial decision.
PFR F ile, Tab 1 at 4, 9-10.
¶24 The administrative judge also considered mitigating factors, including the
appellant’s assertion that he suffered from major depressive disorder, and his lack
14
of prior discipline during more than 2 years of Federal service .11 ID at 21-22.
However, she properly concluded that they did not outweigh the significant
aggravating factors at issue here. ID at 21-22. In sum, we agree with the
administrative judge that the penalty of removal was reasonable for the
appellant’s sustained misconduct .
The appellant ’s allegations that the administrative judge was biased and failed to
provide him with adequate guidance as a pro se litigant do not provide a basis to
disturb the initial decision .
¶25 On review, t he appellant argues that the administrative judge was biased
against him becaus e he chose to represent himself and because he asked witnesses
difficult questions at the hearing. PFR File, Tab 1 at 11. A claim of bias must be
raised as soon as practicable after a party has reason able cause to believe that
grounds exist for an administrative judge ’s disqualification on such basis, and a
party cannot wait until after the adjudication is complete to object for the first
time. Gensburg v. Department of Veterans Affairs , 85 M.S.P.R. 198 , ¶ 7 (2000);
see 5 C.F.R. § 1201.42 (b). Thus, the appell ant’s bias claim is untimely raised.
Moreover, even if we were to consider this claim , his conclusory allegations
would be insufficient to overcome the presumption of honesty and integrity that
accompanies administrative adjudicators . See Simpkins v. Off ice of Personnel
Management , 113 M.S.P.R. 411 , ¶ 5 (2010) (finding that an appellant’s
conclusory allegations of bias were insufficient to overcome the presumption of
honesty and integrity that accompanies an administrative judge ); Oliver v.
Department of Transportation , 1 M.S.P.R. 382 , 386 (1980) (finding that i n
11 For the first time on review, the appellant asserts that he suffers from anxiety as well
as major depressive disorder. PFR File, Tab 1 at 9 -10. The Board will not consider an
argument rais ed for the first time in a petition for review absent a showing that it is
based on new and material evidence not previously available despite the party’ s due
diligence. Banks v. Department of the Air Force , 4 M.S.P.R. 268 , 271 (1980). The
appellant has not made such a showing here. Although he contends that he did not
realize that he should discuss his mental health because he was proceeding pro se ,
PFR File, Tab 1 at 9, he raised arguments below regarding his major depressive
disord er, IAF, Tab 15 at 7, 10.
15
making a claim of bias or prejudice against an administrative judge, a party must
overcome the presumption of honesty and integrity that accompani es
administrative adjudicators ).
¶26 We also have considered the appellant’s argument that the administrative
judge erred in failing to provide him with sufficient guidance and assistance as a
pro se litigant and find it unpersuasive . PFR File, Tab 1 at 9 . Although
administrative judges are obligated to provide more guidance to pro se appellants
and interpret their arguments in the most favorable light, see Miles v. Department
of Veterans Affairs , 84 M.S.P.R. 418 , ¶ 10 (1999), the affirmative responsibility
to present relevant evidence is fundamentally that of the parties, Richardson v.
Department of Justice , 11 M.S.P.R. 186 , 195 (1982). Here, the administrative
judge advised the appellant regarding the relevant issues and burdens of proof ,
and the appellant had the opportunit y to present evidence at the hearing. IAF,
Tab 18 at 1-12. Under the circumstances, we discern no error in the level of
guidance that the administrative judge provided to the appellant. See Smith v.
U.S. Postal Service , 81 M.S.P.R. 443 , ¶ 8 (1999) (finding that, although an
administrative judge should provide appropriate guidance to a pro se appellant ,
she is not to be an adversary or advocate in doing so).
¶27 In conclusion, for this reason and the reasons discussed above, we find that
the appellant has not provided a reason to disturb the initial decision sustaining
his removal.
NOTICE OF APPEAL RIGHTS12
The initial decision, as supplemented by this Final Order, constitutes the
Board’s final decision in this matter. 5 C.F.R. § 1201.113 . You may obtain
review of this final decision. 5 U.S.C. § 7703 (a)(1). By statute, the nature of
12 Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review rights included in final decisio ns. As indicated in the notice, the
Board cannot advise which option is most appropriate in any matter.
16
your claims determines the time limit for seeking such review and the appropriate
forum with which to file. 5 U.S.C. § 7703 (b). Although we offer the following
summary of available appeal rights, the Merit Systems Protection Board does not
provide legal advice on which option is most appropriate for your situation and
the rights described b elow do not represent a statement of how courts will rule
regarding which cases fall within their jurisdiction. If you wish to seek review of
this final decision, you should immediately review the law applicable to your
claims and carefully follow all fil ing time limits and requirements. Failure to file
within the applicable time limit may result in the dismissal of your case by your
chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies t o your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judic ial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703 (b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
17
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any a ttorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and tha t such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703 (b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. ____ , 137 S. Ct. 1975 (2017). If you have a
representative in this case, and your representative receives this decision before
you do, then you must file with the district court no later than 30 calendar days
after your representative receives this decision. If the action involves a claim of
discrimination based on race, color, religion, sex, national origin, or a disabling
condition, you may be entitled to representation by a court -appointed lawyer and
to waiver of any requirement of prepayment of fees, costs, or other security. See
42 U.S.C. § 2000e -5(f) and 29 U.S.C. § 794a .
Contact information for U.S. district courts can be found at their resp ective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
18
Alternatively, you may request review by the Equal Employm ent
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702 (b)(1). You must file any such request with the
EEOC’s Office of Federal Operation s within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702 (b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is:
Office of Federal Operations
Equal Employment Op portunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunit y Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclos ures under 5 U.S.C. § 2302 (b)(8) or
other protected activities listed in 5 U.S.C. § 2302 (b)(9)(A)(i), (B), (C), or (D) .
If so, and your judicial petition for review “raises no challenge to the Board’s
disposition of allegations of a prohibited personnel practice described in section
2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i),
(B), ( C), or (D),” then you may file a petition for judicial review either with the
U.S. Court of Appeals for the Federal Circuit or any court of appeals of
19
competent jurisdiction.13 The court of appeals must receive your petition for
review within 60 days of the date of issuance of this decision. 5 U.S.C.
§ 7703 (b)(1)(B).
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D .C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
13 The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court o f Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115 -195,
132 Stat. 1510.
20
Contact information for the courts of appeals can be found at their
respective websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator /CourtWebsites.aspx .
FOR THE BOARD:
Washington, D.C. /s/ for
Jennifer Everling
Acting Clerk of the Board | JEANQUART_CRAIG_T_CH_0752_14_0565_I_1_FINAL_ORDER_1952001.pdf | 2022-08-17 | null | CH-0752-14-0565-I-1 | NP |
4,188 | https://www.mspb.gov/decisions/nonprecedential/BARBER_DAVID_G_PH_0752_13_5792_I_5_FINAL_ORDER_1951651.pdf | UNITED STATES OF AME RICA
MERIT SYSTEMS PROTEC TION BOARD
DAVID G. BARBER,
Appellant,
v.
SOCIAL SECURITY
ADMINISTRATION,
Agency.
DOCKET NUMBER
PH-0752 -13-5792 -I-5
DATE: August 16, 2022
THIS FINAL ORDER IS NONPRECEDENTIAL1
John Walton, Jr. , Bear Creek, Pennsylvania, for the appellant.
Ronald V. Santora , Esquire, Forty Fort, Pennsylvania, for the appellant.
Andrew Lynch , Esquire and James McTigue , Esquire, Philadelphia,
Pennsylvania, for the agency.
BEFORE
Cathy A. Harris , Vice Chairman
Raymond A. Limon , Member
Tristan L. Leavitt , Member
FINAL ORDER
¶1 The appellant has filed a petition for review of the initial decision, which
sustained his removal . Generally, we grant petitions such as this one only in the
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117 (c).
2
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 aff ected the outcome of the case; or new and
material evidence or legal argument is available that, despite the petitioner’s due
diligence, was not ava ilable when the record closed. Title 5 of the Code of
Federal Regulations, section 1201.115 ( 5 C.F.R. § 1201.115 ). After fully
considering the filings in this appeal, we conclude that the petitioner has not
established any basis under section 1201.115 for granting the petition for review.
Therefore, we DENY the petition for review and AFFIRM the initial decision,
which is now the Board’s final decision. 5 C.F.R. § 1201.113 (b).
BACKGROUND
¶2 The agency removed the appellant from his Customer Services Technician
position on the charge of conduct unbecoming a Federal employee. Barber v.
Social Security Administration , MSPB Docket No. PH -0752 -13-5792 -I-5, Appeal
File (I -5 AF), Tab 11 at 100 -08. The charge contained two specif ications
regarding the appellant’s collection of Supplemental Security Income (SSI)
benefits as the designated payee on behalf of his minor son. Id. at 92 -93.
Specification 1 claimed that the appellant failed to report to the SSI program that
he had earnings from his employment with the agency from September 2008 , until
December 2010. Id. at 92. Specification 2 claimed that , during the same time
period, the appellant continued to collect SSI benefits for his minor child while
earning income from his employment with the agency, resulting in an
overpayment in benefits. Id.
¶3 In April 2011, the agency’s SSI office issued a notice of overpayment to the
appellant. I-5 AF, Tab 21 at 39-44. The appellant requested reconsideration of
3
the determination , id. at 51 -53, which was denied , id. at 54 -56. H e then requested
a hearing. Id. at 64. Around the same time, the agency launched an investigation
into the overpayment claim . I-5 AF, Tab 11 at 7 6-91. A fter the investigation
concluded , the agency issued a notice of proposed removal to which the appellant
responded. Id. at 92-99, 101 . On August 1, 2013, the agency issued the final
decision , sustaining both specification s of the charge and removing the appellant
from his position. Id at 100-08. The appellant filed an appeal with the Board ,
arguing that, pursuant to his employment letter he received when he began
employment with the agency, he reported his new income to the SSI program on
September 17, 2008, by calling an 800 number, and therefore, he did not fail to
report, as charged in specification 1, and had no reason to believe he was
receiving an overpayment of benefits , as charged in specification 2. Barber v.
Social Security Administration , MSPB Docket No. PH -0752 -13-5792 -I-1, Initial
Appeal File, Tab 1 at 3.
¶4 After a hearing, the administrative judge issued an initial decision
sustaining both specifications of the charge and upholding the removal. I-5 AF,
Tab 32, Initial Decision (ID) at 11 , 14. After providing a lengthy an alysi s of the
appellant’s credi bility, the administrative judge found that the appellant’s account
of the alleged September 17, 200 8 telephone call was not credible. ID at 7. He
also found that the appellant had not done enough to meet the reporting
requireme nts and likely knew or should have known he was receiving an improper
windfall from the SSI benefits. ID at 8 -11. After a full analysis , the
administrative judge concluded that the agency met its burden regarding the
charge , nexus, and penalty of removal . ID at 12 -14. He also found that potential
due process issues that arose during the deciding official’s testimony were
remedied by later testimony . ID at 14.
¶5 The appellant has filed a petition for review challenging the administrative
judge’s credibi lity findings and claiming that the agency violated his due process
rights. Petition for Review (PFR) File, Tab 1 at 7 -17. The agency has filed an
4
opposition to the appellant’s petition, to which the appellant has replied. PFR
File, Tabs 5-6. The Board also has accepted into the record an April 4, 2017
Notice of Decision from the Office of Disability Adjudication and Review
(ODAR) regarding the appellant’s challenges to the original SSI overpayment
determination , and the agency has filed a response to t he submission. PFR File,
Tabs 7 -9.
DISCUSSION OF ARGUME NTS O N REVIEW
¶6 Generally, an agency is required to prove its charges in an adverse action
appeal by preponderant evidence. 5 U.S.C. § 7701 (c)(1)(B). A charge of conduct
unbecoming has no specific elements of proof; the ag ency establishes the charge
by proving the appellant committed the acts alleged under this broad label.
Canada v. Department of Homeland Security , 113 M.S.P.R. 509 , ¶ 9 (2010). On
review, the appellant challenges the administrative judge’s credibility findings
regarding his testim ony about the alleged September 17 , 2008 telephone call.2
PFR File, Tab 1 at 7 -10.
¶7 When an administrative judge has held a hearing and has made credibility
determinations that were explicitly or implicitly based on the witness’s demeanor
while testifyin g, the Board must defer to those credibility determinations and may
overturn such determinations only when it has “sufficiently sound” reasons for
doing so . Haebe v. Department of Justice , 288 F.3d 1288 , 1301 (Fed. Cir. 2002) ;
Gardner v. Department of Veterans Affairs , 123 M.S.P.R. 647 , ¶ 15 (2016). Here,
the administrative judge’s credibility findings were comprehensive,
well-analyzed, and appropriately based on the factors set forth in Hillen v.
Department of the Army , 35 M.S.P.R. 453 , 458 (1987). ID at 5 n.3, 7-11. He
2 The appellant’s argument relates solely to specification 1 of the charge. He does not
appear to dispute that he received SSI paymen ts for his minor child while earning
income from his employment with the agency, resulting in an overpayment in benefits;
rather, he claims that he properly reported his income as required by the agency and by
the SSI program. ID at 5 -6; PFR File, Tab 6 at 1.
5
discussed, in detail, internal inconsistencies in the appellant’s own testimony and
external inconsistencies between his testimony and other record eviden ce. ID
at 7-8. The administrative judge also discussed the inherent improbability of the
appellant’s testimony by highlighting certain implausible facts that would have to
be presumed if he were to credit the appellant’s version of ev ents. Id. Moreover,
on at least two occasions, the administrative judge discussed the appellant’s
demeanor, noting that , upon certain lines of questioning, the appellant would
become an gry and evasive. ID at 8, 10. Because the administrative judge’s
credibility determinations were, in part, based explicitly on the appellant’s
demeanor at the hearing, we must defer to these findings absent “sufficiently
sound” reasons . See Haebe , 288 F.3d at 1301; see also Gardner , 123 M.S.P.R.
647, ¶ 15.
¶8 Here, t he appellant’s assertions on review do not persuade us to encroach on
the deference owed to the administrative judge’s credibility determ inations. The
appellant asserts that his Verizon telephone record, which was submitted at the
hearing, should be sufficient evidence to substantiate his claim that he properly
reported his income during the September 17, 2008 telephone call. PFR File,
Tab 1 at 7; I-5 AF , Tab 11 at 73 -74. The appellant also asserts that it was this
document alone that formed the basis of the U.S. Attorney’s Office’s decision to
decline Federal prosecution on the matter. PFR File, Tab 1 at 7. However, the
administrativ e judge gave this evidence due c onsideration and weighed it against
other factors determinative of credibility before reaching an ultimate conclusion
on the appellant’s credibility. ID at 7 -8. We find that the appellant has not
provided a sufficiently so und reason to disturb the administrative judge’s
credibility determinations, and without any such reason, those determinations will
not be disturbed.3
3 Although the ODAR administrative law judge found that the September 17, 2008
phone call occurred and that the appellant reported hi s earnings during the call , we are
not bound by those findings and conclusions. PFR File, Tab 7 at 9; see Nash v. Office
6
¶9 The appellant also argues on review that the agency violated his due process
rights. First, he argues that the agency removed him from his position prior to the
completion of his overpa yment case with the SSI program. PFR File, Tab 1 at 10.
While this assertion is true, the agency’s removal case was not dependent upon
the outcome of the overpayment case . Neither specification of the charge against
the appellant claimed any specific amount o f overpayment. Rather, the agency
charged him with failing to report his income and , thus, receiving an overpayment
of SSI benefits . I-5 AF , Tab 11 at 92.4 Along with providing the appellant with
the opportunity to respond, of which he availed himself, id. at 98, 101, t he notice
of proposed r emoval was c lear in providing detailed notice of the charge’s
specification s and did not rely on the status of the overpayment pr oceedings, see
id. at 92 -95. As such, we find that the agency ’s removal process did not violate
the appellant’s due process rights. See Cleveland Board of Education v.
Loudermill , 470 U.S. 532 , 546 (1985) (providing that a tenured , public employee
is entitled to prior notice and an opportunity to respond before being deprived of
a property righ t in continued employment).
¶10 The appellant also argues that the agency violated his due process rights
because it did not conduct any further investigation after it received the report
from the Office of the Inspector General (OIG) but before the time it issued the
notice of proposed r emoval . PFR File, Tab 1 at 12. Based on our review of the
of Personnel Management , 92 M.S.P.R. 527 , ¶¶ 9 -10 (2002). Regardless of whether the
September 17, 2008 telephone call occurred and whether the appellant adequately
reported his income during that telephone call, he nonetheless concedes that he made no
attempt to report the salary increases he received on January 4, 2009, August 30, 2009,
January 3, 2010, and August 29, 2010. PFR File, Tab 6 at 1. This further supports the
administrative judge’s finding regarding specification 1 that the appellant had not done
enough to meet the reporting requirements. ID at 8 -11.
4 The ODAR Notice of Decision ultimately found the appellant to be responsible for a
lesser amount of overpayment than what was detailed in the agency’s notice of
proposed r emoval . PFR File, Tab 7 at 9-11. Nonetheless, the Notice of Decision
similarly concluded that the appellant failed to report his income on several occasions,
resulting in an overpayment of SSI benefits . Id. at 10 -12.
7
record, it appears the appellant raises this issue for the first time on review, and
as such, the Board will not consider it absent any new or material i nformation.
Banks v. Department of the Air Force , 4 M.S.P.R. 268 , 271 (1980) ; 5 C.F.R.
§ 1201.115 (d). Nonetheless, we note that the appellant’s allegation is contrary to
the record evidence. The OIG issued its report in October 2012, and the agency
formally interviewed the appellant on January 31, 2013, prior to issuing the
notice of proposed removal. I-5 AF, Tab 11 at 76-81, 88-91. Because the
appellant’s argument conflicts with record evidence , and he has not provided any
new or material information, we find this claim provides no basis for disturbing
the init ial decision .
¶11 The appellant further asserts that the deciding official failed to act
independently in the final decision to remove him. PFR File, Tab 1 at 13. This
claim appears to be based on the deciding official’s testimony that the decision to
remove the appellant “wasn’t just her decision” and that “she did her own
investigation.” Id.; ID at 14. The administrative judge considered this testimony
but found no due process violation . ID at 14 . He explained that the deciding
official further testified that her “invest igation” was merely reviewing the paper
file, which consisted of the documentation reflecting the overpayments , and that
any input she received was from the appellant’s supervisor via the proposal letter
(which the supervisor drafted) and human r esources personnel confirming that
removal was the standard penalty for this type of conduct . ID at 14.
¶12 Although an appellant’s right to due process can extend to ex parte
information provided to a deciding official, only ex parte communications that
introduce new and material information to the deciding official constitute due
process violations. Ward v. U.S. Posta l Service , 634 F.3d 1274 , 1279-80 (Fed.
Cir. 2011); Stone v. Federal Deposit Insurance Corporation , 179 F.3d 1368 ,
1376 -77 (Fed. Cir. 1999) . Here, we find no evidence that the paper file reviewed
by the deciding official contained any information other than the o verpayment
documentation with which the appellant was already familiar . Further, it would
8
be illogical to conclude that a review of the proposal notice provided any new and
material information to which the appellant did not have an opportunity to
respond, particularly consideri ng that he did, in fact, respond to the notice.
I-5 AF, Tab 11 at 99, 101. Finally , our reviewing court has held that a deciding
official’s contact with other agency employees to confirm or clarify information
already in the record does not violate the appellant’s due process rights. Blank v.
Department of the Army , 247 F.3d 12 25, 1229 (Fed. Cir. 2001). Here, the
proposal notice stated that the appellant’s penalty of removal was consistent with
the penalty imposed upon other emp loyees for similar offenses. I -5 AF, Tab 11
at 97. The deciding official testified that her contact with the human resources
representative was to confirm the penalty of removal. I-5 AF , Tab 30, Hearing
Compact Disc (testimony of the deciding official) ; ID at 14. Thus, pursuant to
Blank , we find no due process violation.
¶13 We have considered the appel lant’s arguments on review but have
concluded that a different outcome is not warranted. Accordingly, we affirm the
initial decision.
NOTICE OF APPEAL RIG HTS5
You may obtain review of this final decision. 5 U.S.C. § 7703 (a)(1). By
statute, the nature of your claims determines the time limit for seeking such
review and the appropriate forum with which to file. 5 U.S.C. § 7703 (b).
Although we offer the following summary of available appeal rights, the Merit
Systems Protection Board does not provide legal advice on which option is most
appropriate for your situation and the rights described b elow do not represent a
statement of how courts will rule regarding which cases fall within their
jurisdiction. If you wish to seek review of this final decision, you should
5 Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise which option is most appropriate in any matter.
9
immediately review the law applicable to your claims and carefully follow all
filing time limits and requirements. Failure to file within the applicable time
limit may result in the dismissal of your case by your chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies t o your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judic ial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703 (b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any a ttorney will accept representation in a given case.
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 tha t such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703 (b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. ____ , 137 S. Ct. 1975 (2017). If you have a
representative in this case, and your representative receives this decision before
you do, then you mus t file with the district court no later than 30 calendar days
after your representative receives this decision. If the action involves a claim of
discrimination based on race, color, religion, sex, national origin, or a disabling
condition, you may be entitled to representation by a court -appointed lawyer and
to waiver of any requirement of prepayment of fees, costs, or other security. See
42 U.S.C. § 2000e -5(f) and 29 U.S.C. § 794a .
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702 (b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702 (b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is:
11
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial revi ew pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302 (b)(8 ) or
other protected activities listed in 5 U.S.C. § 2302 (b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
disposition of allegations of a prohibited personnel practice described in section
2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i),
(B), (C), or (D),” then you may file a petition for judicial review either with the
U.S. Court of Appeals for the Fe deral Circuit or any court of appeals of
competent jurisdiction.6 The court of appeals must receive your petition for
review within 60 days of the date of issuance of this decision. 5 U.S.C.
§ 7703 (b)(1)(B).
6 The original statutory provision that provided for judi cial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for j udicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court 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 Petitione rs and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our websi te at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney w ill accept representation in a given case.
Contact information for the courts of appeals can be found at their
respective websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
FOR THE BOARD:
Washington, D.C. /s/ for
Jennifer Everling
Acting Clerk of the Board | BARBER_DAVID_G_PH_0752_13_5792_I_5_FINAL_ORDER_1951651.pdf | 2022-08-16 | null | PH-0752-13-5792-I-5 | NP |
4,189 | https://www.mspb.gov/decisions/nonprecedential/HARRIS_TERRI_L_AT_0752_17_0017_I_2_FINAL_ORDER_1951129.pdf | UNITED STATES OF AME RICA
MERIT SYSTEMS PROTEC TION BOARD
TERRI L. HARRIS,
Appellant,
v.
UNITED STATES POSTAL SERVICE,
Agency.
DOCKET NUMBER
AT-0752 -17-0017 -I-2
DATE: August 15, 2022
THIS FINAL ORDER IS NONPRECEDENTIAL1
Harvey G. Orr , Riverdale, Georgia, for the appellant.
Tammie Philbrick , Esquire, Atlanta, Georgia, for the agency.
BEFORE
Cathy A. Harris , Vice Chairman
Raymond A. Limon , Member
Tristan L. Leavitt , Member
FINAL ORDER
¶1 The agency has filed a petition for review of the initial decision, which
reversed the appellant’s suspension and ordered the agency to retroactively
reassign the appellant to the position of Administrative Assistant. On review, the
agency argues that re assigning the appellant to the Administrative Assistant
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
require d to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117 (c).
2
position would constitute a promotion and therefore it would not constitute a
reasonable accommodation. Generally, we grant petitions such as this one only in
the following circumstances: the initial decision contains erroneous findings of
material fact; the initial decision is based on an erroneous interpretation of statute
or regulation or the erroneous a pplication of the law to the facts of the case; the
administrative judge’s rulings during either the course of the appeal or the initial
decision were not consistent with required procedures or involved an abuse of
discretion, and the resulting error affec ted the outcome of the case; or new and
material evidence or legal argument is available that, despite the petitioner’s due
diligence, was not available when the record closed. Title 5 of the Code of
Federal Regulations, section 1201.115 ( 5 C.F.R. § 1201.115 ).
¶2 In her response to the agency’s petition for review, the appellant asserts that
the agency engaged in a prohibited ex parte communication with the Office of the
Clerk of the Board concerning the merits of this appeal. Petition for Review File,
Tab 4 at 22 -24. However, the communication she describes concerns a discussion
over the proper docket number of this appeal, not the merits. Such a
communication is not a prohibited ex part e communication. Moreover, because it
appears that there may be some confusion over the proper docket number of this
appeal, we take this opportunity to offer some clarification.
¶3 The appellant filed two appeals relating to her extended absence from the
agency. The first was a denial of res toration appeal, which was assigned MSPB
Docket No. AT -0353 -17-0665 -I-1. The second was a constructive suspension
appeal, which was assigned MSPB Docket No. AT -0752 -17-0017 -I-1. The
administrative judge dismissed the c onstructive suspension appeal without
prejudice and, when it was refile d, it was assigned MSPB Docket No. AT -0752 -
17-0017 -I-2. The administrative judge joined the two appeals for adjudication
and issued a single initial decision in which he denied the den ial of restoration
appeal and found in the appellant’s favor in the constructive suspension appeal.
Neither party filed a petition for review of the initial decision as it pertained to
3
the denial of restoration appeal, and the initial decision became the final decision
of the Board as to that appeal on March 12, 2018. The agency filed a petition for
review of the constructive suspension appeal, and that is the appeal to which this
decision pertains. The correct docket number is indicated in the case capt ion
above . Both parties mistakenly filed pleadings pertaining to MSPB Docket
No. AT-0752 -17-0017 -I-2 with the incorrect docket number, i.e., MSPB Docket
No. AT -0353 -17-0665 -I-1. However, it is apparent that the administrative judge
considered pleadings f rom both files, and we also have considered the record in
both appeals in reaching our decision.
¶4 After fully considering the filings in this appeal, we conclude that the
petitioner has not established any basis under section 1201.115 for granting the
petit ion for review. Therefore, we DENY the petition for review and AFFIRM
the initial decision, which is now the Board’s final decis ion.
5 C.F.R. § 1201.113 (b).
ORDER
¶5 We ORDER the agenc y to cancel the appellant’ s suspension and
retroactively reassign the appellant to the position of Administrative Assistant,
EAS -12, effective September 3, 2016. See Kerr v. National Endowment for the
Arts, 726 F.2d 730 (Fed. Cir. 1984). The agency must complete this action no
later than 20 days after the date of this decision.
¶6 We also ORDER the agency to pay the appellant the correct amount of back
pay, interest on back pay, and other benefits under the Back Pay Act and/or Postal
Service regulations, as appropriate, no later than 60 calendar days after the date
of this decision. We ORDER the appellant to cooperate in good faith in the
agency’s efforts to calculate the amount of back pay, interest, and benefits due,
and to provide all necessary information the agency requests to help it carry out
the Board’s Order. If there is a dispute about the amount of back pay, interest
4
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.
¶7 We further ORDER the agency to tell the appellant p romptly 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).
¶8 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 ini tial 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 shou ld include the dates and results of
any communications with the agency. 5 C.F.R. § 1201.182 (a).
¶9 For agencies whose payroll is administered by either the National Finance
Center of the D epartment 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 APPELL ANT REGARDING
YOUR RIGHT TO REQUES T
ATTORNEY FEES AND CO STS
You may be entitled to be paid by the agency for your reasonable attorney fees
and costs. To be paid, you must meet the requirements set forth at title 5 of the
United States Code (5 U.S.C.), secti ons 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 a ttorney fees
5
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 APPELL ANT
REGARDING YOUR RIGHT TO REQUEST
COM PENSATORY 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 enjoym ent 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 d ecision on your appeal.
NOTICE OF APPEAL RIG HTS2
You may obtain review of this final decision. 5 U.S.C. § 7703 (a)(1) . By
statute, the nature of your claims determines the time limit for seeking such
review and the appropriate forum with which to file. 5 U.S.C. § 7703 (b).
Although we offer the following summar y of available appeal rights, the Merit
Systems Protection Board does not provide legal advice on which option is most
appropriate for your situation and the rights described below do not represent a
statement of how courts will rule regarding which cases fall within their
jurisdiction. If you wish to seek review of this final decision, you should
immediately review the law applicable to your claims and carefully follow all
2 Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise which option is most appropriate in any matter.
6
filing time limits and requirements. Failure to file within the applicable time
limit may result in the dismissal of your case by your chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703 (b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of partic ular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
7
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by a n action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703 (b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. ____ , 137 S. Ct. 1975 (2017). If you have a
representative in this case, and your representative receives this decision before
you do, t hen you must file with the district court no later than 30 calendar days
after your representative receives this decision. If the action involves a claim of
discrimination based on race, color, religion, sex, national origin, or a disabling
condition, you may be entitled to representation by a court -appointed lawyer and
to waiver of any requirement of prepayment of fees, costs, or other security. See
42 U.S.C. § 2000e -5(f) and 29 U.S.C. § 794a .
Contact information for U.S. district courts can be found at th eir respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702 (b)(1) . You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702 (b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, th e
address of the EEOC is:
8
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302 (b)(8) or
other protected activities listed in 5 U.S.C. § 2302 (b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
disposition of allegations of a prohibited personnel practice described in
section 2302(b) other than practices des cribed in section 2302(b)(8), or
2302(b)(9)(A)(i), (B), (C), or (D),” then you may file a 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 m ust 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 co urt of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115 -195,
132 Stat. 1510.
9
If you submit a petition for judicial review to the U.S. Court of Appeals f or
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the 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:
Washington, D.C. /s/ for
Jennifer Everling
Acting Clerk of the Board
DEFENSE FINANCE AND ACCOUNTING SERVICE
Civilian Pay Operations
DFAS BACK PAY CHECKLIST
The following documentation is required by DFAS Civilian Pay to compute and pay back pay
pursuant to 5 CFR § 550.805. Human resources/local payroll offices should use the following
checklist to ensure a request for payment of back pay is complete. Missin g documentation may
substantially delay the processing of a back pay award. More information may be found at:
https://wss.apan.org/public/DFASPayroll/Back%20Pay%20Process/Forms/AllItems.aspx.
NOTE: Attorneys’ fees or other non -wage payments (such as d amages) 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 Remed y 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 DF AS 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 severan ce pay received by the employee upon separation.
Lump Sum Leave Payment Debts: When a separation is later reversed, there is no authority
under 5 U.S.C. § 5551 for the reinstated employee to keep the lump sum annual leave payment
they may have received. The payroll office must collect the debt from the back pay award. The
annual leave will be restored to the employee. Annual leave that exceeds the annual leav e
ceiling will be restored to a separate leave account pursuant to 5 CFR § 550.805(g).
NATIONAL FINANCE CEN TER CHECKLIST FOR BA CK PAY CASES
Below is the information/documentation required by National Finance Center to process
payments/adjustments agreed on in Back Pay Cases (settlements, restorations) or as ordered by
the Merit Systems Protection Board, EEOC, and courts .
1. Initiate and submit AD -343 (Payroll/Action Request) with clear and concise information
describing what to do in accordance with decisi on.
2. The following information must be included on AD -343 for Restoration:
a. Employee name and social security number.
b. Detailed explanation of request.
c. Valid agency accounting.
d. Authorized signature (Table 63).
e. If interest is to be included.
f. Check mailing address.
g. Indicate if case is prior to conversion. Computations must be attached.
h. Indicate the amount of Severance and Lump Sum Annual Leave Payment to be
collected (if applicable).
Attachments to AD -343
1. Provide pay entitlement to include O vertime, 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, FL SA, 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. | HARRIS_TERRI_L_AT_0752_17_0017_I_2_FINAL_ORDER_1951129.pdf | 2022-08-15 | null | AT-0752-17-0017-I-2 | NP |
4,190 | https://www.mspb.gov/decisions/nonprecedential/MILLER_RICHARD_L_DE_0831_14_0340_M_1_REMAND_ORDER_1951251.pdf | UNITED STATES OF AME RICA
MERIT SYSTEMS PROTEC TION BOARD
RICHARD L. MILLER,
Appellant,
v.
OFFICE OF PERSONNEL
MANAGEMENT,
Agency.
DOCKET NUMBER
DE-0831 -14-0340 -M-1
DATE: August 15, 2022
THIS ORDER IS NONPRECEDENTIAL1
Richard L. Miller , Colorado Springs, Colorado, pro se.
Jane Bancroft , Washington, D.C., for the agency.
BEFORE
Cathy A. Harris , Vice Chairman
Raymond A. Limon , Member
Tristan L. Leavitt , Member
REMAND ORDER
¶1 The appella nt has filed a petition for review of the initial decision, which
remanded his retirement appeal to the Office of Personnel Management (OPM)
for recalculation of his Civil Service Retirement System (CSRS) annuity ,
consistent with the order issued by the U.S. Court of Appeals 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
require d to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117 (c).
2
Federal Circuit (Federal Circuit) . 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 er roneous
interpretation of statute or regulation or the erroneous application of the law to
the facts of the case; the administrative judge’s rulings during either the course
of the appeal or the initial decision were not consistent with required procedures
or involved an abuse of discretion, and the resulting error affected the outcome
of the case; or new and material evidence or legal argument is available that,
despite the petitioner’s due diligence, was not available when the record closed.
Title 5 of t he 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 and REMAND the case to OPM for furth er adjudication in accor dance
with this Remand Order.
BACKGROUND
¶2 As the Board noted previously, the appellant has a complicated history of
civilian and military service that began in 1970 and concluded in 2012. Miller v.
Office of Personnel Management , 124 M.S.P.R. 62, ¶ 2 (2016), aff’d in part,
rev’d in part, and remanded , 903 F.3d 1274 (Fed. Cir. 2018). The appellant
retired fro m Federal service in 2012. Miller v. Office of Personnel Management ,
MSPB Docket No. DE-0831 -14-0340 -I-1, Initial Appeal File ( IAF), Tab 4 at 5.
In a March 28, 2014 reconsideration decision, OPM granted the appellant’s
application for immediate CSRS reti rement, but excluded several periods from
his creditable civilian service computation. Id. at 5-7.
¶3 The appellant filed an appeal of OPM’s March 28, 2014 reconsideration
decision. IAF, Tab 1. The administrative judge issued an initial decision finding
that the appellant was entitled to civilian service credit for part of the disallowed
period and potentially entitled to civilian service credit for the remainder of that
period; therefore, he remanded the case to OPM for consideration of the
3
outstanding iss ue regarding the appellant’s creditable service and recalculation
of the appellant’s annuity. IAF, Tab 22, Initial Decision (ID) at 7 -9. OPM filed
a petition for revie w of the initial decision. Miller v. Office of Personnel
Management , MSPB Docket No. DE-0831 -14-0340 -I-1, Petition for Review
(PFR) File, Tab 1. In a precedential opinion, the Board reversed the initial
decision and affirmed OPM’s reconsideration decision. Miller , 124 M.S.P.R. 62,
¶¶ 1, 20.
¶4 The appellant appealed the Board’s decision to the Federal Circuit. Miller ,
903 F.3d at 1276 -77. The Federal Circuit issued a precedential decision,
affirming the Board’s dec ision in part, reversing in part, and remanding for
further adjudication consistent with its orders therein. Id. at 1277, 1286. The
court concluded that, for the periods of June 21 to June 30, 1982 (period one) ,
and August 27 to October 25, 1990 (period two), the appellant had performed
concurrent military and civilian service and that he was entitled to CSRS credit
for his civilian service, even if he also received credit towards his military
retirement for his military service performed during those per iods. Id.
at 1282 -85. The court further held that, for the final period at issue, August 22,
1994, to December 22, 1995 (period three) , the appellant had performed military
service with no concurrent civilian service and he was barred, under 5 U.S.C.
§ 8332 (c)(2), from receiving civilian service credit for that military service
because he had not made a deposit or waived his military retirement pay for this
period. Miller , 903 F.3d at 1285 -86. The Federal Circuit ordered the Board to
remand the appeal to OPM for recalculation of the appellant’s CSRS retirement
annuity consistent with those findings . Id. at 1286.
¶5 After the matter was re manded to the Denver Field Office , the
administrative judge issued a close of record order, indicating his intent to
remand the matter to OPM, consistent with the Federal Circuit’s order, and
allowing the parties an opportunity to object to his order. Miller v. Office of
Personnel Management , MSPB Docket No. DE-0831-14-0340 -M-1, Appeal File
4
(M-1 AF), Tab 3. Both parties submitted responses. M -1 AF, Tabs 6, 8. In his
close of record submission, the appellant agreed that OPM should be ordered to
recalculate his annuity based on his creditable civilian services for periods one
and two. M-1 AF, Tab 6 at 5-6. He also did not dispute that he was not entitled
to have his military service from period three credited towards his CSRS service
computation. Id. However, he argued that he was entitled to various refunds of
“overpayments” OPM collected from him relating to its erroneous disallowance
of civilian service credit for periods one and two and to a refund of his
“contributions,” such as his CSRS retirement, healthcare, and military deposit
payments, that he paid to and/or were collected by his former employing agency
during period three. Id. at 7-9. After considering the parties submissions, the
administrative judge issued an initial decision, remanding the matter to OPM for
recalculation of the appellant’s CSRS re tirement annuity. M-1 AF, Tab 9, Initial
Decision (M -1 ID) at 1 -3.
¶6 The appellant has filed a petition for review. Miller v. Office of Personnel
Management , MSPB Docket No. DE-0831 -14-0340 -M-1, Petition for Review
File ( M-1 PFR File), Tab 1. OPM has file d a pro forma response, to which the
appellant has replied. M -1 PFR File, Tabs 5 -6.
DISCUSSION OF ARGUME NTS ON REVIEW
The Board will consider the appellant’s new evidence submitted on review.
¶7 On review, the appellant has filed a letter from OPM dated Janu ary 3, 2019,
in which OPM notified the appellant that, based on his additional service
performed for periods one and two, his net CSRS monthly annuity increased to
$2,016.2 M-1 PFR File, Tab 1 at 13. He also submits his response to OPM’s
2 The letter from OPM is dated January 3, 2018. M -1 PFR File, Tab 1 at 13. However,
OPM appears to have made a typographical error regarding the date because the record
reflects that it was issued on January 3, 2019. Th e letter references the Federal
Circuit’s decis ion regarding this matter, Miller , 903 F.3d 1274 , which was issued on
September 10, 2018. M -1 PFR File, Tab 1 at 13. The appellant also notes in his
5
letter, in which he continues to claim entitlement to a refund of contributions in
connection with his civilian employment from period three. Id. at 14 -17.
¶8 Under 5 C.F.R. § 1201.115 , the Board generally will not consider evidence
submitted for the first time with the petition for review absent a showing that it
was unavailable before the record was closed despite the party’s due diligence.
Avansino v. U.S. Postal Service , 3 M.S.P.R. 211 , 214 (1980). The appellant has
made this showing. OPM did not issue the January 3, 2019 letter until after the
initial decision’s is suance. M-1 PFR File, Tab 1 at 13; M -1 ID at 1. The
appellant responded promptly to OPM’s letter in writing and acted with due
diligence in submitting this documentation to the Board. M -1 PFR File, Tab 1
at 3-4, 14 -17, Tab 2 at 1 n.*. Therefore, we consider t his evidence on review.
The Board lacks jurisdiction to consider the appellant’s challenges to OPM’s
January 3, 2019 letter.
¶9 On review, the appellant asserts that OPM has recalculated his annuity to
account for his creditable civilian service for periods one a nd two and
“refund [ed] . . . the alleged overpayment,” as ordered by the Federal Circuit.
M-1 PFR File, Tab 1 at 7. However, he argues that OPM failed to refund his
CSRS contributions, insurance payments, and military deposit collected by his
former employer during period three.3 Id. at 7-11.
¶10 Generally, the Board has jurisdiction over OPM determ inations affecting an
appellant’ s rights and interests under CSRS only after OPM has issued a final
decision in the matter. Reid v. Office of Personnel Mana gement , 120 M.S.P.R.
83, ¶ 6 (2013) ; see 5 U.S.C. § 8347 (d)(1) ; 5 C.F.R. § 831.110 . However, the
absence of a reconsideration decision does not preclude Board review of a
retirement decision when OPM fails to advise the appellant of his right to requ est
response to OPM that the letter was issued on January 3, 2019. Id. at 14. We therefore
find that OPM issued the letter on January 3, 2019.
3 The Federa l Circuit found that the appellant did not make a military deposit relating to
his military service performed in period three. Miller , 903 F.3d at 128 5-86.
6
a reconsideration decision and does not intend to issue any fu rther decision on
the appellant’ s application. Reid , 120 M .S.P.R. 83 , ¶ 6. In such a case, the
Board will consider the totality of the circumstances to find that OPM’ s failure
to act constitutes an appealable administrative action affecting the appellant’ s
rights under Federal retirement laws . Okello v. Office of Personnel Management ,
120 M.S.P.R. 498 , ¶ 15 (2014).
¶11 OPM’s January 3, 2019 letter did not address the appellant’s refund claims
concerning period three, indicate that it wa s a final decision by OPM on the
matter, or apprise the appellant of his right to request reconsideration. M -1 PFR
File, Tab 1 at 13. The appellant contended that he has undergone nearly 6 years
of litigation to obtain his requested relief from OPM. M -1 AF, Tab 6 at 6 -7; see
Okello , 120 M.S.P.R. 498 , ¶¶ 15-16 (finding that OPM’s failure to act for 6 years
constituted an appealable administrative action because the appellant diligently
sought a final decision during that time period) . However, as the appellant
recognized, the primary issue before OPM was his creditable service
computation, which the Federal Circui t resolved in its 2018 decision . M -1 AF,
Tab 6 at 9; see Miller , 903 F.3d at 1274, 1276 -77, 1286 . The appellant’s
credible service computation is distinct from the issue of whether he is entitled
to a refund of his CSRS contributions and military deposit. See Forsythe v.
Office of Personnel Management , 85 M.S.P.R. 593 , ¶ 10 (2000) (finding that the
question of whether the appellant’s CSRS contributions should be retained in the
retirement fund or refunded to him was a distinct issue from his entitlement to
civilian service credit for his concurrent military and civilian servic e). The
appellant has not presented information indicating that, since the resolution of
the creditable service computation issue and OPM had an opportunity to squarely
address the appellant’s refund claims, OPM has improperly refused or delayed
issuing a reconsideration decision addressing his refund request . Under these
circumstances, it is more appropriate to allow OPM the opportunity to express its
opinion on these issues in the first instance. See Hasanadka v. Office of
7
Personnel Management , 116 M.S.P.R. 636 , ¶¶ 20-22 (2011) (finding no undue
delay by OPM in not issuing a reconsideration decision on a matter raised by the
appellant that was distinct from the issue the Board directed OPM to address on
remand). We therefore f ind that OPM’s failure to issue a reconsideration
decision does not constitute an appealab le administrative action and that the
Board lacks jurisdiction over the appellant’s refund claims.
ORDER
¶12 For the reasons discussed a bove, we remand this case to OPM in accordance
with the Federal Circuit’s September 10, 2018 order for issuance of a new final
decision addressing the recalculation of the appellant’s CSRS retirement annuity
and for issuance of a final decision addressing the appellant’s refund request .
OPM shall advise the appellant in any new final decision addressing the above
issues of his right to file an appeal with the Board’s Denver Field Office if he
disagrees with that decision. See Litzenberger v. Office of Personnel
Management , 88 M.S.P.R. 419 , 424 (2 001).
¶13 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).
¶14 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 d id 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
8
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:
Washington, D.C. /s/ for
Jennifer Everling
Acting Clerk of the Board | MILLER_RICHARD_L_DE_0831_14_0340_M_1_REMAND_ORDER_1951251.pdf | 2022-08-15 | null | DE-0831-14-0340-M-1 | NP |
4,191 | https://www.mspb.gov/decisions/nonprecedential/BOURNES_DERRICK_SF_0752_16_0103_I_1_FINAL_ORDER_1951373.pdf | UNITED STATES OF AME RICA
MERIT SYSTEMS PROTEC TION BOARD
DERRICK BOURNES,
Appellant,
v.
DEPARTMENT OF THE AR MY,
Agency.
DOCKET NUMBER
SF-0752 -16-0103 -I-1
DATE: August 15, 2022
THIS FINAL ORDER IS NONPRECEDENTIAL1*
Bobby R. Devadoss , Esquire, Dallas, Texas, for the appellant.
Dawn Dobbs , Esquire and James L. Paul , Esquire , Schofield Barracks,
Hawaii, for the agency.
BEFORE
Cathy A. Harris , Vice Chairman
Raymond A. Limon , Member
Trista n L. Leavitt , Member
FINAL ORDER
¶1 The appellant has filed a petition for review of the initial decision, which
sustained his removal. Generally, we grant petitions such as this one only when:
the initial decision contains erroneous findings of material fact; the initial
decision is based on an erroneous interpretation of statute or regulation or 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
require d to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117 (c).
2
erroneous application of the law to the facts of the case; the administrative
judge’s rulings during either the course of the appeal or the initial decision were
not consistent with required procedures or involved an abuse of discretion, and
the resulting error affected the outcome of the ca se; or new and material evidence
or legal argument is available that, despite the petitioner’s due diligence, was not
available when the record closed. Title 5 of the Code of Federal Regulations,
section 1201.115 ( 5 C.F.R. § 1201.115 ). After fully considering the filings in this
appeal, we conclude that the petitioner has not esta blished any basis under
section 1201.115 for granting the petition for review. Therefore, we DENY the
petit ion for review and AFFIRM the initial decision, which is now the Board’s
final decision. 5 C.F.R. § 1201.113 (b).
BACKGROUND
¶2 Effective October 31, 2015, the agency removed the appella nt from his
position as Police Officer based on a charge of misconduct of a sexual nature.
Initial Appeal File (IAF), Tab 5 at 13 -14. The agency based the charge on five
incidents involving the appellant’s interactions with two women. Id. at 18 -20.
The agency cited the Army Anti -Harassment Policy for the Workplace, dated
April 27, 2011, when proposing the appellant’s removal. Id.
¶3 The appellant filed an appeal with the Board challenging the agency’s
removal action. IAF, Tab 1. He argued that he had no t engaged in the charged
misconduct, that the agency had denied him his due process rights, and that he
was removed because of his race and sex . IAF, Tab 25, Initial Decision (ID)
at 3-17. After the appellant withdrew his request for a hearing, the admin istrative
judge issued an initial decision based on the written record sustaining four of the
five charged specifications, rejecting the appellant’s affirmative defenses, and
affirming the removal action. ID at 1 -28. The appellant has filed a petition for
review, which the agency has opposed . Petition for Review (PFR) File, Tabs 1, 4.
3
DISCUSSION OF ARGUME NTS ON REVIEW
¶4 On review, the appellant asserts that : (1) the agency did not prove its
charge, ( 2) the administrative judge made improper credibility determinations,
(3) the agency violated his due process rights by refusing to consider his
attorney’s reply to the charge , (4) the agency violated his due process rights by
allowing the proposing and deciding officials to be a part of the investigation int o
his conduc t and not allowing the investigation to be conducted by an uninterested
third party , and (5) he has new evidence that calls into question the credibility of
one of his accusers. PFR File, Tab 1 at 3.
¶5 The appellant failed to argue before the ad ministrative judge that the agency
violated his due process rights by allowing the proposing and deciding officials to
be a part of the investigation into his conduct and not allowing the investigation
to be conducted by an uninterested third party . IAF, Tabs 1, 9 , 16, 23. The
Board generally will not consider an argument raised for the first time in a
petition for review absent a showing that it is based on new and material evidence
not previously available despite the party’s due diligence. Banks v. De partment
of the Air Force , 4 M.S.P.R. 268 , 271 (1980). Because the appellant made no
such showing regarding this new due process argument, we will n ot consider it on
review.
¶6 The appellant argued that the administrative judge’s credibility
determinations should be reversed because he has new evidence , in the form of an
affidavit of an alleged witness to one of the incidents of purported misconduct,
that calls into que stion the credibility of his first accuser. PFR File, Tab 1 at 3.
The Board generally will consider new evidence only upon a showing that,
despite the petitioner’s due diligence, the evidence was not available when the
record closed. 5 C.F.R. § 1201.115 (d). To constitute new evidence, the
information contained in the documents, not just the documents themselves, must
have been unavailable despite due diligence when the record closed. Id.
Regarding his burden to show that this evidence previously was not available
4
despite his du e diligence, the appellant stated in his petition for review that he
“was unable to obtain a statement from this individual before the recor d closed.”
PFR File, Tab 1 at 3. Such a bare allegation is insufficient to establish that the
appellant could not have obtained an affidavit from the witness prior to the record
closing had he exercised due diligence. See Terry v. Equal Employment
Oppor tunity Commission , 111 M.S.P.R. 258 , ¶ 8 (2009) . Moreover, the
administrative judge , in the initial decision, took note of the appellant’s assertion
that this witness was present at one of the alleged instances of misconduct. ID
at 12-13. Because the appellant was aware of the information contained in the
affidavit before the record closed, the evidence is not new. See Gursslin v. U.S.
Postal Service , 102 M.S.P.R. 427 , ¶ 9 (2006). Accordingly, we will not consider
the evidence on revie w.
¶7 The appellant also alleges on review that there were witnesses who could
have confirmed that the first accuser engaged in improper conversations with the
intent of luring individuals into making inappropriate remarks. PFR File, Tab 1
at 3. The appell ant has failed to show that these alleged witnesses could not have
been called at hearing or provided affidavits prior to the record closing below ,
nor has he submitted evidence establishing that such witnesses actually exist.
Accordingl y, we find that t his assertion is not a basis for disturbing the initial
decision .
¶8 The appellant also aver s that the administrative judge gave too much weight
to the first accuser’s former military occupation as a chaplain’s assistant when
making his credibility determin ations . Id. When, as here, no hearing was held
and the administrative judge’s findings were based solely on the written record,
the Board will give those findings only the weight warranted by the record and
the strength of his conclusions. Donato v. Dep artment of Defense , 34 M.S.P.R.
385, 389 (1987). In this case , the administrative judge’s credibility findings were
appropriately based on the factors set forth in Hillen v. Department of the Army ,
35 M.S.P.R. 453 , 458 (1987). ID at 7 -8, 10-11, 14 -15. The initial decision
5
reflect s that the administrative judge relied upon the specificity and consistency
of the accuser’s statements , as well as partial corroboration by another , in making
his credib ility determinations concerning the first accuser. Id. Although the
administrative judge , in the initial decision, briefly mentioned the first accuser’s
job title, ID at 5, t here is no indication that the administrative judge gave any
special credence to the first accuser’s former occupation when making his
credibility determinations. Id. Accordingly, we find the appellant’s challenge to
the administrative judge’s credibility findings unavailing .
¶9 The appellant also broadly alleges on review that the age ncy did not prove
its charge. PFR File, Tab 1 at 3. He has failed to identify any specific evidence
in the record that demonstrates error in the administrative judge’s findings. Id.
The administrative judge thoroughly examined each specification of the sole
charge, weighed and discussed the evidence, and determined that the agency met
its burden of proof to sustain four of the charge’s five specifications. ID at 3-17.
He also considered and discussed record evidence in finding that the agency
demonstrated a nexus to the efficiency of the service and that the penalty of
removal was reasonable. ID at 25 -28. We find that the appellant’s generalized
assertion on revi ew amounts to nothing more than mere disagreement with these
conclusions, and we find no basis to disturb these findings. See, e.g., Crosby
v. U.S. Postal Service , 74 M.S.P.R. 98 , 105 -06 (1997) (finding no reason to
disturb the administrative judge’s findings when she considered the evidence as a
whole, drew appropriate inferences, and made reasoned conclusions); Broughton
v. Departm ent of Health & Human Services , 33 M.S.P.R. 357 , 359 (1987) (same).
¶10 Finally, the appellant argues on review, as he did below, that the deciding
official violated his due process rights by refusing to consider his attorney’s
written rebuttal to the charge before making his decision . PFR File, Tab 1 at 3.
The administrative judge considered this argument but noted that , in his
declaration under penalty of perjury, the deciding official stated that he did in
fact consider the appellant’s attorney’s rebuttal to the charge. ID at 18.
6
Accordingly, the administrative judge found no merit to the appe llant’s allegation
that the agency refused to consider his response. ID at 20 -21. Although the
deciding official stated in his notice of decision that he did not receive a reply
from the appellant, IAF, Tab 5 at 13, we agree with the administrative judge that
his declaration under penalty of perjury sufficiently demonstrates otherwise.
IAF, Tab 24 at 41 -43.
¶11 We have considered the appellant’s arguments on review but have
concluded that a different outcome is not warranted. Accordingly, we affirm the
initial decision.
NOTICE OF APPEAL RIG HTS2
You may obtain review of this final decision. 5 U.S.C. § 7703 (a)(1). By
statute, the nature of your claims determines the time limit for seeking such
review and the appropriate forum with which to file. 5 U.S.C. § 7703 (b).
Although we offer the following summary of available appeal rights, the Merit
Systems Protection Board does not provide legal advice on which option is most
appropriate for your situation and the rights described below do not represent a
statement of how courts will rule regarding which cases fall within their
jurisdiction. If you wish to seek review of this final decision, you should
immediately review the law applicable to your claims and carefully follow all
filing time limits and requirements. Failu re to file within the applicable time
limit may result in the dismissal of your case by your chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have que stions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
2 Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise w hich option is most appropriate in any matter.
7
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must f ile a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703 (b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washin gton, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probo no for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
8
receive this decision. 5 U.S.C. § 7703 (b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. ____ , 137 S. Ct. 1975 (2017). If you have a
representative in this case, and your representative receives this decision before
you do, then you must file with the district court no later than 30 calendar days
after your representative receives this decision. If the action involves a claim of
discrimination based on race, color, religion, sex, national origin, or a disabling
condition, you may be entitled to representation by a court -appoi nted lawyer and
to waiver of any requirement of prepayment of fees, costs, or other security. See
42 U.S.C. § 2000e -5(f) and 29 U.S.C. § 794a .
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed thro ugh the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702 (b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receiv e
this decision. 5 U.S.C. § 7702 (b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Wash ington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
9
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5S W12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302 (b)(8) or
other protected activities listed in 5 U.S.C. § 2302 (b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no cha llenge to the Board’s
disposition of allegations of a prohibited personnel practice described in section
2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i),
(B), (C), or (D),” then you may file a petition for judicial review either with the
U.S. Court of Appeals for the Federal Circuit or any court of appeals of
competent jurisdiction.3 The court of appeals must receive your petition for
review within 60 days of the date of issuance of this decision. 5 U.S.C.
§ 7703 (b)(1)(B).
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
3 The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit cou rt 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 “G uide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit , you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor war rants that
any attorney will accept representation in a given case.
Contact information for the courts of appeals can be found at their
respective websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
FOR THE BOARD:
Washington, D.C. /s/ for
Jennifer Everling
Acting Clerk of the Board | BOURNES_DERRICK_SF_0752_16_0103_I_1_FINAL_ORDER_1951373.pdf | 2022-08-15 | null | SF-0752-16-0103-I-1 | NP |
4,192 | https://www.mspb.gov/decisions/nonprecedential/CRUZ_DORIS_J_NY_0752_16_0218_I_1_FINAL_ORDER_1951381.pdf | UNITED STATES OF AME RICA
MERIT SYSTEMS PROTEC TION BOARD
DORIS J. CRUZ,
Appellant,
v.
UNITED STATES POSTAL SERVICE,
Agency.
DOCKET NUMBER
NY-0752 -16-0218 -I-1
DATE: August 15, 2022
THIS FINAL ORDER IS NONPRECEDENTIAL1
Alberto Ortiz , San Juan, Puerto Rico, for the appellant.
Anthony V. Merlino , Esquire, New York, New York, for the agency.
BEFORE
Cathy A. Harris , Vice Chairman
Raymond A. Limon , Member
Tristan L. Leavitt , Member
FINAL ORDER
¶1 The appellant has filed a petition for review of the initial decision, which
dismissed for lack of jurisdiction her involuntary disability retirement appeal .
Generally, we grant petitions such as this one only when: the initial decision
contains er roneous findings of material fact; the initial decision is based on an
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or dis tinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117 (c).
2
erroneous interpretation of statute or regulation or the erroneous application of
the law to the facts of the case; the administrative judge’s rulings during either
the course of the ap peal or the initial decision were not consistent with required
procedures or involved an abuse of discretion, and the resulting error affected the
outcome of the case; or new and material evidence or legal argument is available
that, despite the petitioner ’s due diligence, was not ava ilable when the record
closed. Title 5 of the Code of Federal Regulations, section 1201.115 ( 5 C.F.R.
§ 1201.115 ). After fully considering the filings in t his appeal, we conclude that
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 following facts are undisputed. The appellant was employed by the
Post Office as a Distribution and Window Clerk. Initial Appeal File ( IAF),
Tab 11, Initia l Decision (ID) at 2. She applied for disability retirement on June 1,
2015 . Id. Her last day in pay status was October 2, 2014. Id. On October 31,
2015, she filed a formal complaint of discrimination with her agency’s Equal
Employment Opportunity (EEO) office alleging that: (1) on May 22, 2015, she
received a fitness -for-duty letter , and (2) beginning on June 26, 2015 , and
continuing, management delayed the process of her medical forms, prolonging her
return to work. Id. Shortly thereafter, on November 13, 2015, the Office of
Personnel Management (OPM) approved her disability retirement application. Id.
¶3 On January 21, 2016, an EEO Services Analyst notifie d the appellant that
her EEO complaint was amended to include the claim that, as a result of ongoing
harassment based on retaliation for prior EEO activity, she was subjected to
abusive behavior, humiliation, embarrassment, s urveillance , and public tantrum s,
which forced her to retire effective November 13, 2015. Id. The appellant
exercised her right to file a mixed -case appeal with the Board on April 20, 2016,
after 120 days from the filing date of her formal complaint lapsed without a final
3
agency decision on her EEO complaint . IAF, Tab 1 at 6, 9. She alleged on
appeal that she was forced into disability retirement by management’s abusive
conduct and retaliation. IAF, Tab 1 at 6.
¶4 The administrative judge issued a jurisdiction o rder, which informe d the
appellant that retirements generally are presumed to be voluntary actions that are
not appealable to the Board . IAF, Tab 5. In the o rder, the administrative judge
set forth the criteria for establishing Board jurisdiction over an involuntary
disabi lity retirement action. Id. at 3-4. The o rder also set forth the general
jurisdictional test for an involuntary retirement action. Id. The administrative
judge explained that, to be entitled to a jurisdictional hearing, the appellant was
required to make a nonfrivolous allegation that her claim of invo luntary disability
retirement was within the Board’s jurisdiction or her appeal would be dismissed.
Id. The administrative judge also ordered the appellant to file evidence and
argument establishing that the Board has jurisdiction over her appeal . Id. The
appellant and the agency filed timely responses. IAF, Tabs 9 -10.
¶5 In responding to the o rder, the appellant provided an affidavit stating that
she was diagnosed with depressive disor der and Post -Traumatic Stress Disorder
(PTSD) associated with the military duties that she performed in 1990 an d 2003,
and that her mental conditions and other physical conditions resulted in her
having to apply for leave under the Family Medical Leave Act, light duties, and a
reasonable accommodation. IAF, Tab 9 at 14. She also alleged that she applied
for disability retirement involuntarily because of mental disability , “resulting
[from] and aggravated by the hostile work environmen t at the Fajardo Post al
Unit.” Id. at 5, 14. In supp ort of her claim , she listed several incidents that
allegedly occurred between January 12, 2012, and May 4, 2015, which she
claimed resulted in her decision to retire .2 ID at 6.
2 In her affidavit, the appellant swore that: (1) she filed an EEO complaint on
January 24, 2012 , because she was denied light duty; (2) on September 20, 2012 , her
supervisor called her into the office and indicated that she was unproductive; (3) on
4
¶6 The appellant also provided a report from the psychiatrist who treated her
once a month for 9 months, beginning after her last day in pay status. IAF, Tab 9
at 17-19. The psychiat rist listed the appellant’s diagnosed conditions as PTSD
and a major, recurrent, and severe depressive disorder. Id. at 19. The
psychiatrist noted that the appellant felt harassed by her boss and believed that
her boss was trying to fire her. Id. The psychiatrist further noted , inter alia, that
the appellant had delusional thoughts of being followed or looked at and that her
thoughts revolved around her current work situation and how it affected her . Id.
The psychiatrist nonetheless described the appellant’s mental insight and
judgment as good , and she prescribed medications to treat the appellant’s mental
disorder s. Id. The psychiatrist offered no opinion on whether the appellant’s
mental conditions were related to or exacerbated by her work situation. Id.
¶7 The administrative judge dismissed the appeal for lack of jurisdiction ,
without holding the requested hea ring. ID at 1. The administrative judge found
that the appellant failed to make a nonfrivolous allegation that her disability
retirement was coerced and involuntary. ID at 9 -10. Assuming the incidents
alleged by the appellant were true, the administrative judge found that the agency
did not impose the terms of her retirement. ID at 8 -9. The adm inistrative judge
found that the alleged intolerable work conditions raised by the appellant were
generally not so intolerable as to com pel a rea sonable person to retire ,
considering the lapse in time between the events the appellant listed as having
March 6, 2014, the Postmaster stood close to her a nd “consistently observ[ed] her; ”
(4) on September 9 and 19, 2014, the Postmaster looked for her in the bathroom ; (5) o n
September 16, 2014, she was denied union representa tion and was subject ed to an
internal investigation; (6) o n November 1, 2014, her supervisor refused to sign a CA -2
form until he called the Postmaster; (7) o n November 7, 2014, the supervisor refused to
give the appellant’s friend a copy of the appellant’ s PS Form 3971 ; and (8) f rom
April 30 through May 4, 2015, she received various letters with the same information
for a pre -disciplinary interview for failure to be regular in attendance. IAF, Tab 9
at 5-6.
5
contributed to her decision to apply for disability retirement and the date on
which she actually applie d for it. ID at 8 -10.
¶8 The administrative ju dge also found that the appellant failed to
nonfrivolously allege that there was a link between the agency’s improper acts in
2012 and 2014 and her June 2015 disability retirement application , because she
failed to allege how the incidents she identified i n her affidavit caused or
exacerbated the medical conditions underlying her disability retirement
application . Id. The administrative judge found , moreover, that the appellant
failed to make a nonfrivolous allegation that the agency denied her
accommodation.3 Id. Based on the foregoing, t he administrative judge dismissed
the appeal for lack of jurisdiction. ID at 10.
¶9 The appellant filed a petition for review of th e initial decision. Petition fo r
Review (PFR) File, Tab 1. T he agency responded in opposition to her petition.
PFR File, Tab 3 .
¶10 Generally, the Board lacks the authority to review an employee’s decision
to retire, which is presumed to be a voluntary act. Brown v. U.S. Postal Service ,
115 M.S.P.R. 609 , ¶ 9, aff’d, 469 F. App’x 852 (Fed. Cir. 2011). However, an
appellant may overcome the presumption of voluntariness by showing that her
retirement was the product of misinformation or deception by the agency, or of
coercive acts by the agency, such as intolerable working conditions or the
unjustified threat of an adverse action. SanSoucie v. Department of Agriculture ,
116 M.S.P.R. 149 , ¶ 14 (2011). An appellant is entitled to a jurisdictional
hearing over an alleged involuntary retirement only if she makes a nonfrivolous
3 The Board generally limits its jurisdiction over allegedly involuntary disability
retirement claims to cases where in the agency improperly denied an appellant’s request
for accommodation. Vaughan v. Department of Agriculture , 116 M.S.P.R. 493 , ¶ 12
(2011). In responding to the show cause o rder on jurisdiction, the appellant stated the
Postmaster agreed to provide her with reasonable accommodations o n April 17, 2012 ,
durin g a mediation process. IAF, Tab 9 at 26. The administrative judge found that the
appellant failed to ra ise a nonfrivolous allegation that the agency faile d to provide her
with accommodation. ID at 9.
6
allegation casting doubt on the presumption of voluntariness. Id., ¶ 16.
Nonfrivolous allegations of Board jurisdiction are allegations of fact that, if
proven, could show Board jurisdiction over the matter at issue. Id.
¶11 To establish involuntariness on the basis of coercion, an employee must
show that: the agency effectively imposed the terms of her retirement; she had no
realistic alternative but to retire; and her retirement was the result of improper
acts by the agency . Id. “[T]he fact than an employee is faced with an unpleasant
situation or that her choice is limited to two unattractive options does not make
[her] decision any less voluntary.” Staats v. U.S. Postal Service , 99 F.3d 1120 ,
1124 (1996) . The touchstone of the “voluntariness” analysis is whether,
considering the totality of the circumstances, f actors operated on the employee’ s
decision -making p rocess that deprived her of freedom of choice. Id. The
“totality of the circumstances” test is measured by an objective stand ard rather
than by the employee’ s purely subjective evaluation. Heining v. General Services
Administration , 68 M.S.P.R. 513 , 520 (1995).
¶12 The appellant’s sole argument on review is that the administrat ive judge
should have analyzed whether her working environment was intolerable from the
perspective of someone with the same mental condition as herself . PFR File,
Tab 1 at 3. However, the appellant’ s mental condition reflects her subjective
perspective, which is not the measure of the voluntariness of a retirement based
on alleged intolerable working conditions. See Gregory v. Federal
Communications Commission , 84 M.S.P.R. 22 , ¶ 14 (1999) (findi ng that, although
the appellant’ s increasing frustration led her to believe that she could only
remedy her situ ation by resigning, an employee’ s subjective evaluation is not the
measure of the voluntariness of a resignation based on alleged intolerable work
conditions), aff’d, 232 F.3d 912 (Fed. Cir. 2000) (Table).
¶13 We find that t he appellant has failed to show that the administrative judge
erred in dismissing this alleged involuntary disability retirement appeal for lack
of jurisdiction. The applicable law and the record evidence support the
7
administrative judge ’s finding that, based on the totality of the circums tances, the
appellant failed to raise a nonfrivolous allegation of jurisdiction over her
invol untary disability retirement appeal. See ID at 3 -10; IAF, Tab 9. We
therefore discern no reason to disturb these explained findings. See Crosby v.
U.S. Postal Service , 74 M.S.P.R. 98 , 106 (1997) (finding no reason to disturb the
administrative judge’s findings whe n she considered the evidence as a whole,
drew appropriate inferences, and made reasoned conclusions); Broughton v.
Depa rtment of Health & Human Services , 33 M.S.P.R. 357 , 359 (1987) (same).
NOTICE OF APPEAL RIG HTS4
You may obtain review of this final decision. 5 U.S.C. § 7703 (a)(1). By
statute, the nature of your claims determines the time limit for seeking such
review and the appropriate forum with which t o file. 5 U.S.C. § 7703 (b).
Although we offer the following summary of available appeal rights, the Merit
Systems Protection Board does not provide legal advice on which option is most
appropriat e for your situation and the rights described below do not represent a
statement of how courts will rule regarding which cases fall within their
jurisdiction. If you wish to seek review of this final decision, you should
immediately review the law applica ble to your claims and carefully follow all
filing time limits and requirements. Failure to file within the applicable time
limit may result in the dismissal of your case by your chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If 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.
8
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of th is decision. 5 U.S.C.
§ 7703 (b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following addre ss:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particula r
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Ap peals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services pro vided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an a ction that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action wi th an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
9
receive this decision. 5 U.S.C. § 7703 (b)(2); see Perry v. Merit Sy stems
Protection Board , 582 U.S. ____ , 137 S. Ct. 1975 (2017) . If you have a
representative in this case, and your representative receives this decision before
you do, then you must file with the district court no later than 30 calendar days
after your representative receives this decision. If the action involves a claim of
discrimination based on race, color, religion, sex, national origin, or a disabling
condition, you may be entitled to representation by a court -appointed lawyer and
to waiver of any requirement of prepayment of fees, costs, or other security. See
42 U.S.C. § 2000e -5(f) and 29 U.S.C. § 794a .
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702 (b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702 (b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for revie w to the EEOC by regular U.S. mail, the
address of the EEOC is:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
10
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhance ment Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302 (b)(8) or
other protected activities listed in 5 U.S.C. § 2302 (b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
disposition of allegations of a prohibited personnel practice described in se ction
2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i),
(B), (C), or (D),” then you may file a 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, p ermanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
The All Ci rcuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115 -195,
132 Stat. 1510.
11
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
Conta ct information for the courts of appeals can be found at their
respective websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites .aspx .
FOR THE BOARD:
Washington, D.C. /s/ for
Jennifer Everling
Acting Clerk of the Board | CRUZ_DORIS_J_NY_0752_16_0218_I_1_FINAL_ORDER_1951381.pdf | 2022-08-15 | null | NY-0752-16-0218-I-1 | NP |
4,193 | https://www.mspb.gov/decisions/nonprecedential/TAYLOR_ANDREA_RUTH_DC_1221_17_0088_W_1_REMAND_ORDER_1950828.pdf | UNITED STATES OF AME RICA
MERIT SYSTEMS PROTEC TION BOARD
ANDREA RUTH TAYLOR,
Appellant,
v.
DEPARTMENT OF COMMER CE,
Agency.
DOCKET NUMBER
DC-1221 -17-0088 -W-1
DATE: August 12, 2022
THIS ORDER IS NONPRECEDENTIAL1
Andrea Ruth Taylor , Alexandria, Virginia, pro se .
Christiann C. Burek , Esquire, Washington, D.C., for the agency .
BEFORE
Cathy A. Harris , Vice Chairman
Raymond A. Limon , Member
Tristan L. Leavitt , Member
REMAND ORDER
¶1 The appellant has filed a petition for review of the initial decision, which
dismissed her individual right of action (IRA) appeal for lack of jurisdiction. For
the reasons discussed below, we GRANT the appellant’s petition for review ,
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or dis tinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117 (c).
2
REVERSE the initial decision, and REMAND the case to the regional office for
further adjudication in accordance with this Remand Order.
BACKGROUND
¶2 Effective November 16, 2014, the agency appointed the appellant to the
position of Business Industry Specialist, GS -12, with t he National Technical
Information Service (NTIS), Office of Federal Services (OFS). Initial Appeal
File (IAF), Tab 10 at 65. In or around June 2015, she expressed concerns to her
OFS supervisor and NTIS chief counsels about the legality of NTIS’s exercis e of
its joint venture authority2 and informed them that performing work she
considered illegal was placing her under duress and negatively impacting her
health. Id. at 60. In a letter dated July 8, 2015, the appellant’s OFS supervisor
acknowledged her c oncerns and her request to be reassigned outside of NTIS but
informed her that there were no appropriate positions available. Id. at 60-63. In
a response addressed to her OFS supervisor, the NTIS Director, and a human
resources specialist , the appellant stated that she had contacted the Office of the
Inspector General (OIG) regarding her concerns and asserted that NTIS was
grossly misusing its joint venture authority and violating Federal laws by entering
into long -term Joint Venture Partnership agreement s that she considered to be
fraudulent. Id. at 54-57; IAF, Tab 8 at 9.
¶3 On September 6, 2015, the NTIS Director approved the appellant’s
temporary detail to unclassified duties in the Office of the Chief Information
Officer (CIO). IAF, Tab 10 at 34. According to the agency, her OFS supervisor
informed her on November 30, 2015, that he would not recommend her for a
2 NTIS has statutory authority to enter into joint ventures with private sector entities
and to operate as a permanent clearinghouse of scientific, technical, and engineering
information and to collect and disseminate such information. 15 U.S.C. §§ 1152 -1157.
Pursuant to this authority, NTIS enters into Joint Venture Partnership agreements with
selected private sector entities “to assist Federal agencies to develop and implement
innovative ways to collect, connect, access, analyze, or use Federal data and data
services .” 81 Fed. Reg. 39025 -29 (June 15, 2016).
3
promotion to the GS -13 level.3 IAF, Tab 8 at 11. After the appellant requested
justification for the non-recommendation, the agency promo ted her to the GS -13
level effective December 13, 2015. IAF, Tab 10 at 15, 17-18. On January 6,
2016, the agency extended her temporary detail to unclassified duties by an
additional 4 months. Id. at 12-13. Effective April 17, 2016 , the agency
permanen tly reassigned the appellant to the GS-0343 -13 positio n of Program
Analyst in the Office of the CIO . IAF, Tab 9 at 70, 72, 74 -75.
¶4 On October 31, 2016, the appellant filed the instant IRA appeal alleging
that, in retaliation for multiple complaints to OIG, the agency had taken the
following actions against her: (1) “forced [her] to sign and release funds to
contractors, with no proof the work was ever done”; (2) threatened to withhold
her promotion from GS -12 to GS -13 without justification but ultimately granted
the promotion approximately 6 week s late; (3) assigned her multiple performance
details that were “not possible to perform or possible to measure [her]
performance subjectively”; (4) “harassed [her], provoked [her], psychology [sic]
abused [her] w ith insane circular arguments, and threaten[ed] [her] with negative
performance reviews”; (5) failed to provide her “appropriate resources or
information” necessary to the successful performance of her assignments;
(6) utilized an “unethical, immoral, and [] illegal” business strategy and created a
“moral hazard”; (7) assigned her a performance detail that require d her to
“develop something like a program management system and document repository
[that] is impossible for [her] as a single individual to deve lop such a system
alone, with no resources”; (8) called the police to her office to “humiliate,
intimidate, and bully [her] because [she] would not go along to get along with
3 According to the agency, the appellant’s OFS supervisor explained that “there is no
further competition necessary to promote you, but there is no guarantee of promotion or
on what time interval.” IAF, Tab 8 at 11. Although it appears that the agency provided
a copy of the appellant’s response to her OFS supervisor’s email informing her about
his non -recommendation, it did not provide a copy of the non -recommendation email.
IAF, Tab 10 at 17-18.
4
activities that force [her] to work under duress” and filed a false police report on
October 27, 2016; (9) issued her performance plan almost 6 months late with no
mid-point review and cancelled h er end -of-the-year review; and
(10) misclassified her duties and failed to provide her with the information
needed to initiate her req uested desk audit, which she had been requesting since
April 2016. IAF, Tab 1 at 5. Along with her Board appeal, the appellant
submitted an October 25, 2016 letter from the Office of Special Counsel (OSC)
informing her that it was closing its investigation into her allegations that she was
“detailed, reassigned, and that [her] promotion to a GS -13 was delayed as reprisal
for disclosing in formation to the [OIG] in April 2015 and
September/October 2015 concerning contracting and acquisitions irregularities,
violat ions of several provisions of the Federal Acquisition Regulations, and other
non-conforming processes and practices at [her] agency” and that her current
assignment required her to violate the Clinger -Cohen Act4 and other statutory
authorities. Id. at 7.
¶5 In an order on jurisdiction, the administrative judge informed the appellant
of her burden of proof to establish Board jurisdiction over her appeal —namely, to
show that she exhausted her administrative remedy with OSC and to make
nonfrivolous allegations that she made a protected disclosure or engaged in
protected activity that was a contributing factor in the agency’s decision to take
or fail to take a personnel action. IAF, Tab 3. Both parties responded to the
order, but the appellant did not submit a ny additional documentation regarding
her filings with OSC. IAF, Tabs 4 -6, 8-11, 14.
4 The Clinger -Cohen Act consists of the Federal Acquisition Reform Act of 1996 and
the Information Technology Management Reform Act of 1996 . Omnibus Consolidated
Approp riations Act, 1997, Pub. L. No. 104-208, § 808, 110 Stat. 3009 (designat ing
§§ 4001 -5702 of Pub. L. No. 104-106 the “Clinger -Cohen Act of 1996”). As stated
when it was originally enact ed in 1996, its purpose was “to reform acqui sition laws and
information technology management of the Federal Government . . . .” National
Defense Authorization Act fo r Fiscal Year 1996, Pub. L. No. 104-106, 110 Stat. 186. It
is codified in large par t in various sections of titles 40 and 41 of the U.S. Code.
5
¶6 In an initial decision, the administrative judge found that the appellant
exhausted her administrative remedy with OSC concerning the three personnel
actions identified in OSC’s closure letter —a detail, a reassignment, and a delayed
promotion to the GS -13 level —but that she failed to submit any other evidence of
the allegations raised before OSC and, therefore, had not shown exhaustion of the
other seven alleged personne l actions identified in her Board appeal. IAF,
Tab 15, Initial Decision (ID) at 4-5. The administrative judge also noted that
some of the agency actions occurred after OSC’s closure letter and could not have
been exhausted before OSC. ID at 5. She foun d that the appellant nonfrivolously
alleged that she engaged in protected activity and made a protected disclosure but
that she failed to nonfrivolously allege that such activity was a contributing factor
in the exhausted personnel actions. ID at 5-9. Ac cordingly, the administrative
judge dismissed the appeal for lack of jurisdiction without holding the appell ant’s
requested hearing. ID at 9-10.
¶7 The appellant has filed a petition for review of the initial decision, and the
agency has responded in oppos ition. Petit ion for Review (PFR) File, Tabs 1, 4.
ANALYSIS
The appellant has establi shed jurisdiction over this IRA appeal .
¶8 The Board has jurisdiction over an IRA appeal based on whistleblower
reprisal under the Whistleblower Protection Enhancement Act (WPEA) , if the
appellant has exhausted her administrative remedies before OSC and makes
nonfrivolous allegations of the following : (1) she engaged in whistleblowing
activity by making a protected disclosure under 5 U.S.C. § 2302 (b)(8), or engaged
in prote cted activity described under 5 U.S.C. § 2302 (b)(9)(A)(i), (B), (C),
or (D); and (2) the disclosure or protect ed activity was a co ntributing factor in the
agency’ s decision to take or fail to take a personnel action as defined by 5 U.S.C.
§ 2302 (a). Yunus v. Department of Veterans Affairs , 242 F.3d 1367 , 1371 (Fed.
Cir. 2001); Salerno v. Department of the Interior , 123 M.S.P.R. 230 , ¶ 5 (2016).
6
A nonfrivolous allegation is an assertion that, if proven, could establish the
matter at issue. Bradl ey v. Department of Homeland Security , 123 M.S.P.R. 547 ,
¶ 6 (2016) ; 5 C.F.R. § 1201.4 (s). Whether allegations are nonfrivolous is
determined on the basis of the written record. Bradley , 123 M.S.P.R. 547 , ¶ 6.
Any doubt or ambiguity as to whether the appellant made nonfrivolous
jurisdictional allegations should be resolved in favor of finding jurisdiction. Id.
Once an appellant establishes jurisdiction over her IRA appeal, she is entitle d to a
hearing on the merits of her claim, which she must prove by preponderant
evidence. Salerno , 123 M.S.P.R. 230 , ¶ 5.
¶9 As noted above, the administrative judge found that the appellant exhausted
the following personnel actions before OSC: her delayed promotion to the GS -13
level, her assignment to several performance details, and her reassignment. ID
at 4. The a ppellant do es not challenge these finding s on review, and we agree
that the appellant exhausted these personnel actions . See 5 U.S.C.
§ 2302 (a)(2)(A) (defining “personnel action” as, among other things, a
promotion, detail, transfer, or reassignment) .
¶10 Although the appellant does not challenge the administrative judge’s
determination that she exhausted the three personnel actions identified in OSC’s
closure letter, she argues on review that she exhausted additional alleged
personnel actions before OSC and has submitted, for the first time on review,
copies of two OSC complaints referencing, among other things, a significant
change in duties, responsibi lities, and working conditions. PFR File, Tab 1
at 4-7, 10 -17. In light of our disposition of this petition for review, we decline to
address the appellant’s newly -raised claims at this time . See infra ¶ 16. The
appellant does not appear to challenge, and we discern no basis to disturb, the
administrative judge’s finding that she failed to exhaust her claims regarding the
October 27, 2016 “false police report” and cancellation of her performance
review, both of which postdate OSC’s closure letter. ID a t 5; PFR File, Tab 1.
Likewise, the appellant identifies on review additional actions that the agency
7
allegedly took against her between October 27, 2016, and January 23, 2017 , after
OSC closed its investigation . PFR File, Tab 1 at 8 9. Because these ac tions
postdate OSC’s closure letter and were not raised to OSC , we find that they
are not properly before the Board at this time for consideration as separate
personnel actions. Nevertheless, the appellant’s failure to raise these matters in
her OSC complaint as separate personnel actions does not necessarily prevent her
from introducing them in her Board appeal as background and additional facts in
support of her claim that the agency subjected her to a significant change in
duties, responsibilities, and working conditions , provided that she has otherwise
exhausted her administrative remedies on that claim . See Delgado v. Merit
Systems Protection Board , 800 F.3d 913 , 924 -27 (7th Cir. 2018) (holding that as
long as an appellant has presented OSC with sufficient factual information to
understand and inv estigate her claim of whistleblower reprisal , she is not
prohibited from buttressing her claim in a subsequent IRA appeal with additional
facts not raised before OSC) ; Chambers v. Department of Homeland Security ,
2022 MSPB 8 (finding that an appellant may demonstrate exhaustion through her
initial OSC complaint , correspondence with OSC , or other sufficiently reliable
evidence such as an a ffidavit or declaration attesting that she raised with OSC the
substance of the facts in the Board appeal) .
¶11 The administrative judge further found that the appellant nonfrivolously
alleged that she made a protected disclosure of a violation of law to the agency’s
OIG under 5 U.S.C. § 2302 (b)(8)(B)(i) and that she engaged in protected activity
under 5 U.S.C. § 2302 (b)(9)(C) when she filed complaints with the agency’s OIG
in 2015. ID at 6-7. T he parties do not challenge these finding s on review, and
we discern no basis to disturb them . PFR File, Tabs 1, 4.
¶12 The administrative judge found, however, that the appellant faile d to
nonfrivolously allege that her protected activity was a contributing factor in a
personnel action because she did not address which officials were aware of her
OIG activity. ID at 7-9. The appellant challenges this finding on review, arguing
8
that th e relevant management officials were aware of her communications with
OIG when they took the challenged actions. PFR File, Tab 1 at 5.
¶13 To satisfy the contributing factor criterion at the jurisdictional stage of an
IRA appeal, the appellant only need rai se a nonfrivolous allegation that the fact or
the content of the protected disclosure was one factor that tended to affect the
personnel action in any way. Bradley , 123 M.S.P.R. 547 , ¶ 13. One way to
establish this criterion is the knowledge/timing test, under which an employee
may nonfrivolously allege that the disclosure was a contributing factor in a
personnel action through ci rcumstantial 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 contributin g factor in the personnel
action. Id. The Board has held that a personnel action taken within
approximate ly 1 to 2 years of an appellant’ s protected disclosures satisfies the
knowledge/timing tes t. Mastrullo v. Department of Labor , 123 M.S.P.R. 110 ,
¶ 18 (2015) .
¶14 Here, the appellant alleged, among other things, that the agency threatened
to deny her “the promotion potential [she] was due to receive in November 2015”
because of her communications with OIG in early 2015 and delayed her
promotion by approximately 6 weeks. IAF, Tab 1 at 5, Tab 4 at 5, 7. Although
the administrative judge is correct that the appellant failed to identify which
management officials were aware of her protected activities, IAF, Tabs 1, 4, 14, a
letter submitted by the agency establishes th at the responsible management
officials became aware of appellant’s OIG activity in the months preceding her
delayed promotion. See Bruhn v. Department of Agriculture , 124 M.S.P.R. 1 ,
¶ 10 (2016) (stating that, in determining whether the appellant has made a
nonfrivolous allegation of jurisdiction entitling him to a hearing, an
administrative judge may consider the agency’s documentar y submissions).
Specifically, as noted above, the appellant informed her OFS supervisor and the
9
NTIS Director in a letter dated July 8, 2015, that she had contacted OIG about the
agency’s alleged illegal activities. IAF, Tab 8 at 9, Tab 10 at 52-53. Several
weeks later, on August 10, 201 5, the NTIS Director approved the appellant’s
temporary detail to unclassified duties. IAF, Tab 10 at 34. Shortly thereafter, on
or about November 30, 2015, her OFS supervisor informed her that he would not
recommend he r for a promotion to the GS -13 level. IAF, Tab 8 at 11. Less than
6 months later, in April 2016, the agency permanently reassigned her . IAF, Tab 9
at 70, 72, 74 -75. Thus, we find that the appellant has made a nonfrivolous
allegation through the knowled ge/timing test that her protected activity was a
contributing factor in her delayed promotion , detail to unclassified duties , and
permanent reassignment .
¶15 Because the appellant exhausted her administrative remedy and made the
requisite nonfr ivolous allegations regarding her delayed promotion , temporary
detail , and reassignment, we find that she has established Board jurisdiction over
her IRA appeal. Usharauli v. Department of Health & Human Services ,
116 M.S.P.R. 383 , ¶ 19 (2011) (stating that, when an appellant has alleged
multiple personnel actions, the Board has jurisdiction when she exhausts her
administrative remedies bef ore OSC and makes a nonfrivolous allegation that at
least one alleged personnel action was taken in reprisal for at least one alleged
protected disclosure). Therefore, we find that the appellant is entitled to her
requested hearing and a decision on the m erits of her appeal, and we remand this
appeal to the regional office for further adjudication in accordance with this
Remand Order . See Salerno , 123 M.S.P.R. 230 , ¶ 5 (2016). Prior to conducting a
hearing, the administrative judge shall afford the parties a reasonable opportunity
to complete discovery and order the parties to submit any other evidence that she
deems necessary to ad judicate the merits of this appeal. Lewis v. Department of
Defense , 123 M.S.P.R. 255 , ¶ 14 (2016) .
10
On remand, t he appellant may submit the documents she submitted for the first
time on review into the record for cons ideration by the administrative judge .
¶16 The appellant has submitted a number of documents for the first time on
review, including copies of two OSC co mplaints and correspondence with OSC,
management officials, and the OIG. PFR File, Tab 1 at 10-19, 24. Under
5 C.F.R. § 1201.115 , the Board generally will not consider evidence submitt ed 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). Nevertheless , the issue of the
Board’s jurisdiction is always before the Board, and it may be raised by either
party or sua sponte by the Board at any time . See Ney v. Department of
Commerce , 115 M.S.P.R. 204 , ¶ 7 (2010) .
¶17 Here, t he appellant’s newly submitted evidence appears to show that she
exhausted additional personnel actions before OSC, including an alleged
significant change in duties, responsibilities, and working conditions , and
informed additional management officials of her communications with OIG . PFR
File, Tab 1 at 10-19, 24. Because we find that the existing record is sufficient to
establish jurisdiction, however, we have not considered these documents for the
first time on review. On remand, the appellant may submit these documents into
the record consistent with the procedures and time limits es tablished by the
administrative judge .
The Board lacks jurisdiction over the appellant’s assertion that OSC improperly
closed its investigation into her complaints .
¶18 On review, the appellant also argues that OSC improperly c losed its
investigation into her OSC complaint without completing a proper investigation.
PFR File, Tab 1 at 4-5. However, the alleged inadequacy of OSC’s investigation
has no bearing on our jurisdictional analysis. Salerno , 123 M.S.P.R. 230 , ¶ 15.
11
ORDER
¶19 For the reasons discussed abo ve, we remand this case to the Washington
Regional Office for further adjudication in accordance with this Remand Order.
FOR THE BOARD:
Washington, D.C. /s/ for
Jennifer Everling
Acting Clerk of the Board | TAYLOR_ANDREA_RUTH_DC_1221_17_0088_W_1_REMAND_ORDER_1950828.pdf | 2022-08-12 | null | DC-1221-17-0088-W-1 | NP |
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