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4,194 | https://www.mspb.gov/decisions/nonprecedential/BRAXTON_LORETTA_ELAINE_DC_0752_14_0997_A_1_FINAL_ORDER_1950836.pdf | UNITED STATES OF AME RICA
MERIT SYSTEMS PROTEC TION BOARD
LORETTA ELAINE BRAXT ON,
Appellant,
v.
DEPARTMENT OF VETERA NS
AFFAIRS,
Agency.
DOCKET NUMBER
DC-0752 -14-0997 -A-1
DATE: August 12, 2022
THIS FINAL ORDER IS NONPRECEDENTIAL1
Debra L. Roth , Esquire , Washington, D.C., for the appellant.
Jeffrey James Hatch , Roanoke, Virginia, 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 addendum initial
decision, which denied her motion for attorney fees. Generally, we grant
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
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
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 la w to the facts of the case; the administrative judge’s rulings during either
the course of the appeal or the initial decision were not consistent with required
procedures or involved an abuse of discretion, and the resulting error affected the
outcome of t he case; or new and material evidence or legal argument is available
that, despite the petitioner’s due diligence, was not available when the record
closed. Title 5 of the Code of Federal Regulations, section 1201.115 ( 5 C.F.R.
§ 1201.115 ). After fully considering the 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 On August 22, 2014, the appellant filed a Board appeal concerning her
demotion. Braxton v. Department of Veterans Affairs , MSPB Docket
No. DC-0752 -14-0997 -I-1, Initial Appeal File (IAF), Tab 42, Initial Decision (ID)
at 1. In his initial decision, the administrative judge found that the agency proved
its ch arge of conduct unbecoming a supervisor, ID at 2 -15, but nevertheless
ordered the agency to reverse its action because he found that the deciding
official violated the appellant’s due process rights when she engaged in an
ex parte communication, ID at 16 -17. Specifically, the deciding official adopted
the penalty analysis produced by the proposing official, which the administrative
judge found was problematic because the analysis referenced aggravating factors
not mentioned in the proposal , and the analysi s was not shared with the appellant.
ID at 16. The administrative judge also found that the appellant failed to prove
3
her claim that the agency’s action was due to discrimination based on her race.
ID at 17-20.
¶3 The initial decision became the Board’s fi nal decision after neither party
petitioned for review. The appellant filed a motion for attorney fees. Braxton
v. Department of Veterans Affairs , MSPB Docket No. DC -0752 -14-0997 -A-1,
Attorney Fee File (AFF), Tab 1. The administrative judge issued an ad dendum
initial decision that denied the motion because he found that the appellant failed
to establish that an award of attorney fees was warranted in the interest of justice.
AFF, Tab 12, Addendum Initial Decision (AID) at 4 -6.
¶4 The appellant has filed a petition for review of the addendum initial
decision, the agency has filed a response,2 and the appellant has filed a reply to
the agency’s response. Petition for Review (PFR) File, Tabs 1, 4 -5.
DISCUSSION OF ARGUME NTS ON REVIEW
¶5 The Board may require an a gency to pay reasonable attorney fees incurred
by a prevailing appellant if the Board determines that such payment is warranted
in the interest of justice. 5 U.S.C. § 7701 (g)(1). A finding that a n award of
attorney fees is warranted in the interest of justice is distinct from a finding that
an appellant was a prevailing party. Allen v. U.S. Postal Service , 2 M.S.P.R. 420 ,
427-28 (1980). Congress did not intend for prevailing appellants to be awarded
attorney fees in the ordinary practice. Kent v. Office of Personnel Management ,
33 M.S.P.R. 361 , 365 (1987). The appellant bears the burden of showing by a
preponderance of the evidence that an attorney fees award is warranted in the
interest of justice.3 Lampack v. U.S. Postal Service , 29 M.S.P.R. 654 , 656 (1986).
2 The agency’s response was untimely filed with no good cause shown, and, therefore,
we decline to consider its arguments. See 5 C.F.R. § 1201.114 (g).
3 The Board’s regulations define preponderant evidence as the degree of relevant
evidence that a reasonable person, considering the record as a whole, would accept as
sufficient to find that a con tested fact is more likely to be true than untrue. 5 C.F.R.
§ 1201.4 (q).
4
¶6 Here, the appellant was clearly the prevailing party because the agency’s
action was reversed , and she was returned to her former grade.4 See Alexander v.
Department of the Army , 80 M.S.P.R. 350 , ¶ 5 (1998) (finding that an appellant
may be considered a prevailing party if she succeeds on any significant issue in
the litigation that achieves some of the benefits she sought). Accordingly, we
must determine whether an award of attorney fees would be in the in terest of
justice under the circumstances of this case. See 5 U.S.C. § 7701 (g)(1).
¶7 The Board will determin e whether fees are warranted in the interest of
justice on a case -by-case basis with the benefit of a full record and the insights
and reasoning of the administrative judge who heard the evidence in each case.
Allen , 2 M.S.P.R. at 434. The following examples are useful indications of
circumstances considered to reflect the interest of justi ce: (1) the agency engaged
in a prohibited personnel practice; (2) the agency action was clearly without merit
or wholly unfounded, or the employee was substantially innocent of the charges;
(3) the agency initiated the action in bad faith; (4) the agency committed a gross
procedural error, which prolonged the proceeding or severely prejudiced the
employee; and (5) the agency knew or should have known that it would not
prevail on the merits when it brought the action. Allen , 2 M.S.P.R. at 434 -35.
This li st is illustrative, not exhaustive, id. at 435, and the Board retains discretion
to deny attorney fees even when one of these circumstances is present if it would
not be in the interest of justice to award fees, see id . at 433.
¶8 In some circumstances, when an agency’s action has been reversed on
procedural due process grounds, the Board has awarded attorney fees pursuant to
Allen categories 2 and 4. See, e.g., Mitchell v. Department of the Navy ,
51 M.S.P.R. 103 , 116 (1991) (finding an award of attorney fees warranted
because a suspension was clearly without merit when the agency failed to provide
any predecisional notice or opportunity to respond, and the action therefore could
4 The agency did not contest this point below or on review. PFR File, Tab 4 at 5 -6.
5
not have been sustained on appeal), overruled on other grounds by Abbott v. U.S.
Postal Service , 121 M.S.P.R. 294 (2014); Woodall v. Federal Energy Regulatory
Commission , 33 M.S.P.R. 127 , 134 (1987) (finding an award of attorney fees
warranted because the agency engaged in gross procedural error by suspending an
employee without any predecisional notice or opportunity to respond). The Board
also has awarded attorney fees pursuant to Allen category 5 when an agency knew
or should have known that its penalty would be mitigated, in part, because it
improperly considered allegations of misconduct that were not included in the
proposal notice in making its penalty determination. Brunning v. General
Servi ces Administration , 63 M.S.P.R. 490 , 492 -95 (1994).5 However, the primary
basis for the penalty mitigation in Brunning was that the agency failed to prove
many of its allegations against the appellant. Id.
¶9 Under the facts of this case, in which the appellant prevailed solely on her
due process claim, we find that the most relevant Allen factor to consider is
whether the agency committed gros s procedural error. The Board is not
constrained to automatically find gross procedural error whenever an appellant
obtains a reversal on procedural due process grounds. See Price v. Social
Security Administration , 398 F.3d 1322 , 1326 (Fed. Cir. 2005) (finding that the
Board is not deprived of its discretion over attorney fees in any case in which a
due process hearing is improperly denied); cf. Wright v. Department of the Army ,
5 M.S.P.R. 216 , 218 (1981) (finding that an attorney fee award was not warranted
in the interest of justice despi te the agency’s failure to apply the procedural
requirements for effecting an adverse action). The Board will find gross
5 In Brunning , the Board did not indicate that the agency’s improper consideration of
the appellant’s past misconduct constituted a due process violation. Brunning ,
63 M.S.P.R. at 492 -95. However, Brunning was decided before the U.S. Court of
Appeals for the Federal Circuit overrule d the Board’s holding that ex parte
communications solely concerning penalty determinations did not constitute due
process violations. Ward v. U.S. Postal Service , 634 F.3d 1274 , 1279 -80 (Fed. Cir.
2011).
6
procedural error only after weighing the nature of , and any excuse for , the error
against the prejudice and burden resulting for the appellant. Baldwin v.
Department of Veterans Affairs , 115 M.S.P.R. 4 13, ¶ 17 (2010). If, in the
balance, the prejudice and burden to the appellant predominates, gross procedural
error exists , and the appellant is entitled to a fee award. Id.
¶10 The nature of the error in this case, i.e., an ex parte communication, is not
one that requires a reversal in every case. See Ward v. U.S. Postal Service ,
634 F.3d 1274 , 1279 (Fed. Cir. 2011). Instead, only those communications that
introduce new and material information to the deciding official will undermine an
appellant’s due process rights. Id. Here, although the administrative judge
ultim ately concluded that the ex parte communication at issue required a reversal,
ID at 15 -16, there is no indication that the conclusion that the agency violated the
appellant’s due process rights was not debatable among reasonable people . Cf.
Price , 398 F.3 d at 1327 (finding that an attorney fees award was not warranted in
the interest of justice when, among other things, the agency had some reasonable
legal basis for denying the appellant certain due process rights); Wood v.
Department of Defense , 100 M.S.P.R. 133 , ¶ 11 (2005) (finding that, in the
whistleblower context, for an agency action to constitute “gross” mismanagement ,
a conclu sion that the agency erred cannot be debata ble among reasonable people).
The appellant has failed to demonstrate that she suffered any more prejudice or
harm than is normally suffered by those who obtain relief from the Board. See
Price , 398 F.3d at 1327 . Further, when the Board has found attorney fees
warranted for due process errors in the past, those errors were such that the
appellants were provided with little to no predecisional notice or opportunity to
be heard. See, e.g., Mitchell , 51 M.S.P.R. at 116; Mercer v. Department of
Health & Human Services , 42 M.S.P.R. 115 , 121 -22 (1989) ; Woodall ,
33 M.S.P.R. at 134; Coltrane v. Department o f the Army , 32 M.S.P.R. 6 , 9 (1986) .
Here, by contrast, the agency gave the appellant substantial predecisional notice
of the reasons f or her demotion and an opportunity to respond but for the
7
agency’s failure to provide notice of the penalty -factor analysis that the proposing
official provided to the deciding official. ID at 2 -4, 16 -17.
¶11 For these reasons, we will not disturb the determi nation of the
administrative judge who decided in the underlying appeal that the appellant
failed to establish that the particular procedural error at issue was so egregious as
to constitute gross procedural error under the circumstances of this case . AID
at 4-5. We also find no basis to disturb the administrative judge’s determination
that none of the other circumstances for awarding fees specified in Allen ,
2 M.S.P.R. at 434 -35, are present here. AID at 4 -6. The appellant has neither
argued nor proven that she was substantially innocent of the charges or that the
agency knew or should have known it would not prove its charges or lacked a
valid basis for its action, and we find that attorney fees are not warranted on those
bases. Additionally, for the reasons stated above, we find that the appellant has
failed to show that the agency action was “clearly” taken without due process or
that the agency “knew or should have known” that the action would be reversed
on due process grounds. We find no evidence of any other circumstances in the
existing record that would support an award of attorney fees in the interest of
justice. Accordingly, we affirm the addendum initial decision denying the
appellant’s request for an award of attorney fees.
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
6 Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise which option is most appropriate in any matter.
8
appropriate for your situation and the rights described below do not represent a
statement of how courts will rule regarding which cases fall within their
jurisdiction. If you wish to seek review of this final decision, you should
imm ediately review the law applicable to your claims and carefully follow all
filing time limits and requirements. Failure to file within the applicable time
limit may result in the dismissal of your case by your chosen forum.
Please read carefully each of t he three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar day s of the date of issuance of this decision. 5 U.S.C.
§ 7703 (b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to t he court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.c afc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
9
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board ne ither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims—by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 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
10
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.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 Rev iew Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other cir cuit court of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115 -195,
132 Stat. 1510.
11
review within 60 days of the date of issuance of this decision. 5 U.S.C.
§ 7703 (b)(1)(B).
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D .C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Prote ction Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
Contact information for the courts of appeals can be found at their
respective websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
FOR THE BOARD:
Washington, D.C. /s/ for
Jennifer Everling
Acting Clerk of the Board | BRAXTON_LORETTA_ELAINE_DC_0752_14_0997_A_1_FINAL_ORDER_1950836.pdf | 2022-08-12 | null | DC-0752-14-0997-A-1 | NP |
4,195 | https://www.mspb.gov/decisions/nonprecedential/ALVARADO_LUIS_A_NY_1221_16_0281_W_1_FINAL_ORDER_1950837.pdf | UNITED STATES OF AME RICA
MERIT SYSTEMS PROTEC TION BOARD
LUIS A. ALVARADO,
Appellant,
v.
DEPARTMENT OF VETERA NS
AFFAIRS,
Agency.
DOCKET NUMBER
NY-1221 -16-0281 -W-1
DATE: August 12, 2022
THIS FINAL ORDER IS NONPRECEDENTIAL1
Luis A. Alvarado , Cidra, Puerto Rico, pro se.
Ana M. Margarida , Esquire, San Juan, Puerto Rico, 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 individual right of action (IRA) appeal for lack of jurisdiction.
Generally, we grant petitions such as this one only in the following
circumstances: the ini tial 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
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 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
considering the 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).2
¶2 The appellant, a Podiatric Physician at the VA Medical Center in San Juan,
Puerto Rico, filed an IRA appeal in which he argued that the agency had
retaliated against him by suspending him for 14 days because he encouraged a
subordinate to pursue allegations of sexual harassment. Initial Appeal File (IAF),
Tab 1 at 4. With his appeal, the appellant submitted a copy of a July 5, 2016
letter of decision, mitigating his proposed removal for misconduct to a 14 -day
suspension, effective July 25 through August 11, 2016. Id. at 8-9. The appellant
also submitted a May 17, 2016 letter from the Office of Special Counsel (OSC)
notifying him that i t was closing its file on “his complaint” and affording him the
right to pursue the matter to the Board. Id. at 12. The appellant requested a
hearing. Id. at 3.
¶3 In acknowledging the appeal, the administrative judge alerted the appellant
to a possible ju risdictional issue related to exhaustion . IAF, Tab 3. She
explained the means by which he could establish exhaustion , and she ordered him
to demonstrate that he exhausted his OSC remedy as to the matter being appealed
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
and to otherwise establish the Board ’s jurisdiction over the appeal. Id. The
appellant did not respond.
¶4 In an initial decision based on the written record, the administrative judge
first f ound that , as a health care professional appointed under 38 U.S.C.
§ 7401 (1), the appellant can bring an IRA appeal to the Board . Harding v.
Department of Veterans Affairs , 448 F.3d 1373 , 1377 (Fed. Cir. 2006); Hawker v.
Department of Veterans Affairs , 123 M.S.P.R. 62, 64 n.1 (2015) ; IAF, Tab 6,
Initial Decision (ID) at 3 . The administrative judge further found, however, that
the appellant failed to establish that he exhausted his remedy with OSC regarding
the 14 -day suspension . ID at 4. Accordingly, she dismissed the appeal for lack
of jurisdiction. ID at 5.
¶5 The appellant h as filed a petition for review, Petition for Review (PFR)
File, Tab 1, to which the agency has responded in opposition , PFR File, Tab 3.
¶6 On re view, the appellant argues that he did not respond to the
administrative judge’s jurisdictional order because it was sent to him while he
was serving the 14 -day suspension , that, during that time , he was not at his
address of record, but rather on “free time away from home,” and that, when he
returned on Augu st 12, 2016, he read the Board’s letter with a “past due date of
8/10/16.” PFR File, Tab 1 at 1. It is well established that an appellant is
responsible for ensuring the receipt of his mail. Lima v. Department of the Air
Force , 101 M.S.P.R. 64 , ¶ 4 (2006). We find, therefore , that the appellant’s
delayed receipt of the administrative judge’s order was the product of his failure
to advise the Board that he would not be at his address of record during the
15 calendar days the administrative judge gave him to respond to the
jurisdictional order . Moreover, he has failed to explain why he did not respond to
the administrative judge ’s ord er when he returned to his home, notwithstanding
the due date, since the initial decision was not issued until approximately 2 weeks
later. See, e.g., Young v. Merit Systems Protection Board , 961 F.3d 1323 , 1326
n.1 (Fed. Cir. 2020) ( outlining that in her IRA appeal, the appellant did not
4
respond to the administrative judge’s order on j urisdiction nor did she seek an
extension to do so). Nor has the appellant set forth what his response to the
administrative judge ’s order would have been and how it would have affected the
outcome of his appeal.
¶7 The appellant has not challenged the admin istrative judge ’s dismissal of the
appeal for lack of jurisdiction based on his failure to show that he exhausted his
remedy with OSC as to his 14 -day suspension. As the administrative judge
correctly found, the closure letter the appellant submitted coul d not relate to the
suspension because OSC closed its file on that complaint nearly 2 months before
the appellant learn ed that the suspens ion would be imposed. ID at 5. Although
ordered to do so, IAF, Tab 3 at 3, the appellant did not submit a copy of the OSC
complaint he filed, or any additional correspondence, that relates to the closure
letter he submitted . As such, he has not shown that the administrative judge erred
in finding that he failed to satisf y the exhaustion requirement ,3 Shibuya v.
Depar tment of Agriculture , 119 M.S.P.R. 537 , ¶ 26 (2013) , and th at therefore his
appeal was properly dism issed for lack of jurisdiction , Yunus v. Department of
Veterans Affairs , 242 F.3d 1367 , 1371 (Fed. Cir. 2001).
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
3 The appellant argues on review that, on August 29, 2016, after the initial decision was
issued, and again on September 6, 2016, he was contacted by an OSC employee who
told him that his case might be reopened. PFR File, Tab 1 at 1. If the appellant can
establish that he exhausted his remedy wi th OSC as to some action other than the
14-day suspension, and if OSC in fact reopens its investigation into that matter , the
appellant can file a new IRA appeal within 65 days after any new close -out letter from
OSC or, in the absence of a final OSC deter mination, at any time following 120 days
from h is having sought further corrective action. Morrison v. Department of the Army ,
77 M.S.P.R. 655 , 661 -62 (1998).
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 ap propriate in any matter.
5
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
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703 (b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
6
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful 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
7
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
other protected activities listed 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
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 th e 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 judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the 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 compe tent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115 -195,
132 Stat. 1510.
9
Contact information for the courts of appeals can be found at their
respective websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
FOR THE BOARD:
Washington, D.C. /s/ for
Jennifer Everling
Acting Clerk of the Board | ALVARADO_LUIS_A_NY_1221_16_0281_W_1_FINAL_ORDER_1950837.pdf | 2022-08-12 | null | NY-1221-16-0281-W-1 | NP |
4,196 | https://www.mspb.gov/decisions/nonprecedential/BLACKERBY_BRUCE_A_DC_0752_15_0980_I_1_FINAL_ORDER_1950857.pdf | UNITED STATES OF AME RICA
MERIT SYSTEMS PROTEC TION BOARD
BRUCE A. BLACKERBY,
Appellant,
v.
UNITED STATES POSTAL SERVICE,
Agency.
DOCKET NUMBER
DC-0752 -15-0980 -I-1
DATE: August 12, 2022
THIS FINAL ORDER IS NONPRECEDENTIAL1
Paul Y. Kiyonaga , Esquire and Gale Robert Thames , Washington, D.C., for
the appellant.
Steven Sultan , Esquire, Washington, D.C., for the agency.
James Puchala , Bellmawr, New Jersey, for the agency.
BEFORE
Cathy A. Harris , Vice Chairman
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
dismissed his removal appeal for lack of jurisdiction. Generally, we grant
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order ha s been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117 (c).
2
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 initial decision were not consistent with required
procedures or involved an abuse of 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 fi lings 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 and
AFFIRM the initial decision, which is now the Board’s final dec ision. 5 C.F.R.
§ 1201.113 (b).
BACKGROUND
¶2 The appellant filed an appeal of the agency’s decision to remove him from
his position as a Forensic Computer Analyst. Initial Appeal File (IAF), Tab 1.
The agency moved to dismiss the appeal , arguing that the appellant did not have
the right to appeal an adverse action to the Board because he was not a
preference -eligible veteran , manageme nt or supervisory employee, or confidential
employee . IAF, Tab 5. In response, the appellant argued that he was a
confidential employee because in the course of his actual job duties he assisted in
effectuating highly sensitive and confidential matters involving labor relations.
IAF, Tab 9 at 12 -16. After holding a hearing, the administrative judge dismissed
the appeal for lack of jurisdiction , finding that the appellant failed to prove by
preponderant evidence that he was a confidential employee . IAF, Tab 30, Initial
Decision (ID).
3
¶3 The appellant has fi led a petition for review. Petition for Review (PFR)
File, Tab 3. The agency has opposed the appellant’s petition. PFR File, Tab 5.
The appellant has filed a reply. PFR File, Tab 6.
DISCUSSION OF ARGUME NTS ON REVIEW
¶4 A Postal Service employee has a r ight to appeal an adverse action to the
Board, if he (1) is a preference eligible, a management or supervisory employee,
or an employee engaged in personnel work in other than a purely nonconfidential
clerical capacit y,2 and (2) has completed 1 year of cur rent continuous service in
the same or similar positions. See 39 U.S.C. § 1005 (a)(4)(A) ; 5 U.S.C.
§ 7511 (a)(1)(B)(ii); Clark v. U.S. P ostal Service , 118 M.S.P.R. 527 , ¶ 7 (2012).
¶5 It is undisputed that the appellant is not a preference eligible, manager , or
super visory employee. ID at 5. Thus, the Board would only have jurisdiction
over his appeal if he is a confidential employee. The Board has adopted the
definition of the term “confidential employees” set forth by the National Labor
Relations Board (NLRB) , wh ich includes “those employees who: (1) ‘[A]ssist
and act in a confidential capacity to persons who formulate, determine and
effectuate management policy in the field of labor relations,’ or (2) ‘regularly
have access to confidential information concerning anticipated changes which
may result from collective -bargaining negotiations.’” Law v. U.S. Postal Service ,
77 M.S.P.R. 30 , 34 (19 97) (quoting McCandless v. Merit Systems Protection
Board , 996 F.2d 1193 , 1199 (Fed. Cir. 1993)). The first prong of this definition
is referred to as the labor -nexus test. See National Labor Relations Board v.
Hendricks County Rural Electric Membership Corp oration , 454 U.S. 170 , 188 -89
(1981) ; see also Benifield v. U.S. Postal Service , 40 M.S.P.R. 50 , 53-54 (1989).
¶6 As described in the initial decision, the appellant testified below that he met
the definition of a confidential employee based on three examples of his job
2 For ease of reference, we will refer to employees engaged in personn el work in other
than a purely nonconfidential clerical capacity as “confidential employees.”
4
duties . First, he asserted that in or around Nove mber 2014, management enlisted
his assistance in its efforts to keep forensic computer analyst positi ons exempt
from overtime payment requirements under the Fair Labor Standards Act (FLSA) .
ID at 5 . He contend ed that management provided him with confidential proposed
position descriptions to review and confidential strategy memoranda on how to
argue that these posi tions were exempt under the FLSA. Id. The appellant then
met with the agency’s Organization al Effectiveness O ffice and explained the
nature of the positions. Id. Second, he contended that in October 2014, he was
allowed access to confidenti al personnel records of agency employees in the
course of investigating a cyber intrusion. ID at 5 -6. Third, he arg ued that in
2010 , he had access to computers used by agency employees when he participated
in a confidential investigation regarding the th eft of test answers for an
employment examination. ID at 6.
¶7 The administrative judge considered the appellant’s testimony concerning
these job duties but found that he failed to establish he was a confidential
employee. ID at 5 -9. Regarding the first type of confidential employee , the
administrative judge found that none of the examples cited met the labor -nexus
test because they showed only that the appellant on occasion had access to certain
labor -relate d or personnel type inf ormation, which the NLRB has found to be
insufficient. See ID at 3, 6 ( citing In re E.C. Waste , Inc., 339 N.L.R.B. 262, 282
(2003), enforced , 359 F.3d 36 (1st Cir. 2004) ). The administrative judge further
found that the appellant failed to show that the relevant individuals to whom he
alleged he was providing assistance were individuals who formulated,
determined, and effectuated management policy in labor relations. ID at 8-9.
Lastly , he found that the appellant failed to demonstrate that he acted in a
confidential capacity regarding the first example because the alleged confidential
information was not confidential relative to the forensic computer analysts who
5
would b e affected by the decision at issue.3 ID at 6 -7. Regarding the second type
of confidential employee , the administrative judge found that none of the
purportedly confidential information the appellant had access to concerned
anticipated changes w hich may result from collective bargaining negotiations. ID
at 6.
¶8 On review, the appellant argues that the administrative judge erred in
finding that he was not a confidential employee. PFR File, Tab 3 at 17 -19. He
reiterates his testimony below concerning the first two examples of job duties ,
which he contends establish he is a confidential employee , including his role s in
assisting management’s efforts to keep the forensic computer analyst positions
exempt from the FLSA overtime requirements and investigating a high -profile
cyber intrusion matter. Id. The administrative judge , however , considered such
testimony but found that it failed to establish that the appellant met the definition
of a confidential employee. ID at 5 -9. We find that the appellant’s arg uments on
review constitute mere disagreement with the administrat ive judge’s explained
findings and thus do not 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
administra tive judge’s findings when she considered the evidence as a whole,
drew appropriate references, and made reasoned conclusio ns); see also
Broughton v. Department of Health & Human Services , 33 M.S.P.R. 357 , 359
(1987) (same). For the reasons set forth in the initial decision, we agree with the
administrative judge that the appellant failed to establish that he is a confidential
employee.
3 Regarding the other two examples, the administrative judge found that these were
“even less compelling than the first.” ID at 7. We interpret this as meaning that such
matters are nonlabor related and so , even if confidential , fail to establish that the
appellant is a confidential employee. See ID at 3; see also Hamilton v. U.S. Postal
Service , 123 M.S.P.R. 404 , ¶ 20 (2016) (stating that , although the appellant may have
handled sensitive employee personnel information in the course of administrative
investigations, mere access to per sonnel information is insufficient t o establish
confidential status).
6
¶9 On review , the appellant also contends that the administrative judge erred in
finding that he was not a confidential em ployee because his position description
and Standard Forms 5 0 designate his position as non bargaining. PFR File, Tab 3
at 19 -20. He also disputes the administrative judge’s finding that , although he
was unable to join any of the four existing unions due to their bylaws, he was not
precluded by statute or regulation from forming his own collective bargaining
unit. Id. The appellant contends that this finding was erroneous because various
agency policies preclude him from forming a collective bargaining u nit. Id.
at 20-21.
¶10 We find such arguments unavailing. The Board’s jurisdiction is limited to
those appeals filed by Postal Service employees who are excluded from
bargaining unit membership because they are a manager, supervisor, or
confidential employee under 39 U.S.C. § 1202 . See 39 U.S.C. § 1005 (a)(4)(A);
Coursen v. U.S. Postal Service , 256 F.3d 1353 , 1355 -56 (Fed. Cir. 2001). Thus,
the agency ’s description of the appellant’s position as a “non bargaining” position
is not determinative. See Wilson v. U.S. Postal Service , 109 M.S.P.R. 60 , ¶ 10
(2008). Further, neither the absence of an existing collective bargaining unit for
the appellant to join nor the fact that he may be ineligible for bargaining unit
membership for reasons unrelated to 39 U.S.C. § 1202 (1)-(2) is sufficient to bring
the appeal within the Board’s jurisdiction. See, e.g., Coursen , 256 F.3d
at 1355 -57; Carrier v. Merit Systems Protection Board , 183 F.3d 1376 , 1378 -80
(Fed. Cir. 1999); Wilson , 109 M.S.P.R. 60 , ¶ 10.
¶11 Finally , the appellant argues that the administrative judge improperly failed
to address his argument that the denial of the rig ht to a Board appeal will deprive
him of due process because he waived his grievance right by filing a Board
appeal. PFR File, Tab 3 at 21 -23. However, because the Board’s jurisdiction is
constr ained by statute , the U.S. Court of Appeals for the Federal Circuit has
rejected similar arguments. See Hayden v. Merit Systems Protection Board ,
646 F. App’x 1008, 1012 -13 (Fed. Cir. 2016) (rejecting the appellant’s argument
7
that the denial of a right to appeal to the Board deprived her of due process
because jur isdiction is a threshold issue and no further process was due once the
Board determined it lacked authority to hear the case) ;4 Carrier , 183 F.3d
at 1379 -80 (finding nothing in the relevant statutes or precedent to suggest that an
appellant who fails the j urisdictional test under 39 U.S.C. § 1005 may
nevertheless appeal to the Board on a showing that he had no readily available
collective bargaining unit to which a grievance co uld be taken) .
¶12 Accor dingly, we affirm the initial decision dismissing the appeal for lack of
jurisdiction.
NOTICE OF APPEAL RIG HTS5
You may obtain review of this final decision. 5 U.S.C. § 7703 (a)(1). By
statute, t he nature of your claims determines the time limit for seeking such
review and the appropriate forum with which to file. 5 U.S.C. § 7703 (b).
Although we offer the following summary of available appeal rights, the Merit
Systems Protection Board does not provide legal advice on which option is most
appropriate for your situation and the rights described below do not represent a
statement of how courts will rule regarding which cases fall within the ir
jurisdiction. If you wish to seek review of this final decision, you should
immediately review the law applicable to your claims and carefully follow all
filing time limits and requirements. Failure to file within the applicable time
limit may result in the dismissal of your case by your chosen forum.
Please read 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 The Board may choose to follow nonprecedential decisions of the Federal Circuit if, as
here, it finds the reasoning persuasive. See, e.g., Erlendson v. Department of Justice ,
121 M.S.P.R. 441 , ¶ 6 n.2 (2014).
5 Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise which option is most appropriate in any matter.
8
about whether a particular forum is the appropri ate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeal s for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703 (b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U. S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Form s 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases inv olving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obta in
9
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703 (b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. ____ , 137 S. Ct. 1975 (2017). If you have a
representative in this case, and your representative receives this decision before
you do, then you must file with the district court no later than 30 calendar days
after your representative receives this decision. If the action involves a claim of
discrimination based on race, color, religion, sex, national origin, or a disabling
condition, you may be entitled to representation by a court -appointed lawyer and
to waiver of any requirement of prep ayment of fees, costs, or other security. See
42 U.S.C. § 2000e -5(f) and 29 U.S.C. § 794a .
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other iss ues. 5 U.S.C. § 7702 (b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702 (b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
10
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial revie w pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302 (b)(8 ) or
other protected activities listed in 5 U.S.C. § 2302 (b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
disposition of allegation s of a prohibited personnel practice described in section
2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(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.6 The court of appeals must receive your petition for
review within 60 days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(B).
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
6 The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistle blower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115 -195,
132 Stat. 1510.
11
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N .W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.msp b.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept represent ation in a given case.
Contact information for the courts of appeals can be found at their
respective websites, which can be accessed through the link below:
http://www.uscourts.go v/Court_Locator/CourtWebsites.aspx .
FOR THE BOARD:
Washington, D.C. /s/ for
Jennifer Everling
Acting Clerk of the Board | BLACKERBY_BRUCE_A_DC_0752_15_0980_I_1_FINAL_ORDER_1950857.pdf | 2022-08-12 | null | DC-0752-15-0980-I-1 | NP |
4,197 | https://www.mspb.gov/decisions/nonprecedential/HUGENBERG_WILLIAM_C_DE_1221_10_0530_B_2_FINAL_ORDER_1950398.pdf | UNITED STATES OF AME RICA
MERIT SYSTEMS PROTEC TION BOARD
WILLIAM C. HUGENBERG , JR.,
Appellant,
v.
DEPARTMENT OF COMMER CE,
Agency.
DOCKET NUMBER
DE-1221 -10-0530 -B-2
DATE: August 11, 2022
THIS FINAL ORDER IS NONPRECEDENTIAL1
William C. Hugenberg, Jr. , Grand Junction, Colorado, pro se.
Tyree P. Ayers , 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 remand 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 remand 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 remand 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 adm inistrative judge’s rulings during either the course of the appeal or
the remand initial decision were not consistent with required procedures or
involved an abuse of discretion, and the resulting error affected the outcome of
the case; or new and material evidence or legal argument is available that, despite
the petitioner’s due diligence, was not available when the record closed. Title 5
of the Code of Federal Regulations, section 1201.115 ( 5 C.F.R. § 1201.115 ).
After fully considering the 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 AFFI RM the remand
initial decision, which is now the Board’s final decision. 5 C.F.R. § 1201.113 (b).
BACKGROUND
¶2 The Board remanded this appeal for limited proceedings consistent with the
U.S. Court of Appeals for the Federal Circuit ’s decision in Whitmore v.
Department of Labor , 680 F.3d 1353 , 1368 (Fed. Cir. 2012), and instruct ed the
administrative judge to take further testimony and to revisit his findings and
determinations regarding the relevancy of disallowed witnesses. Hugenberg v.
Department of Commerce , 120 M.S.P.R. 381 (2013). This appeal is now before
us after remand.
¶3 The agency terminated the appellant from his position as Local Census
Office Manager for the Grand Junction Local Census Office (GJLCO) on
February 23, 2010, prior to the end of his term appointment, based on
unacceptable conduct and performance. Hugenberg v. Department of Commerce ,
MSPB Do cket No. DE -1221 -10-0530 -W-1, Initial Appeal File ( IAF), Tab 11,
Subtab 2. The appellant subsequently filed a whistleblower reprisal complaint
with the Office of Special Counsel (OSC). IAF, Tab 6, Subtab 15. After
receiving OSC’s closeout letter, he fil ed the instant IRA appeal, in which he
3
alleg ed that the agency terminated him in retaliation for his protected
whistleblower disclosures.2 IAF, Tab 1.
¶4 On appeal, the appellant claimed that the Regional Census Center (RCC)
caused the problems that prevent ed him from successfully selecting, enrolling,
hiring, and training employees and that he was “being set up as a scapegoat” in
retaliation for making two whistleblowing disclosures. Id. Specifically, the
appellant claimed his first disclosure was a lette r dated February 20, 2010, which
he sent to the agency’s Office of the Inspector General (OIG), with copies to the
Census Bureau Director, U.S. Senators Michael Bennett and Mark Udall, and
U.S. Representative John Salazar. Id., Exhibit 3. In the letter, the appellant
requested an investigation into “poor prior planning and software defects noted in
[the OIG’s February 2010 Quarterly] report,” and he asserted that, due to
problems with the agency’s payroll software, the GJLCO was unable to meet
hiring goal s and certain GJLCO employees were being underpaid. Id.
¶5 The appellant claimed his second disclosure concerned complaints he made
to the Regional Manager for Quality Assurance from December 2009 , through
February 2010 , regarding the Regional Technician (RT). Hugenberg v.
Department of Commerce , MSPB Docket No. DE -1221 -10-0530 -W-3, Appeal
File (W-3 AF), Tab 5 at 14-17. The appellant indicated that he had observed the
RT’s disheveled and unkempt appearance and erratic b ehavior. He also
contended that the RT had been involved in inappropriate relationships with
females in the GJLCO, which violated sexual harassment rules, significantly
interfered with hiring, and, in one instance, caused a safety issue when a female
staffer’s boyfriend became aware of the RT’s purported affair with the staffer.
Id.
2 A more detailed background is set forth in our remand decision and the administrative
judge’s initial decision. Hugenberg , 120 M.S.P.R. 381 , ¶¶ 2-8; Hugenberg v.
Department of Commerce , MSPB Docket No. DE -1221 -10-0530 -W-3, Initial Decision
at 2-6 (Mar. 6, 2012).
4
¶6 On appeal, the administrative judge found Board jurisdiction over the
appellant’s IRA appeal and held a hearing. W-3 AF, Tab 8, Initial Decision (ID)
at 5. The administrativ e judge ultimately found that the agency proved that it
would have terminated the appellant in the absence of his disclosures regarding
the RT. ID at 10-15. Therefore, the administrative judge denied the appellant’s
request for corrective action. ID at 15. The Board granted the appellant’s
petition for review, finding that the administrative judge failed to identify all of
the issues and denied relevant evidence, and remanded the appeal for further
adjudication. Hugenberg , 120 M.S.P.R. 381 .
¶7 On remand, the administrative judge granted the appellant’s request to
consider his February 18 and 19, 2010 disclosures directly to RCC m anagement
concerning problems he found with the Decennial Application Personnel and
Payroll System ( DAPPS ) as protected disclosures which were contributing factors
in the agency’s decision to terminate his employment. Hugenberg v. Department
of Commerce , MSPB Docket No. DE -1221 -10-0530 -B-2, Remand Initial Decision
(RID) at 5 (Apr. 2 8, 2016). The administrative judge also reconsidered the
parties ’ request for relevant witnesses and revisited his findings and
determinations as to the relevancy of the remaining proposed witnesses. After
holding a supplemental hearing, the administrative judge found that management
officials involved in the appellant’s termination lacked any retaliatory motive
because they credibly testified tha t they had not received the appellant’s
February 20, 2010 letter prior to taking the action to terminate h im. The
administrative judge further analyzed the appeal in accordance with Whitmore
and again found that the agency presented clear and convincing e vidence that it
would have removed the appellant in the absence of his protected disclosures
concerning the RT and his allegations that he made disclosures concerning the
DAPPS problems. RID at 8 -13. Accordingly, the administrative judge denied the
appel lant’s request for corrective action. RID at 14.
5
¶8 The appellant has filed a petition for review of the remand initial decision.
Remand Petition for Review (RPFR) File, Tab 1. The agency has filed a
response. RPFR File, Tab 4.
DISCUSSION OF ARGUME NTS O N REVIEW
¶9 The appellant argues on review that the administrative judge erred in
denying his motion to add his disclosure of inaccurate pay rates to his appeal , and
he asserts that the administrative judge failed to explain the basis for the denial.
RPFR Fi le, Tab 1 at 5. In this connection , the appellant asserts that, after finding
that the inaccurate pay rate claim was not properly before the Board, the
administrative judge further erred by excluding his witness L.N., based on his
finding that “her allege d bias against him is unrelated to any accepted
whistleblowing disclosures.” RPFR File, Tab 1 at 5-7; Hugenberg v. Department
of Commerce , MSPB Docket No. DE -1221 -10-0530 -B-1, Remand File (RF) ,
Tab 14.
¶10 However, contrary to the appellant’s assertion otherwise, the administrative
judge explicitly stated in his February 14, 2014 Order and Summary of Status
Conference , that he denied the request to add the pay rates disclosure. RF,
Tab 14. He reasoned that the appellant failed (1) to show that he raised and
exhausted this alleged disclosure before OSC, or (2) to show that he raise d it
before the Board in his prior petition for review . Id. As to the denial of L.N. as a
witness, the administrative judge has wide discretion under 5 C.F.R.
§ 1201.41 (b)(8), (10) to exclude witnesses whe n 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). Here, because the proffered testimony for
the witness was related to the appellant’s pay rates disclosure , the administrative
judge properly denied the witness because the proffered testimony was irrelevant
to any accept ed whistleblowing disclosure. RF, Tab 14. While the appellant
disagrees with administrative judge’s rulings concerning the inaccurate pay rate
6
claim and witness L.N., he has provided no basis upon which to disturb the
rulings.
¶11 The appellant also asserts that the administrative judge failed to apply the
Whistleblower Protection Enhancement Act of 2012, Pub. L. No. 112 -199,
126 Stat. 1465, and he appears to argue that, because this case was remanded for
the administrative judge to apply Whitmore to the analysis of his disclosures
concerning the RT, the administrative judge was required to thoroughly reanalyze
all of the claims he raised below and even address new arguments he raised for
the first time on remand. RPFR File, Tab 1 at 7. For example, the appellant
argues on review that the adminis trative judge erred by failing to consider all of
the potential categories of protected disclosures that were raised in his original
initial appeal but were not addressed in the initial decision. Id. at 8. The
appellant contends that, as a result, the Bo ard “had no knowledge” of the various
other potential categories of protected disclosures when it issued the decision
remanding the appeal and limit ed the Whitmore analysis to only “disclosures
regarding the RT.” Id.
¶12 We disagree. The Board remanded this appeal for the limited purposes of
determining whether the appellant’s February 20, 2010 letter was a contributing
factor in his termination, additional findings and an analysis under Whitmore as to
the appellant’s disclosures concer ning the RT, to have the administrative judge
revisit his findings and determinations about the relevancy of the remaining
proposed witnesses, and further reasoning for h is exclu ding any witnesses. Thus,
contrary to the appellant’s arguments, the administ rative judge appropriately
limited his review to those areas.
¶13 Furthermore, if the appellant believed that there were issues not addressed
in the original initial decision that should have been considered by the Board on
review, it was the appellant’s respo nsibility to raise those arguments in his earlier
petition for review. The appellant did not do so, and the Board will not address
his arguments regarding the initial decision for a first time on review absent a
7
showing that they are based on new and mate rial evidence not previously
available despite h is due diligence . The appellant has not made such a showing
here.
¶14 Similarly, the appellant argues for the first time on review that the
administrative judge erred by “ignoring the extent” that the agency “ab used its
authority” by subjecting him to a “hostile work environment.” RPFR File, Tab 1
at 9. However, because the appellant has made no showing that this argument is
based on new and material evidence not previously available despite his due
diligence, the Board has not considered it on review. Banks v. Department of the
Air Force , 4 M.S.P.R. 268 , 271 (1980).
¶15 The appellant also argues that the administrative judge failed to properly
apply Whitmore , failed to apply the “cat’s paw analysis” and the “mosaic” theory
of retaliation, and he reasserts that the administrative judge misapplied the clear
and convincing s tandard, favored the agency, and cherry picked the evidence.
RPFR File, Tab 1 at 10-11, 18 -22. We disagree. In raising these arguments, the
appellant merely reiterates his claim that his termination was pretext , and he
challenges the administrative judg e’s interpretation of the evidence and his
credibility determinations concerning the hearing testimony. Id. at 18-22, 24 -28.
Additionally, the appellant argues that the administrative judge discounted his
fully corroborated testimony. Id. at 23.
¶16 We ha ve considered the appellant’s arguments on review concerning the
administrative judge’s weighing of the evidence, however, and we discern no
reason to reweigh the evidence or substitute our assessment of the record
evidence for that of the administrative j udge. 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 fi ndings when she considered the evidence as a whole, drew appropriate
inferences, and made reasoned conclusions on issues of credibility ); Broughton v.
Department of Health & Human Services , 33 M.S.P.R. 357 , 359 (1987) (same);
see also Haebe v. Department of Justice , 288 F.3d 1288 , 1302 (Fed. Cir. 2002)
8
(finding that the Board may overturn credibility determinations that are implicitly
or explicitly based on demeanor only when it has “sufficiently sound” reasons for
doing so).
¶17 Specifically, the administrative judge revisited hi s findings and
determinations concerning witnesses, he provided the parties the opportunity to
request additional relevant witnesses, and he explained why the appellant decided
not to call five additional witnesses. RID at 5 n.5. In addition, the adminis trative
judge provided valid reasoning for his exclusion of L.N. as a witness. R F,
Tab 14. The administrative judge also performed a thorough and detailed
Whitmore analysis as instructed in the Board’s remand decision, and he made the
necessary findings regarding the appellant’s disclosures concerning the RT. RID
at 6-13. Based upon our review, we find that the administrative judge correctly
found that the agency presented clear and convincing evidence that it would have
removed the appellant in the abs ence of his protected disclosures related to
DAPPS and the RT. Accordingly, we conclude that the appellant has shown no
basis upon which to disturb the remand initial decision.
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 d o not represent a
statement of how courts will rule regarding which cases fall within their
jurisdiction. If you wish to seek review of this final decision, you should
3 Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise which option is most appropriate in any matt er.
9
immediately review the law applicable to your claims and carefully follow all
filing ti me limits and requirements. Failure to file within the applicable time
limit may result in the dismissal of your case by your chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703 (b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional 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.
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 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 re ceives this decision before
you do, then you must file with the district court no later than 30 calendar days
after your representative receives this decision. If the action involves a claim of
discrimination based on race, color, religion, sex, national origin, or a disabling
condition, you may be entitled to representation by a court -appointed lawyer and
to waiver of any requirement of prepayment of fees, costs, or other security. See
42 U.S.C. § 2000e -5(f) and 29 U.S.C. § 794a .
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/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:
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 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 of appeals of
competent jurisdiction.4 The court of appeals must receive your petition for
review within 60 days of the date of issuance of this decision. 5 U.S.C.
§ 7703 (b)(1)(B).
4 The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7 , 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115 -195,
132 Stat. 1510.
12
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
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 | HUGENBERG_WILLIAM_C_DE_1221_10_0530_B_2_FINAL_ORDER_1950398.pdf | 2022-08-11 | null | DE-1221-10-0530-B-2 | NP |
4,198 | https://www.mspb.gov/decisions/nonprecedential/ELLIS_WINDELL_AT_0845_15_0726_X_1_FINAL_ORDER_1950516.pdf | UNITED STATES OF AME RICA
MERIT SYSTEMS PROTEC TION BOARD
WINDELL ELLIS,
Appellant,
v.
OFFICE OF PERSONNEL
MANAGEMENT,
Agency.
DOCKET NUMBER
AT-0845 -15-0726 -X-1
DATE: August 11, 2022
THIS FINAL ORDER IS NONPRECEDENTIAL1
Windell Ellis , McDonough, Georgia, pro se.
Lesley Gordon , Washington, D.C., for the agency.
BEFORE
Cathy A. Harris , Vice Chairman
Raymond A. Limon , Member
Tristan L. Leavitt , Member
FINAL ORDER
¶1 This compliance p roceeding was initiated by the appellant’s March 30 , 2016
petition for enforcement of the Board’s January 29, 2016 order. Ellis v. Office of
Personnel Management , MSPB Docket No. AT-0845 -15-0726 -C-1, Compliance
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and 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 (CF), Tab 1; Ellis v. Office of Personn el Management , MSPB Docket
No. AT-0845 -15-0726 -I-1, Initial Appeal File, Tab 13, Initial Decision. On
October 6 , 2016, the administrative judge issued a compliance initial decision
finding the Office of Personnel Management (OPM) not in compliance with th e
January 29, 2016 order, and OPM ’s noncompliance was referred t o the Board for
consideration. CF, Tab 9 , Compliance Initial Decision (CID) . For the reasons
discussed below, we now find the agency in compliance and DISMISS the
petition for enforcement.
¶2 In the October 6, 2016 compliance initial decision, the administrative judge
found that OPM was not in compliance with the January 29, 2016 order because
the record reflected that OPM had not yet issued a new reconsideration decision.
CID at 2-3. As a result, the administrative judge ordered OPM to issue a new
reconsideration decision. CID at 3-4.
¶3 On January 1 8, 2017 , OPM submitted a pleading in what was considered by
the Board to be the appellant’s second petition for enforcement matter .2 In this
pleading , OPM provided evidence that it had issued a new reconsideration
decision on August 11, 2016, as required in the January 29, 2016 order. Ellis v.
Office of Personnel Management , MSPB Docket No. AT-0845 -15-0726 -C-2,
Compliance File, Tab 3 at 4-11. Therefore, based on OPM ’s submission, we find
that OPM is now in full compliance with the Board’s January 29, 2016 order.
¶4 Accordingly, the Board finds that OPM is in compliance and dismisses the
petition for enforcement. This is the final decision of the Merit Systems
2 Following the May 8, 2017 issuance of an initial decision in that matter finding OPM
in compl iance with the January 29, 2016 order, the appellant filed a June 2, 2017
submission with the Board that was initially considered as a petition for review of the
compliance initial decision but was later referred to the Board’s Atlanta Regional
Office as a new appeal of OPM’s August 11, 2016 reconsideration decision. Ellis v.
Office of Personnel Management , MSPB Docket No. AT - 0845 -15-0726 -C-2, Petition
for Review File, Tabs 1, 2, 6. An administrative judge issued an initial decision in that
appeal on Nov ember 24, 2017. Ellis v. Office of Personnel Management , MSPB Do cket
No. AT -0845 -17-0778 -I-1.
3
Protection Board in this compliance proceeding. Title 5 of the Code of Federal
Regulations, section 1201.183(b) ( 5 C.F.R. § 1201.183 (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 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
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703 (b)(1)(A).
3 Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise which option is most appropriate in any matter.
4
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful 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
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 belo w:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination cla ims only, excluding
all other issues . 5 U.S.C. § 7702 (b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702 (b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular 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
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 Boar d’s
disposition of allegations of a prohibited personnel practice described in
section 2302(b) other than practices described in section 2302(b)(8), or
2302(b)(9)(A)(i), (B), (C), or (D),” then you may file a petition for judicial
review either with the U. S. Court of Appeals for the Federal Circuit or any court
of appeals of competent jurisdiction.4 The court of appeals must receive your
petition for review within 60 days of the date of issuance of this decision.
5 U.S.C. § 7703 (b)(1)(B).
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
4 The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
Decembe r 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115 -195,
132 Stat. 1510.
7
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
Contact information for the courts of appeals can be found at their
respective websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
FOR THE BOARD:
Washington, D.C. /s/ for
Jennifer Everling
Acting Clerk of the Board | ELLIS_WINDELL_AT_0845_15_0726_X_1_FINAL_ORDER_1950516.pdf | 2022-08-11 | null | AT-0845-15-0726-C-1; AT-0845-15-0726-X-1 | NP |
4,199 | https://www.mspb.gov/decisions/nonprecedential/SUCHAK_STEVEN_S_DA_0841_16_0017_I_2_REMAND_ORDER_1950583.pdf | UNITED STATES OF AME RICA
MERIT SYSTEMS PROTEC TION BOARD
STEVEN S. SUCHAK,
Appellant,
v.
OFFICE OF PERSONNEL
MANAGEMENT,
Agency.
DOCKET NUMBER
DA-0841 -16-0017 -I-2
DATE: August 11, 2022
THIS ORDER IS NONPRECEDENTIAL*
Brad Harris , Esquire and Leah Bachmeyer Kille , Esquire, Lexington,
Kentucky, for the appellant.
Carla Robinson , 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 the decision of the Office of Personnel Management (OPM) to terminate
his disability annuity. OPM has filed a motion to dismiss the appeal as moot
* A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and 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 it has retroactively reinstated the appellant’s annuity. For the reasons set
forth below, we VACATE the initial decision without deciding the issues raised
in the appellant’s petition for review and REMAND the case to the Western
Regional Office for further development of the record regarding the potential
mootness of this appeal and, if necessary, further adjudication.
BACKGROUND
¶2 The relevant background information is not in material dispute. According
to the appellant, he was separated from a civilian position with the Department of
the Air Force on March 29, 2013, as a result of his medical inability to perform
the essential job duties of his Information T echnology position. Suchak v. Office
of Personnel Management , MSPB Docket No. DA -0841 -16-0017 -I-1, Initial
Appeal File (IAF), Tab 21 at 4 -5. In March 2014, he applied for disability
retirement benefits under the Federal Employees Retirement System (FERS). Id.
at 5. Thereafter, he applied for , and accepted , an appointment wi th the
Department of the Navy as an Electroni c Engineer. Id. The appointment was
effective June 2, 2014. Id. at 30 -31. On January 5, 2015, OPM approved the
appellant’s request for a FERS disability annuity. Id. at 32 -35. On
August 28, 2015, however, OPM found that he was administrative ly recovered
based on his employment with the Navy, and it terminated his disability annuity
effective June 2, 2014. IAF, Tab 2.
¶3 The appellant then filed this appeal with the Board. IAF, Tab 1. The
administrative judge issued an initial decision finding that the appellant failed to
establish his eligibility for the FERS disability benefits sought and affirming
OPM’s decision to deny the appellant those benefits. Suchak v. Office of
Personnel Management , MSPB Docket No. DA -0841 -16-0017 -I-2, Refiled
Appeal File, Tab 32, Initial Decision (ID) at 2, 14.
¶4 The appellant has filed a petition for review. Petition for Review (PFR)
File, Tab 1. On July 5, 2017, OPM was ordered to respond to an argument raised
3
by the appellant. PFR File , Tab 3. OPM instead filed a motion to dismiss the
appea l as moot, asserting that it reinstated the appellan t’s annuity retroactive to
June 2, 2014. PFR File, Tab 5 at 4. The appellant filed an oppo sition to OPM’s
motion, and OPM filed a reply. PFR Fil e, Tabs 6 -7.
DISCUSSION OF ARGUME NTS ON REVIEW
¶5 A case is moot when the issues presented are no longer “live ,” or the parties
lack a legally cognizable interest in the outcome of the case. Wrighten v. Office
of Personnel Management , 89 M.S.P.R. 163 , ¶ 5 (2001 ). For an appeal to be
dismissed as moot, an appellant must have received all of the relief that he could
have received if the matter had been adjudicated and he had prevailed. Alexis v.
Office of Personnel Management , 106 M.S.P.R. 315 , ¶ 6 (2007).
¶6 In its July 25, 2017 motion to dismiss, OPM asserts the following: (1) it
has reinstated the appellant’s disability annuity retroactive to June 2, 2014;
(2) effective August 1, 2017, he would begin receiving recurring monthly annuity
payments; and (3) within 5 to 7 business days, he would receive a one -time ,
lump -sum payment for the annuity , which he was owed for the period from
June 2, 2014 , through June 30, 2017 . PFR File, Tab 5 at 4, 8. OPM has
submitted what appear to be screenshots reflecting that it made these changes
within its computer system, id. at 6-7, as well as calculations reflecting how it
arrived at some of the amounts releva nt to the appellant’s annuity , id. at 9-10. In
a letter to the appellant attached to its motion, OPM stated that it was deducting
his optional life insurance and the Federal tax due from his retroactive annuity
payment. Id. at 8. OPM further informed the appellant that, while he is
reemployed, his employing agency will deduct his basic life and health insurance
premiums from his salary , and OPM will deduct his optional life insurance from
his monthly annuity payment. Id.
¶7 The appellant requests that the Board not dismiss his appeal as moot until
OPM provides an itemized list of deductions that it made from the retroactive
4
annuity payment , and he can determine that it made the correct withholdings.
PFR File, Tab 6 at 6. Spe cifically, he asserts that deductions for his enrollment in
Federal Employees G roup Life Insurance (FEGLI) already have been made
through his “employed pay ” and that OPM need not have made duplicative
deductions from the retroactive annuity payment . Id.
¶8 In its response, OPM neither confirms nor denie s whether it has made such
deductions from its retroactive annuity payment to the appellant. PFR File,
Tab 7. OPM instead assert s that the question of whether it correctly deducted the
appellant’s FEGLI pre miums from his annuity is beyond the Board’s jurisdiction.
Id. at 5 (citing Miller v. Office of Personnel Management , 449 F.3d 1374 ,
1377 -78 (Fed. Cir. 2006) ).
¶9 However, a lthough claims concerning FEGLI are generally beyond the
Board’s jurisdiction, the Board has recognized several exceptions to this rule.
Chamblin v. Office of Personnel Management , 112 M.S.P.R. 266 , ¶¶ 7, 11 -14
(2009). For instance, in determining whether OPM has complied with a Board
order to award an appellant retroactive disability retirement, the Boa rd has
required OPM to explain satisfactorily why it deducted life insurance premiums
from a retroactive payment . Lua v. Office of Personnel Management ,
100 M.S.P.R. 431, ¶¶ 3-4, 14 -15 (2005 ). Significant to the Board’s finding in
Lua was the fact that t he matter before it was an issue of compliance from its
final decision granting the appellant’s disability retirement annuity. Lua v. Office
of Personnel Management , 102 M.S.P.R. 108 , ¶ 8 (2006). Although the instant
case does not involve a petition for enforcement, we may not dismiss the appeal
as moot until the appellant has received all of the relief that he could have
received if the matter had been adjudicated and he had prevailed. See Alexis ,
106 M.S.P .R. 315 , ¶ 6. We find that OPM must submit additional evidence and
argument supporting its reduction of the lump -sum payment for life insurance
premiums before it can be determined that the appellant has received all
appropriate relief. See Lua , 100 M.S. P.R. 431, ¶¶ 14-15.
5
¶10 Additionally , regardless of whether OPM properly deducted the appellant’s
FEGLI premiums from its retroactive annuity payment, we find that the current
record is insufficient ly developed to dismiss this appeal as moot . OPM’ s
assertion that it has reinstated the appellant’s annuity does not establish that his
annuity payment has been calculated correctly and that he has received all of the
relief to which he is entitled. See Fernandez v. Department of Justice ,
105 M.S.P.R. 443 , ¶ 10 (2007). The appellant has the right to the information
relied upon by OPM to calculate its annuity determinations , and as OPM has sole
access to that information, the Board expects OPM to provide it. Harlston v.
Office of Personnel Management , 109 M.S.P.R. 148 , ¶ 4 (2008). Because OPM
has so far declined to provide such information , we find it appropriate to remand
this appeal for the administrative judge to determine whether the appellant has
received all of the relief that he could have re ceived if the matter had been
adjudicated and he had prevailed. See Sanders v. Equal Employment Opportunity
Commission , 45 M.S.P.R. 22 9, 233 -34 (1990).
¶11 We find unpersuasive the appellant’s remaining arguments in opposition to
the motion to dismiss. The appellant requests that the Board confirm his right to
receive the disability annuity to ensure that OPM will not terminate his annuity in
the future. PFR File, Tab 6 at 4 -6. He asserts that his request is in line with
Adarand Constructors , Inc. v. Slater , 528 U.S. 216 , 222 (200 0) and United States
v. Concentrated Phospate Export Association , Inc., 393 U.S. 199 , 203 (1968). In
Adarand Constructors , the Court held that “[v]oluntary cessation of challenged
cond uct moots a case only if it is ‘ absolutely clear that the allegedly wrongful
behavior could not reasonably be expected to recur. ’” 528 U.S. at 222 (quoting
Concentrated Phosphate , 393 U.S. at 203 ) (emphasis omitted). We find this
doctrine inapplicable to the circumstances of this appeal. In Already , LLC v.
Nike , Inc., 568 U.S. 85 , 91 (20 13), the Court explained that the purpose of this
“voluntary cessation” doctrine is to prevent a defendant from only temporarily
ceasing his unlawful conduct “when sued to have the case declared moot, then
6
pick up where he left off, repeating this cycle un til he achieves all his unlawful
ends.” We see no risk of OPM acting in this manner here.
¶12 Moreover, the issue in this appeal is OPM’s decision to terminate the
appellant’s annuity. Although the appellant requests that the Board verify his
eligibility for restoration of his annuity, or his eligibility to a new annuity, in the
event that he is separated from the Navy, PFR File, Tab 6 at 5, the Board is not
authorized to issue a declaratory order or an advisory opinion in these
circumstances . See 5 U.S.C. § 1204 (h); Blaha v. Office of Personnel
Management , 108 M.S.P.R. 21 , ¶ 11 (2007). Accordingly, we deny the
appellant’s request.
¶13 Finally, the appellant argues that the appeal should not be dismissed as
moot when he has not been provided att orney fees. PFR File, Tab 6 at 7-8. We
find that any outstanding issue regarding attor ney fees does not prevent this
appeal from being dismissed as moot . See Koerner v. Office of Personnel
Management , 51 M.S.P.R. 365 , 367 (1991).
ORDER
¶14 For the reasons discussed above, we remand this case to the Western
Regional O ffice for further adjudication in accordance with this Remand Order.
Because we remand the appeal to determine whether the appeal is moot, we do
not reach the que stion of whether the initial decision was correctly decided. If
the administrative judge determines on remand that the appellant has not received
all of the relief that he could have received if the matter had been adj udicated and
he had prevailed, then t he administrative judge should issue a
7
new initial decision determining whether the appellant has established his
entitlement to the benefits sought.
FOR THE BOARD:
Washington, D.C. /s/ for
Jennifer Everling
Acting Clerk of the Board | SUCHAK_STEVEN_S_DA_0841_16_0017_I_2_REMAND_ORDER_1950583.pdf | 2022-08-11 | null | DA-0841-16-0017-I-2 | NP |
4,200 | https://www.mspb.gov/decisions/nonprecedential/FEESAGO_ANGELINA_M_SF_0432_16_0458_I_1_FINAL_ORDER_1950173.pdf | UNITED STATES OF AME RICA
MERIT SYSTEMS PROTEC TION BOARD
ANGELINA M. FEESAGO,
Appellant,
v.
DEPARTMENT OF DEFENS E,
Agency.
DOCKET NUMBER
SF-0432 -16-0458 -I-1
DATE: August 10, 2022
THIS FINAL ORDER IS NONPRECEDENTIAL1
Angelina M. Feesago , Twentynine Palms, California, pro se.
Michael Sandburg , Fort Lee, Virginia, 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 its decision to demote the appellant for unacceptable performance under
5 U.S.C. chapter 43. Generally, we grant petitions such as this one only in the
following circumstances : the initial decision contains erroneous findings of
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and 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 ava ilable that, despite the petitioner’s due
diligence, was not available when the record closed. Title 5 of the Code of
Federal Regulations, section 1201.115 ( 5 C.F.R. § 1201.115 ). After fully
considering the 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 Fin al Order to supplement the administrative judge’s findings concerning the
agency’s failure to afford the appellant a reasonable opportunity to improve her
performance , we AFFIRM the initial decision.
BACKGROUND
¶2 The appellant was employed as a GS -07 Produce Department Manager with
the Defense Commissary Agency until the agency demoted her to a GS -04 Store
Associate for unacceptable performance in the four critical elements of her
position. Initial Appeal File (IAF), Tab 4 at 11 -24. The agency placed
the appellant on a 90 -day performance improvement plan (PIP ), beginning
August 8, 2015. IAF, Tab 21 at 47 -56. After determining that the appellant’s
performance remained unsatisfactory in all four critical elements , the agency
issued her a notice of pro posed performance -based demotion on January 23, 2016,
IAF, Tab 4 at 38 -51, and then demoted her, effective May 1, 2016, id. at 9, 23.
¶3 The appellant timely appealed her demotion to the Board . IAF, Tab 1.
She also raised affirmative defenses of race discr imination, whistleblower
reprisal , and harmful procedural error . IAF, Tab 38 . After the appellant
withdrew her request for a hearing, IAF, Tab 39, the administrative judge issued
3
an initial decision based on the written record, reversing the demotion act ion.
IAF, Tab 49, Initial Decision (ID). The administrative judge found that the
agency’s performance standards for critical elements 4 and 5 were invalid
because they were not precise, specific, and objective. ID at 13. In particular,
she found that the agency appeared to use “exceptions” or “discrepancies” to rate
the appellant’s performance, yet there was no stated standard as to how many
exceptions could occur before an employee would be deemed to have failed to
meet the standard. ID at 10. Instea d, the standard or “target measurement”
appeared to be tied to a sales report, but it was unclear how the exceptions were
captured by the target measurement. ID at 10-13. A lthough the administrative
judge determined that critical elements 1 and 2 were valid, she determined that
the agency failed to afford the appellant a reasonable opportunity to improve her
performance in those elements due to staffing issues during the PIP . ID at 17 -21.
The administrative judge further found that the appellant failed to prove her
affirmative defenses. ID at 21-37.
¶4 The agency has filed a petition for review in which it asserts that the
administrative judge erred in finding that the appellant was not afforded a
reasonable opportunity to improve her performance. Petition for Review (PFR)
File, Tab 1 .2 The appellant has not challenged the administrative judge’s findings
that she failed to prove her affirmative defenses and has not responded to the
agency’s petition for review.
2 With its petition for review, the agency fail ed to include a certification that it
complied with the interim relief order. See 5 C.F.R. § 1201.116 (a). However, i n light
of our d ecision to deny the agency’ s petition for review on the merits and thereby order
the agency to provide full relief consistent wi th law, the issue of the agency’ s
compliance with the interim relief order is moot. See Coffey v. U. S. Postal Service ,
77 M.S.P.R. 281 , 286 (1998).
4
DISCUSSION OF ARGUMENTS ON REVI EW
¶5 In a performance -based action taken under chapter 43, an agency must
establish by substantial evidence3 that: (1) the Office of Personnel Management
(OPM) approved its performance apprai sal system ;4 (2) the agency communicated
to the appellant the performance standards and critical elements of her position;
(3) the appellant’ s performance standards are valid under 5 U.S.C. § 4302 (c)(1);5
(4) the agency warned the appellant of the inadequacies of her performance
during the appraisal period and gave her a reasonable opportunity to improve; and
(5) the appellant’ s performance remained unacceptable in at least one critical
element.6 White v. Department of Veterans Affairs , 120 M.S.P.R. 405 , ¶ 5 (2013).
On review, the agency does not challenge the admini strative judge’s f indings that
3 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 conc lusion,
even though other reasonable persons migh t disagree.” 5 C.F.R. § 1201.4 (p).
4 The agency has the burden of proving that OPM has approved its performance
appraisal system if the ap pellant specifically raises such a challenge. Sanders v. Social
Security Administration , 114 M.S.P.R. 487 , ¶ 11 n. 2 (2010). Here, the appellant did not
raise this issue . ID at 5.
5 This section used to be codified at 5 U.S.C. § 4302 (b)(1). During the pendency of this
appeal, the National Defense Authorization Act for Fiscal Year 2018 (NDAA for 2018),
Pub. L. No. 115 -91, 131 Stat. 1283, was signed into law on December 12, 2017.
Section 1097(d)(1) of the NDAA for 2018 redesignated subsection 4302(b) of title 5 as
subsection 4302(c). 131 Stat. at 1619. Such change has no impact on the disposition of
this appeal. We also have reviewed the other relevant legislation enacted during the
pendency of this appeal and have concluded that it does not affect the outcome of the
appeal.
6 During the pendency of the petition for re view in this case, the U.S. Court of Appeals
for the Federal Circuit held in Santos v. National Aeronautics & Space Administration ,
990 F.3d 135 5 (Fed. Cir. 2021), that , in addition to the five elements of the agency’s
case set forth above, the agency also must justify the institution of a PIP by proving by
substantial evidence that the appellant ’s performance was unacceptable prior to the PIP.
Santos , 990 F.3d at 1360 -61. Although t he 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, here, because the agency failed
to satisfy all of the above enumerated elements, we need not consider the appellant’s
pre-PIP performance . Moreover, the appellant ’s affirmative defenses are not at issue on
review.
5
the performance standards for critical elements 4 and 5 were invalid . Thus, t he
sole issue that we will address is whether the agency afford ed the appellant a
reasonable opportunity to improve her performance in critical elements 1 and 2 .
The administrative judge properly found that the agency failed to afford the
appellant a reasonable opportunity to improve her performance .
¶6 An employee is entitled to a reasonable opportunity to demo nstrate
acceptable performance, which includes assistance from the agency in improving
unacceptable performance. 5 U.S.C. § 4302 (c)(5) -(6); 5 C.F.R. § 432.104 .
Although there is no mechanical requirement regarding the form of this
assistance, in determining whether an agency has afforded an employee a
reasonable opportunity to demonstrate acceptable performance, relevant factors
include the nature of the duties and r esponsibilities of the employee’ s position,
the performance deficiencies involved, and the amount of time which is sufficient
to enable the employee to demonstrate acceptable performance. Lee v.
Environmental Protecti on Agency , 115 M.S.P.R. 533 , ¶ 32 (2010); Gjersvold v.
Department of the Treasury , 68 M.S.P.R. 331 , 336 (1995).
¶7 The administrative judge found that the agency failed to show that it
afforded the appellant a reasonable opportunity to improve because lower staffing
levels occurred throughout the PIP period, requiring the appellant to perform
additional duties beyond her normal workload . ID at 21. In particular, the
administrative judge found that prior to the PIP, total man hours in the produce
department , not inclu ding the appellant’s hours, varied between 216 and 248, or
5.4 to 6.2 full -time equivalents (FTEs), but that during the PIP , total man hours
varied between only 168 and 198 , or 4.2 to 5 FTEs . ID at 19 -20. Further, she
found that one employee was terminat ed on August 7, 2015, the day before the
appellant’s PIP commenced. ID at 19. She also found that two employees were
transferred out of the produce department on August 23, 2015, during the PIP
period , and one employee w as transferred into the produce department but
require d training during the PIP period . ID at 18.
6
¶8 On review, the agency does not dispute these findings or that its staffing in
the produce department generally was lower during the appellant’s PIP period ,
and we discern no error with the administrative judge’s analysis . The agency ,
however, contends that there was “no true staffing deficiency ” because agency
documentation establishes that the produce department was only authorized to
have 5 FTE s. PFR Fi le, Tab 1 at 15-16. Despite this standard , the agency has
offered no explanation as to why, prior to the PIP , the pr oduce department was
staffed with between 6.4 to 7.2 FTEs, i ncluding the appellant’s full -time hours .
We agree with the administrative judge that the drop in staffing during the PIP
effectively impose d a higher level of performance on the appellant than
previously was required of her, and thus , the agency did not afford her a
reasonable opportunity to impr ove.
¶9 On review, the agency argues that the administrative judge erred in finding
that low staffing levels required the appellant to perform additional duties not
expected of her because her job description states that she was responsible for
either direc ting or personally performing certain duties. PFR File, Tab 1
at 11-13. We find such an argument unavailing. While it may be true that the
appellant may have been expected to perform some duties personally, as opposed
to directing employees to perform them, it is undeniable that with less staff she
would have been required to personally perform more duties. Thus, we agree
with the administrative judge’s reasonable finding , that the appellant’ s workload
increased during the PIP .
¶10 Next, the agency argues that the appellant’ s position description indicates
that she is responsible for ensuring adequate coverage of her department and that
she was responsible for the low staff levels because she inappropriately granted
employees leave. PFR File, Tab 1 at 13 -14. It does not appear that the appellant
had control over the hiring or firing of produce department employees or staffing
levels generally. IAF, Tab 21 at 37, Tab 26 at 56, 78 , Tab 37 at 5. Regarding
scheduling , the record reflects that , during the m onth of September , the produce
7
department was short staffed because , in addition to the termination of one
employee and the transfer of two other employees out of the produce department ,
one employee was on bereavement leave for part of the month and anothe r
employee was on light duty for 3 weeks . IAF, Tab 11 at 119 , Tab 38 at 35.
¶11 Despites its contention that the appellant was responsible for the lack of
coverage, t he agency has not explained how it was impro per for the appellant to
grant an employee bereavement leave to make funeral arrangements following the
death of his grandmother. OPM regulations permit an employee to use up to
104 hours of sick leave each year for family care or bereavement. 5 C.F.R.
§ 630.401 (a)(4), (b). Additionally, an email from the appellant’s supervisor
corroborate s that the other employee was on light du ty due to his medical
condition and was required to submit appropriate medical documentation before
he could return to duty. IAF, Tab 11 at 117.
¶12 Finally, the agency asserts that the administrative judge erred in relying on
what it characterizes as biased emails that the appellant sent to herself during the
PIP, documenting staffing shortage s and he r requests for assistance. PFR File,
Tab 1 at 5, 13. We discern no error in the administrative judge’s reliance o n such
contemporaneous records, which are corroborated by the record. For example, in
an email dated September 10, 2015, the appellant wrote ,
September has been a rough month for the Produce department. One
employee had a death in the family, and another employee had a
back injury that has put him out for 3 weeks. We have been working
with 3 employees, one of which is fairly new, starting in the Produce
Department on August 23, 2015. For the past few weeks I open
Produce with 1 employee.
IAF, Tab 38 at 35 . She added that her “employees are overwhelmed and
exhausted.” Id. at 36. Such assertions are corroborated by emails between th e
appe llant and her supervisor. IAF, Tab 11 at 117, 119. Additionally, a PIP
meeting memoranda documents that the appellant requested to forego the weekly
8
counseling meeting on September 12, 2015, because her department was short
staffed , and she need ed to st ay and fill the void. Id. at 37.
¶13 In addition to the staffing issues, h aving reviewed the documentary
evidence, we find that the agency failed to show that it adequately warned the
appellant of her performance deficiencies in critical elements 1 and 2 and did not
provide her with clear guidance as to how to improve her performance during the
PIP. As set forth below, t he record reflects that the nature of the appellant’s
performance deficiencies regardin g critical elements 1 and 2 was unclear and
changed ov er time.
¶14 Element 1 of the appellant’s performance standards set s forth the following
general requirements :
1a. Equal Employment Opportunity (EEO): Recruits, retains, and
develops the talent needed to achieve a high quality, diverse
workforce that refl ects the nation , with the skills needed to
accomplish organizational performance objectives while supporting
workforce diversity, workplace inclusion, and equal employment
policies and programs. Fosters a culture in which individuals
interact and support each other as a means of contributing to high
performance in the organization. Maintains a work environment free
of discrimination and sexual harassment and facilitates cooperation
and teamwork.
1b. Human Capital Resources: Effectively attracts and reta ins a
high caliber workforce using workforce planning and forecasting
tools (on board strengths versus future demands for filing [sic]
positions) and in accordance with measurements identified in
organizational staffing and hiring goals. Ensures successful
transition and retention into the Federal Service by providing
opportunities for orientation and tools for enabling employees to
successfully perform during the required probationary period.
Identifies current and future position requirements t o ensure
recruiting is appropriately f ocused and timely to produce hig h
quality can didate pools. Acts responsibly and timely on all hiring
decisions. Identifies and ensures completion of training necessary to
develop staff and meet operational needs usin g the most cost
effective sources. Ensures that award allocations, to include
performance based awards, are in compliance with guidance
established by [ the Office of Management and Budget] and OPM.
9
Ensures subordinate employee performance plans ar e align ed with
the organization’ s mission and goals, that employees receive
constructive feedback, and that employees are re alistically appraised
against cl early defined and communicated performance standards.
Holds employees accountable for appropriate levels o f performance
and conduct. Ensures that appropriate disciplinary/performance
related actions are initiated in a timely manner throughout area(s) of
responsibility. Fosters a positive working relationship with the
bargaining unit to minimize substantiated grievances.
IAF, Tab 45 at 5.
¶15 An agency may give con tent to an employee’ s otherwise valid perform ance
standards by informing her of specific work requirements through written
instructions, information concerning deficiencies and methods of improving
perfo rmance, memoranda describing unacceptable performance , and responses to
her questions concerning performance. Baker v. Defense Logistics Agency ,
25 M.S.P.R. 614 , 617 (1985), aff’d, 782 F.2d 1579 (Fed. Cir. 1986).
Here, however, the agency did not do so. Rather, t he PIP, PIP meeting notes,
memorandum concerning the decision to demote the appellant , and demotion
notice s reflect that the appellant’s identified performance deficiencies
continuously changed over time without notice.
¶16 Regarding critical element 1, the PIP memo randum cites to four examples
of the appellant’s deficient performance , which related solely to not properly
scheduling employees (e.g., failing to rotate employee s’ weekends off, failing to
properly schedule part-time employee s, improperly scheduling an e mployee listed
as 32 hours for 40 hours, and making verbal modification s to the schedule without
revis ing the master schedule ). IAF, Tab 21 at 51. Having identified scheduling
issues as the sole performance problem under critical element 1 , the PIP
memor andum nonetheless instructed the appellant that, to improve her
performance to the fully successful level in critical element 1 , she must d o the
following:
Lead by example by: Support Management Directives , Ensure staff
is trained on IA W Directives & Guidelines to identify Produce and
10
discuss effectively the produce products for sale, Maintain
confidentiality. Scheduling Staff: Ensure staff is fully maximized,
schedule sufficient staff throughout the business d ay to ensure sales
needs are met, condu ct Monthly Spot Checks of department, hold
staff accountable for appropriate level of performance and conduct,
ensure disciplinary and performance related actions are initiated in a
timely manner, foster a positive working environment, a nd hold
monthly sta ff meetings.
Id. at 51 -52.
¶17 Documents memorializing the appellant’s performance during the PIP
identify new performance deficiencies in critical element 1.7 These largely relate
to failing to conduct inventory, price verifications, and produce department
checklist s or to order cut -resistant gloves. IAF, Tab 17 at 27, Tab 13 at 5, Tab 11
at 17, Tab 7 at 14, Tab 10 at 14, Tab 9 at 8, Tab 6 at 35 , Tab 28 at 67. However ,
duties related to ordering, receiving, storing, processing, and pricing of produce
correspond to critical element 4, which the administrative judge found was
invalid.8 IAF, Tab 45 at 6 .
¶18 Other documents concerning the PIP identify other instances in which the
appellant’s performance related to critical element 1 was deficient , such as failing
to file 2016 performance plans in the satellite personnel folders , allowing an
employee to report to duty early on one occasion, not providing management with
a modified duty schedule, failing to complete appropriate training forms to
acquir e acces s for payroll processing, and various timecard issues. IAF, Tab 13
at 5, Tab 11 at 17, Tab 10 at 14, Tab 28 at 66. However, t he appellant was n ot
advised in the PIP notice of any performance deficiencies in these categories.
Although s he was instructed to ensure staff wa s fully maximized and sufficient to
7 During the PIP, the appell ant met with her supervisor on eight occasions. IAF, Tab 18
at 29, Tab 17 at 30 , Tab 13 at 7 , Tab 11 at 33 , Tab 10 at 27 , Tab 9 at 14, Tab 6 at 43,
Tab 28 at 76.
8 On various occasions, t he agency identified conducting price verifications and
produce department checklist s as pertaining to critical elements 1, 4, or 5. IAF, Tab 28
at 73, Tab 6 at 35, 38 -39, Tab 9 at 8, 12, Tab 10 at 14, 22, Tab 11 at 20, 22, 28, Tab 13
at 5-6, Tab 17 at 27 -28, Tab 18 at 28.
11
ensure sales needs were met, n one of these performance deficiencies appea r to
reflect a failure to meet such standards , nor did the PIP notice advise the
appellant that to improve her performance in cri tical element 1 she needed to take
any actions rega rding employee performance plans or payrol l duties.
Similarly, the performance deficiencies in critical element 1 supporting the
appellant’ s demotion largely relate to job duties corresponding to critical element
4 or to job duties for which she was not provided notice of her deficiencies .
IAF, Tab 4 at 12-13, 26, 39 -40. Thus, we find that the record does not show that
the appellant was adequately informed of her performance deficiencies regarding
critic al element 1 or that the agency assisted her in improving such deficiencies .
¶19 Regarding critical element 2, Customer Care, the appellant’s performance
standards set forth the following general requirements: “Effectively identifies
and assesses customer requirements. Effectively manages customer expectations
and addresses questions and concerns. Provides timely, flexible, and responsive
service to internal and external customers, promoting a positive Agency im age
and improve customer relations in order to contribute towards sales growth.”
IAF, Tab 45 at 6. The PIP identified instances in which the appellant’s
performance was deficient in this element because she failed to adequately staff
her department, empl oyees were not visible on the sales floor, and customers had
complained about the produce quality and availability. IAF, Tab 21 at 52 -53.
The PIP informed the appellant that to improve her performance to the fully
successful level she had to do the follo wing: “ You must ensure you explain
DeCA Directives/Guidelines effectively to both internal and external customers,
promote a positive agency image/positive working environment.” Id. at 53.
¶20 Memoranda concerning the appellant’s performance during the PIP reflect
that performance issues regarding element 2 were not frequently identified or
discussed , and issues discus sed under this element often did not relate to
identified performance deficiencies. For example, the appellant’s supervisor
documented that she observed employees were not on the sales floor on numerous
12
occasions during the PIP. IAF, Tab 11 at 21, Tab 10 at 15 , Tab 9 at 8. Yet, the
record does not reflect that she ever discussed this issue with the appellant. The
only performance deficienci es cited under critical element 2 that actually were
discussed with the appellant were an incident in which no employee was available
when a customer tried to pick up a fruit tray and an incident in which the
appellant failed to contact an individual concerning the agency’s participation in
a health fair as instructed . IAF, Tab 11 at 34 .
¶21 The agency determined that the appellant’s performance remained deficient
in this element during the PIP because the produce department cont inued to be
dirty, product was not stocked, supplies such as plastic bags were not stocked, the
fruit tray was not able to be picked up , and employees were not on the sales floor
on numerous occasions. IAF, Tab 4 at 26 . However, with the exception of the
fruit tray incident , the record does not reflect that any of these issues were ever
mentioned to the appellant in the PIP discussions concerning critical element 2.
Rather, on the occasions when issues under critical element 2 were discussed ,
they relate d to issues such as staff complacency, the appellant’s comments,
emails, and interactions with her employees, the transfer of an employee to
another department , the duty schedule for an employee while training other
employees , and providing copies of perfo rmance plans to employees.
IAF, Tab 17 at 32 , Tab 10 at 29 .
¶22 Overall , the record reflects that , during the PIP, the appellant’s supervisor
focused on conducting “walk throughs ” of the produce department and
meticulously documenting instances in which she found that the appellant’s
performance was deficient instead of offering her assistance or suggestions as to
how to improve her performance , particularly regarding critical element 2 .
13
Thus, we find that the record does not show that the PIP meetings directly
assisted the appellant in improving her performance .9
¶23 Accordingly, we affirm the initial decision, reversing the appellant’s
demotion.
ORDER
¶24 We ORDER the agency to reinstate the appellant to her prior position of
Produce Department Manager , effect ive May 1, 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.
¶25 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 th e date of this
decision. We ORDER the appellant to cooperate in good faith in the agency’s
efforts to calculate the amount of back pay, interest, and benefits due, and to
provide all necessary information the agency requests to help it carry out the
Board ’s Order. If there is a dispute about the amount of back pay, interest due,
and/or other benefits, we ORDER the agency to pay the appellant the undisputed
amount no later than 60 calendar days after the date of this decision.
¶26 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 i ts progress. See 5 C.F.R. § 1201.181 (b).
9 The administrative judge found that the appellant’s supervisor provided extensive
feedback as to how the appellant might improve her performance. ID at 20. While we
agree that extensive feedback was generally provided d uring the PIP meetings, as
discussed herein, it was often unclear how such feedback related to the appellant’s
specific performance deficiencies identified under critical elements 1 and 2 or how she
might improve her performance in those elements.
14
¶27 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 ha s 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).
¶28 For agencies whose payroll is administ ered 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 deci sion
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.), 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 m eet these requirements, you must file a motion for attorney fees
and costs WITHIN 60 CALENDAR DAYS OF THE DATE OF THIS DECISION.
You must file your motion for attorney fees and costs with the office that issued
the initial decision on your appeal.
15
NOTICE OF APPEAL RIGHTS10
The initial decision, as supplemented by this Final Order, constitutes the
Board’s final decision in this matter. 5 C.F.R. § 1201.113 . You may obtain
review of this f inal decision. 5 U.S.C. § 7703 (a)(1). By statute, the nature of
your claims determines the time limit for seeking such review and 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 ri ghts described below do not represent a statement of how courts will rule
regarding which cases fall within their jurisdiction. If you wish to seek review of
this final decision, you should immediately review the law applicable to your
claims and carefull y follow all filing time limits and requirements. Failure to file
within the applicable time limit may result in 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).
10 Since the issuance of the initial decisi on in this matter, the Board may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise which option is most appropriate in any matter.
16
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful 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
17
discrimination based on race, color, religion, sex, national origin, or a disabling
condition, you may be entitled to representation by a court -appointed lawyer and
to waiver of any requirement of prepayment of fees, costs, or other security. See
42 U.S.C. § 2000e -5(f) and 29 U.S.C. § 794a .
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702 (b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision . 5 U.S.C. § 7702 (b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is:
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
18
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302 (b)(8) or
other protected activities listed in 5 U.S.C. § 2302 (b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
disposition of allegations of a prohibited personnel practice described in section
2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i),
(B), (C), or (D),” then you may file a petition for judicial review either with t he
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).
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Feder al Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
11 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.
19
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may vis it our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the 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%20 Pay%20Process/Forms/AllItems.aspx .
NOTE: Attorneys’ fees or other non -wage payments (such as damages) are paid by
vendor pay, not DFAS Civilian Pay.
☐ 1) Submit a “SETTLEMENT INQUIRY - Submission” Remedy Ticket. Please identify the
specific dates of the back pay period within the ticket comments.
Attach the following documentation to the Remedy Ticket, or provide a statement in the ticket
comments as to why the documentation is not applicable:
☐ 2) Settlement agreement, administrative determination, arbitrator award, or order.
☐ 3) Signed and completed “Employee Statement Relative to Back Pay”.
☐ 4) All required SF50s (new, corrected, or canceled). ***Do not process online SF50s
until noti fied 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 recor d of any unemployment earning statements, workers’ compensation,
CSRS/FERS retirement annuity payments, refunds of CSRS/FERS employee premiums,
or severance pay received by the employee upon separation.
Lump Sum Leave Payment Debts: When a separation is later reversed, there is no authority
under 5 U.S.C. § 5551 for the reinstated employee to keep the lump sum annual leave payment
they may have received. The payroll office must collect the debt from the back pay award. The
annual leave will be restored to the employee. Annual leave that exceeds the annual leave
ceiling will be restored to a separate leave account pursuant to 5 CFR § 550.805(g).
NATIONAL FINANCE CEN TER CHECKLIST FOR BA CK PAY C ASES
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 Sev erance and Lump Sum Annual Leave Payment to be
collected (if applicable).
Attachments to AD -343
1. Provide pay entitlement to include Overtime, Night Differential, Shift Premium, Sunday
Premium, etc. with number of hours and dates for each entitlement (if applicable).
2. Copies of SF -50s (Personnel Actions) or list of salary adjustments/changes and amounts.
3. Outside earnings documentation statement from agency.
4. If employee received retirement annuity or unemployment, provide amount and address to
return monies.
5. Provide forms for FEGLI, FEHBA, or TSP deductions. (if applicable)
6. If employee was unable to work during any or part of the period involved, certification of the
type of leave to be charged and number of hours.
7. If employee retires at end of Rest oration 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. | FEESAGO_ANGELINA_M_SF_0432_16_0458_I_1_FINAL_ORDER_1950173.pdf | 2022-08-10 | null | SF-0432-16-0458-I-1 | NP |
4,201 | https://www.mspb.gov/decisions/nonprecedential/BRISSETTE_JANICE_A_DC_1221_13_0170_W_2_FINAL_ORDER_1950225.pdf | UNITED STATES OF AME RICA
MERIT SYSTEMS PROTEC TION BOARD
JANICE A. BRISSETTE,
Appellant,
v.
DEPARTMENT OF DEFENS E,
Agency.
DOCKET NUMBER
DC-1221 -13-0170 -W-2
DATE: August 10, 2022
THIS FINAL ORDER IS NONPRECEDENTIAL1
Clayton C. Ikei , Esquire, Honolulu, Hawaii, for the appellant.
Barbara Zanotti , Esquire, and Kevin Greenfield , 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 her request for corrective action in this individual right of action (IRA)
appeal. Generally, we grant petitions such as this one onl y 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
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 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; th e administrative
judge’s rulings during either the course of the appeal or the initial decision were
not consistent with required procedures or involved an abuse of discretion, and
the resulting error affected the outcome of the case; or new and material evidence
or legal argument is available that, despite the petitioner’s due diligence, was not
available when the record closed. Title 5 of the Code of Federal Regulations,
section 1201.115 ( 5 C.F.R. § 1201.115 ). After fully considering the 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 vacate
the portion of the initial decision finding that the agency proved by clear and
convincing evidence that it would have taken the same actions in the absence of
the appellant’s protected disclosures , we AFFIRM the initial decision.
BACKGROUND
¶2 The appellant was the Director of Resource Management at the agency’s
Raven Rock Mountain Complex (RRMC), Washington Headquarters Services
(WHS), from October 2006 , until her retirement in January 2011. Brissette v.
Department of Defense , MSPB Docket No. DC -1221 -13-0170 -W-2, Appeal File
(W-2 AF), Tab 5 at 3, 7, Tab 9 at 14. After exhausting her administrative
remedies with the Office of Special Counsel, the appellant filed an IRA appeal
and requested a hearing, alle ging that the agency took various personnel actions
against her in retaliation for disclosures she made in 2009 and 2010. Brissette v.
Department of Defense , MSPB Docket No. DC -1221 -13-0170 -W-1, Initial Appeal
File (IAF), Tab 1.2 The appellant alleged th at, in late 2009 and early 2010, she
2 The appellant also checked the box on her Board appeal form indicating that she was
raising a claim of prohibited discrimination. IAF, Tab 1 at 24. The Board lacks the
authority to decide, in con junction with an IRA appeal, the merits of an appellant’s
allegation of prohibited discrimination. Newcastle v. Department of the Treasury ,
3
informed a WHS employee —who was investigating a possible Antideficiency
Act3 violation at RRMC —that RRMC’s Deputy Commander had directed an
engineer to expend funds on the construction of modular showers in excess of th e
amount authorized for the project. Id. at 8-9. The appellant also alleged that she
disclosed various types of wrongdoing at RMCC in a complaint that she filed with
the agency’s Office of Inspector General (OIG) in September 2010. Id. at 12 -13.
Among other things, in her OIG complaint, the appellant claimed that asbestos at
RRMC had been removed improperly and that RRMC’s Deputy Commander and
former Commander had bypassed security screening measures when entering the
facility. Id. at 96 -97.
¶3 The appell ant alleged on appeal to the Board that the agency took the
following actions against her in reprisal for her disclosures:
(1) In October 2009, the agency lowered her in the chain of command by
ordering her to report directly to RRMC’s Chief of Staff instead o f the
Deputy Commander, who had been the appellant’s immediate
supervisor since she was hired at RRMC;
(2) In May 2010, the agency transferred the Common Access Card function
from the appellant’s directorate to another directorate;
(3) In October 2010, the agency transferred the Human Resources and
Manpower/Management functions from the appellant’s directorate to
another directorate; and
(4) In January 2011, the selecting official for a Financial Manager position
in Afghanistan withdrew the appellant’s tentative offer for the position
after contacting her references.
94 M.S.P.R. 242 , ¶ 12 (2003). Therefore, the administrative judge properly did not
decide the appellant’s allegations of discrimination.
3 The Antideficiency Act, Pub. L. No. 97 -258, 96 Stat. 923 , prohibits Federal employees
from authorizing an expenditure exceeding the amount available in an appropriation or
fund for the expenditure. 31 U.S.C. § 1341 (a).
4
IAF, Tab 1 at 114 -16.
¶4 After finding Board jurisdiction, W -2 AF, Tab 26, and holding a hearing,
the administrative judge issued an initial decision denying the appellant’s request
for corrective action, W-2 AF, Tab 49, Initial Decision (ID) at 2, 59. She found
that 2 of the appellant’s 11 alleged disclosures were protected, specifically (1) the
information that s he provided the WHS investigator ,4 and (2) the allegation in her
OIG complaint that RRMC official s had bypass ed security screening procedures.
ID at 10 -35. The administrative judge further found, however, that the appellant
failed to establish that either disclosure was a contributing factor in any of the
personnel actions at issue.5 ID at 36 -57. In the alternative, the administrative
judge found that, even if the appellant had proven the contributing factor element
of her appeal, she was not entitled to corrective action because the agency proved
by clear and convincing evidence that it would have taken the same personnel
actions in the absence of the protected disclosures. ID at 57-59.
¶5 The appellant has filed a petition for review. Petition for Review (PFR)
File, Tabs 1, 6. The agency has filed a response in opposition to the petition for
review. PFR File, Tab 3.
4 The administrative judge identifie d the appellant’s allegation concerning asbestos
removal as a protected disclosure instead of the information she provided the
investigator. ID at 35. However, i n her detailed analysis of each disclosure, the
administrative judge found that the information the appellant provided the investigator
was a protected disclosure, ID at 10 -12, and that the appellant’s allegation regarding
asbestos removal was not, ID at 12 -15. Also, in her contributing factor analysis, the
administrative judge clearly indicate d that the information the appellant provided the
investigator was a protected disclosure. ID at 48-53. Based on our review , it appears
that the administrative judge found that the information the appellant provided the
investigator was protected but inadvertently indicated otherwise on page 35 of the
initial decision.
5 In the initial decision, the administrative judge considered the appellant’s apparent
argument that the agency retaliated against her by offering her a Voluntary Early
Retirement Authority/Voluntary Separation Incentive Plan retirem ent package even
though she never indicated that she wished to retire. ID at 37 n.2. As discussed further
below, the administrative judge found that the agency’s presenting a retirement package
to the appellant was not one of the personnel actions at iss ue in this appeal. Id.
5
ANALYSIS
The administrative judge properly denied the appellant’s request for corrective
action .6
¶6 Under the Whistleblower Protection Act (WPA),7 after establishing the
Board’s jurisdiction in an IRA appeal, the appellant must prove by preponderant
evidence that she engaged in whistleblowing activity by making a disclosure
protected under 5 U.S.C. § 2302 (b)(8) and that such disclosure was a contributing
factor in a personnel action taken against her. 5 U.S.C. § 1221 (e)(1); Mattil v.
Department of State , 118 M.S.P.R. 662, ¶ 11 (2012). If the appellant meets that
burden, then the Board shall order such corrective action as it considers
appropriate unless the agency shows by clear an d 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); Chambers v. Department of the Interior ,
116 M.S.P.R. 17 , ¶ 12 (2011) .
¶7 Neithe r party has specifically challenged the administrative judge’s findings
regarding which disclosures were protected , nor have they challenged the
administrative judge’s finding that neither of the appellant’s protected disclosures
was a contributing factor in the personnel actions at issue in this appeal.
Therefore, we have not further considered these issues . See 5 C.F.R. § 1201.115
(stating that the Board normally will consider only issues that are raised on
review).
¶8 On review, the appellant challenges the administrative judge’s finding t hat
the offer of a Voluntary Early Retirement Authority/Voluntary Separation
6 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.
7 Because all of the relevant events in this IRA appeal occurred before the
Whistleblower Protection Enhancement Act of 2012 (WPEA) took effect on
December 27, 2012, the WPA, as clarified by the WPEA, applies to the appellant’s
claims. See generally Day v. Department of Homeland Security , 119 M.S.P.R. 589 ,
¶¶ 3, 7 -26 (2013) (discussing the effective date of the WPEA, as well as its
retroactivity).
6
Incentive Plan (VERA/VSIP) retirement package was not a personnel action for
purposes of this appeal. PFR File, Tab 1 at 2 -3, Tab 6; see ID at 37 n.2. The
appellant alleges that the administrative judge erred by making this finding
without considering the credibility of the agency witnesses regarding the
circumstances of the offer. PFR File, Tab 1 at 2. In particular, the appellant
claims that the administrative judge failed to consider that the Deputy
Commander provided an equal employment opportunity (EEO) investigator and
the Board conflicting accounts of the presentation of the offer. PFR File, Tab 1
at 3, Tab 6. The appellant alleges that the Deputy Commander informed an EEO
counselor that “he gave [the appellant] the VERA/VSIP” retirement package, but
subsequently stated before the Board that he “never met with [the appellant] to
present the VERA/VSIP package to her or discussed the package with her.” PFR
File, Tab 1 at 3, 21 (quoting IAF, Tab 7 at 39, 107), Tab 6.
¶9 We disagree with the appellant’s apparent assertion that the administrative
judge should have found that the retirement offer was a personnel action because
of alleged inconsistencies in the Deputy Commander’s statements to the EEO
counselor and the Board as to whether he presented the offer to the appellant in
person. The alleged inconsistencies cited by the appellant have no bearing on
whether the retirement package offer was a personnel action.
¶10 In support of her finding that the retirement offer was not a personnel action
for purposes of this appeal, the administrative judge noted that her jurisdictional
order did not identify the presentation of the retirement package as one of the
personnel actions at is sue and that the appellant did not object to the list of
actions in that order. ID at 37 n.2; see W-2 AF, Tab 26 at 3. In addition, the
administrative judge found the offer of a retirement package did not meet the
definition of “personnel action” set for th in 5 U.S.C. § 2302 (a)(2)(A)(i -xii). Id.
We discern no reason to disturb the administrative judge’s explained finding that
the offer of a retirement package was not one of the agency actions at issue in this
appeal.
7
¶11 To the extent that the appellant argues on review that the administrative
judge erred in crediting the Deputy Commander’s testimony because of the
alleged inconsistencies in his two statements addressing the presentation of the
retirement package to the appellant, we find this argument unpersuasive. PFR
File, Tab 1 at 29. The Board must defer to an administrative judge’s credibility
determinations when they are based, explicitly or implicitly, on observi ng the
demeanor of witnesses testifying at a hearing, 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 ).
¶12 The appellant has not identified such reasons. In the written declaration he
submitted to the EEO investiga tor, the Deputy Commander stated that he
“offered” the appellant the retirement package; he did not say that he gave it to
her in person, as the appellant seems to contend. IAF, Tab 7 at 107. Thus, the
appellant has not shown that the Deputy Commander’s statements to the EEO
counselor are inconsistent. I n any event, the alleged discrepancies cited by the
appellant relate to minor matters and do not constitute sufficiently sound reasons
to disturb the administrative judge’s credibility findings. See Hill en v.
Department of the Army , 35 M.S.P.R. 453 , 459 (1987) (determining that
inconsistent statements do not necessarily render a witness ’s testimony
incredible).
¶13 Because we have found that the appellant failed to prove that h er protected
disclosures were contributing factors in any of the personnel actions at issue in
this appeal, it is unnecessary to decide whether the agency proved by cl ear and
convincing evidence that it would have taken those actions in the absence of her
disclosures. See Clarke v. Department of Veterans Affairs , 121 M.S.P.R. 154 ,
¶ 19 n.10 (2014), aff’d , 623 F. App’x 1016 (Fed. Cir. 2015). Accordingly, we
vacate the administrative judge’s findings concerning whether the agency met its
clear and convincing burden.
8
The administrative judge properly e xercised her discretion in excluding the
exhibits attached to the appellant’s prehearing submissions .
¶14 On review, the appellant argues that the administrative judge erred in
excluding as evidence the exhibits attached to her prehearing submissions. PFR
File, Tab 1 at 22 -23; see W-2 AF, Tab 34 at 11 -124, Tab 35 at 6. The
administrative judge excluded these exhibits as a sanction for the appellant’s
counsel’s failure to comply with the December 11, 2012 order directing the
agency ’s and appellant’s counsel to register as e -filers and file all of their
pleadings electronically. W -2 AF, Tab 35 at 6; see IAF, Tab 2.
¶15 Administrative judges may impose various sanctions upon the parties as
necessary to serve the ends of justice. 5 C.F.R. § 1201.43 ; see Heckman v.
Department of the Interior , 106 M.S.P.R. 210 , ¶¶ 8 -12 (2007) (finding that an
administrative judge did not abuse her discretion by canceling the requested
hearing as a sanction for repeated failure to provide additional information).
When a party fails to comply with an order, the admin istrative judge may
eliminate from consideration any appropriate part of the pleadings or other
submissions of the party that fails to comply with the order. 5 C.F.R.
§ 1201.43 (a)(4). I mposing sanctions is a matter within the administrative judge’s
sound discretion and, absent a showing that such discretion has been abused, the
administrative judge’s determination will not be found to constitute reversible
error. Smets v. Department of the Navy , 117 M.S.P.R. 164, ¶ 11 (2011), aff’d ,
498 F. App’x 1 (Fed. Cir. 2012).
¶16 The record shows that the a ppellant’s counsel did not register as an e -filer
until April 2014,8 and he inexplicably terminated his registration on November 3,
2014. W -2 AF, Tab 29. He then registered as an e -filer a few hours before the
8 Although the record does not contain any documentation identifying the date that the
appellant’s counsel initially registered as an e -filer, the certificates of service for the
orders that the administrative judge issued in April 2014 , indicate that this registration
occurred between April 3 and 15, 2014. W -2 AF, Tab 14 at 2, Tab 16 at 2.
9
deadline for filing prehearing submissions ;9 however, instead of el ectronically
filing the appellant’s prehearing submissions, he terminated his registration
approximately 1 hour later and mailed the prehearing submissions. W -2 AF,
Tabs 31-32, 34. As a result, the agency did not receive the appellant’s prehearing
submissions u ntil the morning of the prehearing conference . W -2 AF, Tab 35
at 6. Given these circumstances, we find that the administrative judge did not
abuse her discretion by excluding the appellant’s prehearing exhibits from
evidence.10
The administrative judge did not err by allowing the agency not to call one of its
approved witnesses to testify at the hearing.
¶17 The appellant also argues on review that the administrative judge erred by
allowing the agency not to call one of its approved witnesses to testify at the
hearing. PFR File, Tab 1 at 3 -4, 14, 23; see W-2 AF, Tab 35 at 5. The witness, a
Human Resources (HR) Specialist, was expected to testify about matters
pertaining to the withdrawal of the tentative offer for the posi tion in Afghanistan.
W-2 AF, Tab 30 at 20.
¶18 The Board has rejected the proposition that an appellant is entitled to
cross -examine an approved agency witness who the agency did not call to testify
9 The parties’ prehearing submissions were due on December 9, 2014. W-2 AF, Tab 22
at 2. Although the appellant’s counsel registered as an e-filer at 1:35 a.m. on
December 10, 2014, W-2, AF, Tab 31, because all pleadings filed via e -Appeal online
are time stamped with Eastern Time and the appellant’s counsel is located in Hawaii,
which is seve ral hours behind Eastern Time, he is deemed to have registered as an
e-filer on December 9, 2014. See 5 C.F.R. § 1201.14 (m) (explaining that all pleadings
filed via e -Appeal online are t ime stamped with Eastern Time; however, the filing date
of a pleading filed via e -Appeal online is based on the time zone from which the
pleading was submitted).
10 Moreover, the consequences of this sanction were not particularly severe. Several of
the ap pellant’s prehearing exhibits are either located elsewhere in the record or are
irrelevant. Compare W-2 AF, Tab 10 at 90, 95 -96, 109 -14, with W-2 AF, Tab 34 at 11,
23-24, 47 -50. For example, the prehearing exhibits include statements by two
individuals w ho the administrative judge did not approve as witnesses based on her
finding that they could not provide any testimony that was relevant to the appellant’s
IRA claims. W -2 AF, Tab 34 at 118 -24; see W-2 AF, Tab 35 at 5 n.3.
10
at the hearing. For example, in Dubiel v. U.S. Postal Servi ce, 54 M.S.P.R. 428 ,
432 (1992), the Board held that the appellant was not prejudiced by not being
able to cross -examine a witness who w as approved but not called as a witness for
the agency, when the appellant had not sought to call the same witness or request
a continuance.
¶19 In this case, the appellant had ample opportunity to request the HR
Specialist as a witness if she felt that her testimony was necessary, but she did not
do so. W -2 AF, Tab 34 at 2. Moreover, even if the appellant was surprised by
the agency’s decision not to call this witness, she nonetheless failed to
demonstrate that she timely requested a continuance to obtain this witness’s
presence or that such a request was denied. See Dubiel , 54 M.S.P.R. at 432.
Because the appellant never sought to call the HR Specialist as a witness or
request a continuance to take her testimony, she has not established that she was
prejudiced by the agency’s decision not to call the HR Specialist.
¶20 In arguing that the administrative judge erred by allowing the agency not to
call the HR Specialist as a witness at the hearing, the appellant cites to the initial
decision in Heath v. Departme nt of the Navy , MSPB Docket No. DA -1221 -13-
0654 -B-1, Initial Decision (Jan. 27, 2014). PFR File, Tab 1 at 28. In that IRA
appeal, the administrative judge granted corrective action and noted that an
agency witness was approved but not called to testify a nd therefore was not
subject to cross -examination. The appellant’s reliance on this decision is not
persuasive because initial decisions are of no precedential value and cannot be
cited or relied on as controlling authority. See R oche v. Department of
Transportation , 110 M.S.P.R. 286, ¶ 13 (2008), aff’d , 596 F.3d 1375 (Fed. Cir.
2010) .
The administrative judge did not improperly restrict the appellant’s
cross -examination of the selecting official for the Financial Manager position.
¶21 The appellant also argues on review that the administrative judge
improperly limited her cross -examination of the selecting official for the
11
Financial Manager position . PFR File, Tab 1 at 3 -4. In particular, she asserts
that the administrative judge prevented her counsel from cross -examining the
selecting official about “another younger person who would be reporting to the
[selecting official] and [was working with the HR Specialist] to improve his
resume so that it depicted the work experience that [the selecting official]
wanted.” Id. at 23.
¶22 Although she does not identify the “younger person” by name, based on our
review of the record, including the cross -examination of the selecting official, she
appears to be referring to P.D. W -2 AF, Tab 41 at 24; see W-2 AF, Tab 44,
Hearing Compact Disc (HCD), Day 2 (testimony of the selecting official). Al so,
in his January 14, 2011 email to the HR Specialist, the selecting official stated
that he wanted to offer P.D. a position and inquired about the start date of another
individual. W -2 AF, Tab 41 at 25.
¶23 An administrative judge has wide discretion to con trol the proceedings,
including the authority to exclude testimony she believes would be irrelevant or
immaterial . Miller v. Department of Defense , 85 M.S.P.R. 310 , ¶ 8 (2000). The
record shows that the administrative judge afforded the appellant a full
opportunity to cross -examine the selecting official regarding his decision to
withdraw the appellant’s tentative offer, but sustaine d the agency’ s objection to
the cross -examination of the selecting official about the individuals mentioned in
his January 14, 2011 email because the appellant’ s counsel’s line of inquiry was
irrelevant to the issues in this appeal. See HCD, Day 2 (testim ony of the
selecting official). The administrative judge also restricted the appellant’s
counsel from questioning the selecting official about these individuals because
they were not mentioned during the direct examination of the selecting
official. Id. Based on our review, we find that the administrative judge’s ruling
on the agency’s objection is reasonable and that the appellant has failed to show
that the administrative judge abused her discretion by restricting the appellant’s
counsel’s cross -examin ation of the selecting official.
12
NOTICE OF APPEAL RIG HTS11
The initial decision, as supplemented by this Final Order, constitutes the
Board’s final decision in this matter. 5 C.F.R. § 1201.113 . You may obtain
review of this final decision. 5 U.S.C. § 7703 (a)(1). By statute, the nature of
your claims determines the time limit for seeking such review and the appropriate
forum with which to file. 5 U.S.C. § 7703 (b). Although we offer the following
summary of available appeal rights, the Merit Systems Protection Board does not
provide legal advice on which option is most appropriate for your situation and
the rights described below do not represent a statement of how courts will rule
regarding which cases fall within their jurisdiction. If you wish to seek review of
this final decision, you should immediately review the law applicable to your
claims and carefully follow all filing time limits and requirements. Failure to file
within the applicable time limit may result in the dismissal of your case by your
chosen forum.
Please read carefully each of the three main p ossible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial revi ew in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date o f issuance of this decision. 5 U.S.C.
§ 7703 (b)(1)(A).
11 Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise which option is most appropriate in any matter.
13
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.go v. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703 (b)(2); see P erry v. Merit Systems
Protection Board , 582 U.S. ____ , 137 S. Ct. 1975 (2017). If you have a
representative in this case, and your repr esentative receives this decision before
you do, then you must file with the district court no later than 30 calendar days
after your representative receives this decision. If the action involves a claim of
14
discrimination based on race, color, religion, s ex, national origin, or a disabling
condition, you may be entitled to representation by a court -appointed lawyer and
to waiver of any requirement of prepayment of fees, costs, or other security. See
42 U.S.C. § 2000e -5(f) and 29 U.S.C. § 794a .
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702 (b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702 (b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal 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
15
other protected activities listed in 5 U.S.C. § 2302 (b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
disposition of allegations of a prohibited personnel practice described in sec tion
2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i),
(B), (C), or (D),” then you may file 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.12 The court of appeals must receive your petition for
review within 60 days of the date of issuance of this decision. 5 U.S.C.
§ 7703 (b)(1)(B).
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
containe d within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
12 The original statutory provision tha t provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to f ile petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive t o November 26, 2017. Pub. L. No. 115 -195,
132 Stat. 1510.
16
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
Contact information for the courts of appeals can be found at their
respective websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/ CourtWebsites.aspx .
FOR THE BOARD:
Washington, D.C. /s/ for
Jennifer Everling
Acting Clerk of the Board | BRISSETTE_JANICE_A_DC_1221_13_0170_W_2_FINAL_ORDER_1950225.pdf | 2022-08-10 | null | DC-1221-13-0170-W-2 | NP |
4,202 | https://www.mspb.gov/decisions/nonprecedential/FULLER_LYNIECE_M_PH_0432_12_0006_C_5_FINAL_ORDER_1949724.pdf | UNITED STATES OF AME RICA
MERIT SYSTEMS PROTEC TION BOARD
LYNIECE M. FULLER,
Appellant,
v.
DEPARTMENT OF VETERA NS
AFFAIRS,
Agency.
DOCKET NUMBER
PH-0432 -12-0006 -C-5
DATE: August 9, 2022
THIS FINAL ORDER IS NONPRECEDENTIAL1
Lyniece M. Fuller , Erie, Pennsyl vania, pro se.
Marcus S. Graham , Esquire, Pittsburgh, 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 August 10, 2016
compliance initial decision, which denied her petition for enforcement of the
Board’s 2012 final decision that ordered the agency to cancel her removal and to
pay her back pay, interest, and other benefits . Generally, we grant petitions such
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential de cision issued as an Opinion and 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
as this one o nly 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 t he petitioner
has not established any basis under section 1201.115 for granting the petition for
review. Therefore, we DENY the petition for review. For t he reasons discussed
below, we AFFIRM the administrative judge’s finding that the agency complied
with the Board’s 2012 final decision regarding the relocation incentive. We
MODIFY the compliance initial decision and VACATE the administrative judge’s
findings regarding the appellant’s retaliation claims. Except as expressly
modified in this Final Order, the compliance initial decision is the Board’s final
decision.
BACKGROUND
¶2 In September 2011, the appellant filed a Board appeal challenging her
removal fr om her Contract Specialist position. Fuller v. Department of Veterans
Affairs , MSPB Docket No. PH -0432 -12-0006 -I-1, Initial Decision (ID) at 1 -2
(Aug. 21, 2012). On August 21, 2012, an administrative judge issued an initial
decision ordering the agency t o reverse the removal action and to retroactively
restore the appellant to her prior position, effective September 8, 2011, with back
pay, interest, and benefits. ID at 1, 28 -29. The initial decision became the
Board’s final decision on September 25, 201 2, when neither party filed a petition
for review. ID at 30.
3
¶3 The appellant has since filed multiple petitions for enforcement. In
March 2014, the administrative judge dismissed as settled a petition for
enforcement alleging that the agency retaliated aga inst her for filing a prior Board
appeal. Fuller v. Department of Veterans Affairs , MSPB Docket No. PH -0432 -
12-0006 -C-4, Initial Decision at 1 -2 (Mar. 18, 2014). In August 2014, t he Board,
in addressing a different petition for enforcement , found that th e agency was in
compliance regarding the payment of back pay, interest, and benefits. Fuller v.
Department of Veterans Affairs , MSPB Docket Nos. PH -0432 -12-0006 -C-3,
PH-0432 -12-0006 -X-1, Final Order (C -3 Final Order), ¶¶ 1-4, 14 -15 (Aug. 19,
2014).
¶4 The ap pellant filed the instant petition for enforcement on April 12, 2016,
more than 3½ years after the Board’s 2012 final decision in the merits appeal, and
approximately 20 months after the Board found the agency in compliance in the
C-3 matter. Fuller v. De partment of Veterans Affairs , MSPB Docket No.
PH-0432 -12-0006 -C-5, Compliance File (CF), Tab 1. In this petition for
enforcement, the appellant claimed that the agency failed to pay her a $330.72
relocation incentive. Id. at 7. In addition, she alleged that, from 2013 to 2016,
the agency took numerous other actions against her in retaliation for appealing
her removal to the Board and other protected activity. Id. at 7-13. The appellant
submitted approximately 300 pages of emails and other documentation to support
her allegations of retaliation. Id. at 15 -327.
¶5 In response to the appellant’s petition for enforcement, the agency noted
that the Board already had found the agency in full compliance in August 2014 ,
and that the appellant was now raising ne w allegations of noncompliance more
than 18 months later. CF, Tab 4 at 4. The agency further argued that only one of
the supervisors whom the appellant accused of retaliation had knowledge of her
prior Board appeal and that no reasonable person could con clude that there was a
nexus between the alleged retaliation and the agency’s actions. Id. at 4-5. In
addition, the agency submitted declarations of five of the appellant’s current and
4
previous supervisors. Id. at 20 -23, 37 -40. The appellant replied an d submitted
additional documentation. CF, Tab 8.
¶6 Based on the written record, the administrative judge issued a compliance
initial decision denying the appellant’s petition for enforcement. CF, Tab 9,
Compliance Initial Decision (CID) at 1, 12. Specif ically, he found that the
agency satisfied its obligations to pay the appellant all of the back pay and
benefits as required in the Board’s 2012 final decision. CID at 8 -9. He further
found that the appellant failed to establish her claim that the agency retaliated
against her for filing a Board appeal. CID at 8 -12.
¶7 The appellant has filed a petition for review of the compliance initial
decision. Compliance Petition for Review ( CPFR) File, Tab 1. The agency has
filed a response, CPFR File, Tab 3, to wh ich the appellant has replied, CPFR File,
Tab 4.
DISCUSSION OF ARGUME NTS ON REVIEW
We affirm the administrative judge’s finding that the agency is in compliance
with the Board’s 2012 final order regarding the payment of a relocation incentive.
¶8 When the Boa rd finds that an appellant has been subjected to an
unwarranted personnel action, it orders that she be placed, as nearly as possible,
in the situation she would have been in had the personnel action not occurred,
i.e., status quo ante. Kerr v. National E ndowment for the Arts , 726 F.2d 730 , 733
(Fed. Cir. 1984) ; Vaughan v. Department of Agriculture , 116 M.S.P.R. 319 , ¶ 5
(2011). The agency bears the burden of proving compliance with the Board’s
order by a preponderance of the evidence. Vaughan , 116 M.S.P.R. 319 , ¶ 5;
5 C.F.R. § 1201.183 (d). The agency’s assertions of compliance must i nclude a
clear explanation of its compliance actions supported by documentary evidence.
Vaughan , 116 M.S.P.R. 319 , ¶ 5; Walker v. Department of the Army , 90 M.S.P.R.
136, ¶ 13 (2001). The appellant may rebut the agency’s evidence of compliance
by making specif ic, nonconclusory, and supported assertions of continued
noncompliance. Vaughan , 116 M.S.P.R. 319 , ¶ 5.
5
¶9 As mentioned above , the appellant alleged that the agency failed to pay her
a $330.72 relocation incentive that it had deducted. CF, Tab 1 at 7. The
administrative judge noted that the Board previously found in an August 2014
final order that the agency was in compliance regarding back pay issues,
including the relocation expenses that the appellant was owed. CID at 8; see C-3
Final Order, ¶¶ 1-4, 8, 14 -15. The administrative judge found in this matter that
the appellant failed to articulate whether the agency deducted the reloca tion
incentive after the Board issued its 2014 final order in the earlier compliance
matter, which would be a new issue, and she failed to submit any evidence to
support her assertion that such a deduction was taken. CID at 8. Thus, the
administrative ju dge concluded that the agency had satisfied its obligation to pay
the appellant back pay and benefits. CID at 8 -9.
¶10 The appellant has failed to clarify on review whether the alleged deduction
occurred after the Board issued its 2014 final order finding com pliance. CPFR
File, Tab 1 at 6, 9. Although she argues that she submitted supporting evidence
below, id. at 9, none of her documentation supports her assertion that the agency
deducted a relocation incentive following the Board’s 2014 final order . We fi nd
that, because the appellant has failed to make specific, nonconclusory, and
supported allegations concerning her claim, she fails to provide a basis to disturb
the administrative judge ’s finding of compliance. See Vaughan , 116 M.S.P.R.
319, ¶ 5.
We modify the initial decision and vacate the administrative judge’s analysis of
the appellant’s retaliation claims because they do not re late to status quo ante
relief.
¶11 The appellant also alleged that, following the September 2012 final decision
in the removal appeal, the agency retaliated against her from 2013 to 2016 for
filing her Board appeal and other protected activity . CF, Tab 1 at 6-13. The
administrative judge cited to Kerr , 726 F.2d at 733, and Gaydon v. U.S. Postal
Service , 37 M.S.P.R. 276 , 278 -79 (1988), for the following proposition: an
6
employee who is being retaliated against for having filed a Board appeal of an
agency action that the Board orders canceled has not been returned to the status
quo ante because she is not where she would have been if the age ncy had not
taken the action. CID at 3 ; see Williams v. Department of the Navy , 79 M.S.P.R.
364, 367 (1998) . Further, he analyze d the appellant’s retaliation claims under the
general reprisal standard described in Rockwell v. Department of Commerce ,
39 M.S.P.R. 217 , 222 (1988). CID at 3 -4; see Warren v. Department of the Army ,
804 F.2d 654 , 656 -58 (Fed. Cir. 1986) (establishing the general reprisal standard
that was described in Rockwell ), superseded in part by statute as stated in
Alarid v. Department of the Army , 122 M.S.P.R. 600 , ¶ 15 (2015). The
administrative judge concluded that the appellant failed to establish retaliation
under this standard because , among other things, there was no nexus between the
alleged retaliatory actions and her Board appeal. CID at 8 -12.
¶12 Based on our review of Kerr , Gaydon , and the appellant’s description of her
retaliation allegations, we do not believe that it is appropriate to consider these
retaliation allegations in this compliance matter. In Gaydon , 37 M.S.P.R. at 279,
the Board cited to Kerr to support the proposition that it has the authority to
examine an employee’s retaliation claims in a compliance case stemming from a
final Board decision. In Kerr , 726 F.2d at 733, our reviewing court discussed the
Board’s broad enforcement authority, which included a “substantive assessment”
of whether an employee has been given status quo ante relief. As noted by the
administrative judge, the Board in Gaydon explained its rationale for considering
retaliation claims in the context of a compliance mat ter, that is, an employee who
is being retaliated against for having filed a Board appeal has not been restored to
the status quo ante. Gaydon , 37 M.S.P.R. at 279. Importantly, Gaydon has not
been reversed or overruled. We do not read Gaydon to authoriz e the Board to
consider any and all retaliation claims raised in a petition for enforcement.
Rather, consistent with our reading of Gaydon and Kerr , in order to address the
7
appellant’s retaliation claims in the context of this compliance matter, those
claims must relate to status quo ante relief.
¶13 We now turn to the appellant’s retaliation claims. The appellant raised
approximately fourteen allegations of whistleblower reprisal, including, among
other things, a hostile work environment, an October 1, 201 4 reassignment, issues
regarding her fiscal year 2015 performance appraisal, a January 26, 2016 Letter
of Counseling, a March 9, 2016 Letter of Reprimand, an April 8, 2016 proposed
7-day suspension, and a denial of various opportunities. CF, Tab 1 at 7 -13,
247-49, 297, 299 -301. Based on our close review of these allegations, we
conclude that none of these allegations are related to the Board’s 2012 final order
of status quo ante relief.2 Accordingly, because the appellant’s retaliation
allegations are no t related to status quo ante relief, we do not consider them in the
context of this enforcement matter, and we vacate the administrative judge ’s
analysis of these allegations in the compliance initial decision .3
2 Under the unique circumstanc es of this case, we have also considered whether any of
the appellant’s retaliation allegations related to the Board’s 2014 determination in the
C-3 matter that the agency complied with the 2012 final decision in the merits appeal
regarding back pay issues , and we likewise conclude that these retaliation allegations
are not related to those findings. Significantly, the Letter of Counseling, Letter of
Reprimand, and proposed suspension were issued more than 3 years after the Board’s
2012 final decision in t he merits appeal and more than 17 months after the Board’s
2014 finding of agency compliance regarding back pay issues. Such a lengthy delay
does not support a finding that these allegations are related to status quo ante relief.
Moreover, the Board has held that an agency is not precluded from taking legitimate
personnel actions after the Board reverses an appealable action as long as a valid reason
exists for the later actions. Conaway v. U.S. Postal Service , 93 M.S.P.R. 6 , ¶ 13
(2002). Because we do not consider these retaliation claims in this compliance matter,
we need not decide herein if the agency had valid reasons for t aking the later actions.
3 Because the appellant raised an affirmative defense of whistleblower reprisal in the
underlying removal appeal, her claims of retaliation based on her prior Board appeal
fall under 5 U.S.C. § 2302 (b)(9)(A)(i) . ID at 26-28; see Clay v. Department of the
Army , 123 M.S.P.R. 245 , ¶ 10 (2016) . The appe llant also identified 5 U.S.C.
§ 2302 (b)(9)(D) to support some of her other retaliation claims. CF, Tab 1 at 8 -11, 13 .
Together, these retaliation claims should be analyzed under 5 U.S.C. § 1221 (e), rather
than under the general reprisal standard utilized by the administrative judge. CID
at 3-4; see Elder v. Department of the Air Force , 124 M.S.P.R. 12 , ¶ 39 (2016) (finding
8
¶14 Our decision not to consider the appellan t’s retaliation claims in this
compliance matter does not leave the appellant without a remedy to pursue her
claims of whistleblower reprisal. Rather, the appellant may seek corrective action
regarding her claims of whistleblower reprisal through an indiv idual right of
action (IRA) appeal before the Board.4 However, before seeking corrective action
from the Board through an IRA appeal , the appellant must first seek corrective
action from the Office of Special Counsel . 5 U.S.C. § 1214 (a)(3); see Miller v.
Federal Deposit Insurance Corporation , 122 M.S.P.R. 3 , ¶ 6 (2014), aff’d, 626 F.
App’x 261 (Fed. Cir. 2015). We take no position on whether the Board would
have jurisdiction over any subsequent IRA appeal involving the retaliation
allegations raised by the appellant in this petition for enforcement or whether any
of the a ppellant’s retaliation allegations that predated her earlier enforcement
appeals are barred by res judicata, collateral estoppel, or another legal principle.
NOTICE OF APPEAL RIG HTS5
The compliance 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 t he
that the Warren standard is inapplicable to claims that allege reprisal for filing a prior
Board appeal under 5 U.S.C. § 2302 (b)(9)(A)(i)) ; Alarid , 122 M.S.P.R. 600 , ¶ 12.
4 None of the alleged retaliatory actions raised in the appellant’s petition for
enforcement constitute otherwise appealable actions that are reviewable by the Board
outside of an IRA appeal, such as an adverse action appeal under 5 U.S.C. chapter 75.
CF, Tab 1 at 7 -13; see 5 U.S.C. §§ 1214 (a)(3), 7512, 7513(d); 5 C.F.R. §§ 1201.3 (a),
1209.2(b)(2). However, they may constitute personnel actions upon which an IRA
appeal may be based. See 5 U.S.C. §§ 1221 (a), 2302(a)(2)(A); 5 C.F.R.
§§ 1209.2 (b)(1), 1209.4(a).
5 Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review rights include d in final decisions. As indicated in the notice, the
Board cannot advise which option is most appropriate in any matter.
9
following summary of available appeal rights, the Merit Systems Protection
Board does not provide legal advice on which option is most appropriate for your
situation and the rights described below do not represent a statement of how
courts will rule reg arding which cases fall within their jurisdiction. If you wish
to seek review of this final decision, you should immediately review the law
applicable to your claims and carefully follow all filing time limits and
requirements. Failure to file within the applicable time limit may result in the
dismissal of your case by your chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for revi ew with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703 (b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the cou rt’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 our website at
http://www.mspb.gov/probono for information reg arding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judi cial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful disc rimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 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 day s
after your representative receives this decision. If the action involves a claim of
discrimination based on race, color, religion, sex, national origin, or a disabling
condition, you may be entitled to representation by a court -appointed lawyer and
to w aiver of any requirement of prepayment of fees, costs, or other security. See
42 U.S.C. § 2000e -5(f) and 29 U.S.C. § 794a .
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below :
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination clai ms 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 receive
this decision. 5 U.S.C. § 7702 (b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 200 13
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302 (b)(8) or
other protected activities listed in 5 U.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
12
competent jurisdiction.6 The court of appeals must receive your petition for
review within 60 days of the date of issuance of this decision. 5 U.S.C.
§ 7703 (b)(1)(B).
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
6 The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of compe tent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases wit h the U.S. Court of Appeals
for the Federal Circuit or any other circuit court 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 | FULLER_LYNIECE_M_PH_0432_12_0006_C_5_FINAL_ORDER_1949724.pdf | 2022-08-09 | null | PH-0432-12-0006-C-5 | NP |
4,203 | https://www.mspb.gov/decisions/nonprecedential/TATSIS_KONSTANTINA_CB_7121_16_0003_V_1_ORDER_1949765.pdf | UNITED STATES OF AME RICA
MERIT SYSTEMS PROTEC TION BOARD
KONSTANTINA TATSIS,
Appellant,
v.
DEPARTMENT OF HOUSIN G AND
URBAN DEVELOPMENT,
Agency.
DOCKET NUMBER
CB-7121 -16-0003 -V-1
DATE: August 9, 2022
THIS ORDER IS NONPRECEDENTIAL1
Rushab Sanghvi , Esquire, Washington, D.C., for the appellant.
Lawrence E. McDermott , Esquire, and Patricia McGarvey Knebels ,
Esquire , Philadelphia, Pennsylvania, for the agency.
BEFORE
Cathy A. Harris, V ice Chairman
Raymond A. Limon, Member
Tristan L. Leavitt, Member
ORDER
¶1 Pursu ant to the Board’s instructions in this arbitration review matter,
the administrative judge issued a September 25, 2017 recommended decision
finding that the appellant did not prove her affirm ative defense 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
discrimination and that the agency proved its charge of unacceptable
performance. Tatsis v. Department of Housing & Urban Development , MSPB
Docket No. CB -7121 -16-0003 -H-1, Referral Proceeding File, Tab 104,
Recommended Dec ision (RD). For the reasons set forth below, we FORWARD
the case to the Northeastern Regional Office for further adjudication in
accordance with this Order and Santos v. National Aeronautics & Space
Administration , 990 F.3d 1355 (Fed. Cir. 2021).
BACKGROUND
¶2 The agency removed the appellant , effective October 1, 2014, for failure to
demonstrate acceptable performance in a critical element of her p osition during a
90-day performance improvement plan (PIP) period. Tatsis v. Department of
Housing & Urban Development , MSPB Docket No. CB -7121 -16-0003 -V-1,
Request for Review (RFR) File, Tab 6 at 491 -99, Tab 7 at 75 -81. The appellant
filed a grievance c hallenging her removal , and thereafter her union invoked
arbitration. RFR File, Tab 6 at 24. F ollowing a hearing, the arbitrator
denied the grievance , finding that the agency met its burden of proof in a
performance -based action under 5 U.S.C. chapter 43 , that the appellant failed to
establish that the agency violated the applicable c ollective bargaining agreement,
and that the appellant failed to establish that she had requested a reasonable
accommodation. RFR File, Tab 6 at 22-33. The appellant filed a request for
review of the arbitration decision, in which she challenge d, among other things,
the arbitrator’s failure to consider a reasonable accommodation request
she alleges was ignored by the agency , the arbitrator’s rulings reg arding the
admissibility of certain evidence , and the arbitrator’s finding that the agency
afforded her a reasonable opportu nity to improve her performance. Id. at 4-18.
The agency opposed the appellant’s request for review. RFR File, Tab 10.
¶3 In a June 16, 2016 Order, the Board he ld that the arbitrator erred
in analyzing the appellant’s affirmative defense of discrimination because:
3
(1) he discounted the appellant’s testimony that she requested a reasonable
accommodation during a January 2013 telephon e conversation because it was not
corroborated by documentary evidence; (2) he failed to set forth a legal standard
or analytical framework for adjudicating the discrimination claim; (3) he failed
to consider whether the appellant was raising not only a cl aim of disability
discrimination on the basis of the agency’s failure to accommodate her disability
but also a claim of disparate treatment on the basis of sex under the Pregnancy
Discrimination Act (PDA); and (4) he failed to make findings regarding the
appellant’s claim that she had made a second request for accommodation in
September 2014. Tatsis v. Department of Housing & Urban Development ,
MSPB Docket No. CB -7121 -16-0003 -V-1, Order , ¶¶ 11-16 (June 16, 2016) . The
Board also concluded that the arbitrator erred in ruling that three emails between
the appellant’s supervisor and an employee relations s pecialist were protected by
the Freedom of Information Act’s deliberative process privilege and excluding
the emails from evidence. Id., ¶¶ 21-24. Finally, the Board determined that the
appellant’s other arguments did not provide a basis to reverse the arbitrator’s
findings , but the Board also concluded that it could not sustain the arbitrator’s
finding that the agency proved the charge of unacceptab le performance until the
evidentiary and discrimination analysis errors were addressed. Id., ¶¶ 28-29.
¶4 The Board vacated the arbitration decision, reversed the arbitrator’s
evidentiary ruling excluding the three emails, and forwarded the matter to the
Northeast ern Regional Office for further adjudication of the appellant’s
discrimination claim and the merits of the charge of unacceptable performance.
Id., ¶¶ 1, 16, 24, 30 -31. The Board directed the administrative judge to notify
the appellant of the elem ents and burdens of proof to establish her discrimination
claim, clarify whether the appellant was raising a claim of discrimination on the
basis of sex or disability, or both, and allow the parties to further develop the
record on the discrimination claim . Id., ¶¶ 17-18. The Board also ordered the
administrative judge to make credibility determinations regarding the appellant’s
4
testimony about the alleged January 2013 reasonable accommodation request,
analyze the effect of the PDA on the case , and make f indings regarding the
appellant’s allegation that she made a second accommodation request in
September 2014. Id., ¶¶ 18-20. Next, the Board directed the administrative
judge to admit the three emails at issue into evidence and allow the parties to
furthe r develop the record regarding the emails. Id., ¶ 24. The Board further
opined that the administrative judge could adopt the arbitrator’s findings
regarding the merits of the charge of unacceptable performance if he found that
the appellant failed to pro ve her affirmative defense of discrimination and the
findings were supported by the record, as supplemented by the three emails. Id.,
¶ 30.
¶5 Following a supplemental hearing, the administrative judge issued a
recommended decision finding that the appellant had failed to establish her
affirmative defense of discrimination and adopting the arbitrator’s findings
sustaining the agency’s removal for unacceptable performance. RD. The
administrative judge found that the appellant elected not to raise a claim of sex
discrimination on the basis of the PDA or any other theory . RD at 9. As to the
appellant’s claim of disability discrimination, the administrative judge found that
the appellant was an individual with a disability. RD at 10 -12. However, based
on his credibility assessment of the testimony of the appellant and other
witnesses, he deemed it implausible that the appellant had asked her supervisor
for an accommodation for her disability in Ja nuary 2013 , and, even if, as
she testified, she had spoken with her supervisor, her statements were
insufficient to place her supervisor on no tice that she was requesting
an accommodation. RD at 12-15. In addition, the administrative judge
determined that there was some confusion as to whether the appellant and her
union representative asserted in their September 2014 responses to the proposed
removal that the appellant’s supervisor had failed to engage in the interactive
5
process2 upon receiving the appellant’s alleged request for accommodation in
January 2013 or whether their responses requested that the reasonable
accommodation process begin anew. RD at 15 -19. Nevertheless,
the administrative judge concluded that the deciding official reasonably
requested medical documentation to support the appellant’s assertions, but that
none was provided, and thus it seemed that the appellant had failed to continue
to engage in the interactive process. RD at 17 -19. According to the
administrative judge, even if the agency had failed to engage in the interactive
process, it did not result in the failure to provide a reasonable accommodation,
as the record did not reflect that the appellant’s requests for ac comm odation
were reasonable. RD at 19-20. In sum, the administrative judge found that the
appellant did not prove her affirmative defense of disability discrimination and
recommended rejecting the affirmative defense. RD at 19-20.
¶6 Regarding the merits of the removal action, t he administrative judge stated
that, to sustain a performance -based removal, the agency must show by
substantial evidence that: (1) the Office of Personnel Management approved its
performance appraisal system; (2) the appellant’s performance standards and
critical elements of her position were communicated to her; (3) the appellant’ s
performance standards were valid under the statute; (4) the agency warned the
appellant of the inadequacies of her performance during the appraisal pe riod and
gave her a reasonable opportunity to demonstrate acceptable performance; and
(5) the appellant’s performance remained unacceptable in one or more of the
critical elements for which she was provided an opportunity to demonstrate
acceptable performa nce. RD at 5 (citing Towne v. Department of the Air Force ,
2 The interactive process is the activity that happens between an employee and the
agency after the employee requests reasonable accommodation and is the process for
determining the nature of the accommodation. Brown v. Department of the Interior ,
121 M.S.P.R. 205 , ¶ 21 (2014); 29 C.F.R. part 1630 app. (“The appropriate reasonable
accommodation is best determined through a flexible, interactive process that involves
both the employer and the individual with a disability.”).
6
120 M.S.P.R. 239 , ¶ 6 (2013) , and Lee v. Environmental Protection Agency , 115
M.S.P.R. 533 , ¶ 5 (2010) ). The administrative judge did not find persuasive the
appellant’s allegation that she did not have a reasonable opportunity to
demonstrate acceptable performance during the performance improvement
period. RD at 20 -21. The administrative judge found that the appellant’s
testimony on this issue was contradicted by the record and credible witness
testimony , and the three newly admitted emails did not show that her proposed
removal was predetermined. RD at 21 -25. Accordingly, the administrative
judge found that the appellant had a reasonable opportunity to demonstrate
improved performance and recommended a ffirming the arbitrator’s decision.
RD at 25.
¶7 The administrative judge’s recommended decision informed the parties that
the recommended decision would be forwarded back to the Board and that the
parties could file exceptions to the recommended decision within 20 days of the
date of the recommended decision. RD at 26. Neither party filed exceptions to
the recommended decision.
ANALYSIS
With the exception of his recommendation that we affirm the arbitrator’s
decision, w e adopt the administrative judge’ s findings in the recommended
decision.
¶8 Absent exceptions to the administrative judge’s recommended decision, and
based on our review of the decision, with the exception of his ultimate
recommendation that we affirm the arbitrator’s decision —which we canno t
presently adopt for reasons stated below —we adopt the administrative judge’s
findings therein . Cf. Special Counsel v. Goewert , 64 M.S.P.R. 320 , 321 -22
(1994) (adopting an administrative law judge’s recommended decision in
an Office of Special Counsel disciplinary action case when no exceptions were
filed). As to the appellant’s affirmative defense of discrimination,
the administrative judge properly found that the appellant did not elect to raise a
7
claim of sex discrimination. RD at 9. In finding that the appellant did not prove
by preponderant evidence her claim of disability discrimination, the
administrative judge analyzed the appellant’s alleged requests for
accommodation in January 2013 and September 2014, made detailed credibility
findings, and considered the record evidence as a whole. RD at 9-20; see
Clemens v. Department of the Army , 120 M.S.P.R. 616 , ¶¶ 12-17 (2014)
(determining that the agency did not fail to provide a reasonable accommodation
because the appellant neither requested acc ommodation nor adequately provided
information concerning his ability to return to his position with
an accommodation) ; see also Clay v. Department of the Army , 123 M.S.P.R. 245,
¶ 6 (2016) (finding that the Board will not disturb an administrative judge’s
findings when she considered the evidence as a whole, drew appropriate
inferences, and made reasoned conclusions on issues of credi bility ).
¶9 The administrative judge also properly analyzed the record evidence and
determined that the agency proved by substantial evidence that the agency
provided the appellant with a reasonable opportunity to demonstrate acceptable
performance and ulti mately concluded that the agency proved its charge of
unacceptable performance. RD at 20-25; see Goodwin v. Department of the Air
Force , 75 M.S.P.R. 204 , 206 -09 (1997) (concluding that the agency afforded the
appellant a reasonable opportunity to demonstrate acceptable performance when
it provided the appellant with a detailed performance improvement plan and
abundant written feedba ck during the plan, and her supervisor made herself
available to provide assistance, but the appellant did not req uest assistance).
Accordingly , we discern no reason to disturb the administrative judge’s findings
and, pending the outcome of the additional proceedings discussed below, adopt
them as findings of the Board . See Clay , 123 M.S.P.R. 245 , ¶ 6.
8
This matter must be forwarded to the administrative judge to afford the parties
an opportunity to submit evidence and argument r egarding whether the appellant
performed unacceptably prior to her placement on a PIP.
¶10 Although the appellant has identified no basis for us to disturb th e
administrative judge’s findings in the recommended decision , we nonetheless
must forward this appeal to the administrative judge for another reason. During
the pendency of this case before the Board following the recommended decision ,
the U.S. Court of Appeals for the Federal Circuit (Federal Circuit) held in
Santos , 990 F.3d at 1360 -61, that in addition to the five elements required to
sustain a performance -based removal set forth in the recommended decision, the
agency also must justify the institution of a PIP by proving by substantial
evidence that the employee’s performance was unacceptable prior to the PIP.
The Federal Circuit’s decision in Santos applies to all pending cases, including
this one, regardless of when the events took place. Lee v. Department of
Veterans Affairs , 2022 MSPB 11 , ¶ 16. Although the record in this appeal
already contains evidence suggesting that the appellant’s performance leading up
to the PIP was indeed unacceptable, we forward 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. , ¶¶ 16-17. In adjudicating
the forwarded appeal , the administrative judge shall accept argument and
evidence on this issue and shall hold a supplemental hearing if appropriate. Id.,
¶ 17. The admin istrative judge shall then issue a new recommended decision
consistent with Santos . Id. If the agency makes the additional showing required
under Santos , the administrative judge may incorporate his prior findings on
other elements of the agency’s case i n the new recommended decision. Id.
Regardless of whether the agency meets its burden, if the argument or evidence
developed in the new proceeding regarding the appellant’s pre -PIP performance
affects the admini strative judge’s findings on the other issu es, he should address
9
such argument or evidence in the new recommended decision. Cf. 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 we ll as the authorities on which
that reasoning rests).
ORDER
¶11 For the reasons discussed abo ve, we forward this case to the Northeastern
Regional O ffice for further adjudication in accordance with this Order. After the
administrative judge issues the recomme nded decision , the case will be
forwarded back to the Board. The parties may file exceptions to the
administrative judge ’s recommended decision with the Clerk of the Board within
20 days o f the date of the recommended decision . The parties may respond to
any submission by the other party within 15 days of the date of such submission.
The Board will subsequently issue a final decision on the merits of the
appellant ’s request for review.
FOR THE BOARD:
Washington, D.C. /s/ for
Jennifer Everling
Acting Clerk of the Board | TATSIS_KONSTANTINA_CB_7121_16_0003_V_1_ORDER_1949765.pdf | 2022-08-09 | null | CB-7121-16-0003-V-1 | NP |
4,204 | https://www.mspb.gov/decisions/nonprecedential/KOTSIS_GABRIEL_AT_0432_16_0006_I_1_REMAND_ORDER_1949791.pdf | UNITED STATES OF AME RICA
MERIT SYSTEMS PROTEC TION BOARD
GABRIEL KOTSIS,
Appellant,
v.
DEPARTMENT OF
TRANSPORTATION,
Agency.
DOCKET NUMBER
AT-0432 -16-0006 -I-1
DATE: August 9, 2022
THIS ORDER IS NONPRECEDENTIAL1
John Durishan , Esquire, Atlanta, Georgia, for the appellant.
Charles Lohmeyer , 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 his performance -based removal. For the reasons discussed below, we
GRANT the petition for review, VACATE the initial decision, and REMAND the
case to the Atlanta Regiona l Office for further adjudication in accordance with
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case 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
this Remand Order and Santos v. National Aeronautics & Space Administration ,
990 F.3d 1355 (Fed. Cir. 2021) .
BACKGROUND
¶2 After the appellant, a GS-12 General Engineer, received an unsatisfactory
performance appraisal , the agency placed him on a 120 -day performance
improvement plan (PIP). Initial Appeal File (IAF), Tab 17 at 16 -21. The PIP
period ended on or about November 25, 2014, and, on December 15, 2014, the
appellant’s supervisor informed him that he did not pass the PIP and that he likely
would be removed. IAF, Tab 20 at 49, 57. On December 18, 2014, the appellant
notified his superv isor that he had been diagnosed with a severe illness and that
he may need some time off due to this medical condition. IAF, Tab 26 at 42. On
March 12, 2015, the agency proposed to remove the appellant for failing to
demonstrate a minimally acceptable le vel of performance during his PIP and
immediately placed him on administrative leave. IAF, Tab 1 at 19-28. The
appellant requested sick leave from March 23 to April 4, 2015, but his supervisor
denied the request, noting that the appellant was already on administrative leave
for the period requested. IAF, Tab 18 at 4. On April 13, 2015, the agency
removed the appellant for unacceptable performance. IAF, Tab 1 at 29-32.
¶3 The appellant appealed the performance -based removal to the Board, raising
affirmat ive defenses of disability discrimination based on a failure to
accommodate and retaliation for prior equal employment opportunity (EEO)
activity. IAF, Tab 1, Tab 28 at 5. In an order and summary of the prehearing
conference, the administrative judge set forth the parties’ stipulations and, on the
basis of those stipulations, found that the agency met its burden of showing under
5 U.S.C. § 4303 that the performance -based removal was supported by s ubstantial
evidence and that the only remaining issues to be decided were the appellant’s
affirmative defenses. IAF, Tab 28 at 3 -10. The administrative judge notified the
appellant of the law and burden of proof applicable to his EEO reprisal and
disabil ity discrimination affirmative defenses and ordered the parties to submit
3
any exception to the order and summary in writing within 7 days. Id. at 1.
Neither party objected to the contents of the order and summary. After holding
the requested hearing, th e administrative judge issued an initial decision finding
that the appellant failed to establish his affirmative defenses and affirming the
agency’s removal action. IAF, Tab 36, Initial Decision (ID).
¶4 The appellant has filed a petition for review of the i nitial decision, and the
agency has responded in opposition. Petition for Review (PFR) File, Tabs 1, 3.2
On review, the appellant challenges only the administrative judge’s finding that
he failed to establish his affirmative defense of disability discrim ination based on
a failure to accommodate his medical condition. PFR File, Tab 1.
DISCUSSION OF ARGUME NTS ON REVIEW
¶5 As an initial matter, the appellant does not challenge, and we discern no
basis to disturb, the administrative judge’s findings that the ag ency proved by
substantial evidence all the elements it was required to prove in a chapter 43
performance -based removal under the law as it existed at the time and that the
2 The appellant also submitted an untimely reply to the agency’s response, which the
agency moves to strike. PFR File, Tabs 4 -5. A reply to a response to a petition for
review must be filed within 10 days after the date of service of the response to the
petition for review. 5 C.F.R. § 1201.114 (e). Here, the appellant electronically filed his
reply to the agency’s response 7 days past the Septembe r 26, 2016 filing deadline. PFR
File, Tab 4. He requests that the Board accept this untimely filing and has submitted an
affidavit attesting that he was out of the country from August 25 to September 24, 2016.
PFR File, Tab 6. We find that the appellan t’s contention that he was out of the country
until 2 days before the filing deadline does not establish good cause for his untimely
filing. The record reflects that the appellant is represented by counsel and that his
counsel was served, through the Boar d’s e -Appeal system, with the agency’s response
to his petition for review and the Clerk of the Board’s acknowledgment letter setting
forth the relevant filing deadlines. PFR File, Tab 2 at 1 -2, 5, Tab 3 at 19. The
appellant has not stated that he is no longer represented or otherwise addressed why his
representative was unable to make a timely filing or request an extension on his behalf.
He also has not explained why he could not submit a timely reply or request a filing
deadline extension through the Board’s e -Appeal system while he was out of the
country, or why he delayed another 9 days upon his return before submitting his reply.
Therefore, we GRANT the agency’s motion to strike the appellant’s reply and have not
considered it in reaching our decis ion in this matter.
4
appellant failed to show that the agency retaliated against him for his EEO
activit y. PFR File, Tab 1; see Crosby v. U.S. Postal Service , 74 M.S.P.R. 98 , 106
(1997) (finding no reason to disturb the administrative judge’s findings when she
considered the evidence as a whole, drew appropriate inferences, and made
reasoned conclusions on issues of credibility); Broughton v. Department of
Health & Human Services , 33 M.S.P.R. 357 , 359 (1987) (same). Rather, as set
forth above, his arguments on review are limited to his affirmative defense of
disabil ity discrimination based on a failure to accommodate his medical
condition . Accordingly, we address those arguments below but ultimately agree
with the administrative judge’s findings . Nevertheless, as further explained
below, we must remand this appeal in accordance with Santo s.
We discern no error in the administrative judge’s finding that the appellant failed
to prove his affirmative defense of failure to accommodate his medical condition .
¶6 An agency is required to make a reasonable accommodation to t he known
physical and mental limitations of an otherwise qualified individual with a
disability unless the agency can show that accommodation would cause an
undue hardship on its business operations.3 White v. Department of Veterans
Affairs , 120 M.S.P.R. 405 , ¶ 9 (2013); 29 C.F.R. § 1630.9 (a). Reasonable
accommodatio n includes modifying the manner in which a position is customarily
performed to enable a qualified individual with a disability to perform the
3 As a Federal employee, the appellant’ s claim of disability discrimination arises under
the Rehabilitation Act. Simpson v. U.S. Postal Service , 113 M.S.P.R. 346 , ¶ 8 (2010 ).
However, the standards under the Americans with Disabilities Act of 1990 (ADA) have
been incorporated by reference into the Rehabilitation Act , and we apply them to
determine if there has been a Rehabilitation Act violation . Id.; see 29 U.S.C. § 791 (f).
Further, the ADA Amendments Act of 2008 (ADAAA), Pub. L. No. 110 -325, 122 Stat.
3553 (codified at 42 U.S.C. §§ 12101 et seq .), applies to this appeal because the
incidents in question occurred after the January 1, 20 09 effective date of the ADAAA.
See Simpson , 113 M.S.P.R. 346 , ¶ 10. Although the ADAAA changed the interpretation
of the law concerning the existence of a disability, it did not affect the requirements of
the law as to reaso nable accommodation. See Davis v. U.S. Postal Service ,
119 M.S.P.R. 22 , ¶ 11 n. 4 (2012).
5
essential job functions. White , 120 M.S.P.R. 405 , ¶ 9. To establish a disability
discrimination claim based on a failure to accommodate, an appellant must prove
that he is a disabled person, that the action appealed was based on his disability ,
and, to the extent possible, articulate a reasonable accommodation under which he
believes he could perform the essential duties of his position or of a vacant
funded position t o which he could be reassigned. Sanders v. Social Security
Administration , 114 M.S.P.R. 487 , ¶ 16 (2010).
¶7 The appellant argued b elow that the agency failed to reasonably
accommodate him by denying his request for medical leave, which would have
permitted him to find an effective medication, and by refusing to allow him to
return to work to demonstrate improved performance after rec eiving medication
for his medical condition. IAF, Tab 34, Hearing Compact Disc, Track 2
(the appellant’s closing argument). The administrative judge found, however,
that the appellant did not request an accommodation until after completing the
PIP and th at, because a reasonable accommodation is always prospective, the
agency was not obligated to excuse the appellant’s past failure to successfully
complete the PIP on the basis of his subsequent request for an accommodation.
ID at 11-16. The administrativ e judge also found that the agency’s denying the
appellant’s request for sick leave did not amount to denying a reasonable
accommodation request because the appellant was already on paid administrative
leave for the entire period requested. ID at 15-16.
¶8 On review, the appellant does not dispute the administrative judge’s finding
that he did not request any accommodation prior to completing the PIP period or
that he was already on leave for the period of the disallowed sick leave, but
argues that the agen cy improperly denied him a reasonable accommodation
because it did not allow him another opportunity to demonstrate effective service.
PFR File, Tab 1 at 14-15. He further argues that the administrative judge erred in
failing to determine whether his req uest for additional time to find effective
medication and another opportunity to demonstrate improved performance would
6
have caused the agency undue hardship. Id. at 9-11. For the reasons discussed
below, we find no merit to these arguments.
¶9 Reasonable accommodation is always prospective; an agency does not have
a duty to retroactively excuse an employee’s poor performance on the basis of a
subsequent request to accommodate a previo usly unknown disability. See
42 U.S.C. § 12112 (b)(5) (defining illegal disability discrimination under the
ADAAA to include failing to reasonably accommodate “known physical or
mental limitations”); 29 C.F.R. § 1630.9 (a).
¶10 Here, after the appellant learned that he might be removed for failing the
PIP, he requested time to find an effective medication and a second chance to
demonstrate acceptable performance once he adjusted to his new medication.
However, for the reasons discussed above, a second chance is not a reasonable
accommodation as contemplated by the Rehabilitation Act even when, as here,
the performance deficiency may be related to the disability. See, e.g., Dewitt v.
Southwestern Bell T elephone Company , 845 F.3d 1299 , 1316 -17 (10th Cir. 2017)
(holding that, “[t]he ADAAA does not require employers to accommodate
disabled employe es by overlooking a past violation of a workplace rule,
regardless of whether that violation was caused by the employee’s disability[]”);
Purcell v. Department of Veterans Affairs , EEOC Request No. 05970773 ,
1999 WL 44812 6, at *1 -*2 (June 24, 1999) (findin g that an agency was not
required to accommodate an employee or retroactively excuse her poor
performance on the basis of an after -the-fact request for accommodation ).
Therefore, as the administrative judge correctly determined, the agency was not
obliged to accommodate the appellant by excusing his prior PIP failure and giving
him a second chance to demonstrate acceptable performance. ID at 15 -16.
Furthermore, the agency need not show that the appellant’s requested
accommodation would impose an undue hardship because his requested
accommodation was not reasonable. See, e.g. , McElwee v. County of Orange ,
7
700 F.3d 635 , 641 (2d Cir. 2012) (holding that an “accommodation that simply
excuses past misconduct is unreasonable as a matter of law[]”).
¶11 The appellant also argues on review that the agency must “honor [its]
invitation to provide reasonable assistance to improve [his] performance” because
the EEOC’s regulations require the Federal Government to be a “model
employer” of individuals with disabilities. PFR File, Tab 1 at 12; 29 C.F.R.
§ 1614.203 (c). As previously discussed, however, the Rehabilitation Act does not
require the agency to provide the appellant a second chance to demonstrate
improved performance. The fact that the agency i nvited the appellant to request
any reasonable assistance that might help him to improve his performance
prospectively, while considering how to deal with his prior unacceptable
performance, does not suggest that the agency failed to act as a model employe r.
To the contrary, the appellant’s allegations reflect that the agency complied with
its obligations under the Rehabilitation Act to engage in the interactive process to
determine an appropriate accommodation after the appellant notified his
supervisors of his medical condition and his need for an accommodation. See
Clemens v. Department of the Army , 120 M.S.P.R. 616 , ¶ 17 (2014) (finding that,
even if an appellant had requested a reasonable accommodation, an agency’s
failure to engage in the interactive process, standing alone, does not violate the
Rehabilitation Act) ; Simpson , 113 M.S.P.R. 346 , ¶ 1 6. Therefore, we find no
merit to the appellant’s argument that the agency failed to act as a model
employer, and his argument on review provides no basis to dis turb the initial
decision.
¶12 The appellant next argues that the administrative judge erred in finding that
his request for a reasonable accommodation was too late because, unlike the cases
cited in the initial decision wherein the employees were aware of the ir disability
at the time of their alleged misconduct, the appellant was not aware that he was
disabled until after the PIP period ended. PFR File, Tab 1 at 13 -14. Thus, he
argues that his “request for additional time to demonstrate effective service aft er
8
he was granted time to address his newly diagnosed disability” was made at the
earliest possible time. Id. at 14. We find no merit to this argument. As the
administrative judge correctly found and as discussed above, the agency was
under no legal obl igation to ignore or excuse the appellant’s unacceptable
performance occurring prior to his request for an accommodation. ID at 16. The
fact that the appellant lacked a diagnosis until after completing the PIP period
does not change this result.
Remand i s necessary to afford the parties an opportunity to submit evidence and
argument regarding whether the appellant’s placement on a PIP was proper.
¶13 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 United States 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 employee’s performance was
unacceptable pri or 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 unacceptable, we remand the
appeal to give the parties the opportunity to present argument and additional
evidence on whether the appellant’s performance during the period leading up to
the PIP was unacceptable in one or more critical elements. See Lee , 2022 MSPB
11, ¶¶ 15-17. On remand, the administrative judge shall accept argument and
evidence on this issue, and shall hold a supplemental hearing if appropriate.
Id., ¶ 17.
¶14 The admi nistrative judge shall then issue a new initial decision consistent
with Santos . See id. If the agency makes the additional showing required under
9
Santos on remand that the appellant’s performance in at least one critical element
was at an unacceptable l evel prior to his 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, he should
address such argument or evidence in the remand initi al decision. See Spithaler
v. Office of Personnel Management , 1 M.S.P.R. 587 , 589 (1980) (explaining that
an initial decision must identif y all material issues of fact and law, summarize the
evidence, resolve issues of credibility, and include the administrative judge’s
conclusions of law and his legal reasoning, as well as the authorities on which
that reasoning rests).
ORDER
¶15 For the reason s 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 Clerk of the Board | KOTSIS_GABRIEL_AT_0432_16_0006_I_1_REMAND_ORDER_1949791.pdf | 2022-08-09 | null | AT-0432-16-0006-I-1 | NP |
4,205 | https://www.mspb.gov/decisions/nonprecedential/MURRAY_MARY_C_PH_831M_21_0238_I_1_FINAL_ORDER_1949153.pdf | UNITED STATES OF AME RICA
MERIT SYSTEMS PROTEC TION BOARD
MARY C. MURRAY,
Appellant,
v.
OFFICE OF PERSONNEL
MANAGEMENT,
Agency.
DOCKET NUMBER
PH-831M -21-0238 -I-1
DATE: August 8, 2022
THIS FINAL ORDER IS NONPRECEDENTIAL1
Mary C. Murray , Canton, Massachusetts, pro se.
Alison Pastor , 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 file d a petition for review of the initial decision, which
dismissed as moot an appeal of a reconsideration decision issued by the Office of
Personnel Management (OPM) , which found that the appellant had been overpaid
$14,364.47 in retirement annuity benefits , following OPM’s rescission 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
decision .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 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 GRANT the agency’s petition for
review .3 Except as expressly MODIFIED to dismiss the appeal for lack of
jurisdiction , we AFFIRM the initial decision.
¶2 The agency contends that the administrative judge erred in dismissing the
matter as moot in lieu of dismissing the matter for lack of jurisdiction. Petition
for Review File, Tab 1 at 4-8. We agree. If OPM completely rescinds a
reconsideration decision, its rescission divests the Board of jurisdiction over the
appeal in which that reconsideration decision is at issue, an d the appeal must be
dismissed. Rorick v. Office of Per sonnel Management , 109 M.S.P.R. 597 , ¶ 5
(2008); Glasgow v. Office of Personnel Management , 103 M.S.P.R. 531 , ¶ 5
(2006). Although rescission of an OPM reconsideration decision can cause an
appeal from that decision to become moot, see Rorick , 109 M.S.P.R. 597 , ¶ 6, for
2 Neither party provided a copy of the reconsideration decision underlying this appeal,
which was issued on or about April 5, 2021. Initial Appeal File, Tab 1 at 4, Tab 9 at 4.
As a result, we are uncertain whether this appeal implicates the Civil Service
Retirement System or the Federal Employees’ Retirement System. This uncertainty,
however, is not material to the outcome of this matter.
3 We acknowledge the un usual posture of this appeal. To this end, the relief sought by
OPM , i.e., dismissal for lack of jurisdiction in lieu of dismissal as moot, clarifies that
the appellant may appeal any subsequent reconsideration decision to the Board. See
Tamayo v. Office of Personnel Management , 56 M.S.P.R. 620 , 622 (1993).
3
an appeal to be deemed moot, the appellant must have received all of the relief
that she could have received if the matter had been adjudicated and she had
prevailed, see Harris v. Department of Transportation , 96 M.S.P.R. 487 , ¶ 8
(2004). T he Board has clarified that a n appeal may not be dismissed as moot
until the agency has submitted acceptable evidence that it has actually afforded
the appellant all such relief. Smith v. Office of Personnel Management ,
113 M.S.P.R. 259 , ¶ 7 (2010).
¶3 Here, OPM indicated that it completely rescinded the reconsideration
decision underlying this appeal, Initial Appeal File, Tab 9 at 4-5; however, it
neither alleged nor submitted any evidence indicating that it afforded the
appellant all of the relief to which she would be entitled had she prevailed in her
appeal , see Tamayo v. Office of Personnel Managem ent, 56 M.S.P.R. 620 , 622
(1993) (concluding that , although OPM’s rescission of its reconsideration
decision divested the Board of jur isdiction, it did not render the matter moot
because the question of whether the appellant was entitled to an annuity
remained); cf. Alexis v. Office of Personnel Management , 106 M.S.P.R. 315 , ¶ 7
(2007) (finding it appropriate to dismiss an overpayment appeal as moot when
OPM waived the appellant’s obligation to repay the overpayment and refunded
him the money that it had withheld from his retirement annuity to repay the
same). Thus, although OPM’ s rescission of its reconsideration decision divested
the Board of jurisdiction over this appeal, it did not render the matter moot.
¶4 Accordingly, we dismiss this a ppeal for lack of jurisdicti on. If the
appellant is dissatisfied with any subsequent OPM decision regarding the
apparent overpayment , she may request that OPM reconsider the decision and, if
she is still dissatisfied, may appeal OPM ’s reconsideration decisi on to the Board.
See 5 U.S.C. § § 8347 (d)(1), 8461(e)(1); 5 C.F.R. § § 831.110 , 841.308. Any such
appeal must be filed within the tim e limits set fort h in the Board’s regulations.
See 5 C.F.R. § 1201.22 .
4
NOTICE OF APPEAL RIG HTS4
The initial decision, as supplemented by this Final Order, constitutes the
Board’s final decision in this m atter. 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 jurisdictio n. If you wish to seek review of
this final decision, you should immediately review the law applicable to your
claims and carefully follow all filing time limits and requirements. Failure to file
within the applicable time limit may result in the dismiss al of your case by your
chosen forum.
Please read carefully each of the three main possible choices of review
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 Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703 (b)(1)(A).
4 Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise which option is most appropriate in any matter.
5
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful 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
6
discrimination based on race, color, religion, sex, national origin, or a disabling
condition, you may be entitled to representation by a court -appointed lawyer and
to waiver of any requirement of prepayment of fees, costs, or other security. See
42 U.S.C. § 2000e -5(f) 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
7
other protected activities listed 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
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
5 The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115 -195,
132 Stat. 1510.
8
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
Contact information for the courts of appeals can be found at their
respective websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
FOR THE BOARD:
Washington, D.C. /s/ for
Jennifer Everling
Acting Clerk of the Board | MURRAY_MARY_C_PH_831M_21_0238_I_1_FINAL_ORDER_1949153.pdf | 2022-08-08 | null | PH-831M-21-0238-I-1 | NP |
4,206 | https://www.mspb.gov/decisions/nonprecedential/GONZALEZ_JESUS_J_DA_0752_11_0078_C_1_REMAND_ORDER_1949391.pdf | UNITED STATES OF AME RICA
MERIT SYSTEMS PROTEC TION BOARD
JESUS J. GONZALEZ, JR.,
Appellant,
v.
DEPARTMENT OF HOMELA ND
SECURITY,
Agency.
DOCKET NUMBER
DA-0752 -11-0078 -C-1
DATE: August 8, 2022
THIS ORDER IS NONPRECEDENTIAL*
Juan M. Gonzalez , Esquire, San Antonio, Texas, for the appellant.
Kathleen Shipley , Megan Nicole Copley , and Felix R. Martinez Velez ,
Laredo, Texas, for the agency.
BEFORE
Cathy A. Harris , Vice Chairman
Raymond A. L imon , Member
Tristan L. Leavitt , Member
REMAND ORDER
¶1 The appellant has filed a petition for review of the initial decision, which
denied his petition for enforcement , finding that he failed to prove
by preponderant evidence that the agency materially brea ched any of the terms of
* A nonprecedential order is one that the Board has determined does not add
significantly to the 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 settlement agreement . For the reasons discussed below, we GRANT the
appellant ’s petition for review and REMAND the case to the regional office for
further adjudication in accordance with this Remand Order.
DISCUSSION OF ARGUMENTS ON REVIEW
¶2 The agency removed the appellant from his position as a GS -11 Border
Patrol Agent and he filed an appeal with the Board . Gonzalez v. Department of
Homeland Security , MSPB Docket No. DA-0752 -11-0078 -I-1, Initial Appeal File
(IAF), Tab 1 . During the pendency of that appeal , the parties enter ed into a
settlement agreement resolving the appeal. IAF , Tab 17. The settlement
provided, in pertinent part, that the appe llant would withdraw his appeal, submit a
written resignation “for personal reasons ,” and would not apply for a position
with the agency for 5 years. IAF, Tab 17 at 3 -4. In exchange , the agency agreed
to do the following: (1) cancel the removal action; (2) replace the existing
Standard Form ( SF) 50 in the appellant ’s Official Personnel File (OPF) indicating
that he had been removed with an SF -50 indicating that he resigned “for personal
reasons”; (3) remove all documentation regarding the removal action from the
appellant ’s OPF; and (4) refer all inquiries and requests for references regarding
the appellant ’s work performance, reason for resignation, or other employment
matters to the agency ’s Indianapolis Hiring Center and limit information provided
in response to such requests to the information reflected in the OPF. Id. at 4.
The administrative judge issued an initial decision dismissing the appeal as
settled and accepting the settlement agreement into the Board ’s record for
enforcement purposes. IAF, Tab 18 , Initial Decision .
¶3 The appellant filed a petition for enforcement on January 7 , 2017, alleging
that the agency br eached a term of the settlement agreement when it found him
unsuitable for employment as a contractor with a private company doing contract
work with the agency. MSPB Docket No. DA-0752 -11-0078 -C-1, Complian ce
File (CF), Tab 1. The agency filed a response to the compliance petition
3
asserting that it had not breached the agreement because the appellant had
specifically authorized the release of information for the purposes of a
background investigation by exe cuting a signed waiver or altern atively, that the
appellant himself had voluntarily disclosed the offending information leading to
the unsuitability finding on his SF -85P background investigation questionnaire.
CF, Tab 5 at 4 -5. The agency also alleged t hat the appellant breached the waiting
period provision of the agreement by applying for a position with the agency
before 5 years had elapsed. Id. at 4.
¶4 In a compliance initial decision based on the written record, the
administrative judge determined tha t the appellant had failed to submit evidence
sufficient to demonstrate that the agency had breached a term of the settlement
agreement. CF, Tab 8, Compliance Initial Decision (CID) at 6 -7. Alternatively,
the administrative judge determined that , even if the agency had provided the
disputed information to the background investigators, the appellant had
knowingly and intentionally waived the agency ’s obliga tion to restrict the release
of the information by executing an authorization form. CID at 7 -9.
Consequently, the administrative judge denied the petition for enforcement.
CID at 9.
¶5 On review, the appellant contends that he was improperly denied the
opportunity to conduct discovery and that the administrative judge erred in
concluding that the signed a uthorization allowed the agency to release the
contested information. Compliance Petition for Review ( CPFR) File, Tab 1
at 3-4. The agency has filed a response in opposition to the petition for review .
CPFR File, Tab 3.
The administrative judge abused his discretion by issuing the compliance initial
decision without allowing the appellant to conduct discovery .
¶6 In a January 17, 2017 acknowledgement order , the administrative judge
noted that though discovery “may not be necessary in a compliance ap peal,” if a
party believed it was necessary, “any initial request for discovery must be filed
4
within 15 days of the filing of the response to the petition for enforcement. ”
CF, Tab 3 at 2 -3. Consistent with the Board ’s regulations, t he order specified
that the record would close 15 calendar days from the date of service of the
agency’s reply “unless a party infor m[ed] [the administrative judge] that
discovery will take place. ” Id. at 3; see 5 C.F.R. § 1201.183 (a)(9) .
¶7 The agency filed its response to the petition for enforcement on
February 1, 2017. CF, Tab 5. The appellant, replying to the agency ’s response
on February 11, 2017, indicated that he “intend[ed] to propound discovery upon
the Agency, ” and requested “the ability to issue discovery to the agency. ” CF,
Tab 6 at 11. On February 24, 2017 , the administrative judge issued the
compliance initial decision denying the appellant ’s petition for enforcement ,
despite the fact the appe llant had informed the administrative judge that he
intended to conduct discovery . CID.
¶8 In response to an order issued by the Acting Clerk of the Board, the
appellant provided a list of interrogatories propounded on the agency on
February 15, 2017, and a request for the production of documents submitted to
the agency on February 16, 2017. CPFR File, Tab 7 at 7 -19. The appellant ’s
attorney asserts that no response was received to either request. Id. at 5. The
agency has not provided a response to the order.
¶9 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). However , as the party bearing the burden of proof on the claim, the
appellant is entitled to obtain evidence to support his claim. See, e.g. , Lynch v.
Department of Defense , 114 M.S.P.R. 219 , ¶ 11 (20 10). The appellant has
provided sufficient evidence demonstrating that he notified the administrative
judge of his intention to undertake discovery, that he served his discovery
requests within the requisite 15 days following the agency ’s response to the
petition for enforcement, and that , when the administrative judge issued his
5
compliance initial decision , the agency had not yet replied to the appellant ’s
requests. The unanswered discovery requests produced by the appellant seek
evidence that could be relevant and admissible concerning his allegation that the
agency materially breached a term of the settlement agreement. CPFR File, Tab 7
at 7-19. By issuing the ini tial decision before discovery was completed, the
administrative judge deprived the appellant of the opportunity to gather and
submit potentially relevant evidence obtained during the ongoing discovery
process. Bernard v. Department of Agriculture , 788 F.3d 1365 , 1368 -70 (Fed.
Cir. 2015); 5 C.F.R. § 1201.183 (a)(9). As such, th e administrative judge abused
his discretion and we remand this appeal for further adjudication . See Bernard ,
788 F.3d at 1368 -70.
¶10 On remand, the administrative judge shall grant the parties additional time
to conduct discovery regarding the matters addressed in the outstanding discovery
requests. Additionally, the administrative judge shall set a new close -of-record
date and allow the parties to submit potentially relevant evidence obtained
through the discovery process. After discovery is complete d, the administrative
judge shall issue a new compliance initial dec ision consistent with this Remand
Order.
ORDER
¶11 For the reasons discussed above, we remand this case to the regional office
for further adjudication consistent with this Remand Order.
FOR THE BOARD:
Washington, D.C. /s/ for
Jennifer Everling
Acting Clerk of the Board | GONZALEZ_JESUS_J_DA_0752_11_0078_C_1_REMAND_ORDER_1949391.pdf | 2022-08-08 | null | DA-0752-11-0078-C-1 | NP |
4,207 | https://www.mspb.gov/decisions/nonprecedential/ASHMORE_JACQUELINE_SF_1221_21_0549_W_1_FINAL_ORDER_1949415.pdf | UNITED STATES OF AME RICA
MERIT SYSTEMS PROTEC TION BOARD
JACQUELINE ASHMORE,
Appellant,
v.
DEPARTMENT OF DEFENS E,
Agency.
DOCKET NUMBER
SF-1221 -21-0549 -W-1
DATE: August 8, 2022
THIS FINAL ORDER IS NONPRECEDENTIAL1
Georgia A. Lawrence , Esquire, Atlanta, Georgia, for the appellant.
Holly Kay Botes , APO, AP , 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 appeal (IRA) for lack of jurisdiction . On
petition for review, she reargues the merits of her appeal, reraises or raises for the
first ti me on review additional claims that she has failed to prove she exhausted
1 A nonprecedential order is one that the Board has determined does not add
significantly to the 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
with the Office of Special Counsel (OSC), and presents new evidence and
argument on the issue of administrative exhaustion . Generally, we grant petitions
such as this one only in th e 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 admin istrative judge’s rulings during either the course of
the appeal or the initial decision were not consistent with required procedures or
involved an abuse of discretion, and the resulting error affected the outcome of
the case; or new and material evidence or legal argument is available that, despite
the petitioner’s due diligence, was not available when the record closed. Title 5
of the Code of Federal Regulations, section 1201.115 ( 5 C.F.R. § 1201.115 ).
After fully considering the filings in this appeal, we conclude that the petitioner
has not established any basis under section 1201.115 for granting the petition for
review. Therefore, we DENY the petition for review. Except as expressly
MODIFIED to clarify the IRA exhaustion requirement , we AFFIRM the initial
decision. We VACATE as unnecessary the administrative judge’s findings that
the appellant failed to nonfrivolously allege that she disclosed what she
reasonably believed w as an abuse of authority and as to the contributing factor
criterion.
¶2 The administrative judge found that the appellant failed to prove she
exhausted the required administrative remedies with OSC with respect to any
alleged disclosures and/or personnel ac tions beyond those referenced in OSC’s
close -out letter. Initial Appeal File (IAF) Tab 8, Initial Decision (ID) at 7 -8. The
substantive requirements of exhaustion are met when an appellant has provided
OSC with sufficient basis to pursue an investigation . Chambers v. Department of
Homeland Security , 2022 MSPB 8 , ¶ 10 (citations omitted). An appellant may
demonstrate exhaustion through her initial OSC complaint or correspondence
with OSC. Id., ¶ 11 (citing Mason v. Department of Homeland Security ,
116 M.S.P.R. 135, ¶ 8 (2011)). In the alternative, exhaustion may be proved
3
through other sufficiently reliable evidence, such as an affidavit or declaration
attesting that the appellant raised with OSC the substance of the facts in her
Board appeal or an unrebutted certi fied statement to this effect on an appellant’s
initial appeal form. Id. & n.7 (citing, among other cases, Delgado v. Merit
Systems Protection Board , 880 F.3d 913 , 927 (7th Cir.), as amended on denial of
reh’g and reh’g en banc (7th Cir. 2018)). The Board recently clarified that an
appellant may give a more detailed account of her whistleblowing activities
before the Board than she did to OSC. Id., ¶ 10 (citing Briley v. National
Archives & Records Administration , 236 F.3d 1373 , 1378 (Fed. Cir. 2001) ). To
the extent that the administra tive judge suggested the appellant was limited to the
precise manner in which she described her claims to OSC, we find this
description of the exhaustion requirement was overly restrictive. ID at 6 (citing
Ward v. Merit Systems Protection Board , 981 F.2d 521 , 526 (Fed. Cir. 1992)
(“For the exhaustion requirement to serve its intended purpose . . . the employee
must inform [OSC] of the precise grou nds for his charge of whistleblowing.”).
The administrative judge’s statement regarding the standard for exhaustion was
harmless because even applying the proper, less restrictive standard, the appellant
failed to prove she exhausted her administrative re medies as to any disclosures
beyond those identified in OSC’s close -out letter. See Panter v. Department of
the Air Force , 22 M.S.P.R. 281, 282 (1984) (finding that a n adjudicatory error
that is not prejudicial to a party’s substantive rights provides no basis for reversal
of an initial decision ).
¶3 The administrative judge found that the appellant failed to nonfrivolously
allege that her d isclosures evidenced an abuse of authority because she was
disputing agency policy or complaining about her treatment by her supervisor. ID
at 9-10, 13 -14. The administrative judge did not clearly articulate the basis for
this alternative finding. Id. However, we vacate it as unnecessary because he
correctly determined that the appellant’s exhausted disclosures were, in essence,
allegations that the agency had discriminated against her in violation of equal
4
employment opportunity (EEO) laws , and thus no t within the scope of the
Board’s IRA jurisdiction. ID at 10-13; see Edwards v. Department of Labor ,
2022 MSPB 9 , ¶¶ 10-17, 22 -23. Finally, the administrative judge alternatively
reasoned that, even assuming the appellant’s disclosures were protected, she
failed to nonfrivolously allege that her March 2021 disclosure contributed to the
exhausted personnel action of her March 24, 2021 le tter of reprimand because the
reprimand was already in contemplation prior to the disclosure. ID at 14 -17. We
also vacate this alternative finding. Resolving this issue would require weighing
conflicting evidence, and thus it is not appropriate at the j urisdictional stage.
IAF, Tab 6 at 24, 55 -57, 78 -83; King v. Department of Veterans Affairs ,
105 M.S.P.R. 21 , ¶ 8 (2007) (“Before adjud icating an IRA appeal on the merits,
the Board must make a threshold finding of jurisdiction .” (emphasis in original) );
see Sherman v. Department of Homeland Security , 122 M.S.P.R. 644 , ¶¶ 9-11
(2015) (finding that, at the jurisdictional stage in an IRA appeal, the Board could
not weigh conflicting evidence regarding whether a personnel action was merely
contemplated or completed and awaiting implementation, and therefore
concluding an appellant nonfrivolously alleged he met the contributing factor
criterion) . Because we agree with the administrati ve judge that the appellant
failed to nonfrivolously allege her disclosures were protected, we need not reach
the contributing factor criterion. See Schmittling v. Department of the Army ,
219 F.3d 1332 , 1336 -37 (Fed. Cir. 2000) (stating the Board is not required to
address all jurisdictional elements when an appeal fails to meet one jurisdictional
requirement because addressing the others would b e both “unnecessary and
possibly wasteful”).
¶4 The appellant includes new documents and arguments with her petition for
review.2 Petition for Review (PFR) File, Tab 1. First, she attaches a copy of a
2 Under 5 C.F.R. § 1201.115 , the Board generally will not consider evidence or
argument submitted for the first time with a petit ion for review absent a showing that it
was unavailable before the record was closed before the administrative judge despite
5
response to OSC’s preliminary determination letter, apparently to support her
burden as to the administrative exhaustion requirement. Id. at 9-12. We note
that the response letter does not provide any new information regarding the
appellant’s alleged di sclosures. Id. The administrative judge considered this
information below. Id.; ID at 7. Nothing in the response letter suggests that the
appellant made any disclosure not previously considered by the administrative
judge or that any of her disclosures were protected under 5 U.S.C. § 2302 (b)(8).
¶5 Second, the appellant raises multiple new claims on review, including for
example that she was subjected to the hostile work environment in reprisal f or
testifying in support of coworkers’ EEO complaints. PFR File, Tab 1 at 2 -4.
There is no evidence below or on review that she exhausted her administrative
remedies regarding these issues.
¶6 Finally, the appellant attaches to her petition for review a printout from the
Board’s website regarding prohibited personnel practice s under 5 U.S.C.
§ 2302 (b)(9) . PFR File, T ab 1 at 14-17. Although not entirely clear, she may
have attach ed this printout to support her argument that the administrative judge
improper ly limited his analysis to whether the appellant made a disclosure or
engaged in an activity protected under 5 U.S.C. § 2302 (b)(8) or
§ 2302(b)(9)(A)(i), (B), (C), or (D) . PFR File, Tab 1 at 7. The Board’s IRA
jurisdiction is limited to claims that an agency retaliated against an appellant in
reprisal for prohibited personnel practices set forth in 5 U.S.C. § 2302 (b)(8) or
§ 2302(b)(9)(A)(i), (B), (C), or (D). PFR File, Tab 1 at 7; see Carney v.
Department of Veterans Affairs , 121 M.S.P.R. 446 , ¶ 5 (2014) (identifying those
prohibited personnel practice s over which the Board currently has IRA
jurisdiction); Van Ee v. Environmental Protection Agency , 64 M.S.P.R. 693 , 697 ,
the party’s due diligence. See Avansino v. U.S. Postal Service , 3 M.S.P.R. 211 , 213 -14
(1980). However, we have considered the appellant’s arguments to the extent they
impact the Board’s jurisdiction, which is always before the Board and can be raised by
the parties or sua s ponte at any time. Ney v. Department of Commerce , 115 M.S.P.R.
204, ¶ 7 (2010).
6
699 (1994) (explaining that the scope of the Board’s IRA jurisdiction did not
include other prohibited personnel practice s beyond, a t the time that appeal was
decided, reprisal for whistleblowing). Therefore, we discern no error in the
administrative judge limiting his discussion to such claims . In sum , the
appellant’s new evidence and argument provide s no basis to disturb the
admini strative judge’s determination that the Board lacks jurisdiction over the
appeal.3
¶7 The appellant did not allege below that her resignation was involuntary.
IAF, Tab 5 at 9. On review, she concedes that, as the administrative judge found,
she failed to exhaust this personnel action with OSC. ID at 7 -8; PFR File, Tab 1
at 4; IAF, Tab 6 at 34. For the first time on review, the appellant suggests that
her resignation was the result of a lack of management support and a resulting
illness. PFR File, Tab 1 at 4. She may wish to file an alleged involuntary
resignation appeal with the regional office . An employee -initiated action, such as
a resignation, generally is not appealable to the Board unless an appellant proves
that it was involuntary and thus co nstituted a constructive removal. Gutierrez v.
U.S. Postal Service , 90 M.S.P.R. 604 , ¶ 7 (2002). An appellant can establish
invol untariness by demonstrating that the action resulted from duress, coercion,
or misrepresentation provided by the agency. Id. We express no opinion as to
whether the Board would have jurisdiction over such an appeal or whether it
would be timely filed.
¶8 Accordingly, we affirm the administrative judge’s initial decision as
modified above.
3 Nor do the appellant’s arguments on review regar ding the merits of the agency’s
alleged actions against her establish jurisdiction over her claims. PFR File, Tab 1
at 3-4.
7
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 limi t for seeking such review and the appropriate
forum with which to file. 5 U.S.C. § 7703 (b). Although we offer the following
summary of available appeal rights, the Merit Systems Protection Board does not
provide legal advice on which option is most appropriate for your situation and
the rights described below do not represent a statement of how courts will rule
regarding which cases fall within their jurisdiction. If you wish to seek review of
this final decision, you should immediately review the law applicable to your
claims and carefully follow all filing time limits and requirements. Failure to file
within the applicable time limit may result in the dismissal of your case by your
chosen forum .
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be 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 fin al 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 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
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
9
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/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702 (b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702 (b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is:
Office 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
10
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 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 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 within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our 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 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.
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/C ourtWebsites.aspx .
FOR THE BOARD:
Washington, D.C. /s/ for
Jennifer Everling
Acting Clerk of the Board | ASHMORE_JACQUELINE_SF_1221_21_0549_W_1_FINAL_ORDER_1949415.pdf | 2022-08-08 | null | SF-1221-21-0549-W-1 | NP |
4,208 | https://www.mspb.gov/decisions/nonprecedential/THOMAS_EARL_P_SF_0845_16_0467_I_1_FINAL_ORDER_1948762.pdf | UNITED STATES OF AME RICA
MERIT SYSTEMS PROTEC TION BOARD
EARL P. THOMAS,
Appellant,
v.
OFFICE OF PERSONNEL
MANAGEMENT,
Agency.
DOCKET NUMBER
SF-0845 -16-0467 -I-1
DATE: August 5, 2022
THIS FINAL ORDER IS NONPRECEDENTIAL1
Earl P. Thomas , Victorville, California, pro se.
Carla Robinson , 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 reconsideration decision of 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
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
collection or adjustment of the collection schedule . Generally, we grant petitions
such as this one only i n 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 a dministrative judge’s rulings during either the course of
the appeal or the initial decision were not consistent with required procedures or
involved an abuse of discretion, and the resulting error affected the outcome of
the case; or new and material evid ence or legal argument is available that, despite
the petitioner’s due diligence, was not available when the record closed. Title 5
of the Code of Federal Regulations, section 1201.115 ( 5 C.F.R. § 1201.115 ).
After fully considering the 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 th e initial
decision, which is now the Board’s final decision. 5 C.F.R. § 1201.113 (b).
BACKGROUND
¶2 The appellant applied for FERS disability retirement benefits on January 20,
2005, whi ch OPM approved on March 30, 2005 , with an effective date of April 5,
2005. Initial Appeal File (IAF) , Tab 5 at 40, 45-47, 56-58. By letter dated
September 18, 2005, OPM provided the appellant with information concerning the
effect that his receipt of an y Social Security Administration Disability Insurance
Benefits (SSADIB) would have on his FERS disability retirement annuity. Id.
at 54-55. The letter informed the appellant of his obligation to report to OPM the
denial or approval of any SSADIB award ; stated that if the Social Security
Administration (SSA) sent a retroactive payment , he should hold the award until
he received notice of the amount of any overpayment from OPM ; and noted that
he would be legally obligated to repay the overpayment of any FERS benefits . Id.
¶3 By notice dated February 14, 2015, OPM notified the appellant that he
received a FERS disability annuity overpayment of $75,972.00 for the period
3
from July 1, 2006 , through January 30, 2015 , and that OPM would commence
collecting the overpayment starting on May 1, 2015 , by reducing his FERS
annuity by $197.71 per month over 384 installments, with a final installment of
$51.36 . Id. at 13-14. The appellant sought reconsideration of OPM’s decision ,
requesting a waiver or reduction of th e debt or a reduction in the monthly
installment amount , but not challenging the existence or amount of the
overpayment . Id. at 10 -12. OPM denied the appellant’s waiver request and
affirmed its initial decision in a reconsideration decision dated April 5, 2016.
Id. at 6-9. The appellant timely appealed to the Board thereafter. IAF, Tab 1.
¶4 Because the appellant did not request a hearing, the administrative judge
issued an initial d ecision based on the written record , affirming OPM’s
reconsideration decision. IAF, Tab 1 at 1 , Tab 2 at 1 , Tab 12, Initial Decision
(ID) at 10 -19. He found that OPM met its burden of proving the existence and
amount of the overpayment. ID at 9; IAF, Tab 1 at 7 , Tab 11 at 7. He also
determined that the appellant’s claim that he did not receive OPM’s notices
informing him of his obligation to set aside any retroactive payment from SSA
was unpersuasive, noting that the appellant initially reported to OPM that his
SSADIB application was denied but did not later inform OPM that his
reconsideration request was accepted. ID at 15 -16. As such, the administrative
judge determined that the appellant knew or should have known of his obligation
to disclose his en titlement to SSADIB effective July 1, 2006, when he accepted
payments that he knew or should have known were erroneous (that is, they were
unreduced FERS annuity payments without the required SSADIB offsets). ID
at 16-17. The administrative judge thus co ncluded that the appellant failed to
prove his entitlement to a waiver of collection or to an adjustment of the
overpayment amount and did not demonstrate that he was without fault in
receiving the overpayment. ID at 17.
¶5 Additionally, t he administrative j udge found that the appellant failed to
demonstrate financial hardship and was not entitled to an adjustment of the
4
recovery schedule , noting that the appellant did not submit a completed Financial
Resources Questionnaire with his reconsideration request a nd, aside from
claiming general financial hardship and identifying some income and expenses,
did not provide sufficient information to properly evaluate a financial hardship
claim. ID at 17 -19. Consequently , the administrative judge affirmed OPM’s
recons ideration decision and recovery schedule of 384 monthly installments of
$197.71 with a final installment of $51.36. ID at 18.
¶6 On review, the appellant does not challenge the administrative judge’s
findings concerning the existen ce or amount of the overpayment or his lack of
entitlement to a waiver. Petition for Review (PFR) File, Tab 1. Instead, he
generally asserts that the initial decision contains erroneous findings and that he
disagrees with the outcome of the decision. Id. The agency has fi led a response
to the petition for review , arguing that review should not be granted. PFR File,
Tab 4.2
DISCUSSION OF ARGUME NTS ON REVIEW
¶7 OPM bears the burden of proving the existence and amount of an annuity
overpayment by preponderant evidence.3 Vojas v. Office of Personnel
Management , 115 M.S.P.R. 502 , ¶ 10 (2011); 5 C.F.R. § 845.307 (a). The
2 The appellant filed a reply to OPM’s response to his petition for review that was
entered into the Board’s electronic record on January 3, 2017, which would make the
filing untimely filed by 4 days . PFR File, Tab 5; see 5 C.F.R. § 1201.114 (g). However,
the stamp on the fax cover page indicating the date that the Board received the filing is
illegible, and the appellant’s self -completed fax cover page notes a filing date of
December 20, 2016, which would make the filing timely filed. PFR File, Tab 5 at 1. In
the reply, the appellant challenges the administrative judge’s finding that he was not
without fault in creating the overp ayment and generally disputes the administrative
judge’s factual determinations. Id. at 4-6. Although we have considered the appellant’s
submission, we find that it does not present any argument or evidence that would
warrant a different outcome in this case.
3 A preponderance of the evidence is the degree of relevant evidence that a reasonable
person, considering the record as a whole, would accept as sufficient to find that a
contested fact is more likely to be true than untrue. 5 C.F.R. § 1201.4 (q).
5
appellant has the burden of proving by substantial evidence4 that he is entitled to
a waiver or adjustment of the overpayment. Vojas , 115 M.S.P.R. 502 , ¶ 18;
5 C.F.R. §§ 845.307 (b), 1201.56(b)(2)(ii). Recovery of an overpayment may be
waived when the annuitant is without fault and re covery would be against equity
and good conscience. 5 U.S.C. § 8470 (b); Vojas , 115 M.S.P.R. 502 , ¶ 18;
5 C.F.R. § 845.301 .
¶8 Recovery of an overpayment is against equity and good conscience if it
would cause financial hardship, the appellant can show he relinquished a valuable
right or changed positions for the worse due to the overpayment, or it would be
inequitable otherwise under the circumstances, i.e., unconscionable. Vojas ,
115 M.S.P.R. 502 , ¶ 22; 5 C.F.R. § 845.303 . The standard for unconscionability
is a high one and is granted only under exceptional circu mstances. Taylor v.
Office of Personnel Management , 87 M.S.P.R. 214 , ¶ 18 (2000).
¶9 Under OPM’s Policy Guidelines, “[i]ndividuals who are aware that they are
receiving overpayments are obligated by the principles of equity and good
conscience to set aside the amount overp aid pending recoupment by OPM.”
IAF, Tab 5 at 71. OPM’s Guidelines also dictate that an individual should be
found to be without fault if they promptly (within 60 days) contact ed OPM to
question the correctness of the payments. Id. at 67 -68; see Vojas , 115 M.S.P.R.
502, ¶ 20 . Additionally, “[u]nless there are exceptional circumstances, recovery
by OPM in those cases [where the monie s should have been set aside] is not
agains t equity and good conscience.” IAF, Tab 5 at 71. Financial hardship is n ot
an exceptional circumstance; exceptional circumstances involve egregious errors
or delays by OPM, such as a failure to issue a written d ecision within 4 years of a
request for waiver. Id.
4 Substantial evidence is the degree of relevant evidence that a reasonable person,
considering the record as a whole, might accept as adequate to support a conclusion,
even though other re asonable persons might disagree. 5 C.F.R. § 1201.4 (p).
6
¶10 We agree with the administrative judge’s findings that OPM met its burden
of proving the existence and amount of the overpayment, that the appellant was
not without fault in the creation of the overpaym ent, and that he was ineligible for
a waiver . ID at 11 -17. In so finding, the administrative judge determined that
there was sufficient record evidence to conclude that the appellant was aware of a
potential overpayment, despite his claim that he did not receive or did not recall
receiving OPM’s letters in March 2005 and September 2005. ID at 15; IAF,
Tab 11 at 7 -8. The administrative judge also noted that the appellant admitted to
learning that he had received an overpayment in 2014 but still did not alert OPM
at that time. ID at 15 -16. Although the appellant disputes the administrative
judge’s ultimate finding that he was not entitled to a waiver, he has not offered
any new or material ev idence that would cast doubt on this conclusion. PFR File,
Tab 1. Further, t he appellant has not offered any new evidence demonstrating
financial hardship sufficient to warrant a reduction in his installment payment
amount.
¶11 Accordingly, w e find that th e administrative judge properly weighed the
evidence and provided sou nd reasoning for his findings. The appellant has not
provided a basis to disturb those 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 mad e reasoned conclusion s); Broughton v.
Department of Health & Human Services , 33 M.S.P.R. 357 , 359 (1987) (same).
We therefore deny the petition for review and affirm the initial decision.5
5 OPM has advised the Board that it may seek recovery of any debt remaining upon an
appellant’s death from the appellant’s estate or other responsible party. A party
responsible for any debt remaining upon the appellant’s death may include an heir
(spouse, child , or other) who is deriving a benefit from the appellant’s Federal benefits,
an heir or other person acting as the representative of the estate if, for example, the
representative fails to pay the United States before paying the claims of other creditors
in accordance with 31 U.S.C. § 3713 (b), or transferees or distributers of the appellant’s
estate. Pierotti v. Office of Personnel Management , 124 M.S.P.R. 103 , ¶ 13 (2016).
7
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 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:
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.
8
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 represe ntative receives this decision. If the action involves a claim of
discrimination based on race, color, religion, sex, national origin, or a disabling
condition, you may be entitled to representation by a court -appointed lawyer and
9
to waiver of any require ment of prepayment of fees, costs, or other security. See
42 U.S.C. § 2000e -5(f) 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
other protected activities listed 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
10
disposition of allegations of a prohibited personnel practice described in
section 2302(b) other than practices described in section 2302(b)(8), or
2302(b)(9)(A)(i), (B), (C), or (D),” then you may file a petition for judicial
review either with the U.S. Court of Appeals for the Federal Circuit or any court
of appeals of competent jurisdiction.7 The court of appeals must receive your
petition for review within 60 days of the date of issuance of this decision.
5 U.S.C. § 7703 (b)(1)(B).
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems 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.
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.
11
Contact information for the courts of appeals can be found at their
respective websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
FOR THE BOARD:
Washington, D.C. /s/ for
Jennife r Everling
Acting Clerk of the Board | THOMAS_EARL_P_SF_0845_16_0467_I_1_FINAL_ORDER_1948762.pdf | 2022-08-05 | null | SF-0845-16-0467-I-1 | NP |
4,209 | https://www.mspb.gov/decisions/nonprecedential/MENOKEN_CASSANDRA_M_DC_0752_19_0297_I_1_FINAL_ORDER_1948775.pdf | UNITED STATES OF AME RICA
MERIT SYSTEMS PROTEC TION BOARD
CASSANDRA M. MENOKEN ,
Appellant,
v.
EQUAL EMPLOYMENT
OPPORTUNITY COMMISSI ON,
Agency.
DOCKET NUMBER
DC-0752 -19-0297 -I-1
DATE: August 5, 2022
THIS FINAL ORDER IS NONPRECEDENTIAL1
Cassandra M. Menoken , Esquire, Washington, D.C., pro se.
Anabia Hasan , Esquire, Washington, D.C., for the agency.
BEFORE
Cathy A. Harris , Vice Chairman
Raymond A. Limon , Member
Tristan L. Leavitt , Member
Member Limon recused himself 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 for lack of jurisdiction . Generally, we grant petitions such
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case 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
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 re view. Except as expressly
MODIFIED to address the appellant’s reliance on the Board’s decision in
Martin v. U.S. Postal Service , 123 M.S.P.R. 189 (2016) , and f ind that any
furlough appeal related to this case is moot , we AFFIRM the initial decision.
BACKGROUND
¶2 The appellant occupied a n Attorney Advisor position in the excepted
service. Initial Appeal File (IAF), Tab 1 at 1, Tab 6 at 13, 17 . Beginning
sometime in the 2014 -2016 timeframe , the agency permitted her to telework full
time as an accommodation for a disability . IAF, Tab 3 at 11, Tab 6 at 19 -21, 23.
Effective September 5, 2018, however, the agency revoked the appellant’s
full-time telework accommodation upon determining that it was no longer
effective and offered her alternative accommodations that required her to be
present in the workplace for at least some of her duty time .2 IAF, Tab 3 at 11-12,
28.
2 The appellant filed a separate October 5, 2018 Board appeal alleging that the agency
had constructively suspended her when it revoked her full -time telework
accommodation, thereby causing her to involuntarily take l eave between September 18
and October 12, 2018 . IAF, Tab 3 at 10 , 12. An administrative judge issued an initial
3
¶3 On November 23, 2018, the appellant submitted a letter from her
psychologist to her supervisor . The letter stated that, a lthough the agency had
recently revoked the appellant’s telework accommodation and ordered her to
return to work, the appellant needed to limit her in teractions with agency
personnel as much as possible due to her mental and emotional health until her
permanent departure from the agency could be arranged . IAF, Tab 3 at 36 -37,
Tab 10 at 10-11. The psychologist further indicated that he supported the
appellant’s plan to retire in January 2019, strongly recommended that she not
return to work under any arrangement, and urged the agency to allow her to use
paid and unpaid leave until her separation . Id. at 38. On November 26, 2018, t he
appellant’s superv isor acknowledge d his receipt of the psychologist’s letter and
informed the appellant that she could use available accrued sick or annual leave
to cover her absences . IAF, Tab 10 at 11. He also notified her that, if she
requested leave without pay (LWOP) in the agency’s time and attendance system
while she still had sick or annual leave available, the request would be converted
to sick leave first, and then to any remaining annual leave in lieu of sick leave .
Id. Three days later, on November 29, 2018, the agency received a retirement
package from the appellant . IAF, Tab 3 at 60.
¶4 On December 12, 2018, the agency proposed the appellant’s removal based
on a charge of “Medical Inability to Perform the Essential Functions of [Her]
Position. ” Id. at 27. The agency asserted that, based on medical documentation
from the appellant’s psychologist recommending that she not return to work under
any arrangement, her absence from the workplace since October 5, 2018, and her
failure to perform her major job duties during the past 12 months , it had
determined that she could no longer perform the essential functions of her
position with or without reasonable accommodation. Id. at 28-31. Between
December 22, 2018, and January 28, 2019, many Federal employees , includ ing
decision dismissing th at appeal for lack of jurisdiction. Id. at 10 -24. That initial
decision became final when neither party filed a petiti on for review.
4
some at the agency, were affected by a furlough due to a lapse in appropriations.
IAF, Tab 3 at 7, 62, 66. On February 5, 2019, the agency rescinded the proposed
removal based on the appellant’s January 31, 2019 retirement . Id. at 34.
¶5 The appellant filed a February 15, 2019 Board appeal asserting that the
agency suspended her for more than 14 days, from December 24, 2018, through
January 31, 2019, when it retroactively placed her in a n LWOP status without her
knowledge or consent . IAF, Tab 1 at 3, 5. She asserted that she did not know
that she had been suspended until after the government -wide shutdown ended on
January 28, 2019. Id. at 5. She did not request a hearing. Id. at 2.
¶6 The agency moved to dismiss the appeal for lack of jur isdiction. IAF,
Tab 3 at 4. It asserted that it placed the appellant on LWOP on December 19,
2018, after she had exhausted all of her sick and annual leave, and that , pursuant
to guidance issued by the Office of Personnel Management (OPM) , employees
furloughed on December 22, 2018 , due to a lapse in funding “were not entitled to
retroactive pay for furlough periods if the employee had previously (before the
lapse) been scheduled to be in [a] non -pay status during the lapse in funding.”
Id.; IAF, Tab 8 at 6-7. The administrative judge ordered the appellant to show
that the Board had jurisdiction over the appeal , noting that it appeared that she
had voluntarily absented herself from duty . IAF, Tab 5 at 3. In her response, the
appellant asserted that the agency had retroactively placed her on LWOP during
the period in question without her knowledge or consent and that she had not
exhausted all paid leave before the shutdown . IAF, Tab 6 at 5, 8.
¶7 The administrative judge preliminarily determin ed that the appellant made a
nonfrivolous allegation of jurisdiction and afforded the parties an additional
opportunity to submit evidence and argument on the jurisdictional issue . IAF,
Tabs 7, 9. After the parties filed their responses, and b ased on the written record,
the administrative judge dismissed the appeal for lack of jurisdiction. IAF,
Tab 13, Initial Decision (ID) at 1, 10. The administrative judge ultimately found
that the appellant did not make a nonfrivolous allegation of jurisdiction because ,
5
in essence, her absence from the workplace on LWOP was voluntary and she had
no paid leave available to use in its place . ID at 3-9. The administrative judge
relied on OPM’s guidance indicat ing that a furloughed employee is not entitled to
retro active pay if the employee had been scheduled to be in a nonpay status
during that period. ID at 9. Finally, the administrative judge observed that the
appellant was not entitled to intermittent LWOP as a matter of right , which she
claims would have allowed her to manage her leave to ensure that she had some
leave available on certain dates . ID at 6, 9.
¶8 The appellant has filed a petition for review and a corrected petition for
review, the agency has filed a response to the petition for review, and th e
appellant has filed a reply to the agency’s response . Petition for Review (PFR)
File, Tabs 1 -2, 4-5. 3 The Acting Clerk of the Board has since issued an order
indicating that the record need s to be further developed as to whether the
appellant establis hed jurisdiction over an appealable furlough action and whether
any such furlough claim is now moot . PFR File, Tab 9 at 2-4. The Acting Clerk
of the Board identified several questions to be answered on these issues and
afforded the parties an opportunity to respond. Id. at 4-5. The appellant and the
agency have filed timely responses and replies to the order. PFR File,
Tabs 10-14.
3 The appellant has filed a motion for leave to file an additional pleading. PFR File,
Tab 7. She argues that this new pleading “simply reflects clerical and clarifying edits ”
to her reply to the agency’s response to her petition for review . Id. at 4. Nevertheless,
she also asserts that it contains a “minor rewording of a discussion explaining why the
facts in this appeal are compelling,” with additional supporting authority. Id. at 5. We
deny the appellant’s motion because she has not show n that this information is new and
material or that it was unavailable before the record closed, and she has been afforded
ample opportunity to present her arguments in a petition for review, a correct ed petition
for review, and a reply to the agency’s response. PFR File, Tabs 1 -2, 5; see Sabio v.
Department of Veterans Affairs , 124 M.S.P.R. 161 , ¶ 13 (2017) (denying an appellant’s
motion to submit additional pleadings because, among other things, she had already
been afforded ample opportunity to present her arguments on review).
6
ANALYSIS
The Board lacks jurisdiction over this appeal of an alleged constructive
suspension .
¶9 As she did below, t he appellant relies on Martin in support of her claim that
the Board has jurisdiction over this appeal . PFR File, Tab 1 at 8; IAF, Tab 6 at 7,
Tab 12 at 8. She also appears to allege that the administrative judge improperly
placed the burden on her to pr ove jurisdiction over her appeal. Id. Although not
addressed by the administrative judge in the initial decision , we find that Martin
is distinguishable from this appeal.
¶10 In Martin , 123 M.S.P.R. 189 , ¶ 9, the Board cited Abbott v. U.S. Postal
Service , 121 M.S .P.R. 294 , ¶ 10 (2014), in holding that the placement of an
employee in an enforced leave status for more than 14 days is an appealable
suspension within the Board’s jurisdiction. Such a “ nonconstructive suspension”
involved the reinstatement of the appellant following a negative retirement
determination by OPM and her retroactive unilateral placement by her employing
agency in an LWOP status without her consent for the period during which the
retirement inquiry was pending. Martin , 123 M.S.P.R. 189, ¶ 9. The Board noted
that a “constructive suspension ,” by contrast, involved a different standard and
was reserved for appeals i n which an appellant alleges that leave that appeared to
be voluntary was not . Id. Such appeals typically involve employee -initiated
absences in which the appellant alleges that she lacked a meaningful choice and
the absence was caused by the agency’s im proper action. Abbott , 121 M.S.P.R.
294, ¶ 7. T he Board in Martin , 123 M.S.P.R. 189, ¶¶ 4, 9, found that the
appellant’s retroactive placement in an LWOP status by the agency after OPM
disapproved a settlement agreement was not even ostensibly voluntary and,
therefore, was an appealable “ nonconstructive suspension .” Similarly, the agency
in Abbott , 121 M.S.P.R. 294, ¶¶ 2-3, 11, placed the appellant on enforced leave
against her will after finding there was no work within her medical restrictions.
7
The Board found that such an action was an appealable nonconstructive
suspension within its jurisdiction. Id., ¶ 10-11.
¶11 Here, by contras t, the appellant was not retroactively placed in an LWOP
status following OPM’s disapproval of a settlement agreement, nor did the agency
place her on LWOP because it made a determin ation that there was no work
within her medical restrictions. Rather, the agency expected and ordered the
appellant to report to work. IAF, Tab 3 at 11-12, 36. Only after the appellant
provided the agency with the letter from her psychologist urging the agency to
allow her to use paid and unpaid leave , i.e., LWOP, until she retired , did the
agency comply with her request and place her on LWOP when her paid leave was
exhausted . Because the appellant has alleged on appeal that this leave that
appeared to be voluntary was not voluntary due to improper agency actions , the
admini strative judge properly treated this appeal as an alleged constructive
suspension and found that he r absence was self -initiated and voluntary . ID
at 5-10. Thus, d espite the appellant’s claim that the administrative judge
improperly placed the burden on h er to prove jurisdiction, that determination was
correct.4 See Abbott , 121 M.S.P.R. 294 , ¶ 8; 5 C.F.R. § 1201. 56(b)(2)(i)(A) .
¶12 The appellant further asserts that she was not voluntarily absent from work
because her psychologist indicated that she had experienced a series of
“emoti onal assaults” at work that constituted harassment, including a notice from
the agency that she would be blocked from using paid or unpaid leave unless the
agency deemed the leave justified. PFR File, Tab 1 at 8-9. She contends the
4 The appellant asserts on review that she had a ri ght to due process before being forced
into an LWOP status for more than 14 days and that her supervisor violated this right
when he placed her on LWOP for more than 6 weeks without her knowledge. PFR File,
Tab 1 at 7 -8. The Board may not adjudicate an a ppellant’s allegation of a violation of
due process in the absence of jurisdiction over the underlying agency action. Rivera v.
Department of Homeland Security , 116 M.S.P.R. 429 , ¶ 16 (2011); Burnett v. U.S.
Postal Service , 104 M.S.P.R. 308 , ¶ 15 (2006). He re, because we agree with the
administrative judge that the Board lacks jurisdiction over this appeal of an alleged
constructive suspension , we need not address the appellant’s due process allegation.
8
agency did not have a policy prohibiting the use of intermittent LWOP and that,
contrary to a finding made by the administrative judge, the agency had previously
approved intermittent LWOP for her in 2017. Id. at 9-10.
¶13 To the extent that the appellant’s claim of agency harassm ent is grounded in
her assertion that the agency improperly revoked her full -time telework
accommodation, that allegation has been previously adjudicated and is not
properly before the Board at this time. See Menoken v. Equal Employment
Opportunity Commis sion, MSPB Docket No. DC -3443 -19-0029 -I-1, Initial
Decision (Nov. 27, 2018); IAF, Tab 3 at 10 -24. Although the appellant claims
that the agency notified her that it would not approve paid or unpaid leave unless
it deemed such leave justified, the agency u ltimately approved such leave. The
appellant has otherwise failed to show error in the administrative judge’s
determination that the appellant’s absence from work was voluntary, the agency
properly placed her on LWOP after she exhausted her paid sick and annual leave,
and her appeal was not within the Board’s jurisdiction. See ID at 3 -10.
¶14 Moreover, regardless of the existence of an agency policy regarding
intermittent LWOP, and regardless of whether the agency approved intermittent
LWOP for the appellant in the past, the authorization of LWOP is within an
agency’s discretion. Sambrano v. Department of Defense , 116 M.S.P.R. 449 , ¶ 4
(2011). In cases involving medical excuses, the Board will examine the record as
a whole to determine whether the agency’s denial of LWOP was reasonable under
the circumstances. Id. When an employee who is incapacitated for duty has
exhausted all of his or her leave, it is not improper for an agency to deny LWOP
when there is no foreseeable end to the employee’s absence and the employee’s
absence is a burden to the agency. Id. Here, the agency granted the appellant’s
request for LWOP. Regarding it s denial of intermittent LWOP, the evidence
shows that there was no foreseeable end to her absence, which imposed a burden
on the agency. IAF, Tab 3 at 27 -32, 36 -38. The appellant has not shown that the
agency was required to grant her intermittent LWOP. See ID at 9. Rather,
9
authorization of LWOP is a matter of administrative discretion. IAF, Tab 12
at 52. Thus, this argument does not establish that the Board has jurisdiction over
a suspension appeal.
The appellant’s procedural arguments are without m erit.
¶15 The appellant contends that the administrative judge should have recorded a
conference call with the parties because her written summary of it was “skewed
and selective” and that the appellant did not knowingly waive her right to a
hearing on jurisdiction, but only waived such a right regarding the merits of her
appeal because she thought that jurisdiction would not be an issue. PFR File,
Tab 1 at 7-8, Tab 2 at 8. The appellant has not identif ied any law, rule, or
regulation requiring Board administrative judges to record conference calls. In
fact, administrative judges have discretion in this regard. See Lipinski v.
Department of the Army , 35 M.S.P.R. 186, 188 (1987) (finding no requirement
that verbatim records of prehearing conferences be kept as part of the official
record); MSPB Judge’s Handbook, ch. 9, § 5. Although t he appellant contends
that she did not knowingly waive her right to a hearing on jurisdiction, but only
waived such a right regarding the merits of her appeal , the Board’s appeal form
informed the appellant that she had a right to “a hearing” before an adm inistrative
judge and that the case would be decided on the submissions of the parties if she
elected not to have “a hearing.” IAF, Tab 1 at 2. The form did not differentiate
between jurisdictional hearings and hearings on the merits. Thus, when the
appellant checked the box indicating that she did not want a hearing, there was no
basis for her to believe that she was not waiving her right to all types of hearings,
including a hearing on jurisdiction . The administrative judge , therefore, properly
adjudi cated this case based on the written record.5
5 Although the administrative judge afforded the appell ant an additional opportunity to
request a hearing within 10 days of the date of the acknowledgment order, IAF, Tab 2
at 2, after notifying her that she would be entitled to one if her appeal was timely filed
and within the Board’s jurisdiction, the appellant did not do so. The right to a hearing
10
¶16 The appellant also claims that OPM’s post-furlough policy , which provid es
that employees who were on previously approved LWOP during the lapse in
appropriations would not receive pay for th ose hours, does not apply to her
because she was not “scheduled” to be on LWOP during the furlough, but was
retroactively placed on LWOP by the agency after the end of the furlough. PFR
File, Tab 1 at 10 ; see IAF, Tab 3 at 62. The appellant essentially suggests that
she is entitled to back pay during the furlough based on her interpretation of
OPM’s policy guidance , and contends that the Board should enforce that policy .
An allegation that an agency failed to follow its own procedures is not, however,
independently appeala ble to the Board. Shifflett v. Department of the Navy ,
83 M.S.P.R. 472, 475 (1999) ; see Maddox v. Merit Systems Protection Board ,
759 F.2d 9 , 10 (Fed. Cir. 1985) (holding that the Board’s jurisdiction is limited to
those matters over which it has been given jurisdiction by l aw, rule, or
regulation) . The appellant’s arguments regarding her interpretation of OPM’s
post-furlough policy guidance do not establish that her absence from the
workplace during the period in question was involuntary and do not, therefore ,
establish tha t the Board has jurisdiction over this appeal .
Any appeal of an agency furlough a ction is moot .
¶17 The appellant did not allege below that she was appealing a furlough action
taken by the agency. IAF, Tab 1 at 3, 5, Tab 6 at 4-8, Tab 12 at 4 -8. The Board
ordinarily will not consider an argument on review absent a showing that it is
based on new and material evidence not previously available before the close of
the record below despite the party’s due diligen ce. Williams v. Department of
Veterans Affairs , 74 M.S.P.R. 472, 474 (1997). The appellant has made no such
showing here . Moreover, the appellant did not allege on review that she was
appealing a furlough action . PFR File, Tabs 1 -2. Therefore, we need not address
is waived if an appellant does not request one after being notified that such a request is
necessary. Wasserman v. Department of the Interior , 66 M.S.P.R. 391 , 393 (1995).
11
such an action . See 5 C.F.R. § 1201.115 (providing that the Board normally will
consider only i ssues raised in a timely filed petition or cross petition for review).
¶18 Nevertheless, the Board reserves the authority to consider any issue in an
appeal before it. 5 C.F.R. § 1201. 115(e). Accordingly, the Acting Clerk of the
Board ordered the parties to address whether the appellant established jurisdiction
over an appealable furlough action and whether any such claim is now moot .
PFR File, Tab 9. The parties have submitted evidence i ndicating that the agency
issued furlough notices to the appellant on or about December 26, 2018, and
January 18, 2019 . PFR File, Tab 10 at 10-13. The December 26, 2018 notice
provide s that, because of a sudden emergency requiring curtailment of the
agency’s activities, the customary 30 -day notice period and opportunity to answer
were suspended pursuant to 5 C.F.R. § 752. 404(d)(2). Id. at 10.
¶19 The appellant has not identified in her response to the Acting Clerk’s order
a basis for finding that any furlough appeal is not moot. Rather, she asserts that
the agency did not afford her due process during the furlough and add resses the
due process issues already raised in her suspension appeal. PFR File, Tab 11
at 4-8. Even assuming that the appellant had alleged that she was appealing a
furlough action, that the Board had jurisdiction over the action , and that she could
prev ail on her due process claim, any such appeal would now be moot. See
Fesler v. Department of the Interior , 52 M.S.P.R. 660, 663 n. (1992) (finding a
claim moot even assuming that the Board had jurisdiction over the alleged
action) . Mootness occurs when the appellant has obtained all the relief she could
have obtained had she prevailed before the Board or when it is impossible for the
Board to grant further relief. Harls ton v. Office of Personnel Management ,
109 M.S.P.R. 148 , ¶ 3 (2008). Absent entitleme nt to relief, the appellant lacks a
legally cognizable interest in the outcome of the appeal , the Board loses
jurisdiction over the appeal, and the appeal must be dismissed. See id. ;
Haskins v. Department of the Navy , 106 M.S.P.R. 616, ¶ 17 (2007); LaBatte v.
Department of the Air Force , 58 M.S.P.R. 586, 593 (1993).
12
¶20 As set forth above , the appellant’s treating psychologist recommended in
November 2018 , before the furlou gh took effect, that she not return to work
through the date of her anticipated January 2019 retirement due to a work
environment that he determined would be “toxic” to her mental health . IAF,
Tab 3 at 37-38. The agency received the appellant’s retiremen t paperwork on
November 29, 2018, and she retired effective January 31, 2019. Id. at 34, 60. An
appellant is not entitled to back pay, including restoration of leave, for any period
during which she was not ready, willing, and able to perform the duties of h er
position because of an incapacitating illness or injury. Bullock v. Department of
the Air Force , 80 M.S.P.R. 361, ¶ 13 (1998). The appellant was not ready,
willing, and able to perform the duties of her position during the furlough period
because of an incapacitating illness. Thus, she would not be entitled to any relief
from the Board , and her appeal would be moot .6 See Bullock , 80 M.S.P.R. 361,
¶¶ 12-13.
6 Under 31 U.S.C. § 1341 (c)(1)-(2), each employee of the United States Government
who is furloughed a s a result of a covered lapse in appropriations beginning on or after
December 22, 2018, shall be paid for the period of the lapse in appropriations at the
employee’s “standard rate of pay,” at the earliest date possible after the lapse in
appropriations e nds. Nevertheless, OPM’s guidance to agencies regarding pay and
benefits for employees affected by a lapse in appropriations provides that a furloughed
employee is not entitled to retroactive pay for furlough periods if the employee had
been previously sc heduled to be in a nonpay status during those periods, and that , “[i]n
effect, those already -in-place periods of nonpay status override the furlough status. ”
See https://chcoc.gov/content/pay -and-benefits -employees -affected -lapse -
appropriations -1 (last visited Aug. 3, 2022). OPM noted that the “standard rate of pay”
under the statute for such previously scheduled periods of nonpay status is zero. Id.
The agency explained that, because the appellant had exhausted her paid sick and
annual leave, she was in an LWOP status before and during the shutdown. IAF, Tab 3
at 4. Thus, under OPM’s guidance, the agency determined that she was not entitled to
retro active pay for the furlough period. Id. at 7. We find that the appellant consented
to her placement on LWOP before the furlough took effect by sending to her supervisor
her psychologist’s letter request ing paid and unpaid leave until the appellant retire d.
IAF, Tab 3 at 36-38, Tab 10 at 11. In any event, a lthough an agency supervisor
generally may not place an employee on sick leave, annual leave, or LWOP without her
consent, an employee may be placed on LWOP if she does not have sufficient sick or
annu al leave to cover an absence approved for illness. IAF, Tab 12 at 17, 20.
13
¶21 Accordingly, we deny the appellant’s petition for review and affirm the
initial decision as modified by this nonprecedential Final Order.
NOTICE OF APPEAL RIG HTS7
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
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 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
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703 (b)(1)(A).
7 Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise which option is most appropriate in any matter.
14
If you submit a petition f or review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.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 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
15
discrimination based on race, color, religion, sex, national origin, or a disabling
condition, you may be entitled to representation by a court -appointed lawyer and
to waiver of any requirement of prepayment of fees, costs, or other security. See
42 U.S.C. § 2000e -5(f) and 29 U.S.C. § 794a .
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702 (b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702 (b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302 (b)(8) or
16
other protected activities listed in 5 U.S.C. § 2302 (b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
disposition of allegat ions of a prohibited personnel practice described in section
2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i),
(B), (C), or (D),” then you may file a petition for judicial review either with the
U.S. Court of Appeals for th e 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.msp b.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 C ircuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115 -195,
132 Stat. 1510.
17
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept represent ation in a given case.
Contact information for the courts of appeals can be found at their
respective websites, which can be accessed through the link below:
http://www.uscourts.g ov/Court_Locator/CourtWebsites.aspx .
FOR THE BOARD:
Washington, D.C. /s/ for
Jennifer Everling
Acting Clerk of the Board | MENOKEN_CASSANDRA_M_DC_0752_19_0297_I_1_FINAL_ORDER_1948775.pdf | 2022-08-05 | null | DC-0752-19-0297-I-1 | NP |
4,210 | https://www.mspb.gov/decisions/nonprecedential/RIZZO_JUSTICIA_J_CH_0752_15_0104_I_2_FINAL_ORDER_1948811.pdf | UNITED STATES OF AME RICA
MERIT SYSTEMS PROTEC TION BOARD
JUSTICIA J. RIZZO,
Appellant,
v.
DEPARTMENT OF VETERA NS
AFFAIRS,
Agency.
DOCKET NUMBER
CH-0752 -15-0104 -I-2
DATE: August 5, 2022
THIS FINAL ORDER IS NONPRECEDENTIAL1
Justicia J. Rizzo , Hendersonville, Tennessee, pro se.
Demetrious A. Harris , Esquire, Cincinnati, Ohio, for the agency.
Nicholas E. Kennedy , Esquire, Akron, Ohio, 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 review of the initial decision, which mitigated the appellant’s removal
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contr ibuting to the Board’s case law. See 5 C.F.R. § 1201.117 (c).
2
to a 3 -day suspension . Generally, we grant petitions such as these only in the
following circumstances: the initial decision contains erroneous findings of
material fact; the initial decision is based on an erroneous interpretation of statute
or regulation or the erroneous app lication of the law to the facts of the case; the
administrative judge’s rulings during either the course of the appeal or the initial
decision were not consistent with required procedures or involved an abuse of
discretion, and the resulting error affecte d the outcome of the case; or new and
material evidence or legal argument is available that, despite the petitioner’s due
diligence, was not available when the record closed. Title 5 of the Code of
Federal Regulations, section 1201.115 ( 5 C.F.R. § 1201.115 ). After fully
considering the filings in this appeal, we DENY the petition for review and
GRANT the cross petition for review . We MODIFY the initial decision to find
that the appella nt prove d her affirmative defense of reprisal for protected union
activity and to find that the administrative judge erred by imposing any penalty
for the appellant’s misconduct. Except as expressly modified, we AFFIRM the
initial decision.
BACKGROUND
¶2 The agency removed the appellant from her Administrative Support
Assistant position on the basis of the following charges: (1) inappropriate
conduct (4 specifications) ; (2) failure to cooperate with the employee threat
assessment team (6 specifications) ; (3) failure to follow instructions
(9 specifications) ; and (4) failure to follow “official time ” procedures
(26 specifications) . Rizzo v. Department of Veterans Affairs , MSPB Docket
No. CH-0752 -15-0104 -I-1, Initial Appeal File (IAF), Tab 1 at 12-23, Tab 6
at 42-51.2 The appellant filed an appeal in which she claimed, inter alia, that the
agency committed due process violati ons and harmful error and that the removal
2 The agency withdrew 9 specifications of charge 4 at the prehearing conference,
leaving 17 specifications at issue in thi s appeal. IAF, Tab 58 at 1-2.
3
action constituted retaliation for protected whistleblowing, union activity, and
equal employment opportunity (EEO) activity. IAF, Tab 58 at 2.
¶3 After a hearing, t he administrative judge issued a bench decision that
reversed the agency’s action, finding that t he agency fa iled to prove charge 4 and
3 specifications of charge 1. Rizzo v. Department of Veterans Affairs , MSPB
Docket No. CH-0752 -15-0104 -I-2, Refiled Appeal File, Tab 15, Initial Decision
(I-2 ID) at 62-68, 70 -72, 79 -92. She found that the agency pr oved the third
specification of charge 1, and she sustained that charge. Id. at 68-70. She found
that the agency proved charges 2 and 3 based on the appellant’s admissions that
she engaged in the underlying misconduct, but that neither charge could be
sustained because the agency failed to prove that disciplining her for the conduct
described in charges 2 and 3 promoted the efficiency of the service. Id. at 72-79,
92-93. She further found that the appellant failed to prove her affirmative
defenses of re taliation for EEO and union activity , and she decline d to address the
appellant ’s harmful error and due process claims because neither of those claims
were related to the single sustained specification . Id. at 93-98. The
administrative judge found that the appellant proved a prima facie case of reprisal
for whistleblowing, id. at 57-70, and that the agency failed to show by clear and
convincing evidence that it would have removed the appellant absent her
whist leblowing, id. at 98-102. The administrative judge mitigated the removal
action to a 3 -day suspension. Id. at 102.
¶4 The agency has filed a petition for review challenging the initial decision.3
Petition for Review (PFR) File, Tab 1. The appellant has responded in opposition
3 The appellant filed a petition for enforcement, which was docketed by the Board’s
Central Regional Office. Rizzo v. Department of Veterans Affairs , MSPB Docket
No. CH-0752 -15-0104 -C-1, Compliance File, Tab 1. The admini strative judge
dismissed the petition in an initial decision and forwarded the matter to the Office of
the Clerk of the Board. Rizzo v. Department of Veterans Affairs , MSPB Docket
No. CH-0752 -15-0104 -C-1, Compliance Initial Decision (July 7, 2016). In a
November 29, 2017 notice to the parties, the Office of the Clerk of the Board
incorporated the documents in MSPB Docket No. CH-0752 -15-0104 -C-1 into the
4
to the petition for review and has filed a cross petitioned for review. PFR File,
Tabs 6-7. The agency has not responded to the cross petition for review.
DISCUSSION OF ARGUMENT S ON REVIEW
Interim Relief
¶5 On review, the appellan t asserts that the agency did not properly provide
her interim relief because, among other things, it has reassigned her and has
already proposed additional disciplinary action. PFR File, Tabs 2-3, Tab 8 at 14.
She further asserts that the agency’s actio ns constitute EEO and whistleblow er
retaliation. PFR File, Tab 8 at 16 -17. She also requests compensatory and
conseq uential damages. PFR File, Tab 5 at 6.
¶6 We consider the appellant’s arguments as a challenge to the agency’s
certification of compliance with the administrative judge’s interim relief order.
See Ayers v. Department of the Army , 123 M.S.P.R. 11 , ¶ 8 (2015). The Board
may, at its discretion, dismiss the agency’ s petition for review if it fails to
demonstrate compliance with the administrative judge’s interim relief order.
5 C.F.R. § 1201.116 (e). However, because we find that the agency’ s petition
does not meet the criteria for review, this final order will render moot any dispute
regarding compliance wit h the interim relief order. See Ayers , 123 M.S.P.R. 11 ,
¶ 8. Thus, we find it unnecessary to issue an order regarding interim rel ief. See
Elder v. Department of the Air Force , 124 M.S.P.R. 12 , ¶ 20 (2016). If the
appellant believes the agency is in nonc ompliance with the Board’s final order ,
she may file a petition for enforcement in accordance with the instructions
provided below. To the extent that she wishes to challenge any subsequent
agency actions, she is free to do so.
petition for review record in MSPB Docket No. CH-0752 -15-0104 -I-2 for consideration
by the Board. Petition for Review ( PFR ) File, Tab 12.
5
The administrative judge properly sustained charge 1.
¶7 As noted above, the administrative judge sust ained specification 3 of
charge 1, Inappropriate Conduct . I-2 ID at 68-70. Under this specification, the
agency alleged that the appellant picked up documents belonging to the Nurse
Manager from a shared printer and, instead of returning them to the Nurse
Manager , tore them in half and threw them in the garbage. IAF, Tab 6 at 43. The
appellant asserts in her cross petition for review that she had no malicious intent
and that s he was unaware that the Nurse Manager took issue with her actions until
she was disciplined fo r the incident. PFR File, Tab 7 at 22. A charge of
inappropriate conduct does not generally require an element of intent. See
Crouse v. Department of the Treas ury, 75 M.S.P.R. 57, 63 (1997). An agency
may incorporate an element of intent by claiming that the employee engaged in
intentiona l misconduct or that the conduct was improper because of the
employee’s intent. Id. Here, however, the agency did not incorporate an element
of intent into its specification and the administrative judge found, based on her
assessment of the Nurse Manager ’s demeanor when testifying at the hearing, that
the Nurse Manager ’s version of the incident was credible. Haebe v. Department
of Justice , 288 F.3d 1288 , 1301 (Fed. Cir. 2002) (holding that t he 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 overtur n such determinations only when it has
“sufficiently sound” reasons for doing so ). The appellant has not denied that she
committed the acts on which the specification is based, and she has not proffered
sufficiently sound reasons for setting aside the administrative judge ’s credibility
determinations. Moreover, her argument s on review that this was an isolated
incident, she was not on notice that her actions were wrongful, and she had no
prior disciplinary record , PFR File, Tab 7 at 22, are not reasons wh y the charge
should not be sustained. We find, therefore, that the administrative judge
properly sustained specification 3 of charge 1.
6
¶8 The appellant also contends on review that the administrative judge erred by
sustaining charges 2 and 3 because the charges did not concern “actionable
misconduct .” PFR File, Tab 7 at 23-24. The appellant misunderstands the initial
decision . Although the administrative judge found, based on the appellant’s
admissions, that the appe llant engaged in the ch arged conduct, she further found
that disciplining the appellant for the incidents in charges 2 and 3 did not promote
the efficiency of the service. I-2 ID at 72-80, 92-93. The administrative judge ’s
finding is the equivalent of a finding that charges 2 and 3 are not “actionable
misconduct .” Cf. Byars v. Department of the Army , 9 M.S.P.R. 225 , 229 (1981)
(finding that, although the agency proved the charge, the action must be reversed
because the agency did not prove a nexus between the appellant’s conduct and the
efficiency of the service ).
The appellant failed to prove her affirmative defens e of retaliation for
EEO activity.
¶9 The appellant contends on review that the administrative judge erred by
finding that she failed to prove her affirmative defense of retaliation for EEO
activity.4 PFR File, Tab 7 at 14. When an appellant raises an aff irmative defense
of discrimination or retaliation under 42 U.S.C. § 2000e -16, the Board first will
inquire whether the appellan t has shown by preponderant evidence that the
4 The appellant also contends that the administrative judge erred by failing to find that
the agency violated her due process rights and committed harmful error. PFR File,
Tab 7 at 12, 15 . One of the appellant’s claims relates to an alleged ex parte contact
between the deciding official and a witness pertaining to charge 1, specification 4. Id.
at 15; Hearing Transcript , Oct . 26, 2015, at 103 (testimony of the deciding official).
Even assuming that the agency vi olated the appellant’s due process rights or committed
harmful error with respect to that specification , because the administrative judge did not
sustain that portion of the charge, any alleged error on the administrative judge’s part
provides no basis for reversal of the initial decision. 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 ). The appellant’s other due process/harmful error argument relates to the
agency’s penalty determination, PFR File, Tab 7 at 12, but, because we find for the
reasons discussed below that no discipline is appropriate in this case, we need not
discuss this argument.
7
prohibited consideration was a motivating factor in the contested personnel
action. Gardner v. Department of Veterans Affairs , 123 M.S.P.R. 647, ¶ 28
(2016). Here, the administrative judge found that the deciding official was aware
of the appellant’s prior E EO activity. I -2 ID at 96. She further found, however,
based on her observation of the deciding official’s demeanor while testifying at
the hearing, that the appellant’s prior EEO activity was not a motivating factor in
the decision to take action agains t her. Id. at 96-97. Although the appellant
asserts that the administrative judge’s findings on this issue are incorrect, she
has not articulated any specific error in them, and she has not identified any
sufficiently sound reasons to set aside the admin istrative judge’s credibility
determinations. Haebe , 288 F.3d at 1301 . We find, therefore, that the
administrative judge correctly found that the appellant failed to prove her
affirmative defense of retaliation for EEO activity.5
The appellant’s disclo sure was a contributing factor in her removal.
¶10 In an adverse action appeal such as this one, an appellant’s claim of
whistleblower reprisal is treated as an affirmative defense. Ayers , 123 M.S.P.R.
11, ¶ 12. In such an appeal, once the agency proves its initial case by
preponderant evidence , the appellant must show by preponderant evidence that
she made a protected disclosure under 5 U.S.C. § 2302 (b)(8) and that the
disclosure was a contributing factor in the agency’s personnel action. Id. 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 within a period of time such that a reasonable person
could conclude that the disclosur e was a contributing factor in the p ersonnel
action. Scoggins v. Department of the Army , 123 M.S.P.R. 592 , ¶ 21 (2016).
5 Because we discern no error with the administrative judge’s motivating factor analysis
or conclusion regarding this claim, we do not reach the question of whether retaliation
was a “but for ” cause of the removal action. See Babb v. Wilkie , 589 U.S. ___,
140 S. Ct. 1168 , 1177 -78 (2020) .
8
¶11 On review, the agency asserts that the administrative judge erred in finding
that the appellant’s protected disclosure was a contributing factor in her removal
because the decidi ng official did not know about the disclosure. PFR File, Tab 1
at 10; Hearing Transcript (HT), Oct . 26, 2015, at 52 (testimony of the deciding
official). The administrative judge, in her bench decision, found that the deciding
official knew about the appellant’s disclosure because, although she testified that
she was not aware of the appellant’s whistleblower complaint and did not
consider her to be a whistleblower, she testified that she was aware of “issues” at
the agency facility and decided to move the appellant to a different part of the
agency in order to “salvage her employm ent.”6 I-2 ID at 60; HT, Oct. 26, 2015,
at 43 (testimony of the deciding official); see 5 U.S.C. § 1221 (e)(1)(A). We also
considered the deciding official’s testimony on cross examination when
questioned about her awareness of the events surrounding the disclosure that
there was “a whole series of issues” surrounding the appellant and that she “got
pulled into” these issues. HT, Oct . 26, 2015, at 79 (testimony of the
decision official).
¶12 The adm inistrative judge implicitly based her conclusion regarding the
knowledge element on the deciding official’s demeanor at the hearing when she
found her testimony that she did not know about the disclosure was less
persuasive than the testimony that she kne w about broader issu es in the agency.
I-2 ID at 60. The Board may overturn such credibility determinations only when
it has “sufficiently sound” reasons for doing so. Haebe , 288 F.3d at 1301 . The
6 We agree that the protected disclosure element is satisfied because the appellant
reasonably believed that there was a violation of agency rules and policies against
patient abuse when she reported to the nursing home administrator and patient advocate
that a patient had been experiencing symptoms that called for immediate attention and
that a charge nurse did not properly respond to her when she reported as such. I -2 ID
at 57-59; IAF, Tab 62 at 26-29, 111 -13; see 5 U.S.C. § 2302 (b)(8); Chavez v.
Department of Veterans Affairs , 120 M.S.P.R. 285 , ¶ 20 (201 3) (finding that the
appellant made a protected disclosure that medical carts were not cleaned and restocked
because she reasonably believed this evidenced a substantial and specific danger to
public health or safety).
9
agency has failed to present such reasons here. Accordi ngly, we find that the
agency has not provided a reason to disturb the initial decision’s finding that the
deciding official knew about the disclosure. Further , the removal occurred within
1 year of the appellant ’s disclosure. IAF, Tab 1, Tab 62 at 111-13. Thus, we
agree that, under the statutory knowledge -timing test, it was a contributing fa ctor
in the personnel action. I -2 ID at 60; see 5 U.S.C. § 1221 (e)(1)(B); Schnell v.
Department of the Army , 114 M.S.P.R. 83 , ¶ 22 (2010) .
The agency did not prove by clear and convincing evidence that it would have
removed the appel lant absent her protected disclosure.
¶13 The agency challenges the initial decision, stating that it proved by clear
and convincing evidence that it would have removed the appellant absent her
protected disclosure because there was no strong motive to retaliate against the
appellant and because an agency human resources specialist testified regarding
actions that the agency took against similar employees who were not
whistleblowers. PFR File, Tab 1 at 14-15. When, as here, the appellant
establishes a prima facie case of whistleblower rep risal, the burden of persuasion
shifts to the agency to show by clear and convincing evidence that it would have
taken the sam e personnel action a bsent any protected activity. Campbell v.
Department of the Army , 123 M.S.P.R. 674 , ¶ 12 (2016 ). In determining whether
the agency has met this burden, the Board will consider the following factors:
(1) the strength of the agency ’s evidence in support of its action; (2) the existence
and strength of any motive to retaliate on the part of the agency o fficials involved
in the decision; and (3) any evidence that the agency takes similar actions against
employees who are not whistleblowers, but who are otherwise similarly situated.
Carr v. Social Security Administration , 185 F.3d 1318 , 1323 (Fed. Cir. 1999).
The Board does not view the Carr factors as discrete elements, each of which the
agency must prove by clear and convincing evidence, but w ill weigh the factors
together to determine whether the evidence is clear and convincing as a whole.
Mithen v. Department of Veterans Affairs , 122 M.S.P.R. 489, ¶ 36 (2015), aff’d ,
10
652 F. App’x 971 (Fed. Cir. 2016). The U.S. Court of Appeals for the Federal
Circuit has held that the agency must satisfy a “high burden of proof” in cases
where an employee has already shown that whis tleblowing was a contributing
factor to the personnel action. Miller v. Department of Justice , 842 F.3d 1252 ,
1263 (Fed. Cir. 2016).
¶14 Here, we find that the agency’s evidence in support of the first Carr factor,
regarding the strength of the evidence in support of the agency’s action, is weak.
The administrative judge concluded that discipline was only warranted for one
specification of charge 1 involving the appellant’s inappropriate conduct when
she threw away the documents of a coworker after she retrieved them from the
printer. I -2 ID at 93. The agency imposed the appellant’s removal on the basis of
the following charges: (1) inappropriat e conduct including 3 underlying
specifications involving 3 personal issues and 1 underlying specification related
to an incident of throwing away the documents of a coworker from the printer
(2) failure to cooperate with the employee threa t assessment tea m including
6 underlying specifications when the appellant failed to attend meetings with the
team; (3) failure to follow instructions including 9 underlying specifications when
the appellant sent out emails during the period when she was on administrative
leave but did not “cc” (share) the email with the chair of the threat assessment
team, as she had been instructed to do; and (4) failure to follow “official time ”
procedures, including 26 underlying specifications (only 17 of which the deciding
official s ustained) when the appellant sent out union e mails whe n she was not on
official time and did not request official time for the tim e she had used to
compose the e mails. IAF, Tab 1, Tab 6 at 42-51. The administrative judge found
that the only conduct const ituting cause for discipline was charge 1 based upon
the underlying specification involving the appellant’s disposal of her coworker’s
documents from the printer . I-2 ID at 61-93.
¶15 The administrative judge did not sustain the first specification of charg e 1
in part because, based upon their demeanor, she credited the testimony of the
11
appellant and another witness who stated that the appellant did not engage in a
confrontation. I-2 ID at 66. She also did not sustain the second specification of
charge 1 because of the straightforward and consistent demeanor of the appellant
and another witness when they testified that the appellant did not follow another
employee down the hallway. I -2 ID at 68. Next, the administrative judge did not
sustain the fourth specification of charge 1 because she found that the appellant’s
door slamming and possible staring did not constitute the type of threatening
behavior that would support a charge of inappropriate conduct. I -2 ID at 71-72.
She also did not sustain the four th charge regarding the appellant’s failure to
follow proper time procedures when sending union emails because of the
appellant’s clear and straightforward testimony that was consistent with the
record evidence that she was not aware of an official time po licy regarding
emails. I -2 ID at 80-92. The administrative judge was in the best position to
determine whether these witnesses credibly testified about the personal
interactions described in charge 1. We also have found nothing in the record, and
the agency has not presented anything, to contradict the appellant’s testimony,
which the administrative judge found to be credible, that she was unaware that
she could not send the emails. I -2 ID at 80-92. Because the administrative
judge’s findings are bas ed implicitly and explicitly on the demeanor of the
witnesses, and there is otherwise no basis for disturbing the administrative
judge’s findings, we agree with her decision not to sustain the three specifications
underlying charge 1 and charge 4. See Haebe, 288 F.3d at 1301 .
¶16 The administrative judge further found , as noted above, that the agency
failed to show a nexus between charge 2 and charge 3 and the efficiency of the
service and that it thus was not appropriate to impose discipline for the charges .
I-2 ID at 92-93. The nexus requirement, for purposes of whether an agency has
shown that its action promotes the efficiency of the service, means that there must
be a clear and direct relationship between the articulated grounds for an adverse
action a nd either the employee’ s ability to accomplish h er duties satisfactorily or
12
some other legitimate Government interest. Valenzuela v. Department of the
Army , 107 M.S.P.R. 549 , ¶ 14 (2007). The administrative judge found that the
charges involved the appellant’s failure to meet with the threat assessment team
and to “cc” its chair on emails that she had sent from her grandmother’s computer
while on administrative leave. I -2 ID at 92-93. S he credited the unrebutted
testimony of the chair of the threat assessment team that meeting with the team
was purely voluntary and that the agency had no authority to require employees to
“cc” him on emails or to subject them to discipline for not doing s o. Id. The
agency has not challenged this testimony. Further, we find no reason to disturb
the administrative judge’s decision to credit the testimony. See Haebe , 288 F.3d
at 1301 . Thus, we agree that the agency has failed to show that discipline for
these charges promotes the efficiency of the service.
¶17 Accordingly, we agree that charge 1, which the administrative judge
sustained based upon one underlying specification related to the appellant’s
discarding a colleague’s documents from the printer, is the only charge for which
discipline is warranted. Thus, we find that, under the first Carr factor regarding
the evidence in support of the agency’s action, the agency’s failure to prove a
majority of the charges and specifications strongly weighs agains t a finding that it
would otherwise have removed the appellant absent her protected disclosure.
Ayers , 123 M.S.P.R. 11 , ¶ 28 (find ing that, regarding the first Carr factor, the
agency’s failure to prove a majority of its specifications was a sign of overreach).
¶18 Next, we find that the agency’s proffer in support of the third Carr factor,
which relates to similarly situated employees , was incomplete. An agency should
liberally produce evidence of similarly situated employees that are not
whistleblowers to help it carry its overall burden to prove by clear and convincing
evidence that it would have taken the action against the whistle blower regardless
of the whistleblowing and that the absence of any evidence concerning this Carr
factor may well cause the agency to fail to prove its overall case. Whitmore v.
Department of Labor , 680 F.3d 1353 , 137 4-75 (Fed. Cir. 2012).
13
¶19 An agency employee labor relations specialist testified about similarly
situated employees. HT, Oct . 27, 2015, at 261-63 (testimony of the employee
labor relations specialist). Specifically, he testified that the agency proposed
another employee’s removal for inappropriate conduct, but because the employee
was remorseful, the deciding official, who was al so the deciding official in this
appeal, negotiated a last chance agreement with that employee. Id. at 261-63. He
further testified that other employees have received letters of proposed removal
for charges of inappropriate conduct and that he was the em ployee labor relations
specialist in those situations. Id. at 263. This testimony, which includes one
individual whose removal was not actually imposed and vague information about
other individuals, does not particularly support the agency’s argument tha t it took
similar actions against nonwhistleblowers. Although the agency proffered some
evidence of alleged comparators who engaged in “inappropriate conduct,” it
failed fully to account for differences in kinds and degrees of conduct and it
failed to pro vide complete information on the outcome of each of the
comparators’ cases. Having submitted evidence concerning how it treated other
employees, the agency took a risk in failing to fully explain the context of that
evidence. Cf. Siler v. Environmental P rotection Agency , 908 F.3d 1291 , 1299
(Fed. Cir. 2018) (stating that the risk associated with having no evidence in the
record for a particular factor falls on the G overnment); Miller , 842 F.3d at 1262
(stating that the G overnment’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); Whitmore , 680 F.3d at 1374 (holding that, 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).
We find, therefore, that Carr factor 3 weighs against the agency.
¶20 With our analysis of the first and third Carr factors in mind, we have
considered the agency’s assertion regarding the second Carr factor that the
deciding official did not have a strong motive to retaliate. PFR File, Tab 1 at 14.
14
However, based upon our analysis of the other Carr factors, we find that the
agency has failed to meet its high burden of proving by clear and convincing
evidence that it would have removed the appellant absent her protected
disclosure. Miller , 842 F.3d at 1263 (finding that the agency did not prove by
clear and convincing evidence that it would have taken the same action absent the
appellant’s protected disclosure when, although it produced some evidence
regarding a lack of motive to retaliate, the strength in su pport of its action was
weak and it did not present evidence regarding similarly
situated nonwhistleblowers).
The agency did not prove by clear and convincing evidence that it would have
removed the appellant absent her protected union activity.
¶21 The ap pellant also asserts in her cross petition for review that the
administrative judge erred by finding that she failed to prove her affirmative
defense of reprisal for protected union activity. PFR File, Tab 7 at 14. We agree.
¶22 Following the enactment of the W histleblower Protection Enhancement Act
of 2012, Pub. L. No. 112-199, 126 Stat. 1465, an appellant may file an individual
right of action appeal with the Board concerning alleged reprisal not only for
making protected disclosures under 5 U.S.C. § 2302 (b)(8) but also for engaging
in protected activity under 5 U.S.C. § 2302 (b)(9)(A)(i), (B), (C), and (D).
Alarid v. Departmen t of the Army , 122 M.S.P.R. 600 , ¶ 12 (2015) . The
appellant’s claim of reprisal for engaging in protected union activity is prot ected
under 5 U.S.C. § 2302 (b)(9) (B). Id. Therefore, the administrative judge was
required to afford the appellant notice that, to prevail in her claim of reprisal for
union activity, she must sh ow that she testified or assisted another employee in
any appeal, complain t, or grie vance right granted by any law, rule, or regulation ,
and that such activity was a contributing factor in the agency’s decision to take a
personnel action against her. Id., ¶ 13. If she makes such a showing, the agency
must show by clear and convincing evidence that it would have taken the same
personnel action absent any protected activity. Id., ¶ 14. The record reflects that
15
the administrative judge did not afford the appellant notice of the correct legal
standard for proving her claim of reprisal for union activity. IAF, Tab 53 at 2-3.
¶23 Under the circumstances, it would generally be appropriate to remand the
appeal to afford the appellant the opportunity to present e vidence and argument
after receiving proper notice of her burden of proof. Alarid , 122 M.S.P.R. 600,
¶ 17. Here, however, we fi nd that the record is fully developed and the
appellant’s affirmative defense can be resolved without a remand.
¶24 First, it is undisputed that the appellant engaged in protected union activity
and that the relevant agency managers were aware of that activi ty. The appellant
was, or recently had been, a union steward, and some of the misconduct for which
she was charged was alleged to have occurred while she was acting in furtherance
of her union rights. IAF, Tab 6 at 42-46; HT , Oct . 26, 2015, at 50 (testimony of
the deciding official). Thus, we find that the appellant has satisfied the
knowledge/timing test and has proven that her protected activity was a
contributing factor in the agency’s decision to take a personnel act ion against her.
The burd en of persuasion now shifts to the agency to show by clear and
convincing evidence that it would have taken the same action absent the
appellant’s protected union activity.
¶25 For the reasons set forth above, the evidence in support of the agency’s
action i s exceedingly weak. The administrative judge properly found that only
1 specification of the 36 sustained by the deciding official warranted any
discipline , and th at single sustained specification was for the minor offense of
taking someone else’s documen t from a shared printer. The admini strative judge
did not sustain the failure to follow procedures for official time charge because
the agency did not prove that it put the appellant on notice of the procedures she
purportedly failed to follow. I -2 ID at 80-92. The administrative judge found
that the agency failed to show that disciplining the appellant for th e second and
third charges promoted the efficiency of the service. Id. at 92-93. Carr factor 1
weighs strongly in favor of the appellant.
16
¶26 As to Carr factor 2, the administrative judge found that the deciding official
was not motivated by anti -union animus. I -2 ID at 97. Although she did not
conduct a full analysis because she did not apply the correct legal standard, she
grounded her finding in her assessment of the deciding official’s credibility, and
we must defer to that finding. Haebe , 288 F.3d at 1301 .
¶27 Similarly, as noted above, the agency made only a limited proffer
concerning other employees who committed similar misconduct and none of them
were removed . I-2 ID at 102. However, presumably because the parties were not
on notice of the correct legal standard, the agency failed to present any evidence
as to whether the other employees had engaged in union activity.
¶28 Even ass uming, however, t hat Carr factors 2 and 3 weigh in favor of the
agency , and under the unique circumstances of this case, we find that Carr
factor 1 heavily outweighs the evidence relating to Carr factors 2 and 3. We find,
therefore, that the agency has fa iled to show by clear and convincing evidence
that it would have taken the same action against the appellant absent her protected
union activity.
¶29 The appellant has shown that the agency’s decision to remove her was based
on a prohibited personnel practic e described under 5 U.S.C. § 2302 (b)(8) &
(b)(9)(B). Therefore, under 5 U.S.C. § 7701 (c)(2)(B), the action may not be
sustained, and the administrative judge erred by mitigating the penalty rather than
reversing the removal action outright.7 We have considered the appellant’s
arguments on review that the administrative judge interfered with her questioning
of certain witnesses and find tha t the appellant has not shown that the
administrative judge abused her discretion in this regard. PFR File, Tab 7
at 12-13; see 5 C.F.R. § 1201.41 (b).
7 Because we find that no penalty should be imposed for the appellant’s misconduct, it
is not necessary to consider the appellant’s arguments that the penalty of a 3 -day
suspension is excessive and that the deciding official violated her due process rights
regarding her penalty analysis. PFR File, Tab 7 at 12-13, 22.
17
¶30 Finally, the appellant has filed a motion for protective order in which she
requests an order prohibiting the agency from accessing her agency -administered
medical records. PFR Fi le, Tab 14 at 3. The appellant alleges that the agency has
improperly accessed the medical records of its em ployees in other circumstances,
but she has not alleged that it has actually access ed her records without
authorization , and she asserts that she does not receive medical care from the
agency. Id. The appellant’s motion does not meet the requir ements of 5 C.F.R.
§ 1201.55 (d) because it does not contain a statement of reasons explaining why a
protective order is necessary to protect her from harassment and it does not
appear that the appe llant filed her motion “as early in the proceeding as
practicable.” Therefore, we deny the motion.
¶31 Accordingly, we reverse the appellant’s removal action.
ORDER
¶32 We ORDER the agency to cancel the re moval action effective October 24,
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 thi s decision.
¶33 We also ORDER the agency to pay the appellant the correct amount of back
pay, interest on back pay, and other benefits under the Office of Personnel
Management’s regulations, no later than 60 calendar days after the date of this
decision. We ORDER the appellant to cooperate in good faith in the agency’s
efforts to calculate the amount of back pay, interest, and benefits due, and to
provide all necessary information the agency requests to help it carry out the
Board’s Order. If there is a dis pute 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.
¶34 We further ORDER the agency to tell the appellant promp tly in writing
when it believes it has fully carried out the Board’s Order and of the actions it has
18
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).
¶35 No later than 30 days after the agency tells the appellant that it has fully
carried out the Board’s Order, the appellant may file a petition for enforcement
with the office that issued the initial decision on this appeal if the appellant
believes that the agency did not fully carry out the Board’s Order. The petition
should contain specific reasons why the appellant believes that the agency has not
fully carried out the Board ’s Order, and should include the dates and results of
any communications with the agency. 5 C.F.R. § 1201.182 (a).
¶36 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 agen cy 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.), 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.
19
NOTICE TO THE APPELL ANT REGARDIN G
YOUR RIGHT TO REQUES T CONSEQUENTIAL AND/ OR
COMPENSATORY DAMAGES
You may be entitled to be paid by the agency for your consequential
damages, including medical costs incurred, travel expenses, and any other
reasonable and foreseeable consequential damage s. To be paid, you must meet
the requirements set out at 5 U.S.C. §§ 1214 (g) or 1221(g). The regulations may
be found at 5 C.F.R. §§ 1201.201 , 1201.202 and 1201.204.
In addition, the Whistleblower Protection Enhancement Act of 2012
authorized the award of compensatory damages including interest, reasonable
expert witness fees, and costs, 5 U.S.C. § 1214 (g)(2), which you may be entitled
to receive.
If you believe you are entitled to these damages, you must file a motion for
consequential damages and/or compensatory damages WITHIN 60 CALENDAR
DAYS OF THE DATE OF THIS DE CISION. You must file your motion with the
office that issued the initial decision on your appeal.
NOTICE TO THE PARTIE S
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 emplo yee 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).
20
NOTICE OF APPEAL RIG HTS8
The initial decis ion, as supplemented by this Final Order, constitutes the
Board’s final decision in this matter. 5 C.F.R. § 1201.113 . You may obtain
review of this final decision. 5 U.S.C. § 7703 (a)(1). By statute, the nature of
your claims determines the time limit for seeking such review and the appropriate
forum with which to file. 5 U.S.C. § 7703 (b). Although we offer the following
summary of available appeal rights, the Merit Systems Protection Board does not
provide legal advice on which option is most appropriate for your situation and
the rights described below do not represent a statement of how courts will rule
regarding which cases fall within their jurisdiction. If you wish to seek review of
this final decision, you should immediately review the law applicable to your
claims and carefully follow all filing time lim its and requirements. Failure to file
within the applicable time limit may result in the dismissal of your case by your
chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particu lar case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703 (b)(1)(A).
8 Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise which option is most appropriate in any matter.
21
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 M adison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners an d Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will a ccept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court o f Appeals for the Federal Circuit), within 30 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
22
discrimination based on race, color, religion, sex, national origin, or a disabling
condition, you may be entitled to representation by a court -appointed lawyer and
to waiver of any requirement of prepayment of fees, costs, or other security. See
42 U.S.C. § 2000e -5(f) and 29 U.S.C. § 794a .
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702 (b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702 (b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then 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:
Office of Federal 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
23
other protected activities listed in 5 U.S.C. § 2302 (b)(9)(A)(i), (B), (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.9 The court of appeals must receive your
petition for review within 60 days of the date of issuance of this decision.
5 U.S.C. § 7703 (b)(1)(B).
If you submit a petition for 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
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.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
9 The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 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.
24
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 T HE 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 th e 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, ref unds 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 r equired 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 cle ar and concise information
describing what to do in accordance with decision.
2. The following information must be included on AD -343 for Restoration:
a. Employee name and social security number.
b. Detailed explanation of request.
c. Valid agency accounting.
d. Authorized signature (Table 63).
e. If interest is to be included.
f. Check mailing address.
g. Indicate if case is prior to conversion. Computations must be attached.
h. Indicate the amount of Severance and Lump Sum Annual Leave Payment to be
collected (if applicable).
Attachments to AD -343
1. Provide pay entitlement to include Overtime, Night Differential, Shift Premium, Sunday
Premium, etc. with number of hours and dates for each entitlement (if applicable).
2. Copies of SF -50s (Personnel Actions) or list o f 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 Gra de 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. | RIZZO_JUSTICIA_J_CH_0752_15_0104_I_2_FINAL_ORDER_1948811.pdf | 2022-08-05 | null | CH-0752-15-0104-I-2 | NP |
4,211 | https://www.mspb.gov/decisions/nonprecedential/STEVENS_FREDERICA_DC_0752_21_0412_I_1_FINAL_ORDER_1948846.pdf | UNITED STATES OF AME RICA
MERIT SYSTEMS PROTEC TION BOARD
FREDERICA STEVENS,
Appellant,
v.
DEPARTMENT OF THE NA VY,
Agency.
DOCKET NUMBER
DC-0752 -21-0412 -I-1
DATE: August 5, 2022
THIS FINAL ORDER IS NONPRECEDENTIAL1
M. Jefferson Euchler , Esquire, Virginia Beach, Virginia, for the appellant.
Karissa Getz , Esquire, and William Fuller Stoddard , Esquire, 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 sustained the agency’s chapter 75 removal action based on the charge of
unacceptable conduct . 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 admi nistrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and 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 a pplication of the la w to the facts of the case;
the administrative judge’s rulings during either the 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).
DISCUSSION OF ARGUME NTS ON REVIEW
The appellant does not provide a basis to disturb the administrative judge’s
conclusion that the agency proved its charge .
¶2 The appellant argues that the agency failed to prove its charge of
unacceptable condu ct, i.e., that the appellant , during a discussion with agency
management personnel, aggressively walked towards an agency management
official, snatched a leave chit out of the official’s hands, and began to push the
official’s right hand down “in an aggressive manner.” Petition for Review (PFR)
File, Tab 1 at 8; In itial Appeal Fil e (IAF), Tab 4 at 50 -51. The appellant
contend s that the administrative judge erred “in finding the [a]gency witnesses
credible and contrary to the testimony of [ the a]ppellant’s witnesses.” PFR File,
Tab 1 at 8. We find this assertion u navailing. The Board must give deference to
an administrative judge’s credibility determinations when they are based,
explicitly or implicitly, on the observation of the demeanor of witnesses
testifying at a hearing . Haebe v. Department of Justice , 288 F.3d 1288 , 1301
(Fed. Cir. 2002). Here, the appellant has not provided a ny basis to disturb the
administrative judge’s credibility determination s; indeed, she has not discernably
3
identified any purported error with the same. See Clay v. Department of the
Army , 123 M.S.P.R. 245, ¶ 6 (2016) (finding no reason to disturb the
administrative judge ’s findings 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 & Huma n Services , 33 M.S.P.R.
357, 359 (1987) (same).
¶3 The appellant also contend s that she “was not charged with any charge
carrying any overtone of threat or with any sort of actual assault.” PFR File,
Tab 1 at 8. She states that “the [a]gency’s position . . . makes no sense” because
“supervisors attempted to characterize [her] actions as an assault” but then waited
to discipline her . Id. We find these assertions b oth unclear and unavailing.
As stated, the agency charged the appellant with unacceptable conduct, not with
an assault or making a threat. IAF, Tab 4 at 50 -51. To the extent the appellant
argues that the administrative judge erred in her analysis of this charge,
we disagree and find that she applied the proper legal standard. I AF, Tab 18,
Initial Decision (ID) at 2-11. To the extent the appellant instead argues that the
agency’s failure to promptly initiate a disciplinary action undercuts the credibility
of some or all of the agency witnesses, we find her vague argument unpersuasive .
See Haebe , 288 F.3d at 1301.
The appellant does not provide a basis to distu rb the administrative judge’s
conclusion that she failed to prove any of h er affirmative defenses.
¶4 The appellant seemingly contends that the agency committed harmful
procedural error by failing to initiate a disciplina ry action against her within
60 days, as required by the parties’ collective bargaining agreement (CBA) .
PFR File, Tab 1 at 6; IAF, Tab 4 at 16. We find this contention unavailing .
As set forth in the initial decision, the appellant failed to timely raise this claim .
ID at 16; IAF, Tab 6 a t 1; see 5 C.F.R. § 1201.24 (b) (“A n appellant may raise
a claim or defense not included in the appeal at any time before the end of the
conference(s) held to define the issues in the cas e. An appellant may not raise
4
a new claim or defense after that ti me, except for good cause shown .”).
Moreover, even assuming that the appellant had timely raised this claim, as
explained by the administrative judge, the relevant CBA provision explicitly
provides that the agency’s failure to comply with the 60 -day requirement “does
not preclude management from taking disciplinary action against the employee.”
IAF, Tab 4 at 16. Accordingly , we find that the appellant has f ailed to identify
any error on the part of the agency on review , much less one that likely would
have caused the agency to reach a different conclusion. See Pumphrey v.
Department of Defense , 122 M.S.P.R. 186 , ¶ 10 (2015) (explaining that a
procedural error is harmful only when the record shows that an error by the
agency was likely to have caused the agency to reach a conclusion different from
the one it w ould have reached in the absence or cure of the error); 5 C.F.R.
§ 1201.4 (r).2
¶5 The appellant also seeming ly raises the equitable defense of laches in
relation to the agency’s delay in initiating disciplinary action against her.
PFR File, Tab 1 at 6. To this end, she states as follows: “the [a]gency waited
more than a year past the conclusion of the investigation and until the retirement
of a witness who would have been favorable to t he [a]ppellant before taking
action. Other than a bare bones effort to blame this on the Covid [sic] pandemic
without any explanation there was no justification.” Id. The equitable defense of
laches bars an action when an unreasonable delay in bringing the action has
prejudiced the party against whom the action is taken. Johnson v. U.S. Postal
2 On review, the appellant alludes to the fact that the CBA also provides that , “[i]f the
60-day time limit is not met, the reasons for the delay beyond 60 days will be
documented in the preaction file.” PFR File, Tab 1 at 6; IAF, Tab 4 at 16. We were
unable to locat e any such documented reasons in the file. However, as set forth in t he
initial decision, a large portion of the agency’s delay occurred during the COVID -19
pandemic. ID at 17. Moreover, as explained by the administrative judge, the appellant
did not provide any evidence or argument regarding how the agency’s failure to
document its delay caused the agency to reach a conclusion different from the one it
would have otherwise reached. Id.; see Pumphrey , 122 M.S.P.R. 186 , ¶ 10.
5
Service , 121 M.S.P.R. 101 , ¶ 6 (2014). The party asserting laches must prove
both unreasonable delay and prejudice. Id. Here, we discern no basis to disturb
the administrative judge’s conclusion that the appellant failed to show
an unreasonable delay on the part of the agency . ID at 17-20; see Salter v.
Department of the Treasury , 92 M.S.P.R. 355 , ¶ 10 (2002 ) (stating that the Board
has found that delays of 3 or 3 1/2 years in bringing an action are not
unreasonable in and of themselves ). Moreover, we discern no basis to disturb her
conclusion that the appellant failed to show that she was prejudiced by the delay .
ID at 17 -20. To the extent the appellant argue s that she was prejudice d because
she was unable to procure the testimony of an unidentified , now retired agency
employee , we find that a different outcome is not warranted .3 PFR File, Tab 1
at 6. Indeed , although the record indicated that the agency had attempted to
locate this witness, the appellant did not indicate what, if any, efforts she made to
locate and/or subpoena th is witness . IAF, Tab 11 at 4 n.1, 5 n.3; see Lohr v.
Department of the Air Force , 24 M.S.P.R. 383 , 386 (1984) (reasoning that an
appellant was not deprived of the right to question a witness when he could have
requested and/ or subpoenaed the witness but failed to do so). Thus, we discern
no basis to disturb the initial decision .
¶6 The appellant contends that the agency violat ed her due process rights.
PFR File, Tab 1 at 6 -8. She asserts that the deciding official considered “past
discipline that was not referenced in the proposal notice . . . and did not actually
occur as well as receiving briefings from lower officials about the allegations that
were not captured or referenced in the evidence file or proposal notice.” Id. at 6.
She also references the deciding official having considered “a list of
communications and outside evidence.” Id. The appellant aver s that the deciding
3 The appellant does not identify the former agency employee to whom she refers . PFR
File, Tab 1 at 6; see 5 C.F.R. § 1201.115 (a)(2). W e surmise that she is referring to
R.T., a witness sought by both parties who retired after the appellant’s removal. IAF,
Tab 8 at 6, Tab 9 at 9, Tab 11 at 4 n.1; ID at 18-19.
6
official’s reliance on this noncumulative information violated her due process
rights and made it impossible for her to respond to the agency’s proposed action.
Id. at 7-8. We find these assertions unpersuasive. In Stone v. Federal Deposit
Insurance Corporation , 179 F.3d 1368 , 1377 (Fed. Cir. 1999), the U.S. Court of
Appeals for the Federal Circuit held that, if the deciding official receives ex parte
new and material evidence, this constitutes a violation of the employee’s due
process rights.4 Here, however, we discern no basis to disturb the administrative
judge’s conclusion that the appellant failed to show that any such violation
occurred . ID at 11-14. To this end, the appellant ’s petition does not specifically
identify the new and material evidence on which the deciding official purportedly
relied. See 5 C.F.R. § 1201.115 (a)(2) (“ A petitioner who alleges that the judge
made erroneous findings of material fact must explain why the challenged factual
determination is incorrect and identify specific evidence in the record that
demonstrates the error .”). To the extent the appellant contend s that the deciding
official’s discussions with agency management officials regarding her proposed
removal constituted new and material information, we find that a different
outcome is not warranted . ID at 11-14; see Blank v. Department of the Army ,
247 F.3d 1225 , 1229 -30 (Fed. Cir. 2001) (explaining that information regarding
pending charges obtained by investigatory communications that d o no more than
confirm or clarify the record do not undermine an appellant’s due process right) .
To the extent she argues that the deciding official impr operly considered past
verbal confrontations that she had with agency employees , which were not
refere nced in the agency’s notice of proposed removal , we discern no basis to
4 The Federal Circuit’s reasoning rests on the decision of the U.S. Supreme Court in
Cleveland Board of Education v. Loudermill , 470 U.S. 532 , 538 -39, 546 -48 (1985),
which held that a tenured public employee has a constitutionally protected property
interest in ongoing public employment and that an agency may not deprive such an
employee of her property interest without providing her with due process of law,
including the right to advance notice of the charges against her, an expla nation of the
agency’s evidence, and an opportunity to respond.
7
disturb the administrative judge’s credibility -based determination that the only
prior incident that impacted the deciding official’s decision was the appellant’s
prior 14 -day suspensi on. ID at 14; IAF, Tab 4 at 50-54, 97-98, 100-01, 103 -06;
see Haebe , 288 F.3d at 1301 . Accordingly, we find the appellant’s arguments
unpersuasive .
To the extent the appellant challenges the reasonableness of the penalty , we find
her challenge unpersuasive.
¶7 As stated, the appellant avers that she was not charged with “any overtone
of threat or with any sort of actual assault.” PFR File, Tab 1 at 8. To the extent
the appellant , through this statement, argues that the administrative judge erred in
finding the penalty of removal reasonable under the circumstances, we find her
argument unavailing.
¶8 When , as here, the agency’s charge is susta ined, the Board will review an
agency imposed penalty only to determine if the agency considered all of the
relevant factors and exercised discretion within tolerable limits of reasonableness.
Ellis v. Department of Defense , 114 M.S.P.R. 407 , ¶ 11 (2010) ; Douglas v.
Veterans Administration , 5 M.S.P.R. 280 , 305 -06 (1981). In making this
determination, the Board must give due weight to the agency’s primary discretion
in maintaining employee discipline and efficiency, recognizing that the Board’s
function is not to displ ace management’s responsibility but to ensure that
managerial judgment has been properly exercised. Ellis , 114 M.S.P.R. 407 , ¶ 11;
Douglas, 5 M.S.P.R. at 306. The Board will modify an agency -imposed penalty
only when it finds that the agency failed to weigh the relevant factors or the
penalty clearly exceeds the bounds of reasonableness. Ellis , 114 M.S.P.R. 407 ,
¶ 11.
¶9 Here, the administrative judge applied the proper legal standard and
concluded that the agency’s selected penalty of removal was not unwarranted
under the circumstances and was within the tolerable bounds of reasonableness.
ID at 20-22; see Ellis , 114 M.S.P.R. 407 , ¶ 11. In so doing, she recounted that
8
the deciding official had explained that “the misconduct at issue in this appeal,
while not a physical altercation like [ the appellant’s prior disciplinary action that
resulted in a 14-day suspension,] . . . involved the a ppellant physically touching
another employee during a confrontation.” ID at 21. The administrative ju dge
subsequently reasoned that , “[e]ven though the contact in this case was minimal,
it show[ed] a pattern of physical aggression towards coworkers and supervisors.”
Id. We discern no error with either the above characterization s of the appellant’s
conduct or with the administrative judge’s penalty analysis , and therefore,
we find that the appellant’s assertions do not warrant a different outcome.
¶10 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 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 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
filing time limits and requirements. Failure to file within the applicable time
limit may result in the dismissal of your case by your chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
5 Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot a dvise which option is most appropriate in any matter.
9
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703 (b)(1)(A).
If you submit a petition f or review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.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.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
10
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after yo u
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
11
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 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.6 The court of appeals must receive your petition for
review within 60 days of the date of issuance of this decision. 5 U.S.C.
§ 7703 (b)(1)(B).
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
6 The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Revi ew Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circ uit court of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115 -195,
132 Stat. 1510.
12
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
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 | STEVENS_FREDERICA_DC_0752_21_0412_I_1_FINAL_ORDER_1948846.pdf | 2022-08-05 | null | DC-0752-21-0412-I-1 | NP |
4,212 | https://www.mspb.gov/decisions/nonprecedential/PHILOGENE_FRANTZ_NY_0752_21_0115_I_1_FINAL_ORDER_1948873.pdf | UNITED STATES OF AME RICA
MERIT SYSTEMS PROTEC TION BOARD
FRANTZ PHILOGENE,
Appellant,
v.
DEPARTMENT OF COMMER CE,
Agency.
DOCKET NUMBER
NY-0752 -21-0115 -I-1
DATE: August 5, 2022
THIS FINAL ORDER IS NONPRECEDENTIAL1
Frantz Philogene , Bridgewater, Massachusetts, pro se.
Kardesha N. Bradley , 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 his termination appeal for lack of jurisdiction . On petition for review,
the appellant does not challenge the initial decision and instead disputes the
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedentia l value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and 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
merits of his termi nation.2 Generally, we grant petitions such as this one only in
the following circumstances: the initial decision contains erroneous findings of
material fact; the initial decision is based on an erroneous interpretation of statute
or regulation or the erroneous application of the law to the facts of the case; the
administrative judge’s rulings during either the course of the appeal or the initial
decision were not consistent with required procedures or involved an abuse of
discretion, and the resulting error affe cted the outcome of the case; or new and
material evidence or legal argument is available that, despite the petitioner’s due
diligence, was not available when the record closed. Title 5 of the Code of
Federal Regulations, section 1201.115 ( 5 C.F.R. § 1201.115 ). After fully
considering the 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 HTS3
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
2 The Standard Form 50 documenting the appellant’ s termination indicates that he
served as an intermittent employee, totaling 1041 hours or 209 days from January 4,
2020, through February 12, 2021. Initial Appeal File, Tab 4 at 18. T he administrative
judge did not address the effect of the appellant’s intermittent service on the issue of
Board jurisdiction. However, as the administrative judge correctly dismissed the appeal
on other jurisdictional grounds, we need not discuss further the effect of the
intermittent service on the Board’s jurisdiction.
3 Since the issuance of the initial decision in this matter, the Boar d may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise which option is most appropriate in any matter.
3
statement of how courts will rule regarding which cases fall within their
jurisdiction. If you wish to seek review of this final decision, you should
immediately review the law applicable to your claims and carefully follow all
filing time limits and requirements. Failure to file within the applicable time
limit may result in the dismissal of your case by your chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703 (b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court o f Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Fede ral Circuit, you may visit our 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 attor ney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appe alable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 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 disabli ng
condition, you may be entitled to representation by a court -appointed lawyer and
to waiver of any requirement of prepayment of fees, costs, or other security. See
42 U.S.C. § 2000e -5(f) and 29 U.S.C. § 794a .
Contact information for U.S. district courts c an be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the 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
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 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
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.4 The court of appeals must receive your petition for
4 The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115 -195,
132 Stat. 1510.
6
review within 60 days of the date of issuance of this decision. 5 U.S.C.
§ 7703 (b)(1)(B).
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Feder al Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circ uit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interes ted in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appell ants before the 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 w ebsites, 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 | PHILOGENE_FRANTZ_NY_0752_21_0115_I_1_FINAL_ORDER_1948873.pdf | 2022-08-05 | null | NY-0752-21-0115-I-1 | NP |
4,213 | https://www.mspb.gov/decisions/nonprecedential/MARONEY_MICHAEL_P_DA_0752_15_0594_I_2_REMAND_ORDER_1948318.pdf | UNITED STATES OF AME RICA
MERIT SYSTEMS PROTEC TION BOARD
MICHAEL P. MARONEY,
Appellant,
v.
DEPARTMENT OF THE AI R FORCE,
Agency.
DOCKET NUMBER
DA-0752 -15-0594 -I-2
DATE: August 4, 2022
THIS ORDER IS NONPRECEDENTIAL1
Lorenzo W. Tijerina , Esquire, San Antonio, Texas, for the appellant.
Anna E. Virdell , James T. Hedgepeth , and Charles R. Vaith , Esquire, Joint
Base San Antonio, Randolph, Texas, 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 appellant’s removal . For the reasons discussed below, we GRANT
the agency’s petition for review , REVERSE the initial decision, and REMAND
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required 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
the case to the regional office for further adjudication in accordance with this
Remand Order.
BACKGROUND
¶2 The appellant served as a GS -11 Training Instructor (Pararescue), a position
with strenuous physical requirements. Maroney v. Department of the Air Force ,
MSPB Docket No. DA -07523 -15-0594 -I-1, Initial Appeal File (IAF), Tab 5,
Subtabs 4I , 4N. Following an agency -ordered examination , which found that he
was medically unfit for duty, id., Subtab 4O, the agency proposed and effected
his removal for medical inability to perform the essential duties of his position.
Id., Subtabs 4A-4B, 4D. On appeal, the appellant argued that, in takin g the
action, the agency discriminated against him based on his disability by denying
him reasonable accommodation. IAF, Tab 1 at 6, Tab 7. He requested a hearing,
IAF, Tab 1 at 2, which the administrative judge duly scheduled, IAF, Tab 5 . But ,
during a djudication, both parties requested a postponement of the hearing . IAF,
Tabs 6 -7. The administrative judge granted the joint motion, dismissing the
appeal without prejudice to its being automatically refiled after 60 days and
setting a new hearing date. IAF, Tab 9; Maroney v. Department of the Air Force ,
MSPB Docket No. DA -0752 -15-0594 -I-1, Initial Decision at 1 -2 (Oct. 16, 2015).
Adjudication resumed as provided. Maroney v. Department of the Air Force ,
MSPB Docket No. DA -0752 -15-0594 -I-2, Appeal File (I-2 AF), Tab 1.
¶3 During this time, the appellant added retaliation for engaging in equal
employment opportunity activity as an affirmative defense. I-2 AF , Tab 9. He
clarified an earlier allegation of harmful procedural error, claiming that the
agency fa iled to provide him an opportunity to orally reply to the notice of
proposed removal , and h e also described this error as a violation of his due
process rights. I -2 AF, Tab 16 at 18. During a subsequent status conference, the
appellant withdrew his reque st for a hearing, opting instead for a decision on the
written record, I-2 AF, Tab 22, and he also withdrew his affirmative defenses.
3
I-2 AF, Tab 23. The administrative judge issued a close of record notice, id., and
both parties made additional submissi ons, I-2 AF , Tabs 24 -29.
¶4 Thereafter , the administrative judge issued an initial decision in which,
without reaching the merits of the removal action, she found that the agency
violated the appellant’s due process rights by not affording him a right to resp ond
orally to the proposed action. I-2 AF , Tab 30, Initial Decision (ID) at 4 -6.
Specifically, the administrative judge found that, when the appellant submitted
his written reply, he asked to make an oral reply but that the agency did not
schedule one an d later issued the letter of decision. I D at 4 -6. As such, the
administrative judge reversed the agency’s action, stating that the appellant was
entitled to a new constitutionally correct removal procedure. ID at 6. The
administrative judge ordered the agency to provide the appellant interim relief if
either party filed a petition for review. ID at 7.
¶5 The agency has filed a petition for review, Petition for Review (PFR) File,
Tab 1, challenging the initial decision, id. at 9-17, and providing evidence on the
issue of interim relief, id. at 18. The agency has supplemented its petition for
review by providing further evidence of interim relief. PFR File, Tab 3. The
appellant has responded to the agency’s petition, PFR File, Tab 4, and has
challenged th e agency’s showing of interim relief, seeking dismissal of its
petition for review for failure to comply with the administrative judge’s order ,
PFR File, Tab 5.
ANALYSIS
The Board declines to dismiss the agency’s petition for review for failure to
comply w ith the administrative judge’s interim relief order.
¶6 In his motion to dismiss, the appellant claims that the agency has failed to
pay him pursuant to the initial decision and also has failed to reinstate him to his
former position, instead placing him on a dministrative leave pending the Board’s
final decision. PFR File, Tab 5 at 7, 14.
4
¶7 When , as here, the appellant is the prevailing party in an initial decision
that grants interim relief, any petition or cross petition for review must be
accompanied by a ce rtification that the agency has complied with the interim
relief order either by providing the required interim relief or by satisfying the
requirements of 5 U.S.C. § 7701 (b)(2)(A)(ii) and (B). In an appeal from an
adverse action that was reversed, the agency’s evidence must show, at a
minimum, that it has appointed the appellant to a position carrying the
appropriate title, grade, and rate of pay, effective the date of the initial decision.
Moore v. U.S. Postal Service , 78 M.S.P.R. 80, 83 (1998). An agency need not
physically return the employee to his place of employment pending the outcome
of the petition for review if it determines that doing so would be unduly
disruptive to the work environment.
¶8 Regarding the appellant’s claim that he has not been timely paid , the agency
is required only to take appropriate administrative action by the deadline for
filing the petition for review that will result in the issuance of a paycheck for the
interim relief period and is not required to have paid the appellant by the filing
deadline . Tisdell v. Department of the Air Force , 94 M.S.P.R. 44 , ¶ 8 (2003).
Here, with its October 4, 2016 petition for review , the age ncy submitted a
September 19, 2016 memorandum from the Training Advisor of the appellant ’s
Training Group to the effect that the agency had place d him in pay status,
effective September 2, 2016 , the date of the initial decision . PFR File, Tab 1
at 18. The agency also submitted a Standard Form 52, Request for Personnel
Action, indicating that the request to initiate action returning the appellant to his
position of record, effective that same date , was made on October 6, 2016, just
2 days after the agency filed its petition for review. PFR File, Tab 3 at 5 -6.
Alth ough the appellant asserts that on November 10, 2016, he phoned the agency
to explain that he had still not been paid, he submitted a copy of a November 16,
2016 email from the agency representative to his representative explaining that a
“remedy ticket” would be submitted to the Defense Finance and Accounting
5
Service (DFAS) to determine the problem with the appellant’s pay, that the
proper paperwork had been time ly submitted to DFAS for payment, and that the
appellant’s representative should let her know if he had any questions. PFR File,
Tab 5 at 13. The appellant has not submitted any evidence or argument
suggesting that the payment matter has not been satisfa ctorily resolved. Even if
he did not receive all of the payment he was due by the time the agency filed its
petition for review , reasonable, inadvertent delays in issuing pay under an interim
relief order do not demonstrate noncompliance with an interim r elief order
sufficient to support dismissing the agency’s petition for review . Archerda v.
Department of Defense , 121 M.S.P.R. 3 14, ¶ 13 (2014); cf. Bradstreet v.
Department of the Navy , 83 M.S.P.R. 288 , ¶¶ 11-13 (1999) (dismissing an
agency’s petition f or review based on its 8 -month delay in providing the appellant
with pay required by an interim relief order).
¶9 Regarding the appellant’s challenge to his placement on administrative
leave , the September 19, 2016 memorandum the agency submitted with its
petition for review explained that, in accordance with the administrative judge’s
interim relief order, the appellant was being placed on administrative leave, in
pay status, effective the date of the initial decision. PFR File, Tab 1 at 18. The
agency’s action placing the appellant on administrative leave does not , in and of
itself, reflect a failure on its part to comply with interim relief. See, e.g.,
Archerda , 121 M.S.P.R. 314, ¶ 12. However, such placement , without an
accompanying certification from the agency that the appellant’s return to work
would be “unduly disruptive to the work environment,” would fail to evidence the
agency’s compl iance with the administrative judge’s interim relief order.
Aquino v. Department of Homeland Security , 121 M.S.P.R. 35 , ¶ 7 (2014). The
agency has not presented any evidence that it informed the appellant that his
return to work would be unduly disruptive; rather, as noted, the agency’s
evidence only shows that it explained to the appellant the steps it had taken to
place him on paid administrative leave. PFR File, Tab 1 at 18.
6
¶10 If an agency fails to establish its compliance with an interim relief order,
the Board has the discretion to dismiss its petition for review , but it need not do
so. Kolenc v. Departm ent of Health & Human Services , 120 M.S.P.R. 101 , ¶ 11
(2013). Here, based on the evidence submitted by the agency, we find that i t
substantially complied with the administrative judge ’s interim relief order. It
could not reasonably have returned the appellant to his Training Instructor
(Pararescue) position because, as no ted, he w as found to be medically unable to
perform those duties. Archerda , 121 M.S.P.R. 314, ¶ 12 n.2 ; IAF, Tab 4,
Subtab 4O. Under the circumstances, therefore, we exercise our discretion not to
dismiss the agency’s petition for review as argued by the appellant . Omites v.
U.S. Postal Service , 87 M.S.P.R. 223 , ¶¶ 7-8 (2000).
The a ppellant has not established that the a gency violate d his due process rights.
¶11 In finding that the agency violate d the appellant’s due process rights and
that he was therefore entitled to a new removal proceeding, the administrative
judge cited and based her decision on the Supreme Court’s decision in Cleveland
Board of Education v. Loudermill , 470 U.S. 532 , 546 (1985), and two Board
cases, Massey v. Department of the Army , 120 M.S.P.R. 226 , ¶¶ 6-7 (2013) , and
Alford v. Department of Defense , 118 M.S.P.R. 556 , ¶¶ 6-7 (2012), both of which
relied on Loudermill to revers e employees’ removals when they were denied the
right to reply to the deciding official regarding the actions proposed against them .
ID at 4-6. The administrative judge stated that an employee cannot be said to
have had a meaningful opportunity to present his side of the story and invoke the
deciding official ’s discretion if the deciding official did not hear the appellant’s
oral reply to the proposal notice. The administrative judge found that, in the
appellant ’s written reply to the notice of proposed removal, he requested the
opportunity to reply orally and that, because the agency failed to afford him an
oral reply , it therefore violated his due process rights. ID at 6.
¶12 On review, the agency argues that the appellant , in fact, received all the due
process to which he was entitled under Loudermill and that the Board cases upon
7
which the administrative judge relied to reverse the agency’s action do not
support a contrary conclus ion. PFR File, Tab 1 at 10-14. We agree.
¶13 In Loudermill , the Supreme Court clarified that, if a tenured public
employee is entitled to a full post -decisional hearing, such as a hearing before the
Board, a pre -decisional trial-type hearing is not required and fundamental due
proc ess requirements under the Constitution are satisfied if the employee has a
pre-decisional opportunity to present, either in person or in writing, reasons why
the proposed action should not be taken. Loudermill , 470 U.S. at 546. In other
words, the emplo yee is entitled to notice of the charges against him, an
explanation of the employer’s evidence, “and an opportunity to present his side of
the story.” Id. Here, the appellant submitted a substantive written reply to the
proposal notice in which he explained why he believed the agency’s action was
unwarranted and includ ed a number of positions he felt he could perform , despite
his physical limitations . IAF, Tab 4, Subtab 4C . Moreover, the deciding official
considered all facets of the appellant ’s written response. Id., Subtab 4B . The
appellant not only had the opportunity to, but in fact did , in his written reply,
“present his side of the story” regarding the agency’s allegations in support of his
removal. White v. Department of Vete rans Affairs , 120 M.S.P.R. 405 , ¶¶ 16-20
(2013); Spentzakis v. Department of the Army , MSPB Docket No. DE-0752 -12-
0126 -I-1, Final Order at 4 (Nov. 20, 2013). Therefore , even if the appellant
requested an oral reply but was denied one, the agency did not violate his right to
minimum due process under the Constitution , and the administrative judge ’s
contrary finding was in error.2 Loudermill , 470 U.S. at 546 ; cf. Hodges v. U.S.
2 In Alford , the Board reversed the appellant’s removal based on the agency’s violating
his right to minimum due process when, not having submitted a written reply, he timely
requested an oral reply but the agency failed to wait a reasonable time for its delivery,
instead issuing its decision , thereby denying him a meaningful opportunity to pre sent
his side of the story and invoke the deciding official ’s discretion . Alford , 118 M.S.P.R.
556, ¶¶ 5-7. Similarly, in Massey , the Board reversed the appellant’s removal based on
the agency’s violating his right to minimum due process when, not having submitted a
written reply, his representative requested an oral reply on the last day provided for
8
Postal Service , 118 M.S.P.R. 591, ¶ 6 (2012) (reversing the appellant ’s reduction
in grade based on the agency’s den ying his due process rights upon finding that
he did not have a meaningful opportunity to present his side of the story and to
invoke the deciding official ’s discretion when the deciding official did not
provide for an oral response and did not read the appellant ’s written response to
the proposal notice before issuing his decision).
The appellant did not establish that the agency committed harmful procedural
error regarding h is right to reply.
¶14 Although the agency’s conduct did not constitute a constitutional violation,
we still must decide consider whether the agency violated the appellant’s rights
under 5 U.S.C. § 7513 (b)(2) and 5 C.F.R. § 752. 404(c)(1) to respond to the
proposal notice both orally and in writing. Here, we agree with the administrative
judge that the appellant requested to make an or al reply when, at the conclusion
of his written reply, he asked that his response “receive full disclosure to the
37th Training Wing Commanders” and that he be afforded “the ability to respond
verbally.” ID at 3 -5; IAF, Tab 4, Subtab 4C at 2. The adminis trative judge
considered, but rejected, the agency’s claim that the brief conversation the
appellant had with the deciding official when he submitted his written reply
constituted an oral reply . She found that the deciding official failed to mention
any s uch reply in her decision letter, that the agency failed to make a summary of
the conversation and furnish it to the Board as required by 5 U.S.C. § 7513 (e) and
5 C.F.R. § 752.406 (c), and that the agency did not argue that the appellant had
given an oral reply at that time until it made its final submission on the date the
record closed below. ID at 5 -6. The agency has not show n error in these
well-supported findings , and we therefore agree that the appellant requested to
such , but th e deciding official di d not respond, instead issuing a decision letter.
Massey , 120 M.S.P.R. 226 , ¶¶ 8-10. In both of these cases, unlike the instant case, the
appellants were denied minimum due process under the Constitution when the deciding
officials issued decisions in their cases without having considered either the ir written or
oral replies.
9
make an oral reply , that the deciding official did not convene one , and that her
failure to do so constituted procedural error in violation of 5 U.S.C. § 7513 (b)(2)
and 5 C.F.R. § 752.404 (c)(1).
¶15 The Board’s harmful error standard applies in the review of an agency’s
failure to comply wit h a statutory procedure provided in 5 U.S.C. § 7513 . See
Baracco v. Department of Transportation , 15 M.S.P.R. 112, 119 -23 (1983) , aff’d
sub nom. Adams v. Department of Transportation , 735 F.2d 488 (Fed. Cir. 19 84);
see also Rawls v. U.S. Postal Service , 94 M.S.P.R. 614 , ¶ 23 (2003); Stephen v.
Department of the Air Force , 47 M.S.P.R. 672 , 685 (1991) . Reversing an action
for harmful error is warranted when the procedural error, whether regulatory or
statutory, likely had a harmful effect upon the outcome of the case before the
agency. Stephen , 47 M.S.P.R. at 681. Harmful error cannot be presumed, and the
burden of showing harmful error lies with the appellant . Stephen , 47 M.S.P.R.
at 685; see 5 U.S.C. § 7701 (c)(2)(A); 5 C.F.R. § 1201.56 (c)(1 ). To show harmful
error, an appellant must prove that any procedural error was likely to have caused
the agency to reach a conclusion different from the one it wo uld have reached in
the absence or cure of the error. 5 C.F.R. § 1201.4 (r).
¶16 The appellant has not shown , or even argued in his response to the agency’s
petition for review , that he suffer ed any harm by not having an opportunity to
reply orally to the proposal notice. PFR File, Tab 3 at 5 -7. Nor did he argue or
show harmful error below . I-2 AF, Tab 16 at 18 -21, Tab 19 at 4 -6, Tab 22 at 7 -8,
Tab 26 at 8 -9. As noted, he submitted a substantive written reply in which he
explained why he believed the agency’s action was unwarranted and included a
number of positions he felt he could perform, despite his physical limitations,
IAF, Tab 4, Subtab 4C, and the deciding official consid ered a ll aspects of that
reply, id., Subtab 4B. In the absence of a showing by the appellant that, if he had
been afforded an oral reply, the agency would likely have re ached a different
conclusion regarding his removal , he has not shown harmful procedural erro r, and
the administrative judge erred in reversing the agency’s action.
10
ORDER
¶17 For the reasons discussed abo ve, we reverse the administrative judge’s
decision to reverse the removal and remand this case to the regional office for
adjudication on the merits of the agency’s action. Because it appears that the
appellant withdrew his request for a hearing and his affirmative defenses based on
the administrative judge’s advising the parties at the prehearing conference that
“it is undisputed” that the appellant was not afforded an oral reply and her
encouraging them to review the Board’s decisions in Massey and Alford , both
denial of minimum due process cases under the Constitution, I -2 AF, Tabs 22 , 23,
the administrative judge shall, o n remand, allow the appellant to renew his
request for a hearing and to reinstitute his affirmative defenses if that is what he
wishes to do .
FOR THE BOARD:
Washington, D.C. /s/ for
Jennifer Everling
Acting Clerk of the Board | MARONEY_MICHAEL_P_DA_0752_15_0594_I_2_REMAND_ORDER_1948318.pdf | 2022-08-04 | null | DA-0752-15-0594-I-2 | NP |
4,214 | https://www.mspb.gov/decisions/nonprecedential/EMOND_ELIZABETH_A_DC_831M_12_0383_A_1_FINAL_ORDER_1948490.pdf | UNITED STATES OF AME RICA
MERIT SYSTEMS PROTEC TION BOARD
ELIZABETH A. EMOND,
Appellant,
v.
OFFICE OF PERSONNEL
MANAGEMENT,
Agency,
and
JANICE BURNS ,
Intervenor.
DOCKET NUMBER
DC-831M -12-0383 -A-1
DATE: August 4, 2022
THIS FINAL ORDER IS NONPRECEDENTIAL1
John J. Rigby , Esquire, Arlington, Virginia, for the appellant.
Cynthia Reinhold , Washington, D.C., for the agency.
Rebecca Wade , Esquire, Alexandria, Virginia, for the intervenor.
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 filed a petition for review of the addendum initial decision ,
awarding the appellant attorney fees in the amount of $105,568.80, sought in
connection with her app eal in which she challenged decision s of the Offic e of
Personnel Management (OPM) that she had been overpaid in former spouse
survivor annuity benefits and that she was not entitled to waiver of collection of
the overpayment . For the reasons discussed below, we GRANT OPM ’s petition
for review in part and AFFIRM the addendum initial decision AS MODIFIED ,
reducing the award to $85,047.45 . Except as expressly MODIFIED by this Final
Order, we AFFIRM the addendum initial decision.
BACKGROUND
¶2 When her former spouse, Mr. Burns, died in 2008, t he appellant sought a
survivor benefit based on his Federal service and pursuant to a final d ecree of
divorce entered into on March 24, 1989, awarding her a for mer spouse retirement
annuity. Emond v. Office of Personnel Management , MSPB Docket
No. DC-831M -12-0383 -I-1, In itial Appeal File (I -1 IAF), Tab 4 at 96. OPM
honor ed the court order and grant ed the appellant a former spouse survivor
annuity under the Civil Service Retirement System. Id. at 92. On the same day,
OPM advised Mr. Burns’ mother that she was not eligib le for survivor benefits as
a result of her son’s death because the appellant , as a former spouse, was entitled
to monthly annuity payments. Id. at 69. The executor of Mr. Burns’ estate
subsequently submitted a certified copy of a final decree of divorce between the
appellant and Mr. Burns, also entered into on March 24, 1989, which differed
from the decree th e appellant had submitted in that it did not contain any
language awarding the appellant a survivor annuity , id. at 71 -76, and, b ased on
that decree , Mr. Burns’ mother again sought benefits, id. at 68. On May 26,
2010, OPM issued one decision advising the appellant that, based on the
additional documentation it had received, she was not eligible for a former spouse
3
survivor annuity, id. at 54, and an other stating that, accordingly, she had been
overpai d in the amount of $62,739.96, I-1 IAF, Tab 1 at 65 -66. In its
reconsideration decision, OPM explained that , based on the certified copy of the
final divorce decree it had received from the court, which did not award the
appellant a survivor annuity , she must return to the Retirement Fund all monies
paid her, I-1 IAF, Tab 4 at 10, and further that, unless s he could present
indisputable evidence that the court order she provided was auth entic, OPM could
not honor it, id. at 12. OPM also advised the appellant that she was not totally
without fault in the matter and that, therefore, she did not meet the eligibility
requirements for waiver of collection of the overpayment. Id.
¶3 On appeal, the appellant argue d that the copy of the divorce decree she
submitted was certified on August 6, 2002, and that there was no information to
indicate t hat it was in any way invalid. I -1 IAF, Tab 1 at 17. The administrative
judge agreed and reversed OPM’s reconsideration de cision. Emond v. Office of
Personnel Management , MSPB Docket No. DC -831M -12-0383 -I-2, Appeal File,
Tab 4, Initial Decision ( I-2 ID) at 1, 8. Notwithstanding the conflicting order that
the executor of Mr. Burns’ estate had submitted, the administrative ju dge found
that there was no evidence whatsoever that the appellant’s certified copy was
invalid or in any way illegitimate, that she was entitled to a former spouse
survivor annuity, and that therefore no overpayment had occurred. I -2 ID at 5.
¶4 On petiti on for review , OPM argued that the administrative judge erred by
not requiring the appellant to prove her entitlement to the benefit she sought and
in not examining or inquiring into the best evidence of the authenticity of
documents. Emond v. Office of P ersonnel Management , MSPB Docket
No. DC-831M -12-0383 -I-2, Petition for Review (I -2 PFR) File, Tab 1.
Determining that the record was not fully developed on the issue of which copy of
the court decree was invalid, the Board directed OPM to obtain an order from the
state court specifically declaring that either the copy of the decree submitted by
the appellant , or the one submitted by Mr. Burns’ estate , was invalid. I -2 PFR
4
File, Tab 11. OPM submitted a number of documents , which it argued
established that the appellant was not awarded a former spouse survivor annuity ,
but it did not submit a definitive order from the state court, as directed by the
Board. I-2 PFR File, Tab 14
¶5 The Board determined that the rights and interests of Mr. Burns’ estate
could be affected by the decision in this case and afforded the executor the right
to participate in the appeal as an inter venor. I -2 PFR File, Tab 16. Subsequently,
Mr. Burns’ mother died , and her daughter filed a motion to intervene in the
proceedings . I-2 PFR File, Tab 18 . The Board granted the request , ordering the
intervenor to file an order from the state court declaring that the copy of the
divorce decree submitted by the appellant as the basis for her survivor annuity
was invalid or had been set aside . I-2 PFR File, Tab 20. Ultimately , the
intervenor submitted a true , certified copy of an order signed by a judge of the
Circuit Court of Fairfax County, Virginia , after a hearing, finding that the
“alleged Final Decree of Divorce” that was “allegedly ce rtified” by the court on
August 6, 2002 (the copy originally submitted to OPM by the appellant) “is not a
true and accurate copy of this court’s tru e Order” and that the final decree of
divorce (the copy originally submitted by the executor of Mr. Burns’ e state, by
OPM during these proceedings, and by the intervenor) “is a true and accurate
copy of this Court’s final order and should be given full faith and credit and
enforc ed as an order of this Court.” I -2 PFR File, Tab 28 at 46 -47, 58-61, 63-66.
¶6 Based on this evidence, the Board vacated the administrative judge’s
finding regarding the validity of the decree submitted by the appellant and
affirmed OPM’s reconsideration decision finding that, because she was not , in
fact, eligible for the former spouse s urviv or annuity she had received, she had
been overpaid. Emond v. Office of Personnel Management , MSPB Docket
No. DC-831M -12-0383 -I-2, Final Order at 8 (June 25, 2015). The Board
remanded the appeal for further adjudication , however, directing OPM to pro ve
by preponderant evidence not only the existence, but also the amount, of the
5
overpayment, and also to consider the issue regarding waiver of collection of the
overpayment. Id. at 8-9. On remand, the administrative judge found it
undisputed that the am ount of the overpayment was $62,739.96 , Emond v. Office
of Personnel Management , MSPB Docket No. DC -831M -12-0383 -B-1, Remand
File (RF) , Tab 16, Remand Initial Decision (RID) at 2-3, but that the appellant
was without fault because she performed no act of c ommission or omission which
resulted in the overpayment, 5 C.F.R. § 831.1402 , and that recovery was against
equity and good conscience because repaymen t would cause her financial
hardsh ip. RID at 4-5. As such, t he administrative judge reversed OPM’s decision
denying the appellant’s request for waiver of the overpayment. RID at 5. The
remand initial decision became the Board’s final decision on November 13, 2015,
when neither party fi led a petition for review.
¶7 The appellant then filed a timely motion for attorney fees and costs incurred
beginning in March 2010 when it first appeared that her continued right to the
former spouse survivor annuity she was receiving might be in jeopardy, t hrough
the period when the Board decided that she was not, in fact, entitled to the
annuity and had received an overpayment, and continuing until October 2015
when the administrative judge issued the remand initial decision reversing OPM’s
reconsideration decision denying the appellant ’s request for waiver of the
overpayment. Emond v. Office of Personnel Management , MSPB Docket
No. DC-831M -12-0383 -A-1, Attorney Fees File (A FF), Tabs 1 -2. The appellant
sought fees at hourly rates ranging from $465 in 2010 to $568 in 2015,2 AFF, Tab
1 at 39 -40, plus costs, for a n award of $61,019.74 , which, she contended,
2 For his work beginning in February 2014, and consistent with the retainer agreement,
the appellant’s counsel sought rates under the Laffey Matrix for each period of time at
issue . AFF, Tab 1 at 28 -29, 39 -40, 80. The Laffey Matrix is a schedule maintained by
the United States Attorney’s Office in the District of Columbia that purports to show
market rates for attorneys in the District of Columbia in cases where a statute permits
the prevailing party to recover “reasonable” attorney fees . Rumsey v. Department of
Justice , 123 M.S.P .R. 502 , ¶ 17 n.6 (2016) , rev’d and remanded on other grounds by
Rumsey v. Department of Justice , 866 F.3d 1375 (Fed. Cir. 2017) .
6
represented time spent through the decision by the administrative judge after
remand by the Board , id. at 40. Subsequently, the appellant submitted a
supp lemental motion in the amount of $13,178.91 at the $568 hourly rate for fees
and costs incurred in preparing the fee motion , AFF, Tab 4 , and a second
supplemental motion in the amount of $6,532 .00 at the $568 rate for fees and
costs incurred in responding to OPM’s opposition to the fee motion and it s
request for a time extension, AFF, Tab 10. Finally, the appellant submitted
another motion in the amount of $4,316.80 for fees at the $568 rate and costs
incurred in responding to an order of the administrativ e judge .3 AFF, Tab 15. In
response, t he agency conceded that the appellant was a prevailing party, that an
attorney -client relationship existed, and that fees were incurred, but it argued that
fees were not warranted in the interest of justice and that, even if they were, the
amount requested was not reasonable. A FF, Tab 8.
¶8 In an addendum initial decision based on the written record, the
administrative judge granted the appellant ’s request for fees in full . AFF, Tab 16,
Addendum Initial D ecision (AID) a t 2, 5. The administrative judge found that an
attorney -client relationship existed in connection with the Board appeal and that
the appellant was the prevailing party. AID at 3. The administrative judge then
found that fees were warranted in the intere st of justice, first because the
appellant was substantially innocent of the charges, given the administrative
judge ’s finding that she was without fault in creating the overpayment, and
second because OPM knew or should have known that it would not prevai l on the
merits, given that it had reversed itself, without explanation, regarding the
3 With this motion, the appellant also revised upward her request for fees incurred
through the decision of the administrative judge, after remand by the Board, from
$61,019.74 to $81,541.09 , making the total requested $105,568.80. AFF, Tab 12. We
will address later in this decision the appellant’s basis for, and the reasonableness of,
the increase in this request.
7
appellant ’s fault4 and also had violated an order compelling di scovery during the
remand proceeding. AID at 3 -4. As for the reasonableness of the fees requested,
the administrative judge found that the yearly increas es in the hourly rates were
provided for in the retainer agreement and were reasonable , AID at 4, as were the
number of hours claimed , AID at 4 -5.
¶9 The agency has filed a petition for review arguing solely that fees are not
warranted in the interest of justice , Petition for Review (PFR) File, Tab 1 at 4,
and t he appellant has responded in opposition, PFR File, Tab 3.
ANALYSIS
¶10 In retirement appeals, the most relevant categories for determining if an
attorney fee award is warranted in the interest of justice are whether OPM knew
or should have known when it issued its reconsideration decision that it would not
prevail on appeal and whether OPM’s action was clearly without merit. See
Goldbach v. Office of Personn el Management , 49 M.S.P.R. 9, 14 -15 (1991);
Kent v. Office of Personnel Management , 33 M.S.P.R. 361, 365 -69 (1987).
Fees are warranted in the interest of justice because the agency knew or should
have known that, regarding the issue of waiver, it would not prevail on the mer its.
¶11 In arguing that the administrative judge erred in finding that fees are
warranted under the “knew or should have known ” standard, OPM submit s that,
when it issued its reconsideration decision, it had reasonable grounds to deny the
appellant’s applica tion for a former spouse survivor annuity and to find that she
was not without fault in creating the overpayment. PFR File, Tab 1 at 21. A
determination that an award is warranted under the “knew or should have known”
standard requires an evaluation of th e record before OPM when the
reconsideration decision was made. Goldbach , 49 M.S.P.R. at 19. In determining
if an award is merited under this category, the Board considers whether OPM was
4 In an earlier reconsideration decision, OPM had found that the appellant was not at
fault in causing or contri buting to the overpayment. I -1 IAF, Tab 1 at 88.
8
negligent in processing the application, lacked a reasonable or su pportable
explanation for its position , or ignored clear, unrebutted evidence that the
appellant satisfied the criteria for a benefit. See Stewart v. Office of Personnel
Management , 70 M.S.P.R. 544, 548 (1996). The position OPM took in its
reconsideration decision denying the appellant’s request for waiver of the
overpayment was that there was evidence in the file that showed the divorce
decree she had subm itted might have been altered for her to claim entitle ment to a
survivor annuity benefit and that, therefore, she was not totally without fault in
the matter. RF, Tab 4 at 13. As the administrative judge found, however, there
was no evidence in the file OPM submitted suggesting that the appellant altered
the divorce decree. AID at 3 -4. To the extent that such evidence existed, OPM
failed to provide it and failed as well to respond to the appellant’s discovery
request .5 RF, Tab 12 . Further , when the administrative judge ordered OPM to
respond fully, granting the appellant’s motion to compel , RF, Tab 13, the agency
indicated that the file it had earlier submitted was fully responsive to the
appellant’s discovery request, RF, Ta b 14 at 6 . In addition , the appellant
steadfastly urged that the copy of the divorce decree she submitted was provided
to her by her late husband and was certified by the court, that, based on that
decree, she believed she was entitled to the former spous e survivor annuity
benefit, and that she was unaware of any other version of the decree until
Mr. Burns’ mother submitted her copy. RF, Tab 15 at 28 -31. The administrative
judge found that OPM offered no evidence to contradict the appellant’s sworn
versi on of the facts. RID at 4.
¶12 Under the circumstances, w e therefore agree with the administrative judge
that, because OPM failed to show, at the time it issued its reconsideration
decision on waiver , that it had a reasonable explanation for its position rega rding
the appellant ’s alleged alteration of the divorce decree , it knew or should have
5 The appellant sought all documents regarding communications between individuals in
OPM’s Reconsideration Branch concerning her. RF, Tab 12 .
9
known that it wou ld not prevail on the merits of the waiver issue and that
therefore fees are warranted in the interest of justice.6
¶13 As noted, OPM does not challenge on review the hourly rates charged by
the appellant ’s counsel over the years of litigation or the hours expended .
PFR File, Tab 1 at 4. We find that the detailed and thorough billing records
submitted by the appellant ’s counsel are n ot duplicative, padded, or excessive.
AFF, Tabs 1, 4, 10, 15. This includes time spent preparing the fee request,
Driscoll v. U.S. Postal Service , 116 M.S.P .R. 662, ¶ 30 (2011), and replying to
OPM’s opposition and request for an extension of time and to the administrative
judge ’s order . OPM does, however, argue that fees should be reduced based on
the appellant ’s limited success in the litigation . We agree.
The fees awarded should be reduced to account for the appellant ’s limited success
in this litigation.
¶14 In this case, the appellant ’s original challenge was to OPM’s decision
finding that, although she had received a former spouse survivor annuity for a
period of time, she was not eligible for it. As to that matter, she was ultimately
not successful. The appellant also challenge d OPM’s decision finding that ,
6 As noted, the administrative judge also found that fees are warranted in the interest of
justice be cause the appellant was substantially innocent. AID at 3 -4. The actual
category provides that an attorney fee is warranted in the interest of justice when the
action was clearly without merit or wholly unfounded, or the employee was
substantially innocen t of the charges. Allen v. U.S. Postal Service , 2 M.S.P.R. 420 ,
433-35 (1980). However, the Board has excluded the substantial innocence subcatego ry
of this category from consideration in retirement -related appeals because the concept of
innocence does not apply when no charges of misconduct are leveled against the
individua l seeking retirement benefits . Simmons v. Office of Personnel Management ,
31 M.S.P.R. 559 , 565 (1986). In any event, the Board has held that, once it finds that
fees are warranted in the interest of justice un der one Allen category, it need not
consider whether fees are warranted under other Allen categories. Gensburg v.
Department of Veterans Affairs , 80 M.S.P.R. 187 , ¶ 17 (1998) . Therefore, to the extent
the administrative judge erred in finding that fees are warranted in the interest of justice
because the appellant was substantially innocent, any such error did not prejudice her
substantive rights. Panter v. Department of the Air Force , 22 M.S.P.R. 281 , 282
(1984).
10
having received an overpayment, she was not eligible for waiver, and as to that
matter, she was s uccessful. As such, the appellant receive d partial, but not full,
relief.
¶15 When a prevailing party makes more than one claim for relief, and the
claims involve a common core of facts or are based on related legal theories, the
fee determination should refl ect the overall relief obtained in relation to the hours
reasonably expended. Guy v. Department of the Army , 118 M.S.P.R. 45, ¶ 19
(2012). In a case in which the party seeking fees obtains only “partial or limited”
success, the tribunal awarding fees has discretion to make an equitable adjustment
as to what adjustment is appropriate. Hensley v. Eckerhart , 461 U.S. 424 , 436 -37
(1983); Guy, 118 M.S.P.R. 45, ¶¶ 19-20. In making an equitable adjustment of
attorney fees on account of a prevailing party’s partial or limited success, the
tribunal may adjust downward the “lodestar,” the hours reasonably spent on the
litigation multipli ed by a reasonable hourly r ate, by identifying specific hours that
should be eliminated or, in the alternative, by reducing the overall award to
account for th e limited degree of success. Hensley , 461 U.S. at 433, 436 -37;
Guy, 118 M.S.P.R. 45 , ¶¶ 8, 20. The fo rmer method should be used when it is
practicable to segregate the hours devoted to any related but unsuccessful claims ;
if that method is not practicabl e, then a percentage reduction should be imposed .
Guy, 118 M.S.P.R. 45 , ¶ 20.
¶16 On review, the agency argues that , because the appell ant initially sought
relief from OPM’s denial of her claim for a former spouse survivor annuity, no
fees should be awarded for time expended prior to June 25, 2015 , since on that
date the Board issued its decision denying her claim and finding that she was not,
in fact, entitled to that benefit . PFR File, Tab 1 at 14 -16. In response, the
appellant contends that portion of the litigation also included consideration of the
issue of whether she was at fault in creating and/or receiving the overpayment , an
11
issue that also is critical in determining if she would have to pay it back.7 PFR
File, Tab 3 at 9 -10. The appellant’s claim is borne out by the record. For
example, in the appellant ’s September 16, 2010 request for reconsideration of
OPM’s decision findi ng that she was not entitled to a former spouse survivor
annuity, she argued that, if OPM did not agree that she was entitled to the
annuity, then repayment was inappropriate and waiver legally required under the
circumstances. I-1 IAF, Tab 1 at 37 -42, 50-60. OPM, in its February 27, 2012
reconsideration decision, addressed both issues. I-1 IAF, Tab 4 at 10 -12. On
appeal, the administrative judge determined that the sole issues were whether
there was an overpayment and, if so, whether the appellant was entitled to waiver ,
I-2 IAF, Tab 8 at 3 , and, i n his initial decision finding that she was entitled to a
former spouse survivor annuity and therefore was not overpaid , the administrative
judge further found that, even if there was an overpayment , the appel lant was
entitled to wai ver based on financial hardship, I-2 ID at 4-8.
¶17 We therefore agree with the appellant that both matters were at issue such
that, as state d in his declaration, counsel’s efforts pertained to both matters until
the Board issue d its decision on June 25, 2015. AFF, Tab 1 at 21 -23.
Nevertheless , it is not practicable to segregate the hours devoted to the
appellant’s unsuccessful challenge to OPM’s denial of her request for a former
spouse survivor annuity from the hours devoted to her successful claim for waiver
of the overpayment . Therefore, we find it appropriate to reduce the overall award
to account for the appellant ’s limited degree of success. Hensley , 461 U.S.
at 436-37; Guy, 118 M.S.P.R. 45 , ¶ 20. In so doing, we acknowledge that the
Supreme Court has further addressed this issue post -Hensley , for example ,
cautioning against “double counting” factors by adjusting the lodestar figure
where the results obtained are fully reflected in the reasonable hourly rate of the
7 To be entitled to waiver of an overpayment, the appellant is required to show that she
was without fault in creating the overpayment and that recovery would be against equity
and good conscience. 5 C.F.R. § 831.1401 .
12
attorneys and the reasonable number of hours expended. Blum v. Stenson ,
465 U.S. 886, 899-900 (1984). In Perdue v. Kenny A . ex rel. Winn , 559 U.S. 542 ,
552-53 (2010), the Court reaffirmed that adjustments to the lodestar may be made
only in “rare” and “exceptional” circumstances and that adjustments are
warranted only where the lodestar figure fails to take into account a relevant
consideration that is not subsumed therein.
¶18 In the instant case, the lodestar figure, which we have not disturbed, fails to
take into account that , while the appellant did succeed in not having to pay back
the money she improperly received as Mr. Burns’ former spouse , on the issue
which formed the bas is for her appeal at the outset, her entitlement to maintain
the former spouse survivor annuity she had been receiving, she was not
successful. Because the lodestar figure does not take into account this relevant
consideration, we find that this case pres ents an exceptional circumstance such
that the factor “amount involved and results obtained” should be considered as a
basis for departure from the lodestar figure. Bywaters v. United States , 670 F.3d
1221 , 1230 (Fed. Cir. 2012). We therefore find it equitable to reduce by half the
amount of fees requested for the time spent by counsel before June 25, 2015 , and
award the appellant $61,019.74 for this time .8
¶19 As discussed previously, the appellant is also entitled to $13,178.91 for
preparation of the fee motion, $6,532 .00 for responding to OPM’s motions, and
$4,316.80 for responding to the administrative judge’s order. Thus, the appellant
is entit led to a total award of $85,047.45 .
8 In fact, the appellant originally sought recovery for only half of the attorney fees and
expenses for the first part of the case, before remand, in “an exercise of billing
judgment,” A FF, Tab 1 at 22, although she subsequently reconsidered he r positon on
this point an d requested the full attorney fees and exp enses for this part of the case,
AFF, Tab 15 at 11 .
13
ORDER
We ORDER the agency to pay the attorney of record $85,047.45 in fees
and costs . The agency must complete this action no later than 20 days after the
date of this decision. See generally title 5 of the United Stat es Code, section
1204(a)(2) ( 5 U.S.C. § 1204 (a)(2)).
We also ORDER the agency to tell the appellant and the attorney promptly
in writing when it believes it has fully carried out the Board’s Orde r and of the
actions it took to carry out the Board’s Order. We ORDER the appellant and the
attorney to provide all necessary information that the agency requests to help it
carry out the Board’s Order. The appellant and the attorney, if not notified,
should ask the agency about its progress. See 5 C.F.R. § 1201.181 (b).
No later than 30 days after the agency tells the appellant or the attorney
that it has fully carried out the Board’s Order, the appellant or the attorney may
file a petition for enforcement with the office that issued the initial decision on
this appeal, if the appellant or the attorney believes that the agency did not fully
carry out the Board’s Order. The petition sh ould contain specific reasons why the
appellant or the attorney believes the agency has not fully carried out the Board’s
Order, and should include the dates and results of any communications with the
agency. See 5 C.F.R. § 1201.182 (a).
NOTICE OF APPEAL RIG HTS9
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
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.
14
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 im mediately review the law applicable to your
claims and carefully follow all filing time limits and requirements. Failure to file
within the applicable time limit may result in the dismissal of your case by your
chosen forum.
Please read carefully each o f the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703 (b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
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.
15
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
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 thi s case, and your representative receives this decision before
you do, then you must file with the district court no later than 30 calendar days
after your representative receives this decision. If the action involves a claim of
discrimination based on rac e, color, religion, sex, national origin, or a disabling
condition, you may be entitled to representation by a court -appointed lawyer and
to waiver of any requirement of prepayment of fees, costs, or other security. See
42 U.S.C. § 2000e -5(f) and 29 U.S.C. § 794a .
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/ CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702 (b)(1). You must file any such request with the
16
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702 (b)(1). If you have a representative i n this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. ma il, the
address of the EEOC is:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, i t must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option a pplies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302 (b)(8) or
other protected activities listed in 5 U.S.C. § 2302 (b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
disposition of allegations of a prohibited personnel practice described in section
2302(b) other than pract ices described in section 2302(b)(8), or 2302(b)(9)(A)(i),
(B), (C), or (D),” then you may file a 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 a ppeals must receive your petition for
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 2 7, 2017. The All Circuit Review Act, signed into law by the President on
17
review within 60 days of the date of issuance of this decision. 5 U.S.C.
§ 7703 (b)(1)(B).
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeal s for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems P rotection Board appellants before the 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 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.
18
Contact information for the courts of appeals can be fou nd 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 | EMOND_ELIZABETH_A_DC_831M_12_0383_A_1_FINAL_ORDER_1948490.pdf | 2022-08-04 | null | DC-831M-12-0383-A-1 | NP |
4,215 | https://www.mspb.gov/decisions/nonprecedential/BUCHANAN_DAVETTE_G_DC_1221_21_0390_W_1_REMAND_ORDER_1947885.pdf | UNITED STATES OF AME RICA
MERIT SYSTEMS PROTEC TION BOARD
DAVETTE G. BUCHANAN,
Appellant,
v.
DEPARTMENT OF VETERA NS
AFFAIRS,
Agency.
DOCKET NUMBER
DC-1221 -21-0390 -W-1
DATE: August 3, 2022
THIS ORDER IS NONPRECEDENTIAL1
Davette G. Buchanan , Black Mountain, North Carolina, pro se.
Erin Brady Rega , Winston Salem, North Carolina, for the agency.
BEFORE
Cathy A. Harris, Vice Chairman
Raymond A. Limon, Member
Tristan L. Leavitt, Member
REM AND 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 ord er is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or disting uish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and 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 th e initial decision, and REMAND the case to the Washington Regional
Office for further adjudication in accordance with this Remand Order.
BACKGROUND
¶2 The appellant is a GS -7 Medical Instrument Technician at the Charles
George Veterans Affairs (VA) Medical Center in Asheville, North Carolina.
Initial Appeal File (IAF), Tab 1 at 1. She filed an IRA appeal with the Board and
requested a hearing. Id. at 1. In her initial filing, she alleged that she was
stabbed with a used hypodermic needle by a VA nurse in January 2018, the
agency and the VA police failed to conduct a proper investigation of the incident,
and agency employees mocked her and told her to get over it. Id. at 2. The
administrative judge issued two show cause orders , which notified the appel lant
that the Board might not have jurisdiction over her appeal, informed her of her
jurisdictional burden, and directed her to file evidence and argument on the issue.
IAF, Tabs 3, 9.
¶3 After the record on jurisdiction closed, the administrative judge is sued an
initial decision dismissing the appeal for lack of jurisdiction without holding the
appellant ’s requested hearing. IAF, Tab 1 at 1, Tab 15, Initial Decision (ID) at 1,
19. She determined that the appellant had exhausted with the Office of Special
Counsel (OSC ) her claims that she made protected disclosures when she reported
the needle -stick incident and an alleged threat of gun violence by the same nurse
colleague who stabbed her with the used needle and that she engaged in protected
activity when she complained to the Office of the Inspector General (OIG) about
the needle -stick incident . ID at 7 -8. The administrative judge also concluded
that the appellant had nonfrivolously alleged that she made disclosures that a
reasonable person in her posit ion would believe evidenced a violation of law in
connection with these two events . ID at 9 -10. Specifically, she found the
appellant ’s allegation that a nurse intentionally stuck her with a needle disclosed
an assault and the appellant’s allegation that a nurse threatened her with gun
3
violence disclosed a misdemeanor threat under North Carolina statute , N.C. Gen.
Stat. § 14-277.1. ID at 9-10; 5 U.S.C. § 2302 (b)(8)(A)(i) . Additionally, she
determined that the appellant had nonfrivolously alleged that she engaged in
protected activity when she filed a complaint with the OIG for the Department of
Health and Human Services (DHHS). ID at 10-11. In that complaint, the
appel lant raised concerns about the agency ’s response to the needle -stick
disclosure , arguing that the police investigation into the incident was inadequate
and that the agency endangered her safety by allowing the nurse who assaulted
her to remain employed wit h the agency . IAF, Tab 12 at 6-9.
¶4 Regarding the purported personnel actions, the administrative judge
concluded that the appellant exhausted with OSC the following allegations:
(1) she had been subjected to a hostile work environment, (2) her duties an d
working conditions were changed, and (3) she had been denied a promised raise
or promotion. ID at 8, 15. Nevertheless, she determined that the appellant failed
to nonfrivolously allege facts sufficient to establish that any of these incidents
amounted to a personnel action. ID at 11-16. She also concluded that the
appellant neither exhaust ed her claim that she had been subjected to a negative
suitability determination nor nonfrivolously alleged she was subjected to such a
determination . ID at 8 & n.3. She found that the appellant, therefore, failed to
establish jurisdiction over her appeal.
¶5 Alternatively, the administrative judge determined that even assuming the
appellant made a nonfrivolous allegation that she was subjected to personnel
actions in connection with these claims, she failed to nonfrivolously allege that
her protected disclosures or activities were a contributing factor in the agency ’s
decision to take or not take these alleged actions, based on either the
knowledge/timing test or other evidence. ID at 16 -18. Specifically, she found
that the appellant ’s pleadings did not provide sufficient details concerning who
took the alleged actions against her and whether any such individuals were aware
of her disclosures or activities. ID at 16 -17. Consequently, she concluded that,
4
despite being provided two opportunities to do so, the appellant “failed to identify
any specific acting agency official or officials, what personnel actions they took,
failed to take or threatened to take and why the y did so ,” and so , she failed to
establish that any of the appellant ’s disclosures or activities were a contributing
factor in any of the challenged personnel actions . ID at 17-18.
¶6 The appellant has filed a petition for review and a supplement to her
petition for review. Petition for Review (PFR) File, Tabs 1 -2. The agency has
filed a response in opposition to the petition for review. PFR File, Tab 4. The
appellant has not filed a reply.
DISCUSSION OF ARGUME NTS ON REVIEW
¶7 On review, the appellant argue s that she would be able to establish her
claims if she were permitted a hearing and the ability to call witnesses and
reargues that the agency ’s investigation into the needle -stick incident was
insufficient and flawed. PFR File, Tab 1 at 3 -7. Additionally, she asserts that
she has newly discovered evidence in the form of emails from a former agency
employee showing that he contacted agency administrators and supervisors
several times on her behalf and told them about the hostile actions being taken
against the appellant , and she provides copies of those emails in her supplemental
petition for review . PFR File, Tab 1 at 3-4, Tab 2 at 2 -8. The appellant also has
included an additional narrative statement setting forth a timeline of events
starting with the January 2018 needle -stick incident and the subsequent
investigation and running through June 2020, when she purportedly was denied a
title change and a corresponding pay increase. PFR File, Tab 2 at 9-12. In this
pleading , she also asserts that she was subjected to a negative suitability
determination when she was stabbed by the agency employee with the used
syringe. Id. at 9.
5
The administrative judge properly determined that the appellant nonfrivolously
alleged she made protected disclosures and engaged in protected activity and that
she exhausted those claims with OSC.
¶8 The Board has jurisdiction over an IRA appeal if the appellant exhausts her
administrative remedies before OSC and makes nonfrivolous allegations th at
(1) she made a disclosure described under 5 U.S.C. § 2302 (b)(8) or engaged in
protected activity described under 5 U.S.C. § 2302 (b)(9)( A)(i), (B), (C), or (D),
and (2) the disclosure or protected activity was a contributing factor in the
agency ’s decision to take or fail to take a personnel action as defined by 5 U.S.C.
§ 2302 (a)(2)(A). Linder v. Department of Justice , 122 M.S.P.R. 14 , ¶ 6 (2014).
¶9 The administrative judge concluded that the appellant made a nonfrivolous
allegation that she made protected disclosures that a nurse (1) stuck her with a
needle on January 28, 2018, and (2) threatened her with gun violence on
February 23, 2018. ID at 9-10; IAF, Tab 7 at 4, 10, Tab 12 at 7-9. The
administrative judge also concluded that the appellant made a nonfrivolous
allegation that she engaged in protected activity when she sent a complaint to the
OIG for DHHS detailing the needle -stick incident and h er belief that the agency ’s
investigation into the incident was inadequate. ID at 10-11; IAF, Tab 12 at 6-9.
She found the appellant exhausted these disclosures and activity. ID at 8. The
parties have not challenged these findings on review , and we dis cern no basis to
disturb them.
¶10 In the initial decision, the administrative judge interpreted the appellant ’s
pleadings to find that she had identified three purported personnel actions taken
against her: (1) she was subjected to a hostile work environment, (2) her duties
and working conditions were changed, and (3) she was not granted a raise she had
been promised.2 ID at 11-16. She found the appellant exhausted these claims.
2 The appellant does not challenge the administrative judge’s determination that she
failed to meet her jurisdictional burden regarding an alleged suitability determination.
In fact, on review the appellant alleges that “[m]y negative suitability determina tion is
based on [the] misconduct [of the nurse who stuck the appellant with a needle and
6
ID at 7-8. The parties do not dispute the administrative judge ’s exhaustion
finding on review , and we discern no basis for the Board to disturb it. The
administrative judge then found that the appellant failed to nonfrivolously allege
that her protected disclosures and activity w ere contributing factors in these
personnel actions. ID at 16 -18. We turn now to consider those findings.
The appellant nonfrivolously alleged that she was denied a promised promotion
but still failed to nonfrivolously allege that her disclosure of the n eedle -stick
incident contributed to this personnel action .
¶11 Regarding the appellant ’s claim that she was not granted a promised
promotion, t he administrative judge considered this claim as a potential personnel
action under 5 U.S.C. § 2302 (a)(2)(A)(ix), regarding a “decision concerning pay,
benefits, or awards, ” but determined that the appellant failed to provide any
explanation regarding the potential promotion or any evidence that a raise or
promotion was actually promised. ID at 15 -16. Consequently, she determined
that the appellant had only provided “conclu sory, vague, and unsupported
allegations ” for a lack of a promised raise, and so she failed to make a
nonfrivolous allegation that she was denied a promised raise. ID at 16.
¶12 The appellant has provided some additional detail regarding this claim in
her p etition for review, alleging that she lost the promotion position “and any
inclination of promotions ” as a result of her coming forward regarding the
needle -stick incident. PFR File, Tab 1 at 5. She also provides a supplemental
pleading with an email dat ed January 18, 2019, from a doctor in the Cardiology
Department (the appellant ’s department) , proposing that the appellant ’s title be
changed to “Head of Outpatient Holter and Ambulatory Electrocardiographic
Testing, ” along with a response from another age ncy employee suggesting that
her title should be changed to “Administrative and Clinical Officer to
threatened her]” because the nurse was under the influence of “mind altering drugs.”
PFR File, Tab 2 at 9. We agree with the administrative judge that the appellant failed
to prove she exhausted this personnel action with OSC and failed to nonfrivolously
allege she was subjected to a suitability determination. ID at 8 & n.3.
7
Cardiovascular Stress Testing. ”3 PFR File, Tab 2 at 8. Finally, she states that she
was told that the promotion would include a “good raise and a new job title” and
that she deserved the promotion, and she identifies three individuals she believed
“would have input on ” her new title. Id. at 11. Based on the additional evidence
the appellant has provided on review, we conclude that she nonfrivolously alleg ed
that she was subjected to a personnel action under section 2302(a)(2)(A)(ix)
regarding a decision concerning pay when she was denied a potential title change
and a resulting increase in pay.
¶13 Nevertheless , we still conclude that she failed to nonfrivol ously allege that
her disclosure of the needle -stick incident and the inadequate investigation (the
only disclosure she alleges contributed to this personnel action) contributed to the
agency ’s decision not to grant her the proposed title change and pay in crease .
PFR File, Tab 1 at 4 -5. To satisfy the co ntributing factor criterion, an appellant
need only raise a nonfrivolous allegation that the fact or content of her disclosure
or protected activity was one factor that tended to affect the personnel actio n in
any way. See Salerno v. Department of the Interior , 123 M.S.P.R. 230 , ¶ 12
(2016) . One way to establish this criterion is the knowledge /timing test, under
which an appellant may nonfrivolously allege that the disclosure or activity was a
contributing factor in a personnel action through circumstantial evidence, such as
evidence that the official taking the personnel action kn ew of the disclosure or
activity and that the personnel action occurred within a period of time such that a
reasonable person could conclude the disclosure or activity was a contributing
factor in the personnel action. 5 U.S.C. § 1221 (e)(1); see Salerno , 123 M.S.P.R.
3 The Board will consider evidence submitted on review concerning jurisdiction, even if
the evidence was previously available, because jurisdiction may be raised at any time
during Board proceedings. Pirkkala v. Department of Justice , 123 M.S.P.R. 288 , ¶ 5
(2016); Stoglin v. Department of the Air Force , 123 M.S.P.R. 163 , ¶ 7 (2015), aff’d,
640 F. App ’x 864 (Fed. Cir. 2016) . Because the email s could bear on whether the
appellant met her jurisdictional burden of proving that she was subjected to a personnel
action in connection with the failure to promote her, we have considered them .
8
230, ¶ 13. The Board has held that a personnel action take n within approximately
1 to 2 years of an appellant ’s disclosures satisfies the timing portion of the
knowledge/timing test ; so, the approximately 1 -year period between when the
appellant disclosed the needle -stick incident in January 2018 and when she was
promised but never received a potential promotion in January 2019 would meet
the timing portion of the test. IAF, Tab 12 at 2-3; PFR File, Tab 2 at 11; see
Skarada v. Department of Veterans Affairs , 2022 MSPB 17 , ¶ 19 (observing that a
personnel action taken within approximately 1 to 2 years of the appellant ’s
disclosure sa tisfies the contributing factor knowledge/timing test) ; Mastrullo v.
Department of Labor , 123 M.S.P.R. 110 , ¶ 21 (2015) (same) .
¶14 Regarding the knowledge portion of the test, although the appellant has
provided some additional context regarding the potential promotion and the
discussions related thereto, she still has not identified any individual that she
believes was responsibl e for preventing the promotion from taking place ; so, it is
unclear whether any of the agency officials allegedly responsible for denying the
potential promotion are the same individuals to whom the appellant alleges that
she disclosed the needle -stick inc ident. The Board will not infer knowledge of an
appellant ’s protected disclosures and activities to any agency official based only
on a closeness in time between a disclosure or activity and a personnel action and
the appellant ’s conclusory alleg ation that the action was retaliatory. See Kerrigan
v. Merit Systems Protection Board , 833 F.3d 1349 , 1355 (Fed. Cir. 2016) (noting
that, even at the ju risdictional phase whe n the employee ’s burden is significantly
lower than at the merits stage, it is not appropriate to infer knowledge on the part
of any agency officials based only on the closeness in timing and the appellant ’s
conclusory allegation that their actions were done in retaliation). Accordingly,
we conclude that the appellant ’s allegation that the decision not to promote her
was in retaliation for her disclosure, without identifying any of the individuals
she belie ves were responsible for th at decision, does not meet the nonfrivolous
pleading standard required to establish jurisdiction over her IRA appeal. See El
9
v. Department of Commerce , 123 M.S.P.R. 76 , ¶ 6 (2015) (stating that vague,
conclusory, unsupported, and pro forma allegations of alleged wrongdoing do not
meet the nonfrivolous pleading standard needed to establish the Board ’s
jurisdict ion over an IRA appeal), aff’d per curiam , 663 F. App ’x 921 (Fed. Cir.
2016); Keefer v. Department of Agriculture , 82 M.S.P.R. 687 , ¶ 10 (1999).
¶15 The knowledge /timing test is not the only way for an appellant to satisfy the
contributing factor element. 5 U.S.C. § 1221 (e)(1); Dorney v Department of the
Army , 117 M.S.P.R. 480, ¶ 15 (2012) . If the appellant fails to satisfy that test, the
Board must consider other evidence, such as that pertaining to the st rength or
weakness of the agency ’s reasons for taking the personnel action, whether the
whistleblowing was personally directed at the proposing or deciding officials, and
whether those individuals had a desire or motive to retaliate against the appellant.
Dorney , 117 M.S.P.R. 480, ¶ 15.
¶16 For the same reasons discussed above, we also conclude that the appellant
failed to make a nonfrivolous allegation that the decision not to promote her was
in retaliation for her disclosure, even considerin g evidence other than
knowledge /timing evidence. Here, even if we are to take at face value the
appellant ’s claim that she was promised a promotion that she subsequently never
received, her conclusory allegation that the decision not to promote her was in
retaliation for her disclosure, without more, makes it difficult to assess her claim.
The additional email the appellant provided on review identifies the name of the
proposed title change, but it does not provide any information regarding who was
responsible for determining whether to grant the title change, identify any
potential motive by any agency official for blocking the promotion, or offer an
explanation for when or why the title change never came to fruition. PFR File,
Tab 2 at 8. Accordingly, we conclude that she also failed to nonfrivolously allege
that the decision not to promote her was in retaliation for her protected
disclosur es, based on nonknowledge/timing evidence , such as the strength or
10
weakness of the agency ’s reasons for doing so or whether any agency official
involved in the decision had a motive to retaliate against the appellant.
The appellant failed to nonfrivolously allege that her protected activity of filing
an OIG complaint was a contributing factor in the agency’s decision to take any
of the challenged personnel actions.
¶17 The administrative judge found that the appellant failed to nonfrivolously
allege that her D HHS OIG complaint was a contributing factor in a personnel
action. ID at 17. We agree. The appellant did not allege her DHHS OIG
complaint was a contributing factor in the agency’s decision to take any of the
contested personnel actions based on e ither the knowledge/timing test or other
nonknowledge/timing evidence.
¶18 On review, the appellant states only that she asked for the OIG’s contact
information from a Human Resources (HR) official and that , after she mailed her
complaint to the provided contact ( presumably, the DHHS OIG) , she received a
letter back stating they did not handle situations like hers . PFR File, Tab 1 at 6.
She expresses her belief that the HR official intentionally gave her the wrong
contact information. Id. The appellant has not provided any additional
information regarding her OIG complaint or alleged that any official responsible
for any of the purported personnel actions , or any other agency management
official , was aware of the complaint.
¶19 As such , the a ppellant has not produced any evidence by which she might
be able make a connection between her protected activity and any of the
challenged personnel actions . See, e.g. , Sherman v. Department of Homeland
Security , 122 M.S.P.R. 644 , ¶ 9 n.5 (2015) (finding that the appellant ’s assertion
that his first - and second -line supervisors were likely among the many people
who knew of his di sclosure amounted to conjecture unsupported by any record
evidence and, thus, did not amount to a nonfrivolous allegation); Jones v.
Department of the Treasury , 99 M.S.P.R. 479 , ¶ 8 (2005) (finding that an
appellant ’s insinuation that an individual might have known of his prior
11
whistleblowing activity amounted to unsubstantiated speculation, not a
nonfrivolous allegation of jurisdiction) ; 5 C.F.R. § 1201.4 (s) (defining a
nonfrivolous allegation generally as an allegation that is more than conclusory) .
¶20 Thus, even if the appellant established that she engaged in protected activity
when she filed a complaint with the OIG for DHHS that was subsequently
forwarded to her own agency’s OIG , we nevertheless conclude that s he failed to
make a nonfrivolous allegation that it was a contributing factor in any of the
challenged personne l actions based on either the knowledge/ timing test or
nonknowledge/timing evidence.
The appellant nonfrivolously alleged that she was subjected to a hostile work
environment in retaliation for her disclosure of the needle -stick incident and the
gun violence threat .
¶21 We t urn now to the issue of whether the appellant nonfrivolously alleged
that she suffered a personnel action when she was subjected to a hostile work
environment , in light of additional details and documentation the appellant has
provided on review. The administrative judge considered as separate , alleged
personnel actions the appellant ’s claims that (1) she was subjected to a hostile
work environment, and (2) her duties and working conditions were changed . We
find that this interpretation is an overly narrow view of the appellant’s
allegations.
¶22 Although the appellant has not challenged the administrative judge’s
characterization of the se personnel actions on review, we conclude that there is
no basis to distinguish a “hostile work environment ” from a change in duties and
working conditions. Both of these terms are different ways of framing the
personnel action identified in 5 U.S.C. § 2302 (a)(2)(A)(xii) as any “significant
change in duties, responsibilities, or working conditions. ” Skarada , 2022 MSPB
17, ¶¶ 14-16. By parsing the hostile work environment claim into two , separate
personnel actions, the administrative judge may have unintentionally diminished
the seriousness of the appellant ’s claims. See Hamley v. Department of the
12
Interior , 122 M.S.P.R. 290 , ¶ 7 (2015) (observing , in the title VII context, that
hostile work environment claims are different from discrete acts of discrimination
or retali ation because, by their nature, they involve repeated conduct, a single
incident of which may not be actionable on its own).
¶23 On review, the appellant reasserts that actions by various agency officials
amounted to a hostile work environment that continued until at least June 2020.
PFR File, Tab 1 at 3-7, Tab 2 at 9-12. Taking the appellant ’s pleadings below
and on review together, and treating her hostile work environment claim as one,
rather than two, personnel actions, the appellant ’s allegations appea r quite
serious. IAF, Tab 7 at 7-9, Tab 12 at 8-9, 44 -46; PFR File, Tab 2 at 9-12.
¶24 To prevail on an allegation concerning a hostile work environment,
an employee must show that the complained -of conduct was severe or pervasive
enough to create a working environment that a reasonable person would find
hostile or abusive. See, e.g. , Godesky v. Department of Health & Human
Services , 101 M.S.P.R. 280 , ¶ 14 n.* (2006) (finding that an appellant ’s
allegations did not establish hostile work environment discrimina tion under title
VII because he did not show that the complained -of conduct was sufficiently
severe or pervasive to create an objectively hostile or abusive work environment);
see also Burlington Industries, Inc. v. Ellerth , 524 U.S. 742 , 754 (1998) (finding
that a hostile work environment under title VII requires a showing of severe or
pervasive conduct). In determining whether an appellant has b een subjected to a
hostile work environment sufficient to rise to the level of a personnel action, the
Board must consider the alleged agency actions both collectively and
individually. Skarada , 2022 MSPB 17 , ¶ 16.
¶25 The Board has found that undermining the supervisory authority of an
employee may constitute a significant change in duties, responsibilities, and
working condition s. McDonnell v. Department of Agriculture , 108 M.S.P.R. 443,
¶ 23 (2008). Further, the Board also has found that an appellant n onfrivolously
alleged he was subjected to a personnel action when an agency excluded him
13
from meetings and conversations, subjected him to multiple investigations,
accused him of fabricating data violating the Privacy Act, refused his request for
a review of his position for possible upgrade, yelled at him on three occasions,
and failed to provide him the support and guidance needed to successfully
perform his duties. Skarada , 2022 MSPB 17 , ¶ 18.
¶26 The appellant , here , alleges that after a nurse threatened her with gun
violence on February 23, 2018, the agency immediately placed her department on
lockdown , and on February 26, 201 8, an agency official called all department
staff to a meeting to discuss the situation. IAF, Tab 7 at 8; PFR File, Tab 2 at 9.
However, an individual she identifies as the “Lead in Cardio, ” whom the
appellant alleges was a friend of the nurse that threatened her , refused to go to the
meeting, stating to the appellant in front of others , “all this sh it is your fault. ”
IAF, Tab 7 at 8, 10, Tab 12 at 57 -59; PFR File, Tab 2 at 9. Despite a continuing
instruction that the department was to be kept lock ed, this same individual
“continued to unlock the doors, ” causing the appellant and her coworkers to fear
that the nurse who threatened the appellant would “come in the clinic and shoot
us all. ” PFR File, Tab 2 at 9 -10. On one occasion, after the appella nt locked the
doors after the Cardio Lead entered the department on March 2, 2018, the Cardio
Lead allegedly responded, “you are the stup idest bitch I have ever seen, if you
hadn ’t of [sic] reported [the nurse] for the needle stick, none of this would be
happening. ” PFR File, Tab 2 at 10. Not until February 19, 2019, almost a year
after the agency put in place the requirement of locking the appellant’s
department , did the department install a door with a code lock, apparently
resolving the concerns caused by the Cardio Lead leaving the door unlocked.
PFR File, Tab 2 at 11.
¶27 Further, the appellant reported that “every few days” the Cardio Lead
continued to call her a “bitch and other things ,” through May 2018 . IAF, Tab 7 at
8, Tab 12 at 8. According to the appellant, despite the agency ’s awareness of the
Cardio Lead ’s hostility, it did not take sufficient action to correct the situation.
14
PFR File, Tab 2 at 10. While a doctor expressed to the appellant that he was
frustrated by the lack of action from h ospital administration, the Director of
Nursing told the appellant to “get over it, let it go, no one died, ” and laughed. Id.
For the first time on review, the appellant also provides emails the former Chief
of Cardiology sent to the Chief of Medicine an d the VA Chief of Police
expressing concerns about the “toxic environment ” in the Cardiology department
and the alleged “behind the back, behind the scenes ” campaign against the
appellant. PFR File, Tab 1 at 3 -4, Tab 2 at 2 -5.
¶28 In sum, as described by the appellant, after a threat to her life by a
coworker, for almost a year the agency allowed another coworker to undermine
security efforts designed to protect her from the threat, made light of the incident,
and permitted her to be insulted on a regular basis for reporting the threat. The
appellant ’s allegations here are at least as serious as those in McDonnell and
Skarada and rise to the level of a nonfrivolous allegation of hostile working
environment sufficient to constitute a significant change in her duties or working
conditions . See Skarada , 2022 MSPB 17 , ¶¶ 15 -18.
¶29 Having determined that the appellant nonfrivolously all eged that she was
subjected to a personnel action in connection with her hostile work environment
claim, we must now consider whether she nonfrivolously alleged that her
protected disclosures of the needle -stick incident and the gun violence threat were
contributing factor s in the creation of the hostile work environment. Skarada ,
2022 MSPB 17 , ¶¶ 16, 19. As previously noted, t he appellant disclosed the
needle -stick incident to agency officials in January 2018 and the gun violence
threat in February 2018, and she alleges that the events that caused the hostile
work environment began shortly thereafter in late January 2018 and co ntinued
until at least February 2019, when the agency finally addressed her concerns
regarding the gun threat and inadequate security. I AF, Tab 7 at 7-8, 10, Tab 12
at 50-54, 57 -59; PFR File, Tab 2 at 9-11. Thus, the appellant has met the timing
15
prong of the knowledge/timing test. Skarada , 2022 MSPB 17 , ¶ 19; Mastrullo ,
123 M.S.P.R. 110 , ¶ 21.
¶30 Regarding the knowledge portion of the test, although the appellant does
not clearly identify which of the management officials to whom she disclosed the
needle -stick and gun threat incidents were within her supervisory chain, she does
allege that she disclosed the needle -stick incident to several supervisors within
her department, including the Chief of C ardiology, the Cardiology Supervisor,
and the Nurse Supervisor, and she provides copies of VA Police incident reports
reflecting the same. IAF, Tab 12 at 2, 13, 20 -31. She also appears to allege that
higher -level managers, including the Acting Director o f the facility, the Director
of Nursing, and the Nursing Supervisor, were all aware of the gun threat incident
disclosure. IAF, Tab 7 at 10, Tab 10 at 2 -3; PFR File, Tab 2 at 9 -10. Similarly,
she alleges that high -level agency supervisors, including the Chief Doctor and
Nurse Supervisor of her department and the Chief of Medicine for her hospital,
were aware of at least some of the incidents that contributed to the hostile work
environment, including the repeated verbal harassment by the “Lead in Cardio ”
and management ’s failure to enforce the door locking safety protocols, and that
management nevertheless failed to adequately address her concerns or, in some
cases, laughed them off . IAF, Tab 12 at 48-51, 54, 57 -59; PFR File, Tab 2 at 2-7,
9-12 (stating that the Director of Nursing laughed at the appellant when
she complained about harassment by the ” Lead in Cardio ” and that another doctor
informed her that management was aware of the harassment but would not do
anything about it) .
¶31 Based on the foregoing , we conclude that, under the knowledge/timing test,
the appellant has made a nonfrivolous allegation that her January 2018
disclosure s concerning the needle -stick incident , and the related investigation ,
and the February 2018 gun violence threat, were a contributing factor in the
hostile work environment that agency management permitted , unabated, from
January 2018 onward, resulting in a significant change in the appellant ’s duties,
16
responsibilities, and working conditions. See Skarada , 2022 MSPB 17 , ¶ 19 . To
the extent the appellant has raised what appear to be additional incidents in
support of her hostile work enviro nment claim on review, e.g., PFR File, Tab 2
at 12, the administrative judge should address on remand the issue of the Board’s
jurisdiction over those incidents and, if appropriate, the merits.
The appeal must be remanded for adjudication on the merits.
¶32 In summary, b ecause the appellant proved that she exhausted her
administrative remedies as set forth above and made a nonfrivolous allegation
that she made protected disclosures in connection with the needle -stick incident
and the gun violence threat that were a contributing factor in the creation of the
hostile work environment , she has established jurisdiction over her appeal and is
entitled to the merits hearing that she requested. IAF, Tab 1 at 1; see Herman v.
Department of Justice , 115 M.S.P.R. 386 , ¶¶ 6 -8 (2011). On remand, the
administrative judge shall afford the appellant an opportunity to prove by
preponderant evidenc e that the January 2018 needle -stick and February 2018 gun
threat disclosures were a contributing factor in a hostile work environment. See
Runstrom v. Department of Veterans Affairs , 123 M.S.P.R. 169 , ¶ 12 (2016). If
the administrative judge finds that the appellant proved her case in chief, she
must determine whether the agency has proved by clear and convincing evidence
that it would have taken these same personnel actions even in the absence of the
appellant ’s disclosures. See id. ; 5 U.S.C. § 1221 (e). Because the appellant has
requested a hearing, she is entitle d to one. See Graves v. Department of Veterans
Affairs , 123 M.S.P.R. 434 , ¶ 22 (2016) (explaining that while an appellant is not
entitled to a jurisdictional hearing in an IRA appeal, he is entitled to a hearing on
the merits once he establishes jurisdiction).
17
ORDER
¶33 For the reasons discussed above, we remand this case to the Washington
Regional Office for further adjudication in accordance with this Remand Order.
FOR THE BOARD:
Washington, D.C. /s/ for
Jennifer Everling
Acting Clerk of the Board | BUCHANAN_DAVETTE_G_DC_1221_21_0390_W_1_REMAND_ORDER_1947885.pdf | 2022-08-03 | null | DC-1221-21-0390-W-1 | NP |
4,216 | https://www.mspb.gov/decisions/nonprecedential/EVANS_JOHN_D_DA_300A_18_0222_I_1_FINAL_ORDER_1947953.pdf | UNITED STATES OF AME RICA
MERIT SYSTEMS PROTEC TION BOARD
JOHN D. EVANS,
Appellant,
v.
DEPARTMENT OF THE AI R FORCE,
Agency.
DOCKET NUMBER
DA-300A -18-0222 -I-1
DATE: August 3, 2022
THIS FINAL ORDER IS NONPRECEDENTIAL1
John D. Evans , Corpus Christi, Texas, pro se.
Charles R. Vaith , Randolph A ir Force Base , Texas, for the agency.
BEFORE
Cathy A. Harris , Vice Chairman
Raymond A. Limon , Member
Tristan L. Leavitt , Member
FINAL ORDER
¶1 The appellant filed a petition for review of the initial decision, which
dismissed his nonselection appeal for lack of jurisdiction. Petition for Review
(PFR) File, Tab 1. Subsequently , he filed a pleading requesting “that this case be
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and 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
closed.”2 PFR Fil e, Tab 5. The Office of the Clerk of the Board informed the
appellant that a motion to withdraw a petition for review must be knowing and
voluntary and that it would result in his petition being dismissed with prejudice as
to refiling. The letter also in formed the appellant that withdrawing his petition
for review would result in the initial decision becoming the final decision of the
Board. PFR File, Tab 6 at 2. The agency objected to the appellant’s request,
stating that “in the event of any possible further judicial filings by the appellant
in this matter, the Agency prefers a Full Board review of the Initial Decision in
this matter with a Final Decision resulting thereafter.” PFR File, Tab 8.
Nonetheless, it is difficult to foresee a circumstance i n which an appellant’s
decision to withdraw his petition for review, resulting in a dismissal with
prejudice, could prejudice an agency, and we discern no such circumstances here.
Cf. Kravitz v. Office of Personnel Management , 75 M.S.P.R. 44, 46-47 (1997)
(stating that the Board will grant a motion to withdraw an appeal unless the
nonmoving party would suffer a clear legal prejud ice).
¶2 Finding that withdrawal is appropriate under these circumstances, we
DISMISS the petition for review as withdrawn with prejudice to refiling. The
initial decision of the administrative judge is final. 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).
2 On August 22, 2018, during a telephone call with the Office of the Clerk of the B oard,
the ap pellant indicated that he is seeking to withdraw the petition for review in MSPB
Docket No. DA -300A -18-0222 -I-1. He followed up the conversation with a written
withdrawal. PFR File, Tab 7.
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
Although we offer the followi ng summary of available appeal rights, the Merit
Systems Protection Board does not provide legal advice on which option is most
appropriate for your situation and the rights described below do not represent a
statement of how courts will rule regarding whi ch cases fall within their
jurisdiction. If you wish to seek review of this final decision, you should
immediately review the law applicable to your claims and carefully follow all
filing time limits and requirements. Failure to file within the applicabl e time
limit may result in the dismissal of your case by your chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703 (b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional 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.
4
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by 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 re ceives this decision before
you do, then you must file with the district court no later than 30 calendar days
after your representative receives this decision. If the action involves a claim of
discrimination based on race, color, religion, sex, national origin, or a disabling
condition, you may be entitled to representation by a court -appointed lawyer and
to waiver of any requirement of prepayment of fees, costs, or other security. See
42 U.S.C. § 2000e -5(f) and 29 U.S.C. § 794a .
Contact information for U. S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively , you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702 (b)(1). You must file any such reques t with the
5
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702 (b)(1). If you have a representative in this case,
and your representative r eceives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Fe deral Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302 (b)(8) or
other protected activities listed in 5 U.S.C. § 2302 (b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises 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.4 The court of appeals must receive your petition for
4 The original statutory provision that provided for judicial review of cer tain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
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 Feder al Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circ uit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interes ted in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appell ants before the 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.
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 | EVANS_JOHN_D_DA_300A_18_0222_I_1_FINAL_ORDER_1947953.pdf | 2022-08-03 | null | DA-300A-18-0222-I-1 | NP |
4,217 | https://www.mspb.gov/decisions/nonprecedential/LLOYD_JOHN_T_DE_0752_16_0247_I_1_FINAL_ORDER_1947458.pdf | UNITED STATES OF AME RICA
MERIT SYSTEMS PROTEC TION BOARD
JOHN T. LLOYD,
Appellant,
v.
DEPARTMENT OF THE AR MY,
Agency.
DOCKET NUMBER
DE-0752 -16-0247 -I-1
DATE: August 2, 2022
THIS FINAL ORDER IS NONPRECEDENTIAL1
John T. Lloyd , Colorado Springs, Colorado, pro se.
Daniel Dougherty , Colorado Springs, Colorado , for the agency .
James D. Bush , Peterson Air Force Base , Colorado, 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 indefinite suspension . 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 application of the law to
the facts of the case; the administrative judge’s rulings during either the course of
the appeal or the initial decision were not consistent with required procedures or
involved an abuse of discretion, and the resulting error affected the outcome of
the case; or new and material evidence or legal argument is avai lable that, despite
the petitioner’s due diligence, was not available when the record closed. Title 5
of the Code 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 by this Final Order to clarify the administrative judge’s analysis of
the appellant’s due process claim , we AFFIRM the initial decision.
DISCUSSION OF ARGUME NTS ON REVIEW
¶2 The appellant served as the Program Director of the Special Mission Office
at the agenc y’s Peterson Air Force Base. Initial Appeal File (IAF), Tab 5 at 42.
The position require d that he maintain a top secret security clearance. Id. at 329.
On Augu st 20, 2015, the agency suspended the appellant’s access to classified
information and place d him on administrative leave. Id. at 40. Based on th at
suspension, the agency proposed the appellan t’s indefinite suspension from duty
without pay on January 4, 2016 . Id. at 38. The appellant responded both orally
and in writing to the proposal notice, and the deciding official sustained the
action , effective March 1, 2016 . Id. at 21-26. This appeal followed. IAF, Tab 1.
¶3 After determining that the requested hearing was unnecessary , the
administrative judge issued an initial d ecision affirming the indefinite suspension.
IAF, Tab 15, Initial Decision (ID) at 1-2. He found that : the appellant’s position
required him to hold a valid security clearance; the agency afforded him
minimum due process in the imposition of the indefin ite suspension and the
3
suspension of his access to classified information; the agency identified the
conditions subsequent for the termination of the appellant’s indefinite suspension;
and the appellant failed to prove his harmful procedural error claim . ID at 3 -7.
¶4 The appellant has filed a petition for review challenging the administrative
judge’s finding that the agency afforded him minimum due process in the
suspension of his access to classified information. Petition for Review (PFR)
File, Tab 3. T he agency has responded in opposition, and the appellant has
replied to the agency’s response . PFR File, Tabs 5 -6.
¶5 In the initial decision, the administrative judge stated that the minimal due
process to be afforded the appellant here included sufficien t notice of the reasons
for the suspension of his access to classified information an d the opportunity to
make an informed reply . ID at 2 -3. Our reviewing court, however, has clarified
the Board’s line of cases on which the administrative judge relied, find ing that,
because an employee has no property interest in a security clearance , an agency is
not obliged as a matter of constitutional due process to notify the employee of the
specific reasons for the suspension of his clearance . Gargiulo v. Department of
Homeland Security , 727 F.3d 1181 , 1185 -86 (Fed. Cir. 2013) ; see Buelna v.
Department of Homeland Security , 121 M.S.P.R. 262 , ¶ 25 (2014). Rather, f or
purposes of due process, it is sufficient for an agency to inform the employee that
his position required a security clearance and that he can no longer hold his
position once he lost his clearance. Buelna , 121 M.S.P.R. 262 , ¶ 25. Here, the
agency provided the appellant with this information , and we find no due process
violation . IAF, Tab 5 at 38-40.
¶6 Separate from constitution al due process, the Board will reverse an
indefinite suspension based on the suspension of a security clearance if an
appellant is able to prove harmful procedural error. Buelna , 121 M.S.P.R. 262 ,
¶ 33; 5 C.F.R. § 1201.56 (c)(1). To do so, an appellant must prove that the agency
committed an error in the applicati on of its procedures that is likely to have
caused the agency to reach a conclusion different from the one it would have
4
reached in the absence or cure of the error. Buelna , 121 M.S.P.R. 262 , ¶ 33;
5 C.F.R. § 1201.4 (r). The appellant argued below that the agency committed
harmful procedural error when it failed to follow Department of Defense
Regulation 5200.2 -R and Department of the Army Regulation 380 -67. IAF,
Tab 13 at 4 -8. The administrative judge found that the a ppellant failed to prove
this claim, ID at 4 -6, the appellant does not challenge this finding on review, and
we discern no basis to disturb it.
¶7 In addition, p ursuant to the statutory requirement of 5 U.S.C. § 7513 (e), an
employee facing an adverse action must be notified of the specific reasons for a
proposed adverse action. Buelna , 121 M.S.P.R. 262 , ¶ 25. In the context of an
indefinite suspension based on the suspension of a security clearance,
section 7513 requires that the appellant be provided sufficient information to
make an informed reply, including a statement of the reasons for the clearance
suspension. Id., ¶ 34.
¶8 In this case, the agency’ s proposal to indefinitely suspend the appellant
informed him that his access to classified information was suspended “due to the
circumstances from the on -going [sic] G32 i nvestigation into the allegations of
the improper storage and control of classified material.” IAF, Tab 5 at 38.
Despite the appellant’s claims to the contrary , we find that the agency provided
him with sufficient information to make an informed reply to the proposed
indefinite suspension, including the reasons for the clearance suspension , and that
the requirements of section 7513 were satisfied. See King v. Alston , 75 F.3d 657 ,
662 (Fed. Cir. 1996) (finding that the agency provided an employee with
sufficient information to make an informed reply when it notified him that his
security clearance was being suspended because of “a potential medical
condition” and then informed him that he was being indefinitely suspended from
duty based on the suspension of his security clearance); Buelna , 121 M.S.P.R.
262, ¶ 34 (finding that the notice suspending an appellant’ s security clearance,
coupled with the notice proposing his indefinite suspension, adequately informed
5
him of the basis for the suspension of his security clearance, i. e., alleged
fraudulent claims); cf. Cheney v. Department of Justice , 479 F.3d 1343 , 1353
(Fed. Cir. 2007) (finding that an employee was not prov ided with the opportunity
to make a meaningful response to the notice of proposed suspension when he had
to guess at the reasons for his security clearance suspension).
¶9 In his petition for review, the appellant asserts that the agency has favorably
adjudicated hi s security clearance and that he was returned to paid status on
May 26, 2016. PFR File, Tab 3 at 7. This information does not change our
analysis. See Buelna , 121 M.S.P.R. 262 , ¶ 23 (finding that the suspension of a
security clearance may serve as a basis for imposing an indefinite suspens ion
even when the agency ultimately determines that the facts warrant restoration of
the clearance ). He also asserts that, as of the filing of his petition for review, the
agency had not yet restored him to his previous position. PFR File, Tab 3 at 7-8.
To the extent the appellant is requesting the Board to order his reinstatement,
such a request is outside the scope of our authority given he did not prevail in his
appeal . Cf. Ulep v. Department of the Army , 120 M.S.P.R. 579 , ¶ 4 (2014)
(ordering the cancelation of the appellant’s indefinite suspension and his
retroactive restoration when he proved his harmful procedural error claim and the
Board reversed the agency’s action ).
¶10 Accordingly, we affirm the initial decision as modified herein sustaining the
appellant’ s indefinite suspension.
NOTICE OF APPEAL RIG HTS2
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
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.
6
your claims determines the time limit for seeking such review and 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 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 forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703 (b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition 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
7
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 recei ves this decision. If the action involves a claim of
discrimination based on race, color, religion, sex, national origin, or a disabling
condition, you may be entitled to representation by a court -appointed lawyer and
to waiver of any requirement of prepa yment of fees, costs, or other security. See
42 U.S.C. § 2000e -5(f) and 29 U.S.C. § 794a .
Contact information for U.S. district 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 revie w to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pur suant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302 (b)(8) or
other protected activities listed in 5 U.S.C. § 2302 (b)(9)(A)(i), (B), (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
9
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.
Wash ington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will ac cept representation in a given case.
3 The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit 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
Contact information for the courts of appeals can be 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 | LLOYD_JOHN_T_DE_0752_16_0247_I_1_FINAL_ORDER_1947458.pdf | 2022-08-02 | null | DE-0752-16-0247-I-1 | NP |
4,218 | https://www.mspb.gov/decisions/nonprecedential/ELEY_ERNEST_J_SF_0831_18_0782_I_1_FINAL_ORDER_1947543.pdf | UNITED STATES OF AME RICA
MERIT SYSTEMS PROTEC TION BOARD
ERNEST J. ELEY,
Appellant,
v.
OFFICE OF PERSONNEL
MANAGEMENT,
Agency.
DOCKET NUMBER
SF-0831 -18-0782 -I-1
DATE: August 2, 2022
THIS FINAL ORDER IS NONPRECEDENTIAL1
Ernest J. Eley , Santa Fe Springs, California, pro se.
Tynika Faison Johnson , 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 November 19, 2018 initial
decision in this appeal . Petition for Review (PFR) File, Tab 1 ; 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
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
File, Tab 12, 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 “SETTLEMENT AGREEMENT” signed and dated by the appellant on
March 11, 2019, and by the agency on March 21, 2019. PFR File, Tab 3 at 5 .
The document provides, among other things, for the 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 understand its
terms, and whether they int end 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 3 . 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 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 enforcement purposes.
3
¶5 This is the final decision of the Merit Systems Protection Board in this
appeal. Titl e 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 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.
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 to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703 (b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition 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
5
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:
6
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.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 for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the 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 | ELEY_ERNEST_J_SF_0831_18_0782_I_1_FINAL_ORDER_1947543.pdf | 2022-08-02 | null | SF-0831-18-0782-I-1 | NP |
4,219 | https://www.mspb.gov/decisions/nonprecedential/SANKER_LAMAR_DARCEL_DC_0839_16_0364_I_3_FINAL_ORDER_1947583.pdf | UNITED STATES OF AME RICA
MERIT SYSTEMS PROTEC TION BOARD
LAMAR DARCEL SANKER,
Appellant,
v.
DEPARTMENT OF VETERA NS
AFFAIRS,
Agency.
DOCKET NUMBER
DC-0839 -16-0364 -I-3
DATE: August 2, 2022
THIS FINAL ORDER IS NONPRECEDENTIAL1
Lamar Darcel Sanker , Washington, D.C., pro se.
Julie Rebecca Zimmer , Esquire, Washington, D.C., 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 petition for review of the initial decision, which
dismissed his Federal Erroneous Retirement Coverage Corrections Act appeal for
lack of jurisdiction. The appellant subsequently filed an unopposed withdrawal
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case 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
of his petition fo r review with prejudice to refiling . Petition for Review File,
Tab 4 at 1.
¶2 Finding that withdrawal is appropriate under these circumstances, we
DISMISS the petition for review as withdrawn with prejudice to refiling. The
May 18, 2017 initial decision of the administrative judge is final. This is the
Board’s final decision in th is matter. Title 5 of the Code of Feder al 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 summary of available appeal rights, the Merit
Systems Protection Board does not provide legal advice on which option is most
appropriate for your situation and the rights described below do not repr esent a
statement of how courts will rule regarding which cases fall within their
jurisdiction. If you wish to seek review of this final decision, you should
immediately review the law applicable to your claims and carefully follow all
filing time limits and requirements. Failure to file within the applicable time
limit may result in the dismissal of your case by your chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a fi nal Board order must file a petition for review with the U.S.
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
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703 (b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madis on Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Ap pellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accep t representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
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
4
representative in this case, and your representative receives this decision before
you do, then you must 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 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
5
(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 c ompetent 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 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.
3 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.
6
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
Contact information 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 | SANKER_LAMAR_DARCEL_DC_0839_16_0364_I_3_FINAL_ORDER_1947583.pdf | 2022-08-02 | null | DC-0839-16-0364-I-3 | NP |
4,220 | https://www.mspb.gov/decisions/nonprecedential/HEFFELBOWER_SCOTT_CH_0841_20_0609_I_1_REMAND_ORDER_1947622.pdf | UNITED STATES OF AME RICA
MERIT SYSTEMS PROTEC TION BOARD
SCOTT HEFFELBOWER,
Appellant,
v.
OFFICE OF PERSONNEL
MANAGEMENT,
Agency.
DOCKET NUMBER
CH-0841 -20-0609 -I-1
DATE: August 2, 2022
THIS ORDER IS NONPRECEDENTIAL1
Kevin A. Graham , Esquire, Liberty, Missouri, for the appellant.
Tiffany Slade , 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, wh ich
dismissed his Federal Employees’ Retirement System (FERS) disability
retirement appeal as barred by the doctrine of res judicata . For the reasons
discussed below, we GRANT the appellant’s petition for review, VACATE the
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
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
initial decision , and REMAND th e case to the regional office for further
adjudication in accordance with this Remand Order.
BACKGROUND
¶2 The appellant was employed as a GS -11 Claims Specialist for the Social
Security Administration (SSA) until he was removed effective June 28, 2019.
Initial Appeal File (IAF), Tab 4 at 29 -34. As relevant here, he appealed a July 1,
2019 , reconsideration decision from the Office of Personnel Management (OPM)
denying his January 2019 application for FERS disability retirement benefits .
Heffelbower v. Office of Personnel Management , MSPB Docket No. CH -844E -19-
0472 -I-1, Appeal File (0472 AF), Tab 1. In h is statement of disability, the
appellant asserted that he suffered from major depression , acute anxiety ,
emotional crisis , panic attacks , panic episode s, back injury and pain, and opioid
dependenc e. 0472 AF, Tab 11 at 62. After holding a hearing, the administrative
judge issued a n initial decision affirming OPM’s reconsideration decision and
finding that the appellant failed to show by preponderant evi dence that “ his stated
medical condition caused a deficiency in his performance, attendance, or conduct,
or that any of his conditions were incompatible with useful and efficient service
or retention in his position .” 0472 AF, Tab 20, Initial Decision (04 72 ID) at 8 -9.
Neither party petitioned for review and the initial decision became final on
March 31, 2020. Id. at 11.
¶3 Subsequently, on June 23, 2020, the appellant filed a second application for
disability retirement benefits . IAF, Tab 4 at 12 -13. H e claimed that, in addition
to the previously identified conditions, he suffered from “several physical and
emotional conditions,” including post -traumatic stress disorder (PTSD), difficulty
concentrating, obsessive behavior, delusional disorder, insomnia, and
degenerative disk disease. Id. OPM declined to consider this application finding
that it was substantially the same as his first application, and stating “this is the
3
final response that OPM will make regarding the denial of your disability claim.”
IAF, Tab at 7 -8.
¶4 The appellant filed a new appeal with the Board challenging OPM’s
August 24, 2020 letter informing him of its decision not to consider his disability
retirement application . IAF, Tab 1. The administrative judge issued an order to
show cause instructing the appellant to file evidence and argument showing why
his appeal should not be dismissed on the basis of res judicata or collateral
estoppel. IAF, Tab 3. The appellant responded, arguing that his second
application included different medical conditions , some of his prior identified
conditions worsened, and that SSA removed him after he requested a
reconsideration decision from OPM. IAF, Tab 4 at 4 -10. Without holding his
requested heari ng, the administrative judge issued a final decision dismissing the
appellant’s appeal for lack of jurisdiction. IAF, Tab 1 at 2, Tab 13, Initial
Decision (ID) at 1 -2, 6 -7. She concluded that his claim was barred by the
doctrine of res judicata , reasonin g that his arguments and evidence were
considered in his prior Board appeal. ID at 6.
¶5 The appellant has filed a petition for review of the initial decision. Petition
for Review (PFR) File, Tab 1. The agency has not responded to the appellant’s
petition.
DISCUSSION OF ARGUME NTS ON REVIEW
¶6 The Board ’s jurisdiction is limited to those matters over which it has been
given jurisdiction by law, rule, or regulation. Maddox v. Merit Systems
Protection Board , 759 F.2d 9 , 10 (Fed. Cir. 1985). The appellant has the burden
of proving the Board’s jurisdiction by a preponderance of the evidence. 5 C.F.R.
§ 1201.56 (b)(2)(i)(A). Under 5 U.S.C. § 8461 (e), the Board has jurisdiction to
review “[a]n administrative action or order affecting the rights or interests of an
individual” under FERS. The Board generally lacks jurisdiction to hear an appeal
of a retirement matter when OPM has not issued a reconsideration decision on the
4
matter. DeGrant v. Office of Personnel Management , 107 M.S.P.R. 414 , ¶ 9
(2007). However, when as here, it is apparent that OPM does not intend to issue
a new reconsideration decision that addresses the merits of the appellant’s second
application, the Board retains jurisdiction to adjudicate the merits. Luzi v. Office
of Personnel Management , 106 M.S.P.R. 160 , ¶ 9 (2007) .
The doc trine of res judicata does not completely bar the appellant ’s claims.
¶7 The administrative judge found that the appellant’s claim s were barred by
res judicata concluding “[he] attempt[ed] to relitigate his entitlement to disability
retirement benefits during a period covered by a prior Board decision, and failed
to raise any issues that could not have been brought in his prior appeal.” ID at 6.
On review, the appellant asserts that t he doctrine of res judicata is inapplicable
because his “conditions are sig nificantly different from those outlined in the first
application and create a substantially different and new application for benefits .”
IAF, Tab 1 at 5 -9.
¶8 Without much analysis, the administrative judge determined that the
appellant’s appeal was preclud ed because he failed to “raise[] medical or other
evidence arising after the Board’s February 25, 2020 Initial Decision and, in fact,
relie[d] on medical evidence arising prior to his October 2019 hearing and
employment evidence arising prior to OPM’s July 1, 2019 final agency decision.”
ID at 6. We disagree.
¶9 Under the doctrine of res judicata, a valid, final judgment on the merits of
an action bars a second action involving the same parties or their privies based on
the same cause of action. Peartree v. U.S. Postal Service , 66 M.S.P.R. 332 , 337
(1995). Res judicata precludes parties from relitigating issues that were, or could
have been, raised in the prior action, and is applicable if the following
requirements are met: (1) the prior judgment was rendered by a forum with
competent jurisdiction; (2) the prior judgment was a final judgment on the merits;
and (3) the same cause of action and the same parties or their privies were
involved in both cases. Id. For res judicata to bar a new claim, the new claim
5
must be based on the same set of transactional f acts as the earlier one.
Encarnado v. Office of Personnel Management , 116 M.S.P.R. 301 , ¶ 11 (2011) ;
see Jet Inc. v. Sewage Ae ration Systems , 223 F.3d 1360 , 1363 (Fed. Cir. 2000)
(explaining that “courts have defined ‘transaction’ in terms of a ‘core of operative
facts, ’ the ‘same operative facts,’ or the ‘same nucleus of operative facts,’ and
‘based on the same, or nearly the same, factual allegations.’”).
¶10 There is no dispute that the first and second criteri a are satisfied because
the Board had jurisdiction to decide t he prior appeal under 5 U.S.C. § 8461 (e) and
5 C.F.R. § 841.308 and issued a final decision on the merits. PFR File, Tab 1
at 4-10; 0472 ID. There is also no dispute that the same parties are involved.
PFR File, Tab 1 at 4 -10; 0472 ID. Thus, the only issue remaining is whether the
same transactional facts are involved in the two appeals . Here, the appellant is
not challenging the Board ’s final decision that he is not eligible for disability
retirement benefits based on his January 2019 application . Rather, he argue s that
he submitted a new and different application for disability retirement benefits in
June 2020 , and it was en titled to consideration. IAF, Tab 1 at 4, Tab 4 at 8. He
also argues that his removal was not properly considered. IAF, Tab 4 at 6 -9. The
administrative judge found that the appellant’s arguments, including his removal
from Federal service and his psyc hiatric hospitalization, were considered by the
administrative judge in the prior appeal and the instant appeal “grants neither the
opportunity to review or change the issues that were, or could have been, raised
previously.” ID at 6. Although the admini strative judge mentioned that “[t]he
appellant was [] removed from Federal service for excessive absence,” 0472 ID
at 3, and his “documented hospitalization” in the prior appeal, she did not
consider them in her analysis.2 Id. at 8, 10.
2 The administrative judge first mentioned the appellant’s hospitalization in a quote
from his physician statement wherein his provider stated that he was hospitalized in
May and August 2019. 0472 I D at 8; 0472 AF, Tab 12 at 4. She subsequently referred
to his hospitalization as a point of reference to note that the record contained “ no
medical documentation describing [the appellant’ s] medical condition after . . .
6
The appellant’s de lusional disorder diagnosis is not barred by res judicata.
¶11 The appellant argues here, as he did below that his second application
included several conditions that were not previously identified “such as PTSD,
[d]elusional [d]isorder, [o]bsessive [b]ehavior , [c]hronic [p]ain and several
conditions relating to his back and spine.” PFR File, Tab 1 at 8; IAF, Tab 4 at 8.
The appellant’s first disability retirement application to OPM listed major
depression, acute anxiety, emotional crisis, panic attacks, pani c episodes, back
injury and pain, and opioid dependence. 0472 AF, Tab 11 at 62; IAF, Tab 4
at 11.
¶12 According to the Diagnostic and Statistical Manual of Mental Disorders ,
Fifth Edition (DSM -5), delusional disorder is within the schizophrenia spectrum
and other psychotic disorders and is not related to the anxiety and depressive
disorders that the appellant identified in his disability retirement application.
IAF, Tab 4 at 11; 0472 AF, Tab 11 at 62. Therefore , we find that the appellant’s
delusional di sorder is a new condition that he did not identify in his first
disability application. 0472 ID at 9; 0472 A F, Tab 1 at 4, Tab 12 at 5, Tab 17
at 2. Thus, he is entitled to a decision on the merits o n his second disability
retirement application as it relates to his delusional disorder diagnosis.3
May, 2019. ” 0472 ID at 10. None theless, as is more fully discussed below, res judicata
precludes the appellant from litigating his removal and entitlement to the presumption
set forth in Bruner v. Office of Personnel Management , 996 F.2d 290 , 293-94 (Fed. Cir.
1993).
3 In the appellant’s prior appeal, t he Board lacked jurisdiction to consider evidence of
his delusional disorder diagnosis. See Rozar v. Office of Personnel Manage ment ,
61 M.S.P.R. 136 , 140 (1994) (explaining that the Board generally will not consider
evidence relating to a totally different or additional medical condition that was not the
subject to the appellant’s application to OPM). The appellant attempted to include that
he suffered from delusional disorder in his first appeal. 0472 AF, Tab 17 at 2. He
alleged that he submitted evidence of this con dition to OPM and they failed to consider
it. 0472 AF, Tab 1 at 4. In response, the administrative judge advised him that “he
would need to connect [his delusional disorder] to a condition listed on the disability
retirement ap plication, considered by OP M.” Id. (citing Chappell v. Office of Personnel
Management , 79 M.S.P.R. 302 , 305 -06 (1998) ). In her initial decision, the
7
The appellant’s PTSD and obsessive behavior may be partially barred by
res judicata.
¶13 According to the DSM -5, there are close relationships between the anxiety
disorders and some of the obsessive -compulsive and related disorders . To the
extent that the appellant’s PTSD and obsessive behavior relate to his previously
identified anxiety and depressive disorders , he is limited to litigating the
worsening of those conditions after the record closed in his prior appeal on
September 24, 2019 .
The appellant’s other claims are barred by res judicata.
¶14 The appellant reiterates his claim that his second application is based in part
on the worsening of his known conditions. PFR Fi le, Tab 1 at 6 -8; IAF, Tab 4
at 5-10. However, h e did not provide this as a basis for his claim in hi s second
application to OPM. IAF, Tab 4 at 12. Instead, the appellant stated “ in addition
to the previously identified conditions .” Even if we were to assume that the
appellant provided “wors ening of conditions” for his previously identified
conditions as a basis for his second application, we are not persuaded by this
claim. Id. at 11 -12. The evidence in the record indicates that the appellant’s
claim involves the same time period tha t was addressed in his first appeal and
could have been raised in his prior appeal . Compare Luzi , 106 M.S.P.R. 160 , ¶ 9
(finding that an appellant may raise a claim for disability retirement with regard
to a different time period than addressed in her first appeal when it is based on
new evidence showi ng a worsening of her condition ). In this case, both of the
appellant’s applications identify that he became disabled for his position in
October 2017. Id. Further, the medical evidence he provided below predated the
close of the record . Id. at 14 -19. Therefore, the appellant is precluded from
litigating the worsening of his known conditions before September 24, 2019 .
administrative judge only adjudicated the conditions listed on his OPM application ,
briefly stating that she saw n o medical records addressing the appellant’s delusional
disorder in the record. 0472 ID at 9.
8
¶15 The appellant also reasserts on review that “[he] is entitled to the Bruner
presumption,4 which he did not receive” in his prior appeal. PFR File, Tab 1 at 9;
IAF, Tab 4 at 9. Specifically, he appears to argue that he was deprived of the
Bruner presumption because the administrative judge did not properly consider
his removal, even though “the [a]gency took their [sic] action against [him] with
full understanding of his medical conditions and with the belief that his medical
condition s were the cause for his absences and, therefore, his removal. ” PFR
File, Tab 1 at 9 -10; IAF, Tab 4 at 8 -9. However, as explained above, res judicata
applies where, as here, the appellant attempts to litigate claims that he could have
asserted in the pri or proceeding . Peartree , 66 M.S.P.R. at 337.
¶16 In his prior appeal , the appellant contested OPM’s final decision denying
his 2019 disability retirement application. 0472 AF, Tab 1. SSA removed him
effective June 28, 2019, prior to his Board appeal and the issuance of the initial
decision in that matter. IAF, Tab 4 at 29 -39; 0472 ID . The appellant could have
raised this claim in the prior proceeding or in a petition for review of the initial
decision . As such , the appellant’s new argument, regarding his removal and
related Bruner presumption, is precluded by res judicata.5 See Berromilla v.
Office of Personnel Management, 83 M .S.P.R. 350 , ¶¶ 5 -6 (1999) (finding the
petitioners were precluded from a new argument challenging OPM’s authority to
administer its retirement regulations where the claim could have been raised in
their earlier proceeding challenging their entitlement to retirement benefits ).
4 Under Bruner , an employee’s removal for disability, i.e., medical inability to perform
his job duties, establishes a prima facie case of his entitlement to disability retirement
benefits, and shifts the burden to OPM to produce sufficient evidence to support a
finding tha t he is not entitled to disability retirement benefits. See Bruner v. Office of
Personnel Management , 996 F.2d 290 , 293 -94 (Fed. Cir. 1993 ).
5 To the extent that the appellant raised his hospitalization in July and August 2019 , in
the instant appeal, he is similarly precluded from litigating this claim on remand.
9
We remand this appeal for a decision on the merits.
¶17 As noted above, the instant appeal is based on a different disability
retirement application than was addressed in the appellant’s original appeal . On
remand , the administrative jud ge shall make specific findings on whether the
appellant’s PTSD and obsessive behavior relate to his previously identified
anxiety and depressive disorders by soliciting additional testimony and evidence ,
if necessary . The administrative judge shall also provide the parties the
opportunity to submit evidence and argument, including a hearing, if requested,
on the appellant’ s June 23, 2020 FERS disability retirement application as it
relates to his delusional disorder diagnosis and worsening conditions aris ing after
September 24, 2019 .6 After considering any additional evidence and argument as
appropriate , the administrative judge shall issue a new initial decision consistent
with this order.
ORDER
¶18 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
6 The appellant is not precluded from raising a claim for disability retirement with
regard to a different time period than addressed in his first appeal, based on new
evidence showing a worsening of her condition. See Luzi , 106 M .S.P.R. 160 , ¶ 9. | HEFFELBOWER_SCOTT_CH_0841_20_0609_I_1_REMAND_ORDER_1947622.pdf | 2022-08-02 | null | CH-0841-20-0609-I-1 | NP |
4,221 | https://www.mspb.gov/decisions/nonprecedential/DAVIES_JESS_DE_1221_16_0176_C_1_FINAL_ORDER_1946985.pdf | UNITED STATES OF AME RICA
MERIT SYSTEMS PROTEC TION BOARD
JESS DAVIES,
Appellant,
v.
DEPARTMENT OF THE AR MY,
Agency.
DOCKET NUMBER
DE-1221 -16-0176 -C-1
DATE: August 1, 2022
THIS FINAL ORDER IS NONPRECEDENTIAL1
Jess Davies , Helena, Montana, pro se .
Thomas J. Ingram , IV, Esquire , Omaha, Nebraska, 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 compliance initial
decision, which dismissed his petition for enforcement as withdrawn . For the
reasons set forth below, the appellant’s petition for review is DISMISSED as
untimely filed without good c ause shown. 5 C.F.R. § 1201.114 (e), (g).
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or 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
BACKGROUND
¶2 During the time period most relevant to this appeal, the appellant was
employed by the U.S. Army Corps of Engineers as a Natural R esources
Specialist. Davi es v. Department of the Army , MSPB Docket No. DE -1221 -16-
0176 -W-1, Initial Appeal File (IAF), Tab 9 at 26. On January 27, 2016, he filed
an individual right of action (IRA) appeal asserting that the agency retaliated
against him for disclosures he made, IAF, Tab 1 at 3, 15, and on March 21, 2016,
the parties entered into a settlement agreement, wherein the y agreed , in part, that
the appellant would withdraw the IRA appeal, IAF, Tab 32 at 4. After entering
the settlement agreement into the record for enforcement purposes, the
administrative judge dismissed the appeal as settled. IAF, Tab 33, Initial
Decision (ID) . The March 24, 2016 initial decision dismissing the IRA appeal as
settled became final on April 28, 2016, when neither party filed a petition for
review. ID at 3.
¶3 Approximately 2 months after the issuance of the IRA initial decision , on
May 23, 2016, the appellant filed a pleading which the administrative judge
docketed as a petition for enforcement. Davies v. Department of the Army , MSPB
Docket No. DE -1221 -16-0176 -C-1, Compliance File ( C-1 CF), Tabs 1, 2.2 In the
petition for enforcement, the appellant asserted that the agency violated the
settlement agreement when it failed to provide “leave time” or a “lump su m”
payment —terms upon which the appellant states the parties had previously
agreed. C-1 CF, Tab 1 at 4. In response, the agency indicated that, although the
appellant’s leave restoration was not processed immediately upon execution of
the agreement, it h ad since been processed “with the highest priority” and that the
appellant’s lump sum payment had been disbursed on May 18, 2016. C-1 CF, Tab
3 at 5. The appellant appears to have been satisfied with the agency’s compliance
2 The appellant identified his submission as a motion for compensatory damages, but in
it he sought enforcement of the settlement agreement rather than compensatory
damages. C-1 CF, Tab 1 .
3
with the terms of the settleme nt agreement challenged in his petition for
enforcement, and he agreed to withdraw the petition. C-1 CF, Tab 5. As such, on
June 13, 2016, the administrative judge dismissed the petition for enforcement as
withdrawn. C-1 CF, Tab 6, Compliance Initial De cision (CID). In the
compliance initial decision dismissing the petition for enforcement , the
administrative judge informed the appellant that the decision would become final
on July 18, 2016, unless a petition for review was filed by that date. CID at 2.
¶4 The appellant did not file a petition for review of the compliance initial
decision before July 18, 2016 ; however, 3 months later, on October 21, 2016, the
appellant filed the instant petition for review of the compliance initial decision.
Petition for Review ( PFR) File, Tab 1. In his petition for review, the appellant
was informed by the e -Appeal Online system that his petition appeared to be
untimely filed, and he was provided with notice of how to establish good cause
for an untimely filing . Id. at 3. Additionally, the Clerk of the Board also
informed the appellant in a subsequent acknowledgment letter that his petition for
review appeared to be untimely filed and provided him with a form for filing a
motion to accept his filing as timely or to wai ve the time limit. PFR File, Tab 2
at 1-2, 7-8. In response to the e -Appeal Online -generated timeliness language in
his petition for review , the appellant asserts that he had become aware on the
same day that he filed the petition for review that managem ent at his new
employing agency, the Environmental Protection Agency (EPA), had been
contacted by a manager from the U.S. Army Corps of Engineers with a
“complaint” about him. PFR File, Tab 1 at 5 . He asserts on review that this
contact “may violate the [parties’ settlement] agreement. ” Id. The agency
responded to the appellant’s petition for review, arguing that the appellant
“completely failed to address the issue of why the Board should find good cause”
for his untimely filing. PFR File, Tab 3 at 4.
¶5 On April 10, 2017, the appellant filed a request to withdraw his petition for
review, stating that he understood that the Board would dismiss the petition with
4
prejudice to refiling . PFR File, Tab 5 at 4. Less than an hour later, however, the
appellan t filed another request for enforcement of the settlement agreement. PFR
File, Tab 6. In the request for enforcement, the app ellant indicates that, on
March 20, 2017, the EPA took an “action” against him, citing in part, the U.S.
Army Corps of Engineers’ alleged complaint against him in October of 2016.3 Id.
at 3. He again asserts that the agency’s alleged complaint against him to the EPA
violated the settlement agreement. Id.
¶6 While those pleadings were pending before the Board, on March 14, 2018,
the appellant filed another petition for enforcement with the Denver Field Office.
Davi es v. Department of the Army , MSPB Docket No. DE-1221 -16-0176 -C-2,
Compliance File (C -2 CF), Tab 1.4 In that petition for enforcement, the appellant
requested that “th is case be reopened” because the agency “violated the
settlement agreement.” Id. at 3. He asserted that he was terminated by the EPA
after an employee of the U.S. Army Corps of Engineers made a complaint against
him. Id. In a second compliance initial decision, the administrative judge
dismissed the petition for enforcement “on the grounds of adjudicatory
3 Between April 10, 2017 , and September 8, 2017, the appellant filed multiple appeals
with the Board against the EPA regarding a March 20, 2017 probationary termination
from that agency. Those appeals include two IRA appeals, two Veterans Employment
Opportunity Act of 1998 appeal s, and two Uniformed Services Employment and
Reemploy ment Rights Act of 1994 appeals. See Davies v. Environmental Protection
Agency , MSPB Docket Nos. CH -1221 -17-0301 -W-1; CH -4324 -17-0302 -I-1; CH -3330 -
17-0516 -I-1; CH -1221 -17-0568 -W-1; and CH -4324 -18-0053 -I-1. Those appeals were
dismissed based on varying reasons, including dismissals based on lack of jurisdiction,
untimeliness, and the doctrine of collateral estoppel. No petitions for review of the
initial decisions in those matters were filed, and all of the initial decisions are now the
final decisions of the Board.
4 It appears that the appellant initially filed this petition for enforcement action under
MSPB Docket No. DE -1221 -16-0176 -C-1 on February 16, 2018, but he entitled that
filing “Pleading to Re-Open Case.” C -2 CF, Tab 6 , Compliance Initial Decision at 3.
The Clerk of t he Board forwarded the February 16, 2018 pleading to the Denver Field
Office, and the administrative judge interpreted the action as a request to docket it as a
petition for e nforcement. Id. Thus, on March 1 5, 2018, the second petition for
enforcement was acknowledged as MSPB Docket No. DE -1221 -16-0176 -C-2. Id.; C-2
CF, Tab 2.
5
efficiency.” C -2 CF, Tab 6 , Compliance Initial Decision at 1. Specifically, he
discussed the appellant’s pending petition for review in the instant matter and
found it “clear that the appellant’s C -2 petition for enforcement [] is raising the
same issues as the appellant’s earlier -filed petition for review [] that is currently
pending before the Board.” Id. at 3-4. Thus, he concluded that “adjudicat ory
efficiency warrants [the] dismissal of this C -2.” Id. at 4. The second compliance
initial decision dismissing the appellant’s second petition for enforcement became
final on May 14, 2018, when neither party filed a petition for review of that
decision. Id. at 5.
DISCUSSION OF ARGUME NTS ON REVIEW
The appellant’s petition for review of the first compliance initial decision is
untimely filed without good cause shown.
¶7 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
petition er shows that the initial decision was received more than 5 days after the
date of issuance, within 30 days after the date the petitioner rec eived the initial
decision. See 5 C.F.R. § 1201.114 (e); see also Dean v. U.S. Postal Service ,
101 M.S.P.R. 356 , ¶ 7 (2006 ). Here, the initial decision was issued on June 13,
2016. CID at 1. Thus, as the administrative judge correctly informed the
appellant, he was required to file any petition for review no later t han July 18,
2016. CID at 2. The appellant’s petition for review of the compliance initial
decision was filed on October 21, 2016. PFR File, Tab 1. Thus, it is untimely
filed by 95 days.
¶8 The Board may waive its timeliness regulations based upon a deter mination
that good cause has been shown for doing so. See 5 C.F.R. §§ 1201.12 ,
1201.114( g). To determine whether an appellant has shown good cause, the
Board will consider the length of the delay, the reasonableness of his excuse and
his showing of due diligence, whether he is proceeding pro se, and whether he has
presented evidence of the existence of circumstances beyond his control that
6
affected his ability to comply with the time lim its or of unavoidable casualty or
misfortune which similarly shows a causal relationship to his inability to timely
file his petition. Moorman v. Department of the Army , 68 M.S.P.R. 60 , 62-63
(1995), aff’d , 79 F.3d 1167 (Fed. Cir. 1996) (Table).
¶9 Here, although the appellant appears to have been proceeding pro se at the
time he filed the petition for review ,5 the Board has considered a 3 -month delay
to be a lengthy one. See Jackson v. Office of Personnel Management ,
55 M.S.P.R. 105 , 108 (1 992) , aff’d , 991 F.2d 809 (Fed. Cir. 1993) (Table) .
Further, the appellant made no attempt to explain his delay in filing the petition
for review of the compliance initial decision or to demonstrate good cause for his
untimely filing ; rather, he raised a new allegation of noncompliance, separate and
apart from the allegation of noncompliance that he made before the administrative
judge . PFR File, Tab 1 at 3-4. Although he appears to claim that his petition for
review is untimely because the events that l ead to the alleged breach of the
settlement agreement did not occur until after the filing deadline had passed, the
Board has held that an appellant’s assertions regarding an agency’s alleged
breach of a settlement agreement do not provide good cause for a n appellant’s
untimely filing. See Dean , 101 M.S.P.R. 356 , ¶ 10. Based on the forgoing, we
find that the appellant has failed to est ablish good cause, and we d ismiss his
petition for review on that basis. See, e.g. , Via v. Office of Personnel
Management , 114 M.S.P. R. 632 , ¶ 7 (2010) (dismissing a petition for review as
untimely filed with no good cause shown for the delay in filing).
The appellant’s new claim of noncompliance is forwarded to the Denver Field
Office for adjudication.
¶10 Nonetheless, because the appellant’s petition for review of the compliance
initial decision raises a new allegation of noncompliance different than the one he
raised below, we construe the appellant’s claims as, effectively, a new request for
5 It is unclear from the record whether the appellant has since designated a
representative to assist him in this matter. PFR File, Tabs 7, 9.
7
enforcement. PFR File, Tabs 1, 6 , 8. W hen issues are raised concerning the
interpretation of a settlement agreement that is enforceable by the Board and
whether a party has breached the agreement, such claims are properly addressed
in the first instance by the administrative judge via a petition for enforcement .
See Secrist v. U.S. Postal Service , 115 M.S.P.R. 199 , ¶ 8 (2010); 5 C.F.R.
§ 1201.182 (a). Accordingly, we forward these n ew allegations of noncompliance
to the Denver Field Office for docketing as a third compliance case.6 Because the
Board has held that a petition for enforcement alleging a breach of a settlement
argument must be filed within a reasonable time after the pe titioner becomes
aware of the breach, see Eagleheart v. U.S. Postal Service , 113 M.S.P.R. 89 , ¶ 12
(2009), and the appellant claims that he informed the Board of the alleged breach
on the day he learned of the circumstances surrounding the alleged breach , PFR
File, Tab 1 at 3, the administrative judge should treat the newly docketed petition
for enforcement as a timely filing, w ith an effective filing date of October 21,
2016, id.
¶11 Accordingly, we dismiss the appellant’s petition for review of the
compliance initial decision as untimely filed without good cause shown , and we
forward the appellant’s new claim of noncompliance to t he Denver Field Office
for docketing and adjudication consistent with this Order. This is the final
decision of the Merit Systems Protection Board regarding the timeliness of the
petition for review. The initial decision remains the final decision of the Board
regarding the appellant’s first petition for enforcement.
6 Although the appellant’s claims in his second compliance case in Davi es
v. Department of the Army , MSPB Docket No. DE-1221 -16-0176 -C-2, appear to make
the same or substantially similar assertions regarding noncompliance as the ones made
here, we decline to reopen that matter and, instead, direct the docketing of a new
enforcement matter to consider the appellant’s claims for the sake of greater processing
clarity.
8
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 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:
7 Since the issuance o f the initial decision in this matter, the Board may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise which option is most appropriate in any matter.
9
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional 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 represe ntative receives this decision. If the action involves a claim of
discrimination 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 require ment of prepayment of fees, costs, or other security. See
42 U.S.C. § 2000e -5(f) 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
other protected activities listed 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
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.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 Circu it, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor w arrants that
any attorney will accept representation in a given case.
8 The original statutory provisi on that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellant s to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
The All Circuit Review Act is retroac tive 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 | DAVIES_JESS_DE_1221_16_0176_C_1_FINAL_ORDER_1946985.pdf | 2022-08-01 | null | DE-1221-16-0176-C-1 | NP |
4,222 | https://www.mspb.gov/decisions/nonprecedential/BOLDEN_PRUITT_MARNETTE_CH_0353_16_0431_I_1_REMAND_ORDER_1947037.pdf | UNITED STATES OF AME RICA
MERIT SYSTEMS PROTEC TION BOARD
MARNETTE BOLDEN -PRUITT,
Appellant,
v.
UNITED STATES POSTAL SERVICE,
Agency.
DOCKET NUMBER
CH-0353 -16-0431 -I-1
DATE: August 1, 2022
THIS ORDER IS NONPRECEDENTIAL1
Jacqueline Stewart -Harris , Bedford Heights, Ohio, for the appellant.
Thao T. Pham , Saint Louis, Missouri , for the agency.
BEFORE
Cathy A. Harris , Vice Chairman
Raymond A. Limon , Member
Tristan L. Leavitt , Member
REMAN D ORDER
¶1 The appellant has filed a petition for review of the initial decision, which
dismissed her restoration appeal for lack of jurisdiction . For the reasons
discussed below, we GRANT the appellant’s petition for review and REMAND
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
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 case to the regional office for further adjudication in accordance with this
Remand Order.
¶2 The appe llant, a former Mail Processing Clerk, filed the instant appeal
alleging that, although she contacted the agency in August 2015 regarding
reemployment based upon her full recovery from a compensable injury , the
agency improperly failed to respond to her inquiry. Initial Appeal File (IAF),
Tab 1. She asserted that this constituted harmful error on the part of the agency
and requested a hearing. Id.
¶3 The administrative judge informed the appellant of her burden of
establishing jurisdiction over her restoration claim . IAF, Tab 4. She informed
the appellant that an employee who separated because of a compensable injury ,
and whose full recovery took long er than 1 year from the date eligibility for
compensation began , may establish jurisdiction in a restoration appeal if she
nonfrivolously allege s, among other things, that she requested restoration within
30 days after the cessation of Office of Workers’ C ompensation Programs
(OWCP) compensation . Id. at 4-5; see Nixon v. Department of the Treasury ,
104 M.S.P.R. 189, ¶ 11 (2006); 5 C.F.R. §§ 353.301 (b), 1201.57(a)(4), (b). She
also noted that an employee who recovers from a compensable injury more than
1 year after she was found eligible for OWCP benefits is only entitled to priority
consideration for restoration and is not entitled to a position until one is found
through the priority consideration process. IAF, Tab 4 at 3; see Hall v.
Department of the Navy , 94 M.S.P.R. 262, ¶ 17 (2003) , modified on other grounds
by Welby v. Department of Agriculture , 101 M.S.P.R. 17 , ¶¶ 14-15 (2006) ;
5 C.F.R. § 353. 301(b).
¶4 The appel lant responded to the administrative judge’s order , reasserting her
prior claims and alleging that the agency violated the applicable collective
bargaining agreement (CBA) in failing to respond to her restoration inquiry . IAF,
Tab 6. However, she did not address the jurisdictional elements . Id. Without
holding the appellant’s requested hearing, the administrative judge dismissed the
3
appeal for lack of jurisdiction on the basis of the appellant’s failure to
nonfrivolously allege that she requested restor ation within 30 days after cessation
of her OWCP compensation . IAF, Tab 9, Initial Decision (ID).2 The
administrative judge found that the appellant asserted that her benefits ceased in
May 2015 but that she did not seek reemployment until August 2015. ID at 3-4.
¶5 The appellant has petitioned for review, the agency has responded in
opposition to the appellant’s petition, and the appellant has replied. Petition for
Review (PFR) File, Tabs 1, 4, 6. In her petition, the appellant challenges the
dismissal f or lack of jurisdiction because she asserts that the agency never
notified her of her appeal rights. PFR File, Tab 1 at 2. She also has attached an
August 2016 letter stating that she will be converted to the position of
unassigned Career Full Time Clerk, effective Saturday, September 3, 2016, with
the ability to bid on certain positions and a December 2016 roster of certain
Cleveland -area employees, including the employees’ seniority date s and number s.
Id. at 4-9.
¶6 An employee who separated because of a compensable injury , and whose
full recovery takes longer than 1 year from the date eligibility for compensation
began , may establish jurisdiction in a restoration appeal if she nonfrivolously
alleges the following: (1) she was separated, absent, or pla ced in a lower grade
job because of a compensable injury; (2) she fully recovered after 1 year; (3) she
2 The administrative judge initially informed the appellant that she was only required to
make nonfrivolous allegations of jurisdiction to obtain a hearing on the merits . IAF,
Tab 4 at 2. However, in the initial decision, she stated that, if the appellant ma de a
nonfrivolous allegation of jurisdiction, then she would be entitled to a hearing at which
she must prove jurisdiction. ID at 2-3. Under the Board’s revised regulations, the
appellant was only required to make nonfrivolous allegations of jurisdiction to obtain a
hearing on the merits. Kingsley v. U.S. Postal Service , 123 M.S.P.R. 365 , ¶ 10 (2016) ;
5 C.F.R. § 1201.57 (a)(4), (b) . Nevertheless, because she found that the appellant did
not make a nonfrivolous allegation of jurisdiction and because we are remanding the
appeal for further adjudication, any such error in the initial decision is harmless as it
does not prejudice the appellant’s substantive rights . Panter v. Department of the Air
Force , 22 M.S.P.R. 281 , 282 (1984).
4
requested restoration within 30 days after the cessation of OWCP benefits ; and
(4) the agency violated her reemployment priority rights. See N ixon ,
104 M.S.P.R. 189 , ¶¶ 11-12; 5 C.F.R. §§ 353.301 (b), 1201.57(a)(4), (b). First,
we find that the appellant has nonfrivolously alleged she was separated because
of a compensable injury. S he asserted that she was injured on duty and was
approved for disability retirement in October 2011. IAF, Tab 5 at 27. Her P ostal
Service Form 50 further supports her assertion because it indicates that she was
separated , effective October 28, 2011, pursuant to a disability retirement and that
she was totally disabled for useful and efficient service in her position . Id. at 29.
Additionally, she indicated in her application for disability retirement that she
received OWCP benefits because of a job -relate d injury beginning on
September 4, 2010. Id. at 35. Next, the record supports a nonfrivolous allegation
that she recovered more than 1 year after her separatio n because she submitted a
doctor’s note indicating her full recovery that was dated March 26, 2013 . Id.
at 28. Further, we find that the appellant has nonfrivolously alleged that the
agency violated her restoration rights because , although she asserted that she
contacted the agency in May 2015, she met with the agency in January 2016 and
was not provided priority consideration until September 2016.3 IAF, Tab 4
at 17-18, 27, Tab 5 at 17-18; PFR File, Tab 1 at 16.
¶7 Regarding the third jurisdictional element, we find that remand is necessary
to further develop the issue of whether the appellant has nonfrivolously alleged
that the 30 -day deadline for requesting restoration may be waived based upon her
exercise of due d iligence . An employee who recovers from a compensable injury
3 To the extent that the agency’s providing the appellant information about its process
for requesting reinstatement in January 2016, or priority consider ation effective
September 2016 , constituted proper relief , this does not render th e appeal moot because
it is possible that the appellant could have obtain ed additional priority consideration for
the period prior to th ose dates . IAF, Tab 5 at 17-18; PFR File, Tab 1 at 4; cf. White v.
U.S. Postal Service , 117 M.S.P.R. 244 , ¶¶ 9, 24 (2012 ) (affirming the administrative
judge’s dismissal of the appellant’s restoration appeal as moot when the agency had
provided him with status quo ante relief, including appropriate back pay and benefits).
5
more than 1 year after she was found eligible for OWCP benefits must typically
apply for restoration within 30 days of the cessation of compensation . 5 C.F.R.
§ 353.301 (b). Nevertheless , pursuant to regulation, when an agency separates an
employee because of a compensable injury , it has the responsibility to “notify the
employee of his or her rights, obligations, and benefits relating to Government
employment , including any appeal and grievance right s.” 5 C. F.R. § 353.104 .
Thus, if the agency failed to notify the appellant of the deadline for requesting
restoration, the Board may excuse the delay . See, e.g., Ward v. Department of
Veterans Affairs , 67 M.S.P.R. 425 , 429-32 (1995) (finding, in a military
restoration appeal, that the agency’ s failure to notify the appellant of his
restoration rights excuse d the untimeliness of his request for restoration by
approximately 3 months ); McKoy v. Department of the Army , 18 M.S.P.R. 636 ,
639-40 (1984) (finding, when the appellant sought full restoration approximately
17 months after her recovery and the cessation of benefits, that the request could
not be dismissed as untimely because the agency failed to notify the appellant of
the 30-day regulatory deadline for applying for restoration and because it did not
object to the delay on appeal).4 However, regardless of the agency ’s obligation,
pursuant to current regulations, “an employee is still required to exercise due
diligence in ascertaining his or her rights, and to seek reemployment . . . as soon
as he or she is able after a compensable injury.” 5 C.F.R. § 353.104 ; see
Dunklebarger v. Department of the Army , 67 M.S.P.R. 607, 612 (1995) ( quoting
53 Fed. Reg. 857 , 859 (Jan. 14, 1988) (stating that the amended regulations
requiring an employee to exercise due diligence were added to inform the
employee that he or she “has an obligation to use due diligence in ascertaining his
or her rights, and to return to du ty as soon as he or she is able ”). Thus, even if
4 In Ward and McKoy , the Board applied 5 C.F.R. § 353.106 (1986), a previous version
of the regulations that d id not require an appellant to exercise due diligence in
ascertaining his or her rights . See Ward , 67 M.S.P.R. at 430 n.3; McKoy , 18 M.S.P.R.
at 638.
6
the agency did not notify the appellant of the 30 -day deadline for requesting
restoration, she still must demonstrate that she acted diligently in determining her
rights to re storation and after she discovered the deadline. See generally
Cranston v. U.S. Postal Service , 106 M.S.P.R. 290, ¶ 13 (2007) (explaining that,
regardless of agency notification, an employee is required to ex ercise due
diligence regarding her restoration to duty rights but is not required to
demonstrate due diligence in discovering Board appeal rights ).
¶8 The appellant asserted both below and on review that the agency did not
notify her of the deadline for requesting restoration. IAF, Tab 5 at 27; PFR File,
Tab 1 at 2. The agency has not submitted evidence or argument to contradict her
contention. PFR Fi le, Tab 4 at 5. However, she was not provided notice of her
burden to nonfrivolously allege that she acted diligently in requesting restoration ,
despite the delay, and she did not do so . Accordingly, we find it necessary to
remand the appeal to afford he r this opportunity.
¶9 On remand, the administrative judge shall inform the appellant of her
burden to nonfrivolously allege that she acted diligently in ascertaining her rights
and requesting restoration to duty . If the administrative judge finds that the
appellant has made such a nonfrivolous allegation, then she has established
jurisdiction , and the administrative judge should afford the appellant her
requested hearing on the merits.
7
ORDER
For the reasons discussed a bove, 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 | BOLDEN_PRUITT_MARNETTE_CH_0353_16_0431_I_1_REMAND_ORDER_1947037.pdf | 2022-08-01 | null | CH-0353-16-0431-I-1 | NP |
4,223 | https://www.mspb.gov/decisions/nonprecedential/SMALL_DARRIUS_A_PH_0752_21_0332_I_1_FINAL_ORDER_1947100.pdf | UNITED STATES OF AME RICA
MERIT SYSTEMS PROTEC TION BOARD
DARRIUS A. SMALL, SR .,
Appellant,
v.
SOCIAL SECURITY
ADMINISTRATION,
Agency.
DOCKET NUMBER
PH-0752 -21-0332 -I-1
DATE: August 1, 2022
THIS FINAL ORDER IS NONPRECEDENTIAL1
T. Jameel Muhammed , Germantown , Maryland, for the appellant.
Jessica Craig , Esquire, Baltimore, 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 decision, which
dismissed this appeal challenging his removal as untimely filed with out good
cause shown for the delay. On petition for review, the appellant reargues that he
1 A nonprecedential order is one that the Board has determined does not add
significantly to the 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
believed that he had to resolve his discrimination claims through the equal
employment opportunity process before challenging his removal to the Board .
Generally, we grant petitions such as this one only in the following
circumstances: the initial decis ion 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 c ourse of the appeal or the initial decision
were not consistent with required procedures or involved an abuse of discretion,
and the resulting error affected the outcome of the case; or new and material
evidence or legal argument is available that, despite the petitioner’s due
diligence, was not available when the record closed. Title 5 of the Code of
Federal Regulations, section 1201.115 ( 5 C.F.R. § 1201.115 ). After fully
considering t he 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 fina l 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 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
immediately review the law applicable to your claims and carefully follow all
filing time limits and requirements. F ailure to file within the applicable time
limit may result in the dismissal of your case by your chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have q uestions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Wash ington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals 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.
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 action involves a claim of
discrimination based on race, color, religion, sex, national origin, or a disabling
condition, you may be entitled to representation by a court -appointed lawyer and
to waiver of any requirement of prepayment of fees, costs, or other security. See
42 U.S.C. § 2000e -5(f) and 29 U.S.C. § 794a .
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702 (b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702 (b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative 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 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 allega tions of a prohibited personnel practice described in
section 2302(b) other than practices described in section 2302(b)(8), or
2302(b)(9)(A)(i), (B), (C), or (D),” then you may file a petition for judicial
review either with the U.S. Court of Appeals for t he 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.
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.ms pb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
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 | SMALL_DARRIUS_A_PH_0752_21_0332_I_1_FINAL_ORDER_1947100.pdf | 2022-08-01 | null | PH-0752-21-0332-I-1 | NP |
4,224 | https://www.mspb.gov/decisions/nonprecedential/DAMBRA_STEPHEN_M_DA_3330_21_0393_I_1_FINAL_ORDER_1947166.pdf | UNITED STATES OF AME RICA
MERIT SYSTEMS PROTEC TION BOARD
STEPHEN M. DAMBRA,
Appellant,
v.
DEPARTMENT OF HEALTH AND
HUMAN SERVICES,
Agency.
DOCKET NUMBER
DA-3330 -21-0393 -I-1
DATE: August 1, 2022
THIS FINAL ORDER IS NONPRECEDENTIAL1
Lawrence George Widem , Esquire, West Hartford, Connecticut, for the
appellant.
Tonya Savage , Esquire, Dallas, Texas, 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
dismissed his Veterans Employment Opportunities Act of 1998 (VEOA) appeal
for lack of jurisdiction. Generally, we grant petitions such as this one only in the
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no prec edential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and 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 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 The appellant is a preference -eligible employee with the agency’s Indian
Health Service (IHS). Initial Appeal File (IAF), Tab 1 at 1. In August 2021, the
appellant filed three separate applications for three different, higher -graded
positions in the IHS. Id. at 7. The appellant was not selected for any of these
positions. The agency’s explanation in each case was that “[b]y law, Indian
Preference candidates are entitled to consideration for Federal employment
before other applicants. There were sufficient Indian Preference candidates for
this vacancy; therefore, your application was not considered.” Id.
¶3 On August 31, 2021, the appellant filed a Board appeal, arguing that the
agency violated his veterans ’ preference rights in connection with these
nonselections. Id. at 3, 5. He ind icated on his appeal form that he had not filed a
complaint with the Department of Labor (DOL) concerning this matter. Id. at 4.
The administrative judge issued an order, notifying the appellant of the standard
for establishing jurisdiction over a VEOA a ppeal, including the requirement that
3
the appellant first exhaust his administrative remed y with DOL. IAF, Tab 3
at 2-6. She ordered the parties to file evidence and argument on the issue. Id.
at 6-7.
¶4 On September 16, 2021, the appellant responded by filing a copy of a claim
receipt from DOL, which indicated he had filed a veterans ’ preference complaint
earlier that same day.2 IAF, Tab 4 at 4. The administrative judge then issued an
order stating that “[t]he appellant has not submitted any evidence s howing that he
has filed a DOL complaint regarding the non -selections at issue in this appeal
and, if he has, that DOL has closed his complaint or that 61 days have passed
since he filed his DOL complaint.” IAF, Tab 5 at 1. She ordered the appellant to
show cause why the appeal should not be dismissed for lack of jurisdiction. Id. at
1-2. The appellant did not respond to the administrative judge’s order. The
agency responded with a motion to dismiss for failure to satisfy the exhaustion
requirement. I AF, Tab 7. After the record on jurisdiction closed, the
administrative judge issued an initial decision dismissing the appeal for lack of
jurisdiction on that basis. IAF, Tab 8, Initial Decision (ID).
¶5 The appellant has filed a petition for review, conte sting the administrative
judge’s jurisdictional analysis. Petition for Review (PFR) File, Tab 2. The
agency has responded to the petition for review, and the appellant has filed a
reply to the agency’s response. PFR File, Tabs 4-5.
2 The appellant also filed a copy of the last page of an undated Office of Special
Counsel (OSC) complaint, the contents of which ar e not contained in the record. IAF,
Tab 4 at 5. The administrative judge informed the appellant that, if he wished to raise
an additional claim in connection with his OSC complaint, he needed to specify the
nature of that claim. IAF, Tab 5 at 2. The ap pellant has not done so; none of his
subsequent pleadings address this OSC complaint, either as to its contents or his reason
for submitting evidence of it for the record. We therefore decline to address the matter
any further.
4
ANALYSIS
¶6 As applicabl e here, to establish Board jurisdiction over a VEOA appeal, an
appellant must (1) prove by preponderant evidence that he exhausted his remedy
with DOL, and (2) make nonfrivolous allegations that: (i) he is a preference
eligible within the meaning of VEOA, (ii) the action at issue took place on or
after the date that VEOA was enacted, and (iii) the agency violated his rights
under a statute or regulation relating to veterans ’ preference . 5 U.S.C.
§ 3330a (a), (d) ; Lazaro v. Department of Veterans Affairs , 666 F.3d 1316 , 1319
(Fed. Cir. 2012); Gingery v. Office of Personnel Management , 119 M.S.P.R. 43 ,
¶ 13 (2012); 5 C.F.R. § 1201.57 (a)(2), (b) -(c).
¶7 In this case, the administrative judge found that the appellant failed to prove
that he exhausted his administrative remedy. We agree.3 The first step of the
exhaustion process is to file a complaint with DOL containing a summary of the
allegations tha t form the basis of the complaint. 5 U.S.C. § 3330a (a)(2)(B);
Wible v. Department of the Army , 120 M.S.P.R. 333 , ¶ 10 (2013) . After filing
that complaint, an appellant may fulfill his exhaustion obligation by one of two
means. The first occurs when DOL’s investigation into the complaint does not
result in the resolution of the complaint, and DOL notifies the complainant, in
writing, of the results of its investigation. 5 U.S.C. § 3330a (c)(2) ; Styslinger v.
Department of the Army , 105 M.S.P.R. 223 , ¶ 15 (2007) . The second occurs
when DOL is unab le to resolve a complaint within 60 days after the date on which
it was filed. 5 U.S.C. § 3330a (d)(1); Styslinger , 105 M.S.P.R. 223 , ¶ 15. After
60 days have passed without a resolution of the complaint, the complainan t may
elect to appeal the alleged violation to the Board , but he must first notify DOL of
his intention to file a Board appeal . 5 U.S.C. § 3330a (d); Styslinger ,
105 M.S.P.R. 223 , ¶¶ 15-19; 5 C.F.R. § 1208.21 (a).
3 The administrative judge did not address the remaining elements of the appellant’s
jurisdictional burden, and we need not do so here.
5
¶8 Here, the administrative judge found that the appellant failed to satisfy the
exhaustion requirement because fewer than 61 days had passed since he filed his
complaint , and he provided no evidence that DOL had closed his complaint. ID
at 3. On petition for review , the appellant argues , through his attorney , that the
exhaustion process is now complete and the appeal is ripe for adjudication
because DOL has provided him written notice that it was unable to resolve his
complaint and has closed its investigation. PFR File, Tab 2 at 7-10, Tab 5 at 4.
¶9 The Board will adjudicate a VEOA appeal that was not ripe when filed but
becomes ripe during the pendency of the appeal. See Bent v. Department of State ,
123 M.S.P.R. 304 , ¶ 6 (2016) ; Wooten v. Department of Veterans Affairs ,
96 M.S.P.R. 671 , ¶ 9 (2004) . However, the record in this case still lacks evidence
upon which the Board could base a finding that the process before DOL has been
exhausted. The appellant has filed neither a copy of the alleged DOL notification
nor a sworn statement that he received such notification. The statements of a
party’s representative in a pleading do not cons titute evidence . Pupis v. U.S.
Postal Service , 105 M.S.P.R. 1 , ¶ 5 (2007) .
¶10 Acknowledging that the record does not contain a copy of a DOL closeout
notification , the appellant argues variously that the Board should take official
notice of the notification , the administrative judge should have obtained a copy of
the notification from DOL, and the agency should have obtained a copy of the
notification from DOL. PFR File, Tab 2 at 7, 10 -11, Tab 5 at 6-7. Under
5 C.F.R. § 1201.64 , the Board may take official noti ce of matters of common
knowledge or matters that can be verified. However, DOL’s investigation of the
appellant ’s complaint is not a matter of common knowledge, and the Board does
not have ready access to DOL’s investigatory records such that it can veri fy the
disposition of the appellant ’s complaint. Furthermore, the burden of proof on
jurisdiction belongs to the appellant . 5 C.F.R. § 1201.57 (b)-(c). It is not the
responsibility of the administrative judge or the respondent agency to provide
evidence of jurisdiction on the appellant ’s behalf , particularly in cases like this
6
one in which the appellant is in a better position than the agency to provide the
releva nt evidence. Cf. Ellis v. Department of the Navy , 76 M.S.P.R. 102 , 107
(1994) (considering the fact that pertinent evidence regarding the jurisdictional
issue was likely to be in possession and control of the agency as favoring a
finding of Board jurisdiction ). For these reasons, we agree with the
administrative judge that the app ellant has not submitted any evidence to show
that the exhaustion process i s complete under the first method described in
Styslinger , 105 M.S.P.R. 223 , ¶ 15.
¶11 Nor has the appellant submitted any evidence to show that he exhausted his
administrative remed y with respect to the second method described in Styslinger ,
105 M.S.P.R. 223 , ¶ 15. Although more than 60 days have now passed since the
appellant filed his complaint with DOL, he has not provided evidence or even
alleged that he notified DOL of his intention to file a Board appeal. See Becker v.
Department of Veterans Affairs , 114 M.S.P.R. 29 , ¶¶ 7-8 (2010) .
¶12 The administrative judge further found that , even if the appellant had
completed the exhaustion process, he still failed to establish jurisdiction because
he submitted no evidence to show that he completed it with respect to the specific
nonselections at issue in this appeal. ID at 3. The appellant does not contest this
finding on review, and we agree with the administrative judge ’s assessment.
Proof of exhaustion requires, at a minimum, a showing that the DOL complaint
concer ns the same agency action or decision at issue in the Board appeal. See
White v. U.S. Postal Service , 114 M.S.P.R. 574 , ¶¶ 7-9 (2010) .
¶13 The appellant argues for the first time on review that the agency violated
his rights under the Fifth Amendment when it applied Indian preference to the
position at issue. PFR File, Tab 2 at 6-7. However, a n alleged violation of
constitutional ri ghts, standing alone, does not confer Board jurisdiction. Moore v.
Department of State , 15 M.S.P.R. 488 , 489 -90 (1983) , aff’d , 765 F.2d 15 9 (Fed.
Cir. 1985) (Table).
7
¶14 The appellant also argues that the exhaustion requirement of 5 U.S.C.
§ 3330a (d) is a prudential rule that does not limit the Board’s subject matter
jurisdiction. PFR File, Tab 2 at 8-9, Tab 5 at 5. The Board, however , has already
addressed this issue in adopting its current regulations at 5 C.F.R. § 1201.57 , and
we decline to revisit it in the c ontext of the instant appeal. See Practices &
Procedures, 80 Fed. Reg. 4489, 4492 (Jan. 28, 2015) (disagreeing with a
commenter’s suggestion that the Board treat the exhaustion requirement as
nonjurisdictional in VEOA and individual right of action appeal s).
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
imm ediately review the law applicable to your claims and carefully follow all
filing time limits and requirements. Failure to file within the applicable time
limit may result in the dismissal of your case by your chosen forum.
Please read carefully each of t he three main possible choices of review
below to decide which one applies to your particular case. If 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 this decision. 5 U.S.C.
§ 7703 (b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit you r petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono repres entation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit . The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision —including a disposition of your dis crimination
claims —by filing a civil action with 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 Systems
Protection Board , 582 U.S. ____ , 137 S. Ct. 1975 (2017). If you have a
representati ve in this case, and your representative receives this decision before
you do, then you must file with the district court no later than 30 calendar days
after your representative receives this decision. If the action involves a claim of
discrimination bas ed on race, color, religion, sex, national origin, or a disabling
condition, you may be entitled to representation by a court -appointed lawyer and
to waiver of any requirement of prepayment of fees, costs, or other security. See
42 U.S.C. § 2000e -5(f) and 29 U.S.C. § 794a .
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702 (b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702 (b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then 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:
10
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302 (b)(8) or
other protected activities listed in 5 U.S.C. § 2302 (b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
disposition of allegations of a prohibited personnel practice 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.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 expir ed on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of App eals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115 -195,
132 Stat. 1510.
11
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
Contact information for the courts of appeals can be found at their
respective websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/C ourtWebsites.aspx .
FOR THE BOARD:
Washington, D.C. /s/ for
Jennifer Everling
Acting Clerk of the Board | DAMBRA_STEPHEN_M_DA_3330_21_0393_I_1_FINAL_ORDER_1947166.pdf | 2022-08-01 | null | DA-3330-21-0393-I-1 | NP |
4,225 | https://www.mspb.gov/decisions/nonprecedential/MARABLE_JOHN_DE_3330_18_0215_I_1_FINAL_ORDER_1947175.pdf | UNITED STATES OF AME RICA
MERIT SYSTEMS PROTEC TION BOARD
JOHN MARABLE, JR.,
Appellant,
v.
DEPARTMENT OF COMMER CE,
Agency.
DOCKET NUMBER
DE-3330 -18-0215 -I-1
DATE: August 1, 2022
THIS FINAL ORDER IS NONPRECEDENTIAL1
John Marable, Jr. , Flower Mound, Texas, pro se.
William Horrigan , Alexandria, Virginia, 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
denied his request for corrective action under the Veterans Employment
Opportunities Act of 1998 . Petition for Review (PFR) File, Tab 1; Initial Appeal
File, Tab 16, Initial Decision . Subsequently, the appellant decided to withdraw
1 A nonprecedential order is one that the Board has determined does not add
significantly to the 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 petition , and he submitted a motion to that effect , stating that he understood
that his withdrawal is with prejudice and that he could not refile his petition with
the Board . PFR File, Tab 4.
¶2 Therea fter, the agency filed a response to the appellant’s request to
withdraw his petition for review, objecting to the request. PFR File, Tab 5 . We
find that the agency failed to show that it would be prejudiced by the appellant’s
decision to withdraw his pe tition for review. Cf. Kravitz v. Office of Personnel
Management , 75 M.S.P.R. 44 , 46-47 (1997) (stating that the Board will gr ant a
motion to withdraw an appeal unless the nonmoving party would suffer a clear
legal prejudice).
¶3 Finding that withdrawal is appropriate under these circumstances, we
DISMISS the petition for review as withdrawn with prejudice to refiling.
¶4 The initia l decision of the administrative judge is final. This is the Board’s
final decision in this matter. 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 app ropriate forum with which to file. 5 U.S.C. § 7703 (b).
Although we offer the following summary of available appeal rights, the Merit
Systems Protection Board does not provide legal advice on which option is most
appropriate for your situation and the rights described below do not represent a
statement of ho w courts will rule regarding which cases fall within their
jurisdiction. 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. Fail ure to file within the applicable time
limit may result in the dismissal of your case by your chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have ques tions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must fi le a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703 (b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov /probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the 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 Fe deral Circuit), within 30 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 you r representative receives this decision. If the action involves a claim of
discrimination based on race, color, religion, sex, national origin, or a disabling
condition, you may be entitled to representation by a court ‑appointed lawyer and
to waiver of an y requirement of prepayment of fees, costs, or other security. See
42 U.S.C. § 2000e -5(f) 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:
5
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 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.
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 of the Board | MARABLE_JOHN_DE_3330_18_0215_I_1_FINAL_ORDER_1947175.pdf | 2022-08-01 | null | DE-3330-18-0215-I-1 | NP |
4,226 | https://www.mspb.gov/decisions/nonprecedential/MARABLE_JOHN_DA_315H_17_0431_I_1_FINAL_ORDER_1947180.pdf | UNITED STATES OF AME RICA
MERIT SYSTEMS PROTEC TION BOARD
JOHN MARABLE, JR.,
Appellant,
v.
DEPARTMENT OF COMMER CE,
Agency.
DOCKET NUMBER
DA-315H -17-0431 -I-1
DATE: August 1, 2022
THIS FINAL ORDER IS NONPRECEDENTIAL1
John Marable, Jr. , Flower Mound, Texas, pro se.
Taron Murakami and William Horrigan , Alexandria, Virginia, 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
dismissed his appeal for lack of jurisdiction. Petition for Review (PFR) File,
Tab 1. Subsequently, the appellant decided to withdraw his petition and
submitted a motion to that effect. PFR File, Tab 4. The Office of the Clerk 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
the Board informed the appellant that a motion to withdraw a petition for review
must be voluntary and wou ld result in the petition being dismissed with prejudice,
meaning that the petition will not be processed for adjudication by the Board and
the appellant will not be allowed to refile his petition. PFR File, Tab 5 at 1. It
also informed the appellant tha t withdrawing his petition for review would result
in the initial decision becoming the final decision of the Board. Id. at 2; see
Phillips v. Department of Health, Education and Welfare , 2 M.S.P.R. 315 , 316
(1980).
¶2 On July 23, 2018, the agency filed a response to the appellant’s request to
withdraw his petition for review, objecting to the request. PFR File, Tab 7. We
find that the agency failed t o show that it would be prejudiced by the appellant’s
decision to withdraw his petition for review. Cf. Kravitz v. Office of Personnel
Management , 75 M.S.P.R. 44 , 46-47 (1997) (stating that the Board will grant a
motion to withdraw an appeal unless the nonmoving party would suffer a clear
legal prejudice).
¶3 Finding that withdrawal is appropriate under these circumstances, we
DISMISS the petition for review as withdrawn with prejudice to refiling.
¶4 The initial decision of the administrative judge is final. This is the Board’s
final decision in this matter. 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
statut e, the nature of your claims determines the time limit for seeking such
review and the appropriate forum with which to file. 5 U.S.C. § 7703 (b).
Although we offer the following summary of availab le appeal rights, the Merit
2 Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise w hich option is most appropriate in any matter.
3
Systems Protection Board does not provide legal advice on which option is most
appropriate for your situation and the rights described below do not represent a
statement of how courts will rule regarding which cases fall within their
jurisdiction. If you wish to seek review of this final decision, you should
immediately review the law applicable to your claims and carefully follow all
filing time limits and requirements. Failure to file within the applicable time
limit may resu lt in the dismissal of your case by your chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropr iate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appea ls for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703 (b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in 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 Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
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 prepayment of fees, costs, or other security. See
42 U.S.C. § 2000e -5(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,
5
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 personnel practice described in
section 2302(b) other than practices described in section 2302(b)(8), or
2302(b)(9)(A)(i), (B), ( C), or (D),” then you may file a petition for judicial
review either with the U.S. Court of Appeals for the Federal Circuit or any court
of appeals of competent jurisdiction.3 The court of appeals must receive your
3 The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit cou rt of appeals of competent jurisdiction.
6
petition for review within 60 days of th e date of issuance of this decision. 5
U.S.C. § 7703 (b)(1)(B).
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www. cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained 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
Board n either 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 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 | MARABLE_JOHN_DA_315H_17_0431_I_1_FINAL_ORDER_1947180.pdf | 2022-08-01 | null | DA-315H-17-0431-I-1 | NP |
4,227 | https://www.mspb.gov/decisions/nonprecedential/ROSARIO_FABREGAS_JOSE_NY_0752_10_0127_X_2_FINAL_ORDER_1947189.pdf | UNITED STATES OF AME RICA
MERIT SYSTEMS PROTEC TION BOARD
JOSE ROSARIO -FABREGAS,
Appellant,
v.
DEPARTMENT OF THE AR MY,
Agency.
DOCKET NUMBER S
NY-0752 -10-0127 -X-2
NY-0752 -10-0127 -X-3
DATE: August 1, 2022
THIS FINAL ORDER IS NONPRECEDENTIAL1
Jose Rosario -Fabregas , San Juan, Puerto Rico, pro se.
Elizabeth Moseley , Esquire, and Elizabeth Vavrica , Esquire, Jacksonville,
Florida, for the agency.
BEFORE
Cathy A. Harris, Vice Chairman
Raymond A. Limon , Member
Tristan L. Leavitt, Member
FINAL ORDER
¶1 The administrative judge issued compliance initial decisions on September
6 and September 8, 2016, in response to two petitions filed by the appellant to
enforce the Board’s final order rever sing his removal. Rosario -Fabregas v.
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
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
Department of the Army , MSPB Docket No. NY -0752-10-0127 -B-1, Compliance
Remand File, Tab 14, Compliance Initial Decision ( B-1 CID); Rosario -Fabregas
v. Department of the Army , MSPB Docket No. NY -0752 -10-0127 -C-3,
Comp liance File, Tab 10, Compliance Initial Decision ( C-3 CID). For the reasons
discussed below, we find the agency in compliance and DISMISS the petition s for
enforcement.
BACKGROUND
¶2 Effective February 12, 2010, the agency removed the appellant from the
position of Biologist (Project Manager), GS -12, Army Corps of Engineers,
Regulatory Division, San Juan, Puerto Rico. B-1 CID at 1 -2. The Board ordered
the agency to cancel the removal and reinstate the appellant effective February
12, 2010. B-1 CID at 2. The Board also ordered the agency to provide the
appellant with back pay, interest, and other benefits under the regulations of the
Office of Personnel Management. Id. On December 2, 2011, the agency
retroactively cancelled the appellant’s removal. Id.
First Petition for Enforcement (MSPB Docket No. NY -0752 -10-0127 -C-1)
¶3 On January 30, 2012, the appellant filed a petition for enforcement, alleging
that the agency had not fully complied with the Board’s order. B-1 CID at 2. On
May 30, 2012, t he admini strative judge issued a compliance initial decision
denying the petition for enforcement and finding that the agency had complied
with the Board’s order. Rosario -Fabregas v. Department of the Army , MSPB
Docket No. NY -0752 -10-0127 -C-1, Compli ance File, Tab 8, Compliance Initial
Decision . The appellant attempted to file a petition for review of that decision,
but the Board did not receive it because it was mailed to an incorrect address .
B-1 CID at 2. Therefore, the decision became final on July 4, 2012. Id.; see
5 C.F.R. §§ 1201.183 (a)(4) , 1201.113.
3
Second Petition for Enforcement ( MSPB Docket No s. NY-0752 -10-0127 -C-2 and
NY-0752 -10-0127 -B-1)
¶4 On February 19, 2013, the appellant filed another submission with the
Board, which the Board construed as a second petition for enforcement and
forwarded to the administrative judge for initial adjudication. Rosario -Fabregas
v. Department of the Army , MSPB Docket No. NY -0752 -10-0127 -C-2,
Compliance File, Tab 20, Compliance Initial Decision (C -2 CID) at 3. On
December 3, 2013, the administrative judge issued a compliance initial decision
granting the petition for enforcement in part. C-2 CID at 6. The appellant filed a
petition for review of that decision to the full Board. Rosario -Fabregas v.
Department of the Army , MSPB Docket No. NY -0752 -10-0127 -C-2, Petition for
Review File, Tab 1.
¶5 In a Remand Order dated September 11, 2014, the Board granted the
petition for review and remanded the pe tition for enforcement, directing the
administrative judge to consider the appellant’s claim that the agency did not
reimburse him for Federal Employee Group Life Insurance (FEGLI) deductions
for the time he was unemployed. Rosario -Fabregas v. Department of the Army ,
MSPB Docket No. NY -0752 -10-0127 -C-2, Remand Order, ¶ 29 (Sept. 11, 2014).
The Board also directed the administrative judge to consider the appellant’s
argument that, because he was misled by the agency, he missed the 90 -day
deadline under 5 C.F.R. § 1605.13 (d) to restore funds he had withdrawn from his
Thrift Savings Plan account. Id. The Board further directed the administrative
judge to order the parties to indicate the status of the request that the Defense
Finance and Accounting Service (DFAS) made to the Social Security
Administration (SSA) in connection with the appellant’s Old Age, Survivors and
Disability Insurance (OASDI) and Medicare deductions. Id.
¶6 On remand, in a compliance initial decision dated September 6, 2016, the
administrative judge found the agency in partial noncompliance with the Board’s
order, and she directed the agency to have DFAS contact SSA in order to
4
determine whether SSA made the correct allocations covering the period between
the appellant’s removal and his reinstatement and provide the Board with
documentation regarding DFAS’s action. B-1 CID at 7.
Third Petition for Enforcement (MSPB Docket No. NY -0752 -10-0127 -C-3)
¶7 While the remanded petition for enforcement in MSPB Docket No.
NY-0752 -10-0127 -B-1 was pending before the administrative judge , on October
9, 2014 , the appellant filed another submissio n with the Board, which was
construed as a third petition for enforcement. C-3 CID at 4. The administrative
judge noted that the appellant alleged that the agency made inconsistent
statements regarding the amount of gross back pay owed to him . C-3 CID at 6.
Accordingly, the administrative judge ordered the agency to have DFAS
determine the amount of the gross back pay and submit a clear explanation of
DFAS’s computations . C-3 CID at 7.
DISCUSSION OF ARGUME NTS AND EVIDENCE ON COMPLIANCE
¶8 When the Boar d finds a personnel action unwarranted or not sustainable, it
orders that the appellant be placed, as nearly as possible, in the situation he would
have been in had the wrongful personnel action not occurred. House v.
Department of the Army , 98 M.S.P.R. 530 , ¶ 9 (2005). The agency bears the
burden to prove its compliance with a Board order. An agency’s assertions of
compli ance 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).
¶9 As explained above, there are two outstanding compliance issues. In the
compliance initial decision issued in MSPB Docket No. NY -0752 -10-0127 -B-1,
the administrative judge ordered the agency to have DFAS contact SSA in order
to determine whether SSA made the correct allocations covering the period
5
between the appellant’s removal and his reinstatement . B-1 CID at 7. In the
complia nce initial decision in MSPB Docket No. NY -0752 -10-0127 -C-3, the
administrative judge ordered the agency to demonstrate that DFAS paid the
appellant the correct amount of gross back pay. Both issues are now before us on
referral from these two compliance initial decisions. See 5 C.F.R.
§ 1201.183 (b)-(c).
Gross Back Pay
¶10 The agency submitted a statement on October 24, 2016, detailing the
amount of back pay paid to the appellant. Rosario -Fabregas v. Department of the
Army , MSPB Docket No. NY -0752 -10-0127 -X-3, Compliance Referral File
(X-3 CRF), Tab 3. The DFAS specialist who processed the back pay award set
forth her calculations regarding gross and net back pay, including interes t paid on
the back pay amount. Id. at 9, 14. The appellant filed multiple objectio ns to
these calculations. X-3 CRF , Tabs 4, 5, 6, 10 , 11, 13, 14 , 15. Many of his
objections concerned the underlying merits of his case, while others addressed his
views on the competence of agency employees. None presented a specific
objection to the back pay or interest calculations. Accordingly, we find that the
agency properly calculated and paid the back pay and interest due the appellant.
OASDI/Medicare
¶11 The DFAS s pecialist’s October 13, 2016 declaration also explained the
deduction of Social Security and Medicare taxes. X-3 CRF, Tab 3 at 11. The
specialist stated that she had spoken with an analyst at SSA regarding the yearly
allocations for back pay for each cal endar year of the relevant period and that
DFAS was awaiting confirmation from SSA that the amounts matched their
figures and that the updates were being processed. Id. at 13 -14.
¶12 In the appellant’s submission dated November 14, 2016, he stated that the
agency did not provide a clear explanation of its deductions and that it had not yet
sent him the SSA -L 191 form. X-3CRF, Tab 4 at 6.
6
¶13 The Board issued an order on June 9, 2017, directing the agency to submit
documentation of how it calculated the OASDI and Medicare deductions for each
pay period and provide a clear explanation that the deductions were properly
allocated to each pay period within the calendar year. Rosario -Fabregas v.
Department of the Army , MSPB Docket No. NY -0752 -10-0127 -X-2, Complian ce
Referral File ( X-2 CRF), Tab 3.
¶14 The agency then provided a declaration from Erron Jackson, a Branch Chief
for Civilian Pay Operations at DFAS, dated October 20, 2017. X-2 CRF, Tab 12.
In the declaration, Mr. Jackson stated that he had reviewed an au dit of the
appellant’s back pay payments, as well as the allocation of those payments as
reported to the Social Security administration. Id. at 5. Mr. Jackson reported that
the appellant’s total back pay was $150,406.08. Id. Of this, $148,862.48 was
paid to the appellant in January 2012. Id. The remaining $1,543.60 was paid in
2013. Id.
¶15 The maximum wage limitation for OASDI in 2012 was $110,100, and the
employee OASDI tax rate was 4.2%. Id. at 6. The employee OASDI tax rate for
2013 was 6.2%. Id. Therefore, the appellant’s back pay exceeded the maximum
wage limitation for OASDI in 2012, but not in 2013. Id. Accordingly, DFAS
deducted a total of $4,719.91 in OASDI from the back pay award , ($110,100 x
4.2% = $4,624.20) + ($1,543.60 x 6.2% = $95.7 1) = $4,719.91. Id.
¶16 Mr. Jackson explained that the entire back pay award was subject to
Medicare deductions, and the appellant had $2,180.89 (1.45%) deducted from the
award. Id. Mr. Jackson went on to state that DFAS had worked with SSA to
address the allocation of the appellant’s back pay but that, under SSA’s standard
procedure, it takes up to a year after the end of a current year for reported wages
to appear on an individual’s record. Id. at 7. He stated that DFAS had confirmed
that it had provid ed all necessary documentation to SSA to enable it to properly
allocate the appellant’s wages. Id. at 7. A copy of DFAS’s request to SSA to
allocate the appellant’s back pay was attached. See id. at 22.
7
¶17 The appellant responded on October 26, 2017, all eging that the agency’s
calculations of his back pay were incorrect. X-2 CRF, Tab 13. The appellant did
not specify what he believed the correct back pay amounts to be, instead alleging
that incorrect codes were entered on his Standard Form 50 ( SF-50), leading,
presumably, to DFAS processing the back pay incorrectly. See id. at 5 -6. The
appellant also alleged that the SSA statement he received in September 2017
contained errors and miscalculations, but he did not identify those alleged errors.
Id. at 7 . Similarly, in an additional response dated October 18, 2018, the
appellant alleged that SSA’s allocations were not correct, but did not identify any
specif ic inaccuracies. X-3 CRF, Tab 16 at 5.
¶18 On November 26, 2018, the appellant submitted a “Motio n to Initiate
Enforcement Procedures,” in which he reiterated his claim that “SSA personal
allocations from 2010 until present ar e not correct.” X-3 CRF, Tab 17 at 5.
Again, the appellant did not identify which allocations he believes to be incorrect.
¶19 On April 9, 2019, the appellant submitted a pleading requesting that the
Board order the agency to issue t wo corrected SF -50s in response to the Board’s
orders of November 30, 2011 , and July 1, 2016. X-3 CRF, Tab 18 at 11 . The
appellant did not provide a ny support for his claim that additional SF -50s were
required to effectuate the Board’s order regarding back pay and OASDI
contributions. In the absence of any basis for the issuance of new SF -50s, we
decline to grant the appellant’s request for a Board order on this issue.
¶20 On May 9, 2019, the appellant submitted a “Motion for Adjudication
Ripeness,” in whi ch he stated that two of his later -filed Board appeals were
pending settlement and request ed adjudication of his compliance matters. X-3
CRF, Tab 19. As this instant decision constitutes the Board’s adjudication of this
compliance matter, the appellant’s motion is moot. Moreover, the appellant’s
later -filed removal appeals do not bear on the adjudication of this compliance
matter. Accordingly, we deny the appellant’s motion.
8
¶21 As noted above, the agency has provided evidence that it is now in
compliance with the Board’s order. The agency has cancelled the appellant’s
removal and reinstated h im, effective February 12, 2010, and has provided the
appellant with back pay, interest, and other benefits. The agency indicated that it
paid the appellant back pay in the amount of $150,406.08, deducting $4,719.91
for OASDI benefits and $2,180.89 for Me dicare. The appellant has not alleged
any specific error in these amounts. Therefore, we find that the agency has paid
the appellant the appropriate amount of back pay and deducted the appropriate
amount of OASDI benefits. We also find that the agency h as provided an
adequate explanation of how the back pay and benefits amounts were determined .
¶22 In light of the agency’s evidence of compliance, we find the agency in
compliance and dismiss the petition s for enforcement. This is the final decision
of the Merit Systems Protection Board in this complianc e 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 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 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
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.
9
filing time limits and requirements. Failure to file within the 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 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.
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 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
discrimination based on race, color, religion, sex, nationa l origin, or a disabling
condition, you may be entitled to representation by a court -appointed lawyer and
to waiver of any requirement of prepayment of fees, costs, or other security. See
42 U.S.C. § 2000e -5(f) and 29 U.S.C. § 794a .
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternative ly, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702 (b)(1) . You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702 (b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 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:
11
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302 (b)(8) or
other protected activities listed in 5 U.S.C. § 2302 (b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
disposition of allegations of a prohibited personnel practice described in section
2302(b) other than practices 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 jurisdiction3. 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, 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.
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 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 | ROSARIO_FABREGAS_JOSE_NY_0752_10_0127_X_2_FINAL_ORDER_1947189.pdf | 752-10-01 | null | S | NP |
4,228 | https://www.mspb.gov/decisions/nonprecedential/LEE_SHANNON_MARIE_AT_0752_18_0580_I_1_FINAL_ORDER_1947234.pdf | UNITED STATES OF AME RICA
MERIT SYSTEMS PROTEC TION BOARD
SHANNON MARIE LEE,
Appellant,
v.
DEPARTMENT OF THE AR MY,
Agency.
DOCKET NUMBER
AT-0752 -18-0580 -I-1
DATE: August 1, 2022
THIS FINAL ORDER IS NONPRECEDENTIAL1
Kevin Curtis Crayon, II , Esquire, Kennesaw, Georgia, for the appellant.
Richard Kane , 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 agency has petitioned for review of the October 25, 2018 initial
decision in this appeal. Petition for Review (PFR) File, Tab 1 ; Initial Appeal
File, Tab 40, Initial Decision . For the reasons set forth below, we DISMISS the
petition for r eview 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” signed and dated by
the parties on December 14, 2019. PFR File, Tab 4 at 6-11. The document
provides, among other t hings, that the agency agreed to withdraw its petition for
review in exchange for the promises made by the appellant . Id. at 7.
¶3 Before dismissing a matter as settled, the Board must decide whether the
parties have entered into a settlement agreement, whet her 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 agreement s 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 4 . 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 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 e nforcement 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 ).
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 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 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.
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
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703 (b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
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 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 through the link 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
this decision.
If you submit a request for review to the EEOC by regular 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:
6
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302 (b)(8) or
other protected activities listed in 5 U.S.C. § 2302 (b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Boar d’s
disposition of allegations of a prohibited personnel practice described in
section 2302(b) other than practices described in section 2302(b)(8), or
2302(b)(9)(A)(i), (B), (C), or (D),” then you may file a 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 Ci rcuit
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 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.
Contact information for the courts of appeals can be 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 | LEE_SHANNON_MARIE_AT_0752_18_0580_I_1_FINAL_ORDER_1947234.pdf | 2022-08-01 | null | AT-0752-18-0580-I-1 | NP |
4,229 | https://www.mspb.gov/decisions/nonprecedential/BATIESTE_RHODA_A_AT_0831_21_0356_I_1_FINAL_ORDER_1946596.pdf | UNITED STATES OF AME RICA
MERIT SYSTEMS PROTEC TION BOARD
RHODA A. BATIESTE,
Appellant,
v.
OFFICE OF PERSONNEL
MANAGEMENT,
Agency.
DOCKET NUMBER
AT-0831 -21-0356 -I-1
DATE: July 29, 2022
THIS FINAL ORDER IS NONPRECEDENTIAL1
Rhoda A. Batieste , Macon, Georgia, 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 final decision of the Office of Personnel Management (OPM)
denying her application for a deferred annuity under the Federal Employees’
Retirement System . On petition for review, the appellant argues that she has 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
requisite amount of creditable civilian service to be eligible for a deferred
annuity . She also alleges that OPM and the administrative judge failed to
consider her reinstatement to the Department of the Air Force from 1 994 to 1996
in calculating the length of her creditable service. Generally, we grant petitions
such as this one only in the following circumstances: the initial decision contains
erroneous findings of material fact; the initial decision is based on an erroneous
interpretation of statute or regulation or the erroneous application of the law to
the facts of the case; the administrative judge’s rulings during either the course of
the appeal or the initial decision were not consistent with required procedur es or
involved an abuse of discretion, and the resulting error affected the outcome of
the case; or new and material evidence or legal argument is available that, despite
the petitioner’s due diligence, was not available when the record closed. Title 5
of the Code of Federal Regulations, section 1201.115 ( 5 C.F.R. § 1201.115 ).
After fully considering the filings in this appeal, we conclude that the petitioner
has not established any bas is 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 d etermines the time limit for seeking such
review and the appropriate forum with which to file. 5 U.S.C. § 7703 (b).
Although we offer the following summary of available appeal rights, the Merit
Systems Protection Board does not provide legal advice on which option is most
appropriate for your situation and the rights described below do not represent a
statement of how courts will rule regarding which cases fall within their
2 Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review rights included in final decisions. As indicated in the notice,
the Board cannot advise which option is mos t appropriate in any matter.
3
jurisdiction. If you wi sh to seek review of this final decision, you should
immediately review the law applicable to your claims and carefully follow all
filing time limits and requirements. Failure to file within the applicable time
limit may result in the dismissal of your ca se by your chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropria te one to review your case,
you should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, wh ich must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703 (b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Fe deral
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you a re interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Bo ard appellants before the Federal Circuit.
4
The Board neither endorses the services provided by any attorney nor warrants
that any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 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, cost s, or other security.
See 42 U.S.C. § 2000e -5(f) and 29 U.S.C. § 794a .
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702 (b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 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 yo ur representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302 (b)(8) or
other protected activities listed in 5 U.S.C. § 2302 (b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
disposition of allegations of a prohibited personnel practice described in
section 2302(b) other than practices described in section 2302(b)(8), or
2302(b)(9)(A)(i), (B), (C), or (D),” then you may file a petition for judicial
review either with the U.S. C ourt of Appeals for the Federal Circuit or any court
of appeals of competent jurisdiction.3 The court of appeals must receive your
3 The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law 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.
6
petition for review within 60 days of the date of issuance of this decision.
5 U.S.C. § 7703 (b)(1)(B).
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
Contact information for the courts of appeals can be 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 | BATIESTE_RHODA_A_AT_0831_21_0356_I_1_FINAL_ORDER_1946596.pdf | 2022-07-29 | null | AT-0831-21-0356-I-1 | NP |
4,230 | https://www.mspb.gov/decisions/nonprecedential/COLLAZO_NICANOL_PH_3443_21_0263_I_1_REMAND_ORDER_1946600.pdf | UNITED STATES OF AME RICA
MERIT SYSTEMS PROTEC TION BOARD
NICANOL COLLAZO, III ,
Appellant,
v.
UNITED STATES POSTAL SERVICE,
Agency.
DOCKET NUMBER
PH-3443 -21-0263 -I-1
DATE: July 29, 2022
THIS ORDER IS NONPRECEDENTIAL1
Nicanol Collazo, III , Barrington, New Jersey, pro se.
Theresa M. Gegen , Esquire, Dallas, 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 his appeal for lack of jurisdiction . For the reasons discussed below, we
GRANT the appellant’s petition for review, VACATE the initial decision, and
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
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
REMAND the case to the regional office for further adjudication in accordance
with this Remand Order.
BACKGROUND
¶2 In 2020, t he appellant , an EAS -17 Supervisor, Distribution Operations at
the agency’s Philadelphia Processing and Distribution Center (Philadelphia
P&DC) , requested a reasonable accommodation for his post-traumatic stress
disorder (PTSD) . Initial Appeal File (IAF), Tab 1 at 1, 5, Tab 6 at 6, 10-11, 44.
On December 3, 2020, his treating physician submitted a form in support of his
requ est, wherein he indica ted that “[ the appellant’s PTSD] makes it essential that
he work daytime hours during business hours and that his schedule be kept
consistent” because working night shift and weekend hours exacerbates his
condition. IAF, Tab 5 at 57 -58. On December 10, 2 020, the appellant
participated in a meeting with the District Reasonable Accommodation
Committee (DRAC) . IAF, Tab 5 at 53-54. In a letter dated December 18, 2020,
the DRAC determined that “there [were] no available accommodations that [met
his] request at the present time .” IAF, Tab 5 at 47 . They did however identify a
vacant position at the Philadelphia P&DC in his current pay grade , level 17 ,
which was available for the appellant to request as a lateral transfer. Id. They
also provided the appellan t with a list of vacant positions outside of the
Philadelphia P&DC, as he indicated that he would be willing to travel up to
25 miles, which were available for the appellant to request as a lateral transfer.
Id. Thereafter, the appellant requested a nonc ompetitive lateral transfer to the
position of Network Special ist, which the agency denied on January 18, 2021 , due
to his performance and failure to be in regular attendance . IAF, Tab 1 at 5, Tab 5
at 43. Shortly thereafter, the agency offered the appel lant a detail assignment to a
Network Specialist position for up to 90 days. IAF, Tab 5 at 30. According to
the appellant, the detail assignment was outside of his medical restrictions. IAF,
Tab 1 at 5 . Subsequently in a letter dated April 14, 2021, the agency denied his
3
request for a reasonable accommodation as he had declined an offered
accommodation that was very close to his ideal requested schedule , and he had
made no other efforts to bid on position s competitively and/or laterally . IAF, Tab
5 at 25 -27.
¶3 The appellant filed an appeal with the Board, challenging the agency’s
denial of his accommodation and request ing a hearing. IAF, Tab 1 at 2 -3, 5. The
administrative judge informed the appellant tha t the Board may not have
jurisdiction over his alleged failure to accommodate claim . IAF, Tab 2 at 2-4.
He explained, however, that the Board might have jurisdiction if the appellant
was raising his claim in conjunction with a Uniformed Services Employme nt and
Reemployment Rights Act of 1994 appeal , a Veterans Employment Opportunities
Act of 1998 appeal, or an individual right of action appeal, and he ordered the
appellant to file evidence and argument to establish why the appeal should not be
dismissed f or lack of jurisdiction. Id. The appellant did not respond. In an
initial decision, the administrative judge dismissed the appeal without holding the
requested hearing, finding that the appellant failed to make a nonfrivolous
allegation of Board jurisdi ction. IAF, Tab 6, Initial Decision (ID) at 1, 4.
¶4 The appellant has filed a petition for review. Petition for Review (PFR)
File, Tab 1. The agency has filed a response to the petition for review. PFR File,
Tab 3.
DISCUSSION OF ARGUME NTS ON REVIEW
¶5 On review, the appellant is challenging the initial decision , which dismissed
his appeal for lack of jurisdiction. PFR File, Tab 1. The appellant has not raised
a specific jurisdictional challenge on appeal or petition for review ; however, the
issue of juri sdiction is always before the Board and may be raised by either party
or sua sponte by the Board at any time during a Board proceeding .2 Poole v.
2 The jurisdictional order issued by the administrative judge generally advised the
appellant of h is burden of establishing the Board’s jurisdiction, including the threshold
4
Department of the Army , 117 M.S.P.R. 516 , ¶ 9 (2012). Below , and on review,
the appellant allege s that the agency wrongfully denied him a reasonable
accommodation . IAF, Tab 1 at 5; PFR File, Tab 1 at 2-6, 24 -27. Further, h e
ostensibly asserts that the agency had vacant positions that it could have , but
failed to , reassign him to as a reasonable accommodation . IAF, Tab 1 at 5; PFR
File, Tab 1 at 2-6, 24 -27.
The appellant nonfrivolously alleged that the agency constructively suspended
him based on its decision to deny his reasonable accommodation request.
¶6 The Board lacks jurisdiction over appeals of an employee ’s voluntary
actions. O’Clery v. U.S. Postal Service , 67 M.S.P.R. 300 , 302 (1995), aff’d ,
95 F.3d 1166 (Fed. Cir. 1996) (Table); 5 C.F.R. § 752.401 (b)(9) . However, the
Board has recognized that employee -initiated actions that appear voluntary on
their face are not always so and that the Board may have jurisdiction over such
actions as constructive adverse actions under chapter 75. Bean v. U.S. Postal
Service, 120 M.S.P.R. 397 , ¶¶ 7 -8 (2013). Although various fact patterns may
give rise to an appealable constructive suspension, al l constructive suspension
claims have two things in common: (1) the employee lacked a meaningful choice
requirement for receiving a hearing on jurisdiction. IAF, Tab 2. However, the orde r
did not explicitly inform the appellant of what is required to establish jurisdiction over
a potential constructive suspension claim. See Burgess v. Merit Systems Protection
Board , 758 F.2d 641 , 643 -44 (Fed. Cir. 1985) (finding that an appe llant must receive
explicit information on what is required to establish an appealable jurisdictional issue) ;
see also Sage v. Department of the Army , 108 M.S.P.R. 398 , ¶ 7 (2008) (remanding the
appeal with instructions to advise the appellant of the elements of a constructive
suspension claim) . Nonetheless, the lack of Burgess notice did not prejudice the
appellant’s substantive ri ghts because the agency’s response put him on notice of what
he must do to establish jurisdiction over an alleged constructive suspension claim on
review . IAF, Tab 5 at 17-20; see Easterling v. U.S. Postal Service , 110 M.S.P.R. 41 ,
¶ 11 (2008) (finding that an administrative judge’s failure to provide an appellant with
proper Burgess notice can be cured if the agency’s pleadings provide information on
what is required to establish an appealable jurisdictional issue, thus affording the
appellant an opportunity to meet his jurisdictional burden on petition for review). As
such, we conc lude that the administrative judge’s error is of no legal consequence
because it did not adversely affect the appellant’s substantive rights. See Panter v.
Department of the Air Force , 22 M.S.P.R. 281 , 282 (1984).
5
in the matter; and (2) it was the agency’s wrongful actions that deprived the
employee of that choice. Id. Assuming that the jurisdictional requireme nts of
5 U.S.C. chapter 75 are otherwise met, proof of these two things is sufficient to
establish Board jurisdiction. Id.
¶7 If an appellant makes a nonfrivolous allegation of fact establishing Board
jurisdiction, he is entitled to a hearing at which he m ust prove jurisdiction by
preponderant evidence. Thomas v. Department of the Navy , 123 M.S.P.R. 628 ,
¶ 11 (2016) . A nonfrivol ous allegation of Board jurisdiction is an allegation of
fact that, if proven, could establish that the Board has jurisdiction over the matter
at issue. Ferdon v. U.S. Postal Service , 60 M.S.P.R. 325 , 329 (1994); 5 C.F.R.
§ 1201.4 (s). As set forth above, the appellant alleged that the agency denied hi s
reassignment to a vacant position within his restrictions despite finding him
eligible for a reasonable accommodation. PFR File, Tab 1 at 2 -4, 22 -26; IAF,
Tab 1 at 5. He also alleged that he was out of work without pay for almost a
month in emails to the agency . PFR File , Tab 1 at 10 -11.
¶8 We find that the appellant has, by these claims, made a nonfrivolous
allegation that he was constructively suspended. See Bean , 120 M.S.P.R. 397 ,
¶¶ 13-14. Like t he appellant in Bean , the appellant appears to claim that the
agency compelled him to absent himself from work because his only alternative
was to work in violation of his medical restrictions and that the agency forced
him into this untenable position by improperly failing to accommodate his
condition. Id., ¶ 14. There is no dispute that the ot her jurisdictional prerequisites
of chapter 75 otherwise appear to be satisfied because the appellant is a
preference -eligible , supervisory Postal Service employee with more than 1 year of
current continuous service , and his absence lasted for more than 14 days. IAF,
Tab 1 at 1, Tab 5 at 6; see 5 U.S.C. §§ 7511 (a)(1)(B)(ii), 7512(2). Therefore,
under the principles set forth above , we remand this appeal for further
development of the record and a jurisdictional hearing.
6
¶9 On remand, the administrative judge should consider whether the
appellant ’s medical condition would have compelled a reasonable person to take a
leave of absence rather than accept a detail outside of his medical restriction s and
whether the agency improperly failed to offer the appellant reassignment or an
alternative accommodation that would have allowed him to continue working.
We also note that enforcement guidance issued by the Equal Employment
Opportunity Commission (E EOC) provides that “[r]eassignment means that the
employee gets the vacant position if [he] is qualified for it. Otherwise,
reassignment would be of little value and would not be implemented as Congress
intended.” See EEOC Enforcement Guidance: Reasonab le Accommodation and
Undue Hardship Under the Americans with Disabilities Act, Question 29,
Notice 915.002, 2002 WL 31994335 (Oct. 17, 2002).
ORDER
¶10 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 | COLLAZO_NICANOL_PH_3443_21_0263_I_1_REMAND_ORDER_1946600.pdf | 2022-07-29 | null | PH-3443-21-0263-I-1 | NP |
4,231 | https://www.mspb.gov/decisions/nonprecedential/BRADLEY_SHAMAR_DC_315H_21_0541_I_1_FINAL_ORDER_1946630.pdf | UNITED STATES OF AME RICA
MERIT SYSTEMS PROTEC TION BOARD
SHAMAR BRADLEY,
Appellant,
v.
DEPARTMENT OF THE NA VY,
Agency.
DOCKET NUMBER S
DC-315H -21-0541 -I-1
DC-3443 -22-0094 -I-1
DC-3443 -22-0065 -I-1
DATE: JULY 29, 2022
THIS FINAL ORDER IS NONPRECEDENTIAL1
Shamar Bradley , Helotes, Texas, pro se.
Jason B. Smith and Matthew B. Hawkins , Esquire, Dahlgren, 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 petitions for review of th ree initial decisions ,
which dismissed his appeals of various agency actions, including a probationary
termination, a transfer to another off ice, a denial of his request to accrue credit
hours, an assignment of a peer mentor within his chain of command, a denial 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
his request for a meeting with a superior, and a rescission of his job offer, for
lack of jurisdiction.2 On review, t he appellant argues that his probationary
termination was based on pre appointment reasons because the agency falsified his
preappointment documents, such as his position description addendum and his
educational record, and the Board thus has jurisdiction . He also argu es, among
other things, the agency’s rescission of its job offer was a suitability action, the
agency violated an employment practice when it fa lsified his position description,
and the agency retaliated against him for his claims of whistleblower reprisal .3
2 In Bradley v. Department of the Navy , MSPB Docket No. DC -315H -21-0541 -I-1, the
appellant challenges a probationary termination. In Bradley v. Department of the Navy ,
MSPB Docket No. DC-3443 -22-0094 -I-1, he challenges a transfer to another office, a
denial of his request to accrue credit hours , an assignment of a peer mentor within his
chain of command, and a denial of his request for a meeting with a superior. In Bradley
v. Departmen t of the Navy , MSPB Docket No. DC -3443 -22-0065 -I-1, he challenges a
rescission of a job offer. Although the three appeals were adjudicated separately below,
we JOIN the three appeals on review because the facts are interrelated and joinder will
expedite p rocessing without adversely affecting the interests of the parties. See
5 C.F.R. § 1201.36 (b). Regarding the appellant’s termination during his probationary
period, a t the time of the a ppellant’s appointment on March 1, 2021, individuals
appointed to a permanent competitive -service position in the Department of Defense
(DOD), such as the appellant, were subject to a 2 -year probationary period and only
qualified as “employees” under 5 U.S.C. § 7511 (a)(1)(A)(ii) (2016) if they completed
2 years of current continuous service. 10 U.S.C. § 1599e (a), (b)(1)(A), (d) (2016). The
appellant had not yet completed a 2 -year probationary period or 2 years of current
continuous service in his competitive -service position when the agency terminated his
employment on June 21, 2021. Bradley v. Department of the Navy , MSPB Docket No.
DC-315H -21-0541 -I-1, Initial Appeal File (0541 IAF) , Tab 1 at 1, 7 -11. On December
27, 2021, President Biden signed into law the National Defense Authorization Act for
Fiscal Year 2022 (2022 NDAA), Pub. L. No. 117 -81, 135 Stat. 1541 . The 2022 NDAA
repealed the 2 -year pr obationary period for DOD appointments made on or after
December 31, 2022. Pub. L. N o. 117 -81, § 1106, 135 Stat. 1541, 1950. That change
would not affect the outcome of th e probationary termination appeal.
3 In his reply to the agency’s response to his p etition for review in the probationary
termination appeal , the appellant claims that the administrative judge did not provide
him with clear notice that he could file an individual right of action (IRA) appeal or
how to make a prima facie showing of jurisd iction. Bradley v. Department of the Navy ,
MSPB Docket No. DC-315H -21-0541 -I-1, Petition for Review ( 0541 PFR ) File, Tab 8
at 8, 10. The appellant’s reply to the agency’s response to the petition for review is
untimely filed , and thus the Board need not co nsider it. 0541 PFR File, Tabs 2-3, 6, 8.
Moreover, the appellant’s claim of deficient notice in his probationary termination
3
Generally, we grant petitions such as this one only in the following
circumstances: the initial decision contains erroneous findings of material fact;
the initial decision is based on an erroneous interpretation of statute or regulation
or the erroneo us application of the law to the facts of the case; the administrative
judge’s rulings during either the course of the appeal or the initial decision
were not consistent with required procedures or involved an abuse of discretion,
and the resulting error a ffected the outcome of the case; or new and material
evidence or legal argument is available that, despite the petitioner’s due
diligence, was not available when the record 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 conclude that the petitioner has not
established any basis under section 1201.115 for granting the petition s for review.
Therefore, we DENY the petitions for review4 and AFFIRM the initial decisions,
which are now the Board’s final decisions. 5 C.F.R. § 1201.113 (b).
appeal is unavailing because the administrative judge set forth the relevant standards
for establ ishing Board jurisdiction over an IRA appeal in a jurisdictional order and the
initial decision. 0541 IAF , Tab 14 at 4 -5, Tab 18, Initial Decision at 7-8. Likewise, in
the other two appeal s, the appellant was on notice of the requirement to exhaust his
administrative remedies before the Office of Special Counsel and he did not allege or
provide any evidence that he met that requirement. Bradley v. Department of the Navy ,
MSPB Docket No. DC -3443 -22-0065 -I-1, Initial Appeal File, Tab 8 at 8, Tab 10 at 4 -5,
Tab 23, I nitial Decision at 10-11; Bradley v. Department of the Navy , MSPB Docket
No. DC -3443 -22-0094 -I-1, Initial Appeal File , Tab 6 at 3 -4, Tab 16, Initial
Decision at 5-6.
4 With his petition for review in the probationary termination appeal , the appel lant
provides his position description addendum and February 10, 2021 emails noting the
agency’s maximum telework status and setting his start date. 0541 PFR File , Tab 1 at
34-39. He provides the same position description addendum with his petitions for
review in the other two appeals. Bradley v. Department of the Navy , MSPB Docket No.
DC-3443 -22-0065 -I-1, Petition for Review File , Tab 1 at 10 -13; Bradley v. Department
of the Navy , MSPB Docket No. DC-3443 -22-0094 -I-1, Petition for Review File, Tab 1
at 10 -13. In the three appeals, the position description addendum was already in the
record and is not new. See Meier v. Department of the Interior , 3 M.S.P.R. 247 , 256
(1980). The appellant does not explain how the February 10, 2021 emails relate to the
jurisdictional issue before the Board on review. See Russo v. Veterans Administration ,
3 M.S.P.R. 345 , 349 (1980) (stating that the Board will not grant a petition for review
4
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
filing time limits and requirements. Failure to file within the applicable time
limit may result in the dismissal of your case by your chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
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).
based on new evidence absent a showing that it is of sufficient weight to warrant an
outcome different from that of the initial decision). In his petition for review in the
probationary termination appeal, the appellant also asserts that he has new evidence in
the form of multiple criminal and civil complaints he has filed against the agency. 0541
PFR File, Tab 1 a t 5. He does not provide evidence to support his claim and does not
explain how the criminal and civil complaints would establish Board jurisdiction. See
Russo , 3 M.S.P.R. at 349.
5 Since the issuance of the initial decision in this matter, the Board m ay have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise which option is most appropriate in any matter.
5
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following 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.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
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
6
discrimination based on race, color, religion, sex, national origin, or a disabling
condition, you may be entitled to representation by a court -appointed lawyer and
to waiver of any requirement of prepayment of fees, costs, or other security. See
42 U.S.C. § 2000e -5(f) and 29 U.S.C. § 794a .
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link belo w:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination cla ims only, excluding
all other issues . 5 U.S.C. § 7702 (b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702 (b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washingt on, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302 (b)(8) or
7
other protected activities listed in 5 U.S.C. § 2302 (b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
disposition of allegations of a prohibited personnel practice described in section
2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i),
(B), (C), or (D),” then you may file a petition for judicial review either with th e
U.S. Court of Appeals for the Federal Circuit or any court of appeals of
competent jurisdiction.6 The court of appeals must receive your petition for
review within 60 days of the date of issuance of this decision. 5 U.S.C.
§ 7703 (b)(1)(B).
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
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 de cisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115 -195,
132 Stat. 1510.
8
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
Contact information for the courts of appeals can be found at their
respective websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
FOR THE BOARD:
Washington, D.C. /s/ for
Jennifer Everling
Acting Clerk of the Board | BRADLEY_SHAMAR_DC_315H_21_0541_I_1_FINAL_ORDER_1946630.pdf | 2022-07-29 | null | S | NP |
4,232 | https://www.mspb.gov/decisions/nonprecedential/WILSON_CHARLES_E_DA_0845_16_0478_I_1_FINAL_ORDER_1946698.pdf | UNITED STATES OF AME RICA
MERIT SYSTEMS PROTEC TION BOARD
CHARLES E. WILSON,
Appellant,
v.
OFFICE OF PERSONNEL
MANAGEMENT,
Agency.
DOCKET NUMBER
DA-0845 -16-0478 -I-1
DATE: July 29, 2022
THIS FINAL ORDER IS NONPRECEDENTIAL1
Charles E. Wilson , Corpus Christi, Texas, pro se.
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 filed a petition for review of the initial decision, which
dismissed the appeal as settled . For the reasons set forth below, the appellant’s
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
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 is DISMISSED as untimely filed without good cause shown
for the delay . 5 C.F.R. § 1201.114 (e), (g).
BACKGROUND
¶2 The appellant filed an appeal challenging an Office of Personnel
Management (OPM) reconsideration decision finding that he was overpaid
$10,764.00 in ann uity benefits under the Federal Employees’ Retirement System
(FERS) . Initial Appeal File (IAF), Tab 1 at 5, 8 -10. While the appeal was
pending, the parties entered into a settlement agreement. IAF, Tab 22. The
appellant agreed to withdraw his appeal in exchange for a reduction in the
repayment schedule resulting in 215 monthly installments of $50.00, with one
final monthly installment of $14 .00. Id. After finding the agreement lawful on
its face and that the parties understoo d its terms and entered into it freely, the
administrative judge entered the agreement into the record for enforcement
purposes and dismissed the appeal as settled. IAF, Tab 23, Initial Decision (ID)
at 2. She informed the parties that the initial decision would become final unless
either party filed a petition for review by January 5, 2017. Id. The appellant,
however, did not file his petit ion for review until January 9, 2017 . Petition for
Review (PFR) File, Tab 1.
DISCUSSION OF ARGUME NTS ON REVIEW
¶3 A petition for review generally must be filed within 35 days after th e date
of issuance of an initial decision. 5 C.F.R. § 1201.114 (e). The Board will waive
this time limit only upon a showing of good cause for the delay in filing.
5 C.F.R. §§ 1201.12 , 1201.114 (f). To establish good cause for the untimely filing
of an appeal, a party must show that he exercised due diligence or ordinary
prudence under the particular circumstances of the case. Alonzo v. Department of
the Air Fo rce, 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
3
reasonableness of his excuse and his showing of due diligence, whether he is
proceeding pro se, and whether he has presented evidence of the existence of
circumstances beyond his control that affected his ability to comply with the time
limits or of unavoi dable casualty or misfortune that similarly shows a causal
relationship to his inability to timely file his petition. Moorman v. Department of
the Army , 68 M.S.P.R. 60 , 62-63 (1995), aff’d , 79 F.3d 1167 (Fed. Cir. 1996)
(Table ).
¶4 Here, when the appellant e lectronically filed his petition on January 9,
2017 , the Board’s e -Appeal Online form notified him that his petition was
untime ly filed and advised him of what was necessary to show good cause for the
untimely filing. PFR File, Tab 1. However, the appellant did not address the
untimeliness of his petition in the form . Rather, he addressed the merits of
OPM’s overpayment determi nation , and he asserted that he only entered into the
settlement agreement for “the sake of expediency .” Id. at 3.
¶5 Thereafter , the Office of the Clerk of the Board notified the appellant tha t
his petition was untimely filed and advised him that the Boar d may issue an order
dismissing his untimely petition if he did not submit , by January 24, 2017, an
affidavit or a statement, signed under penalty of perjury, showing either that his
petition for review was timely filed or that good cause existed for the delay . PFR
File, Tab 2 at 1-2. Along with the acknowledgment letter, i t enclosed a “Motion
to Accept Filing as Timely or to Waive Time Limit” form for assistance. Id.
at 7-8. The appellant did not file a timely response . However, on January 31,
2017, he submitted a copy of a l etter he sent to his congressman in an apparent
reply to the agency’s response to his petition . PFR File, Tab 5. In this letter , the
appellant challenges the merits of the FERS annuity overpayment and also state s,
“For OPM and M SPB any delays during the Christmas and New Years time [sic]
were because my elder sister had to be relocated to a nursin g home in Texas from
Pensacola FL, due to apparent dementia although that diagnosis has not
4
necessarily been made yet. ” Id. at 5. While the appellant appears to be asserting
that his sister’s relocation is the reason for his filing delay with the Board , he did
not submit an y evidence to support th is assertion , and he did not submit the
Board’s “Motion to Accept Filing as Timely or to Waive Time Limit” form.
¶6 Although the appellant is acting pro se, that fact alone cannot overcome his
filing delay and the absence of evidence showing due diligence. See Schuringa v.
Department of the Treasury , 106 M.S.P.R. 1 , ¶¶ 4 n. *, 9, 14 (2007) (declini ng to
excuse a pro se appellant’ s 4–day delay in filing her appeal ). Further, the record
reveals that the appellant : (1) was notified of the time limit for filing a petition
for review ; (2) was twice provided with an opportunity to explain his untimely
filing and advised of what he had to submit to support a motion to accept his
filing as timely or to waive the time limit ; and (3) subsequently asserted an
explanation for the untimely filing in a letter to his congressman but did not
explain how his sister’s relocation prevented him from meeti ng the filing deadline
or from requesting an extension of time to do so . See Pine v . Department of the
Army , 63 M.S.P.R. 381 , 383 (1994) (finding that a claim that the appellant was
caring for a critically ill mother , which di d not specifically account for the period
of untimeliness , did not constitute good cause for the waiver of the filing
deadline). T hus, we find that the appellant has failed to demonstrate due
diligence or ordinary prudence that would excuse his late filing and that ,
therefore, no good cause exists for the filing delay.
¶7 Accordingly, we dismiss the petition for review as untimely filed. This is
the final decision of the Merit Systems Protection Board regarding the timeliness
of the petition for review.2 The initial decision remains the final decision of the
2 Nevertheless , we have reviewed the appellant’s claim on review that he only entered
into the settlement agreement with OPM for the “sake of expediency.” PFR File, Tab 1
at 3. The record reflects that the appellant freely entered into the settlement agreement ,
and we discern no basis upon which to disturb the initial decision dismissing the appeal
as settled. See Asberry v. U.S. Postal Service , 692 F.2d 1378 , 1380 (Fed. Cir. 1982)
5
Board regarding the dismissal of the appellant’s FERS annuity overpayment
appeal as settled .3
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 n ot represent a
statement of how courts will rule regarding which cases fall within their
jurisdiction. If you wish to seek review of this final decision, you should
immediately review the law applicable to your claims and carefully follow all
filing time limits and requirements. Failure to file within the applicable time
limit may result in the dismissal of your case by your chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your part icular case. If you have questions
(explaining that the party challenging the validity of the settlement agreement bears a
“heavy burden ”); see also Hinton v. Department of Veterans Affairs , 119 M.S.P.R. 129 ,
¶ 4 (2013) (holding that an appellant ’s mere postsettlement remorse or change of heart
cannot serve as a basis for setting aside a valid settlement agreement ).
3 OPM has advised the Board that it may seek recovery of any debt remaining upon an
appellant’s death from the appellant’s estate or other responsible party. A par ty
responsible for any debt remaining upon the appellant’s death may include an heir
(spouse, child or other) who is deriving a benefit from the appellant’s Federal benefits,
an heir or other person acting as the representative of the estate if, for exampl e, the
representative fails to pay the United States before paying the claims of other creditors
in accordance with 31 U.S.C. § 3713 (b), or transferees or distributers of the appellant’s
estate. Pierotti v. Office of Personnel Management , 124 M.S.P.R. 103 , ¶ 13 (2016).
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
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703 (b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the 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 ac tion
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
7
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Co urt of Appeals for the Federal Circuit), within 30 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 wi th the district court no later than 30 calendar days
after your representative receives this decision. If the action involves a claim of
discrimination based on race, color, religion, sex, national origin, or a disabling
condition, you may be entitled to representation by a court -appointed lawyer and
to waiver of any requirement of prepayment of fees, costs, or other security. See
42 U.S.C. § 2000e -5(f) and 29 U.S.C. § 794a .
Contact information for U.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
8
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) oth er than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i),
(B), (C), or (D),” then you may file a petition for judicial review either with the
U.S. Court of Appeals for the Federal Circuit or any court of appeals of
competent jurisdiction.5 The court of appeals must receive your petition for
review within 60 days of the date of issuance of this decision. 5 U.S.C.
§ 7703 (b)(1)(B).
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
5 The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 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.
9
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D .C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
Contact information for the courts of appeals can be found at their
respective websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/C ourtWebsites.aspx .
FOR THE BOARD:
Washington, D.C. /s/ for
Jennifer Everling
Acting Clerk of the Board | WILSON_CHARLES_E_DA_0845_16_0478_I_1_FINAL_ORDER_1946698.pdf | 2022-07-29 | null | DA-0845-16-0478-I-1 | NP |
4,233 | https://www.mspb.gov/decisions/nonprecedential/LUCA_JAMES_CH_3443_22_0004_I_1_FINAL_ORDER_1946706.pdf | UNITED STATES OF AME RICA
MERIT SYSTEMS PROTEC TION BOARD
JAMES LUCA,
Appellant,
v.
SOCIAL SECURITY
ADMINISTRATION,
Agency.
DOCKET NUMBER
CH-3443 -22-0004 -I-1
DATE: July 29, 2022
THIS FINAL ORDER IS NONPRECEDENTIAL1
Noe Hernandez , Waterford, Michigan, for the appellant.
James Hail , Esquire, Lyndsey Frushour , and Deepa Rajkarne , Chicago,
Illinois, 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 dismissed his appeal of his nonselection for lack of jurisdiction . On
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
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,2 the appellant argues that the Boar d has jurisdiction over his
nonselection claim as an emplo yment practice under 5 C.F.R. part 300 and as a
mixed case including personnel practices prohib ited by 5 U.S.C. § 2302 (b).
He disagrees with the administrative j udge’s findings that the Board lacks
jurisdiction over his discrimination claims and that his election to first file a
grievance precludes his Board appeal . Generally, we grant petitions such as this
one only in the following circumstances: the initial d ecision 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 t he course of
the appeal or the initial decision were not consistent with required procedures or
involved an abuse of discretion, and the resulting error affected the outcome of
the case; or new and material evidence or legal argument is available that, des pite
the petitioner’s due diligence, was not available when the record closed. Title 5
of the Code of Federal Regulations, section 1201.115 ( 5 C.F.R. § 1201.115 ).
After fully consideri ng the filings in this appeal, we conclude that the petitioner
has not established any basis under section 1201.115 for granting the petition for
review. Therefore, we DENY the petition for review . Except as expressly
MODIFIED to VACATE the administrative judge’s alternative jurisdictional
2 With his petition for review, the appellant provides excerpts from the agency’s
personnel policy manual, a vacancy announcement for a Social Insurance Specialis t
position, the affidavit of an agency employee regarding the selection process for that
position, and excerpts of h is Equal Employment Opportunity Commission hearing
transcript. Petition for Review File, Tab 1 at 18-25. Most of the documents were
includ ed in the record below and thus are not new. Initial Appeal File , Tabs 9, 10; see
Meier v. Department of the Interior , 3 M.S.P.R. 247 , 256 (1980) (e xplaining that
evidence that is already a part of the record is not new). Furthermore, none of the
documents pertain to the issue of jurisdiction and are therefore not material to the
outcome of the appeal. Thus, the documents do not constitute a basis t o grant the
petition for review. Russo v. Veterans Administration , 3 M.S.P.R. 345 , 349 (1980)
(stating that the Board will not grant a petition for review based on new evidence absent
a showing that it is of sufficient weight to warrant an outcome different from that of the
initial decision).
3
finding regarding the appellant’s election of remedies , we AFFIRM the initial
decision .3
NOTICE OF APPEAL RIG HTS4
The init ial 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 no t represent a statement of how courts will rule
regarding which cases fall within their jurisdiction. If you 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 parti cular case. If you have questions
3 The Board has held that an election under 5 U.S.C. § 7121 (g) is binding only if it was
knowing and informed. Agoranos v. Department of Justice , 119 M.S.P.R. 498 , ¶ 16
(2013). An agency’ s failure to inform an employee fully of his potential appeal rights
under 5 U.S.C. § 7121 (g) and any limitation on those rights precludes a finding that the
appellant made a knowing an d informed election of remedies under that provision. Id.,
¶¶ 15, 17. It appears that, in the instant case, the administrative judge did not consider
whether the appellant’s election was knowing and informed in determining that the
appeal is precluded by the appellant’s election of remedies . We therefore vacate the
administrative judge’s alternative jurisdictional finding regarding the appellant’s
election of remedies, still dismissing the appeal for lack of jurisdiction.
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
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review o f a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703 (b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
5
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 representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
6
If you submit a request for review 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 competent jurisdiction.5 The court of appeals must receive your
petition for review within 60 days of the date of issuance of this decision.
5 U.S.C. § 7703 (b)(1)(B).
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
5 The 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
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Was hington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/pr obono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the 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 | LUCA_JAMES_CH_3443_22_0004_I_1_FINAL_ORDER_1946706.pdf | 2022-07-29 | null | CH-3443-22-0004-I-1 | NP |
4,234 | https://www.mspb.gov/decisions/nonprecedential/CLYDESDALE_STEPHEN_ANDREW_CH_0752_22_0008_I_1_FINAL_ORDER_1946707.pdf | UNITED STATES OF AME RICA
MERIT SYSTEMS PROTEC TION BOARD
STEPHEN ANDREW CLYDE SDALE,
Appellant,
v.
DEPARTMENT OF THE AR MY,
Agency.
DOCKET NUMBER
CH-0752 -22-0008 -I-1
DATE: July 29, 2022
THIS FINAL ORDER IS NONPRECEDENTIAL1
Neil C. Bonney , Esquire, Virginia Beach, Virginia, for the appellant.
Matthew E. Headley , Johnston, Iowa, 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 appeal of his termination from dual status employment for lack of
jurisdiction. On petition for review, the appellant argues , among other things,
that h is termination did not concern his fitness for duty, that the agency’s
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117 (c).
2
misinformation induced him to accept a transfer that resulted in his termination,
and that the agency was obligated to reemploy him in accordance with the
Uniformed Services Employment and Reemployment Rights Act of 1994
(codified as amended at 38 U.S.C. §§ 4301 -4335). Generally, we grant petitions
such as this one only in the following circumstances: the initial decision cont ains
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 pet itioner’s due diligence, was not available when the record closed. Title 5
of the Code of Federal Regulations, section 1201.115 ( 5 C.F.R. § 1201.115 ).
After fully considering the 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
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. A s indicated in the notice, the
Board cannot advise which option is most appropriate in any matter.
3
jurisdiction. If you wish to seek review of this final decision, you should
immediately review the law applicable to your claims and carefully follow all
filing time limits and requirements. Failure to file within the applicable time
limit may result in the dismissal of your case by your chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a 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
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, 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
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 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
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
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.
6
petition for review within 60 days of the date of issuance of this decision.
5 U.S.C. § 7703 (b)(1)(B).
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal 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 | CLYDESDALE_STEPHEN_ANDREW_CH_0752_22_0008_I_1_FINAL_ORDER_1946707.pdf | 2022-07-29 | null | CH-0752-22-0008-I-1 | NP |
4,235 | https://www.mspb.gov/decisions/nonprecedential/MILLER_CRAIG_CH_0353_20_0294_I_2_FINAL_ORDER_1946778.pdf | UNITED STATES OF AME RICA
MERIT SYSTEMS PROTEC TION BOARD
CRAIG MILLER,
Appellant,
v.
UNITED STATES POSTAL SERVICE,
Agency.
DOCKET NUMBER
CH-0353 -20-0294 -I-2
DATE: July 29, 2022
THIS FINAL ORDER IS NONPRECEDENTIAL1
Craig Miller , Springfield, Ohio, pro se.
Cynthia R. Allen , Memphis, Tennessee, 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 appeal of the agency’s 2020 denial of hi s request for restoration2
1 A nonprecedential order is one that the Board has determined does not add
significantly to the 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 Although the appellant mentioned the agency’s 1994 restoration offer below, he d id
not explicitly argue that it amounted to an arbitrary and capricious denial of restoration
until his petition for review . Petition for Review File, Tab 1 at 3, 5. We construe his
2
and his claim that his 1993 retirement was involuntary for lack of jurisdiction.
On petition for review, the appellant asserts that not having a hearing harmed his
restoration appeal. Generally, we grant petitions such as this one only in the
following circumstances: the initial decision contains erroneous findings of
material fact; the initial decision is based on an erroneous interpretation of statute
or regulation or the erroneous application of the law to the facts of the case; the
administrative judge’s rulings during either the course of the appeal or the initial
decision were not consistent with required procedures or involved an abuse of
discretion, and the resulting error affected the outcome of the case; or new and
material evidence or legal argument is available that, despite the petitioner’s due
diligence, was not available when the record closed. Title 5 of the Code of
Federal Regulations, section 1201.115 ( 5 C.F.R. § 1201.115 ). After fully
considering the filings in this appe al, 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,3
which is now the Board’s final decision. 5 C.F.R. § 1201.113 (b).
argument to be a request to reopen his 1998 denial of restoration appeal. Miller v. U.S.
Postal Service , MSPB Docket No. CH -0353 -98-0521 -I-1. In deciding that appeal, the
Board found that it cannot review an Office of Workers’ Compensation Programs
(OWCP) determination that a job offer was suitable, and thus, there was no basi s to
grant relief in an appeal premised on a claim that the agency’s job offer was so
unreasonable that it amounted to a denial of restoration. Miller v. U.S. Postal Service ,
82 M.S.P.R. 170 , ¶¶ 6-8, 10 (1999). In an April 17, 2015 decision, the Employees’
Compensation Appeals Board (ECAB) reversed the OWCP determination upon which
the Board relied in its 1999 decision . Initial Appe al File (IAF), Tab 9 at 91-99. The
Board will only reopen a case if the appellant has exercised due diligence in seeking
reopening. McCoy v. U.S. Postal Service , 112 M.S.P.R. 256 , ¶ 11 (2009) ,
aff’d , 360 F. App’x 132 (Fed. Cir. 2010). The appellant has not exercised due diligence
here . He did not bring the April 17, 2015 ECAB decision to the attention of the Board
until the filing of the instant appeal approximately 5 years after its issuance . Thus, we
decline to exercise our discretion to reopen the appeal under 5 C.F.R. § 1201.118 .
3 After the initial decision in this appeal was issued, the Board issued a decision in
Cronin v. U.S. Postal Service , 2022 MSPB 13 , which clarified when a denial of
restoration may be arbitrary and capricious. The Board in Cronin held that, although
agencies may undertake restoration efforts beyond the minimum effort required by
3
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 appe al rights, the Merit
Systems Protection Board does not provide legal advice on which option is most
appropriate for your situation and the rights described below do not represent a
statement of how courts will rule regarding which cases fall within their
jurisdiction. If you wish to seek review of this final decision, you should
immediately review the law applicable to your claims and carefully follow all
filing time limits and requirements. Failure to file within the applicable time
limit may result in t he dismissal of your case by your chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate on e to review your case, you
should contact that forum for more information.
OPM under 5 C.F.R. § 353.301 (d), an agency’s failure to comply with self -imposed
obligations cannot itself constitute a violation of 5 C.F.R. § 353.301 (d) such that a
resul ting denial of restoration would be rendered arbitrary and capricious for purposes
of establishing Board jurisdiction under 5 C.F.R. § 353.304 (c). Cronin , 2022 MSPB 13 ,
¶ 20. Rather, as explained in Cronin , the issue before the Board is limited to whether
the agency failed to comply with the minimum requirement of 5 C.F.R. § 353.301 (d),
i.e., to search within the local commuting area for vacant positions to which it can
restore a partially recovered employee and to consider him for any such vacancies. See
Cronin , 2022 MSPB 13 , ¶ 20 (citing Sanchez v. U.S. Postal Service , 114 M.S.P.R. 345 ,
¶ 12 (2010)). For the reasons stated in the initial decision, we find that the agency
complied with the minimum requirement of 5 C.F.R. § 353.301 (d) and that the appellant
failed to nonf rivolously allege that the agency’s denial of restoration in 2020 was
arbitrary and capricious. IAF, Tab 12, Initial Decision at 7 -8.
4 Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review rights inclu ded in final decisions. As indicated in the notice, the
Board cannot advise which option is most appropriate in any matter.
4
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703 (b)(1)(A).
If you submit a petition for review to the U. S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Cour t of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals 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, 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 through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702 (b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702 (b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after yo ur representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
6
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302 (b)(8) or
other protected activities listed in 5 U.S.C. § 2302 (b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
disposition of allegations of a prohibited personnel practice described in section
2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i),
(B), (C), or (D),” then you may file a petition for judicial review either with the
U.S. C ourt 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 com petent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases w ith the U.S. Court of Appeals
for the Federal Circuit or any other circuit court 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 Petitio ners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our web site at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the 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 | MILLER_CRAIG_CH_0353_20_0294_I_2_FINAL_ORDER_1946778.pdf | 2022-07-29 | null | CH-0353-20-0294-I-2 | NP |
4,236 | https://www.mspb.gov/decisions/nonprecedential/LONG_DAMON_R_NY_0845_16_0302_I_1_FINAL_ORDER_1946195.pdf | UNITED STATES OF AME RICA
MERIT SYSTEMS PROTEC TION BOARD
DAMON R. LONG,
Appellant,
v.
OFFICE OF PERSONNEL
MANAGEMENT,
Agency.
DOCKET NUMBER
NY-0845 -16-0302 -I-1
DATE: July 28, 2022
THIS FINAL ORDER IS NONPRECEDENTIAL1
Damon R. Long , San Antonio, Texas, 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 has filed a petition for review of the initial decision, which
dismissed his app eal for failure to prosecute. 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 ju dges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and 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 o r regulation or the erroneous application of the law to
the facts of the case; the administrative judge’s rulings during either the course of
the appeal or the initial decision were not consistent with required procedures or
involved an abuse of discretion , and the resulting error affected the outcome of
the case; or new and material evidence or legal argument is available that, despite
the petitioner’s due diligence, was not available when the record closed. Title 5
of the Code of Federal Regulations, sec tion 1201.115 ( 5 C.F.R. § 1201.115 ).
After fully considering the filings in this appeal, we conclude that the petitioner
has not established any basis under section 1201.115 for granti ng 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 On September 8, 2016, the appellant filed a Board appeal of an Office of
Personnel Management final decision finding that he had been overpaid in
retirement annuity benefits. Initial Appeal File (IAF), Tab 1. He subsequently
failed to appear for a prelim inary status conference on September 3 0, 2016. IAF,
Tab 7. The administrative judge issued a show cause order on September 30,
2016 , ordering the appellant to file evidence and argument showing good cause
for his failure to appear and rescheduled the sta tus conference for October 11,
2016. Id. The appellant failed to appear for the status conference and did not
respond to the show cause order.
¶3 On October 11, 2016, the administrative judge issued a second order to
show cause and rescheduled the status conference for October 18, 2016. IAF,
Tab 11. The appellant again failed to appear for the status conference and did not
respond to the show cause order. On October 19, 2016, the administrative judge
issued a third show cause order and rescheduled th e status conference for
October 24, 2016. IAF, Tab 12. The a ppellant failed to appear for a third status
conference , and so , on October 24, 2016, the administrative judge issued an order
3
noting that he could not reach the appellant because the appellant had not
provide d a telephone number on his appeal form or in response to a preliminary
status conference order. IAF, Tab 13. The three show cause orders informed the
appellant that failure to appear for the conference by telephone or in person may
result in the imposition of sanctions, including dismissal for lack of prosecution.
IAF, Tabs 7, 11 -12. On October 25, 2016, the administrative judge issued an
initial decision , dismissing the appeal for failure to prosecute. IAF, Tab 14,
Initial Decision.
¶4 On De cember 7, 2016, the appellant filed a petition for review in which he
asserts that he did not receive any of the notices below because the address listed
on his appeal form was a temporary address, and he moved from New York to
Texas in late September 2016 . Petition for Review (PFR) File, Tab 1 at 5. The
appellant also filed a motion to accept his petition for review as timely, asserting
that he did not receive the initial decision until December 7, 2016, when his car
was shipped to Texas and he discovere d a box of mail in the back. PFR File,
Tabs 1, 5. The agency has opposed the appellant’s petition. PFR File, Tab 4.
DISCUSSION OF ARGUME NTS ON REVIEW
¶5 The sanction of dismissal with prejudice may be imposed if a party fails to
prosecute or defend an app eal. Leseman v. Department of the Army ,
122 M.S.P.R. 139 , ¶ 6 (2015); 5 C.F.R. § 1201.43 (b). Such a sanction should be
imposed only when a party has failed to exercise basic due diligence in
complying with Board orders, or has exhibited negligence or bad faith in its
efforts to comply. Id. Repeated failure to r espond to multiple Board orders can
reflect a failure to exercise basic due diligence. Williams v. U.S. Postal Service ,
116 M.S.P .R. 377 , ¶ 9 (2011). Absent an abuse of discretion, the Board will not
reverse an administrative judge’ s determination regarding sanctions.
Leseman , 122 M.S.P.R. 139 , ¶ 6.
4
¶6 The record reflects that the three show orders were sent to the appellant at
the address he provided on his appeal form. IAF, Tabs 7, 11 -12. The preliminary
status conference order and acknowledgment order wer e initially sent to an
incorrect addres s. IAF, Tab 2 at 20, Tab 3 at 3. Thus, the appellant’s failure to
appear at the preliminary status conference on September 30, 2016, may have
been excused. However, both orders were subsequently sent to the appella nt’s
correct address of record on September 30, 2016. IAF, Tab 7 at 1 , 3. The
appellant did not respond to these orders or any of the other orders that were
properly served on him.
¶7 Although the appellant contends that he informed a customer service agent
that his address was temporary, PFR File, Tab 1 at 5, the Board’ s regulations
provide that an appellant is responsible for notifying the Board in writing of any
change of address, 5 C.F. R. § 1201.26 (b)(2). The Board’s appeal form similarly
notified the appellant of this requirement . IAF, Tab 1 at 7. Further, the appellant
does not contend that he ever informed the Board of his new address. The
appell ant’s failure to keep the Board in formed of his correct address delayed his
receipt of documents essential to his appeal and indicates a lack of due diligence
and ordinary prudence on his part. See Jacks v. Department of the Air Force ,
114 M.S.P.R. 355 , ¶ 8 (2010) ( finding that the appellant’ s failure to notify the
Board of a change in address caused a delay in his receipt of the initial decision
and did not reflect du e diligence). We find that t he appellant has not shown that
he exercised basic due diligence by timely updating his contact information so
that he could stay abreast of the developments in his appeal. Nor does the record
contain any evidence that the app ellant took any steps to pursue his appeal
between September 8, 2016 , when he filed his appeal , and December 7, 2016 ,
when he filed his petition for review .
¶8 Based on the foregoing, we agre e with the administrative judge’ s finding
that dismissal was an appr opriate sanction, and we further find that the appellant
failed to exercise basic due diligence in prosecuting his appeal. Accordingly, we
5
affirm the initial decision’ s dismissal of the appeal with prejudice for failure to
prosecute.2
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 w hich to file. 5 U.S.C. § 7703 (b).
Although we offer the following summary of available appeal rights, the Merit
Systems Protection Board does not provide legal advice on which option is most
appropriate for your situation and the rights described below do not represent a
statement of how courts will rule regarding which cases fall within their
jurisdiction. If you wish to seek review of this final decision, you should
immediately review the law applicable to your claims and carefully follow all
filing time limits and requirements. Failure to file within the applicable time
limit may result in the dismissal of your case by your chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in g eneral . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issua nce of this decision. 5 U.S.C.
§ 7703 (b)(1)(A).
2 In light of our decision , we need not address the timeliness of the appellant’s petition
for review.
3 Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise which option is most appropriate in any matter.
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
follo wing address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. C ourt of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the se rvices provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affect ed by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 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 represen tative receives this decision before
you do, then you must file with the district court no later than 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 -appointed lawyer and
to waiver of any 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 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
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 personnel practice described in
section 2302(b) other than practices described in section 2302(b)(8), or
2302(b)(9)(A)(i), (B), (C), or (D),” then you may file a petition for judicial
review either with the U.S. Court of Appeals for the Federal Circuit or any court
of appeals of competent jurisdiction.4 The court of appeals must receive your
petition for review within 60 days of the date of issuance of this decision.
5 U.S.C. § 7703 (b)(1)(B).
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellant s before the Federal Circuit. The
4 The original statutory provision that provided for judicial review of certain
whis tleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB deci sions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115 -195,
132 Stat. 1510.
9
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
Contact information for the courts of appeals can be found at their
respective 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 Cle rk of the Board | LONG_DAMON_R_NY_0845_16_0302_I_1_FINAL_ORDER_1946195.pdf | 2022-07-28 | null | NY-0845-16-0302-I-1 | NP |
4,237 | https://www.mspb.gov/decisions/nonprecedential/BRISCOE_THOMAS_A_CH_831M_17_0188_I_1_FINAL_ORDER_1946292.pdf | UNITED STATES OF AME RICA
MERIT SYSTEMS PROTEC TION BOARD
THOMAS A. BRISCOE,
Appellant,
v.
OFFICE OF PERSONNEL
MANAGEMENT,
Agency.
DOCKET NUMBER
CH-831M -17-0188 -I-1
DATE: July 28, 2022
THIS FINAL ORDER IS NONPRECEDENTIAL1
Thomas A. Briscoe , Houston , Texas , pro se.
Cynthia Reinhold , 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 h as filed a petition for review of the initial decision, which
dismissed his appeal for lack of jurisdiction because the Office of Personnel
Management (OPM) had not issued a reconsideration decision . Generally, we
grant petitions such as this one only in the following circumstances: the initial
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
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
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 adm inistrative judge’s rulings during either
the course of the appeal or the initial decision were not consistent with required
procedures or involved an abuse of discretion, and the resulting error affected the
outcome of the case; or new and material eviden ce 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 Regulati ons, section 1201.115 ( 5 C.F.R.
§ 1201.115 ). After fully considering the filings i n this appeal, we DENY the
petition for review as moot, as OPM issued a final decision concerning the
subject of the appeal after the initial decision was issued, and FORWARD the
appellant’s filings received on May 4, 2017 to the Board’s regional office for
docketing as a new appeal.
¶2 The appellant was employed by the U.S . Postal Service from
September 1980 until Oc tober 198 7, and at the end of this period of service , he
applied for and received a refund of his contributions to the Civil Service
Retirement System. Initial Appeal File (IAF), Tab 1 at 7 -8, Tab 8, Subtab B
at 4, 6. He was later reemployed by the U.S. Postal Service, where he currently
serves as a Ramp C lerk. IAF, Tab 1 at 1 , 7-8. In October 2016, the appellant
applied to OPM to redeposit his refunded retirement contributions . IAF, Tab 8,
Subtab B at 6, 9. On December 21, 2016, OPM issued the appellant a civil
service deposit account statement set ting forth the amount of the retirement
contributions he was required to redeposit and the interest he owed on the
redeposit amount . Id. at 13.
¶3 On February 1, 2017, the appellant f iled a Board appeal contesting the
amount of interest he owed in addition to the redeposit amount and requested a
hearin g. IAF, Tab 1. OPM moved to dismiss the appeal for lack of jurisdiction
because it had not issued a final decision regarding the issues raised in the appeal.
IAF, Tab 10. The administrative judge ordered the appellant to file evidence and
3
argument showing that the Board had jurisdiction over his appeal, and the
appellant filed a response opposing dismissal of his appeal . IAF, Tab s 11 -12.
The administrative judge issued an initial decision finding that OPM had not
issued a final decis ion regarding the issues raised in the appeal and the Board
thus lacked jurisdiction over the appeal . IAF, Tab 14, Initial Decision (ID)
at 3-4. Accordingly, she dismissed the appeal for lack of jurisdiction without
holding a hearing. ID at 4.
¶4 On May 1, 2017, the appellant timely filed a petition for review in which he
alleged that the Board had jurisdiction over his appeal because OPM had
unreasonably f ailed to issue a final decision, despite his multiple communications
with the agency. Petition for Review (PFR) File, Tab 1 at 1 -2. He also alleged
that OPM and the U.S. Postal Service had committed prohibited personnel
practices and constitutional violations by failing to provide him with information
about the redeposit amount .2 Id. at 2-10. On May 2 , 2017, the appellant filed an
April 26, 2017 final decision from OPM denying his request to waive the interest
owed on his redeposit, which he asserted he received after he filed his petition for
review .3 PFR File, Tab 2. The agency opposed th e petition for review, and the
appellant filed a reply to the opposition. PFR File, Tabs 6-7.
2 We do not address these two arguments , as absent an appealable action , the Board is
without jurisdiction to hear them . See Wren v. Department of the Army , 2 M.S.P.R. 1 , 2
(1980) (explaining that prohibited per sonnel practices under 5 U.S.C. § 2302 (b) are not
an independen t source of Board jurisdiction), aff’d, 681 F.2d 867 , 871 -73 (D.C. Cir.
1982). The appellant may raise these issues in the new appeal to be docketed.
Prohibited personnel practices under 5 U.S.C. § 2302 (b) are not an independent source
of Board jurisdiction.
3 The appellant mailed his petition for review on May 1, 2017 , and the supplemental
filing on May 2, 2017; both were received by the Clerk of the Board on May 4, 2017.
PFR File, Tabs 1 -2. He also submitted OPM’s final decision to the Board’s Central
Regional Office; however, the Clerk of the Board informed him the final decision was a
part of the record on review and that the Board would not take further action on the
submission. PFR File, Tab 4.
4
¶5 In general, the Board has jurisdiction over OPM determinations affecting an
appellant’s rights or interests under the retirement system only after OPM has
issued a final decision . McNeese v. Office of Personnel Management ,
61 M.S.P.R. 70, 73 -74, aff’d , 40 F.3d 1250 (Fed. Cir. 1994) (Table). As an
exception to this general rule, however , the Board may assert jurisdiction over an
appeal concerning a retirement matter in which OPM has refused or improperly
failed to issue a final decision. Id. at 74. The administrative judge properly
found that t he Board did not have jurisdiction over the appeal, as OPM had not
issued a final decision at the time the initial decision was issued. ID at 3 -4. Any
error the administrative judge may have committed in failing to determine
whether OPM had refused or im properly failed to issue a final decision is moot,
as OPM has now issued a final decision. PFR File, Tab 2 at 2 ; see Malone v.
Merit Systems Protection Board , 590 F. App’x 1002 , 1003 (Fed. Cir. 2015)
(“However, an exception to the final decision requirements exists where OPM has
constructively denied an individual the opportunity to receive a final decision.”) .4
The record reflects that the appellant submitted OPM’s f inal decision to the Board
within 30 days of the date of OPM’s decision. Id. at 1 -2; see 5 C.F.R.
§ 1201.22 (b). Given the appellant’s timely request to appeal OPM’s final
decision, i t is appropriate to forward the appellant’s filings received on May 4,
2017 to the regional office for docketing as a new appeal .
¶6 Accordingly, the appellant’s petition for review is denied as moot, and the
appellant’s filings received on May 4, 2017 are forwarded to the regional office
for docketing as a new appeal.
4 The Board may follow a nonprecedential decision of the Federal Circuit when, as here,
it finds its reasoning persuasive . Morris v. Department of the Navy , 123 M.S.P.R. 662 ,
¶ 13 n.9 (2016).
5
NOTICE OF APPEAL RIGHTS5
You may obtain review of this final decision. 5 U.S.C. § 7703 (a)(1). By
statute, the nature of your claims determines the time limit for seeking such
review and the appropriate forum with which to file. 5 U.S.C. § 7703 (b).
Although we offer the following summary of available appeal rights, the Merit
Systems Protection Board does not provide legal advice on which option is most
appropriate for your situation and the rights described below do not represent a
statement of how courts will rule regarding which cases fall within their
jurisdiction. If you wish to seek review of this final decision, you should
immediately review the law applicable to your claims and carefully follow all
filing time limits and requirements. Failure to file within the applicable time
limit may result in the dismissal of your case by your chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that 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:
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 th e notice, the
Board cannot advise which option is most appropriate in any matter.
6
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is 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 decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 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
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://ww w.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702 (b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702 (b)(1). If y ou have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is:
Office 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
8
disposition of allegations of a prohibited p ersonnel practice described in
section 2302(b) other than practices described in section 2302(b)(8), or
2302(b)(9)(A)(i), (B), (C), or (D),” then you may file a petition for judicial
review either with the U.S. Court of Appeals for the Federal Circuit or a ny court
of appeals of competent jurisdiction.6 The court of appeals must receive your
petition for review within 60 days of the date of issuance of this decision.
5 U.S.C. § 7703 (b)(1)(B).
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained wi thin the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for inf ormation regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case .
6 The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Feder al Circuit or any other circuit court of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115 -195,
132 Stat. 1510.
9
Contact information for the courts of appeals can be found at their
respective websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/Cour tWebsites.aspx .
FOR THE BOARD:
Washington, D.C. /s/ for
Jennifer Everling
Acting Clerk of the Board | BRISCOE_THOMAS_A_CH_831M_17_0188_I_1_FINAL_ORDER_1946292.pdf | 2022-07-28 | null | CH-831M-17-0188-I-1 | NP |
4,238 | https://www.mspb.gov/decisions/nonprecedential/SPALDING_ZERINA_CB_1208_22_0016_U_1_ORDER_ON_STAY_REQUEST_1946313.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-1
DATE: July 28, 2022
THIS STAY ORDER IS N ONPRECEDENTIAL1
Julie R. Figueira , Esquire and Paul David Metcalf, Jr. , Esquire,
Washington, D.C., for the petitioner.
Corlie McCormick, Jr., Esquire, Crofton, Maryland, for the relator .
Danae K. Remmert , Esquire, Washington, D.C., for the agency.
BEFORE
Raymond A. Limon, Member
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 stay Ms. Spalding’s proposed removal for 45 days while
OSC completes its investigation and legal review of the matter and determines
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case 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
whether to seek corrective action. For the reasons discussed below, OSC’s
request is GRANTED.
BAC KGROUND
¶2 In its July 25, 2022 stay request, OSC states that it has reasonable grounds
to believe that on March 16 , 2022, the Department of the Treasury (the agency)
proposed to remove Ms. Spalding from her position with the U.S. Mint in
violation of 5 U.S.C. § 2302 (b)(1) and (b)(8). Stay Request File (SRF), Tab 1
at 5, 8. OSC alleges that, on December 13, 2019, Ms. Spalding sent an
anonymous email to the agency’s Anti -Harassment Coordinator detaili ng
instances of what she believed to be unlawful or improper favoritism toward
white employees . Id. at 6. In the email, a copy of which OSC provides as an
attachment to its stay request, the author alleged that some white employees at the
agency received “differing treatment” and that agency leadership would “pick and
choose what’s equal.” Id. at 21. The author identifie d examples of “differing
treatment ,” including instances in which two agency employees hung nooses in
U.S. Mint facilities and one of the employees was not disciplined while the other
employee was ultimately awarded financial compensation in a settlement
agreement. Id. The email author also alleged that an employee was given an
unfair advantage when the employee was permitted to serve in a detail beyond the
time limit, agency officials ignored ethics violations committed by another
employee, and certain employees were given favorable teleworking agreements
and advantages in promotion decisions. Id.
¶3 According to OSC, the email was later forwarded to the agency’s Office of
the Inspector General (OIG) , and the OIG initiated an investigation to determine
the identity of the email sender . Id. at 7. Afte r OIG received subpoenaed email
and IP addre ss records linking the anonymous email to Ms. Spalding’s home
address , Ms. Spalding initially denied knowledge of the anonymous email during
3
an interview with OIG investigators , but later admitted that she was the author of
the anonymous email during a subsequent interview in February 2022 . Id. at 8.
¶4 OSC states that the agency proposed Ms. Spalding’s removal from Federal
service on March 16, 2022 , based on a charge of lack of candor . Id. According
to OSC, although the agency initially agre ed to mediation through OSC and to
stay further processing of Ms. Spalding’s removal for 30 days beyond the end of
mediation, the agency issued a removal decision on July 1, 2022, just 2 weeks
after mediation ended , and on July 15, 2022, the agency informe d OSC that it
would not extend the stay on the removal decision and removed Ms. Spalding,
effective immediately. Id. OSC contends that there are reasonable grounds to
believe that the agency proposed Ms. Spalding’s removal in retaliation for her
oppositi on to practices made unlawful by title VII in violation of 5 U.S.C.
§ 2302 (b)(1)(A), and in retaliation for her protected whistleblowing disclosures in
violation of 5 U.S.C. § 2302 (b)(8), and requests that the Board retroactively stay
the proposed removal for a period of 45 days. Id. at 1, 9 -10, 12 -13, 19.
ANALYSIS
¶5 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 take n, as a result of a prohibited personnel
practice. ” Such a request “shall ” be granted “unless the [Board ] member
determines that, under the facts and circumstances involved, such a stay would
not be appropriate. ” 5 U.S.C. § 1214 (b)(1)(A)(ii). OSC’s stay request need only
fall within the range of rationality to be granted, and the facts must be reviewed
in the light most favorable to a finding of reasonable grounds to believe that a
prohibited per sonnel practice was (or will be) committed. See Special Counsel ex
rel. Aran v. Department of Homeland Security , 115 M.S.P.R. 6 , ¶ 9 (2 010).
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 Veterans Affairs ,
50 M.S.P.R. 229 , 231 (1991).
¶6 Under 5 U.S.C. § 2302 (b)(1)(A), it is a prohibited personnel practice for
any employee who “has authority to take, direct others to take, recommend, or
approve any personnel action,” to discriminate against any employee or applicant
for employment on the basis of race, color, religion, s ex, or national origin in
violation of title VII . Illegal discrimination under title VII includes retaliation
against an employee based on her opposition to discrimination . 42 U.S.C.
§ 2000e -16(a); Savage v. Department of the Army , 122 M.S.P.R. 612 , ¶¶ 36-37
(2015) . OSC states that Ms. Spalding sent the anonymous email in an effort to
identify and oppose discrimination and favoritism based on race that was
unlawful under title VII. SRF, Tab 1 at 9-11. OSC further asserts that within
1 month of a report identifying Ms. Spalding as the author of this email, the
agency proposed her removal and there is a causal link between her email
opposing unlawful discrimination and her proposed removal. Id. at 11 -12. Given
the deference th at 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 Ms. Spalding is the result of a prohibited personnel practice
under 5 U.S.C. § 2302 (b)(1)(A) .2
2 OSC also contends that , even though the disclosures contained in Ms. Spalding’s
anonymous email alleged racial discrimination that might be protected under title VII,
the email also independently alleged wrongdoing with in the categories of 5 U.S.C.
§ 2302 (b)(8), and thus the email is protected regardless of whether it also evidenced
activity remediable under title VII. SRF, Tab 1 at 16. Because I am grantin g the stay
based on an alleged prohibited personnel practice under 5 U.S.C. § 2302 (b)(1)(A) in
connection with Ms. Spalding’s proposed removal , I need not consider whether to grant
the stay based on 5 U.S.C. § 2302 (b)(8). See, e.g. , Special Counsel v. Department of
Transportation , 70 M.S.P.R. 520 , 522 n.* (1996) (finding it unnecessary to consider an
alleged prohibited personnel practice claim under 5 U.S.C. § 2302 (b)(11) because there
was sufficient support for granting the stay based on the 5 U.S.C. § 2302 (b)(8) claim).
5
ORDER
¶7 Based on the foregoing, granting OSC’s stay request would be appropriate.
Accordingly, a 45 -day stay of Ms. Spalding’s proposed removal is GRANTED.
The stay shall be in effect from July 2 8, 2022 , through and including
September 10, 2022 . It is further ORDERED that:
(1) During the pendency of this stay, Ms. Spalding shall be reinstated to
her former position at the same location, with the same duties and
responsibilities, and at the same salary and grade level that she had
prior to her removal ;
(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 an extension of this stay pursuant to 5 U.S.C.
§ 1214 (b)(1)(B), as amended by Pub. L. No. 115 -42,3 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
August 26, 2022 ; and
3 As passed by the House of Representatives on May 25, 2017, passed by the Senate on
June 14, 2017, and signed i nto law on June 27, 2017.
6
(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 September 2, 2022 .
FOR THE BOARD:
Washington, D.C. /s/ for
Jennifer Everling
Acting Clerk of the Board | SPALDING_ZERINA_CB_1208_22_0016_U_1_ORDER_ON_STAY_REQUEST_1946313.pdf | 2022-07-28 | null | CB-1208-22-0016-U-1 | NP |
4,239 | https://www.mspb.gov/decisions/nonprecedential/BELL_KEVIN_WHEELER_DC_3443_16_0170_I_1_FINAL_ORDER_1946333.pdf | UNITED STATES OF AME RICA
MERIT SYSTEMS PROTEC TION BOARD
KEVIN WHEELER BELL,
Appellant,
v.
UNITED STATES POSTAL SERVICE,
Agency.
DOCKET NUMBER
DC-3443 -16-0170 -I-1
DATE: July 28, 2022
THIS FINAL ORDER IS NONPRECEDENTIAL1
David A. Branch , Esquire, Washin gton, D.C., for the appellant.
Stephen W. Furgeson , Landover, 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 deci sion, which
dismissed his appeal for lack of jurisdiction. 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 statut e 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 distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and 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
regulation or the erroneous application of the law to the facts of the case; the
administrative judge’s rulings during either the course of the appeal or the initial
decision were not consistent with required procedures or involved an abuse of
discret ion, and the resulting error affected the outcome of the case; or new and
material evidence or legal argument is available that, despite the petitioner’s due
diligence, was not available when the record closed. Title 5 of the Code of
Federal Regulations, section 1201.115 ( 5 C.F.R. § 1201.115 ). After fully
considering the filings in this appeal, we conclude that the petitioner has not
established any basis under section 1201.115 for gra nting 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).
BACKGROUN D
¶2 On November 26, 2015, the ap pellant filed a Board appeal which did not
spec ify the action he was appealing but rather comprised over 400 pages of
attachments, which appeared to reference actions he had previously appealed to
the Board. Initial Appeal Fi le (IAF), Tab 1. The administrative judge issued a
show cause order directing the appellant to show cause why his appeal should not
be dismissed for lack of jurisdiction or barred by res judicata. IAF, Tab 3 at 2.
The administrative judge noted that the appellant had previously filed appeals of
his placement on administrative leave on March 26, 2014, and his reduction in
grade pursuant to a reduction in force , effective April 19, 2014 . Id. at 1. She
informed the appellant of the criteria under which an appeal is barred by res
judicata and ordered the appellant to file evidence and argument to show why his
appeal should not be dismissed . Id. at 2. She further ordered the appellant to
identify the agency action he was appealing. Id.
¶3 In response, the ap pellant appeared to indicate that he was not attempting to
appeal the prior actions and referenced a number of alleged additional actions
taken by the agency, including a hostile work environment claim related to an
3
incident on February 27, 2014, an Octobe r 6, 2014 letter restricting him from
returning to work pending physical and psychiatric evalua tions, the cancellation
of his life insurance and heal th benefits on October 31, 2015 , and his request for
reasonable accommodation in the form of a reassignment away from his
supervisor. IAF, Tab 7 at 4-6.
¶4 Without holding a hearing, the administrative judge issued an initial
decision dismissing the appeal for lack of jurisdiction. IAF, Tab 8, Initial
Decision (ID). The a dministrative judge found that the appel lant failed to provide
a readily comprehensible list or explanation of the agency action(s) at issue. ID
at 4. She further found that the actions that he did identify, such as the agency
terminating his health or life insurance benefits or denying a requ est for
reasonable accommodation, are not appealable to the Board. Id.
¶5 The appellant has filed a petition for review . Petition for Review (PFR)
File, Tab 1. The agency has not responded to the appellant’s petition.
DISCUSSION OF ARGUME NTS ON REVIEW
¶6 The appellant’s petition for review does not contain any specific challenges
to the initial decision in this appeal , and the Board will normally embark upon a
complete review of the record only if the appellant identifies a specific error that
the administra tive judge made in evaluating the evidence or applying the law.
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); 5 C.F.R. § 1201.115 .
Here , the appellant has shown no basis upon which to disturb the initial decision.
¶7 In his petition, the appellant contends that the administrative judge erred in
finding that he h ad not been honorably discharged and was not pr eference eligible
because she incorrectly interpreted the Marine Corps separation guidelines . PFR
File, Tab 1 at 4. To support his contention, he submits various documents from
the Department of Veterans Affairs pertaining to his separation from military
service as well as an application for correcting his military record. Id. at 5-9.
4
Such arguments appear to relate to another Board appeal , which the Board
dismissed for lack of jurisdiction in a February 24 , 2016 nonprecedential final
order, and are not pro perly before the Board in the instant appeal. See Bell v.
U.S. Postal Service , MSPB Docket No. DC -0752 -14-0613 -I-1, Final Order at 4 -5
(Feb. 24, 2016 ). To the extent that the appellant is challenging this decision, he
was apprised of his right to request that the U.S. Court of Appeals for the Federal
Circuit review the Board’s final decision. Id. at 5-6.
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. 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 forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
2 Since the issuance of the initial decision in th is matter, the Board may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise which option is most appropriate in any matter.
5
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703 (b)(1)(A).
If you submit a p etition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional inf ormation about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEO C review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 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
6
representative in this case, and your representative receives this decision before
you do, then you must file with the district court no later than 30 calendar days
after you r representative receives this decision. If the action involves a claim of
discrimination based on race, color, religion, sex, national origin, or a disabling
condition, you may be entitled to representation by a court -appointed lawyer and
to waiver of an y requirement of prepayment of fees, costs, or other security. See
42 U.S.C. § 2000e -5(f) and 29 U.S.C. § 794a .
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, ex cluding
all other issues . 5 U.S.C. § 7702 (b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702 (b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your rep resentative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 2050 7
7
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302 (b)(8) or
other protected activities listed in 5 U.S.C. § 2302 (b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
disposition of allegations of a prohibited personnel practice described in section
2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i),
(B), (C), or (D),” then you may file a petition for judicial review either with the
U.S. Court of Appeals for the Federal Circuit or any court of appeals of
competent jurisdiction.3 The court of appeals must receive your petition for
review within 60 days of the date of issuance of this decision. 5 U.S.C.
§ 7703 (b)(1)(B).
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitione rs and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
3 The original statutory provision that provided for judicia l review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judi cial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115 -195,
132 Stat. 1510.
8
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our 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 | BELL_KEVIN_WHEELER_DC_3443_16_0170_I_1_FINAL_ORDER_1946333.pdf | 2022-07-28 | null | DC-3443-16-0170-I-1 | NP |
4,240 | https://www.mspb.gov/decisions/nonprecedential/ORTIZ_RENE_SF_0752_21_0536_I_1_FINAL_ORDER_1946361.pdf | UNITED STATES OF AME RICA
MERIT SYSTEMS PROTEC TION BOARD
RENE ORTIZ,
Appellant,
v.
DEPARTMENT OF VETERA NS
AFFAIRS,
Agency.
DOCKET NUMBER
SF-0752 -21-0536 -I-1
DATE: July 28, 2022
THIS FINAL ORDER IS NONPRECEDENTIAL1
Joseph B. Frueh , Esquire, and William D. Carter , Esquire, Sacramento,
California, for the appellant.2
Camille D.S. Stroughter , Esquire, Oakland, California, for the agency.
BEFORE
Cathy A. Harris, Vice Chairman
Raymond A. L imon, 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 The appellant’s representatives of record have not withdrawn their representation.
However, it appears from the record that the appellant has, at all times, represented
himself . E.g., Petition for Review (PFR) Fil e, Tab 1 at 8 -9. The Board liberally
construes pleadings filed by pro se litigants and has done so here. See, e.g. , Becker v.
Department of Veterans Affairs , 76 M.S.P.R. 292 , 298 n.4 (1997).
2
FINAL ORDER
¶1 The appellant has filed a petition for review of the initial decision, which
dismissed his involuntary resignation and breach of contract appeal for lack of
jurisdiction . Generally, we grant petitions s uch 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 fa cts of the case; the administrative
judge’s rulings during either the course of the appeal or the initial decision
were not consistent with required procedures or involved an abuse of discretion,
and the resulting error affected the outcome of the case; or new and material
evidence or legal argument is available that, despite the petitioner’s due
diligence, was not available when the record closed. Title 5 of the Code of
Federal Regulations, section 1201.115 ( 5 C.F.R. § 1201.115 ). After fully
considering the filings in this appeal, we conclude that the petitioner has not
established any basis under section 1201.115 for granting the petition for review.
Therefore, we DENY the petition for review. Except as expressly MODIFIED to
clarify and correct harmless adjudicatory error, we AFFIRM the initial decision.
¶2 The administrative judge found that because the Board lacks jurisdiction
over the appellant’s resignation , it also lacks authority to determine whether the
agency breached an alleged contract with him regarding his resignation . Initial
Appeal File, Tab 12, Initial Decision (ID) at 5 n.4, 8. This reasoning w as in
error. The Board retains jurisdiction to enforce a settlement agreement that has
been entered into the record for that purpose, independent of its jurisdiction over
the underlying matter appealed . Delorme v. Department of the Interior ,
124 M.S.P.R. 123 , ¶¶ 14 -21 (2017). However, we agree that the Board lacks
jurisdiction over the alleged contract on other grounds. Specifica lly, neither
party entered the alleged contract into the record , and the administrative judge did
not accept it for enforcement . Id., ¶¶ 16, 21 . Therefore, we lack enforcement
authority over it .
3
¶3 Although the administrative judge dismissed the appeal for lack of
jurisdiction, she alternatively dismissed it as untimely filed. ID at 2 n.1. T he
Board has held that the issues of timeliness and jurisdiction are generally
inextricably intertwined in a constructive adverse action appeal and that the
jurisdictional issue should be decided before reaching the timeliness issue.
Petric v. Office of Personnel Management , 108 M.S.P.R. 342 , ¶ 6 (2008);
Hanna v. U.S. Postal Service , 101 M.S.P.R. 461 , ¶ 6 (2006). The reas on for this
rule is that a failure to inform an employee of Board appeal rights may excuse an
untimely filed appeal, and whether the agency was obligated to inform the
employee of such appeal rights depends on whether the employee was affected by
an appeal able action. Hanna , 101 M.S.P.R. 461 , ¶ 6. Here, the administrative
judge found the Board lacks jurisdiction over the appeal, or alternatively
dismissed the appeal as untimely. ID at 2 n.1. Because they are inextricably
intertwined, the timeliness issue need not have been addressed absent a fin ding of
jurisdiction. However, the administrative judge’s alternative finding of
untimeliness was harmless because she correctly found the Board lacks
jurisdiction over the appeal. Absent jurisdiction over the appellant’s claims, we
need not address the appellant’s arguments on review concerning the timeliness
issue. Petition for Review File, Tab 1 at 9 -10.
¶4 The administrative judge found that the appellant essentially failed to prove
the truth of the matters he asserted because his statements were unswor n. ID at 6.
Unsworn statements are evidence , and the fact that the statements are unsworn
goes to their weight and probative value . Scott v. Department of Justice ,
69 M.S.P.R. 211 , 228 (1995), aff’d per curiam , 99 F.3d 1160 (Fed. Cir. 1996)
(Table) ; see Borninkhof v. Department of Justice , 5 M.S.P.R . 77, 83-84 (1981)
(holding that h earsay evidence is admissible in Board proceedings and the
assessment of its probative value necessaril y depends on the circumstances of
each case ). Further, i n determining whether the appellant has made a
nonfrivolous allegation of jurisdiction, the administrative judge may not weigh
4
the evidence. Ferdon v. U.S. Postal Service , 60 M.S.P.R. 325 , 329 (1994). We
find the administrative judge’s error in suggesting the appellant’s unsworn
statements had no evidentiary value and implicitly weighi ng their probative value
at the jurisdiction al stage was harmless. We agree with her conclusion that the
appellant failed to make a nonfrivolous allegation of Board jurisdiction over his
appeal because his allegations were vague and implausible. ID at 6 -7; see
Clark v. U.S. Postal Service , 123 M.S.P.R. 466 , ¶ 7 (2016) (explaining that
conclusory and vague allegations do not meet the nonfrivolous pleading
standard) , aff’d per curiam , 679 F. App’x 1006 (Fed. Cir. 2017) ; 5 C.F.R.
§ 1201.4 (s)(1) -(2) (defin ing nonfrivolous allegations , as relevant here, as
assertions that are more than conclusory and are plausible on their face) .3
¶5 Because none of the above errors impact the ultimate conclusion that the
Board lacks jurisdiction over the appellant’s involuntar y resignation appeal, we
decline to grant review . 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).
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). B y statute, the nature of
3 To the extent that the appellant cites for the first time on review statutes regarding the
Board’s jurisdiction over decisions by the Office of Personnel Management (OPM) on
retirement bene fits, we find that those statutes do not provide a basis for finding
jurisdiction over his alleged involuntary resignation and breach of contract claims. PFR
File, Tab 1 at 1 -2 & n.1. Further, there is no evidence that OPM has issued a final
decision on any retirement benefit. In general, the Board has jurisdiction over OPM
determ inations affecting an appellant’ s rights or interests only after OPM has issued a
final decision . See Reid v. Office of Personnel Management , 120 M.S.P.R. 83, ¶ 6
(2013).
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 canno t advise which option is most appropriate in any matter.
5
your claims determines the time limit for seeking such review and the appropriate
forum with which to file. 5 U.S.C. § 7703 (b). Although we offer the following
summary of available appeal rights, the Merit Systems Protection Board does not
provide legal advice on which option is most appropriate for your situation and
the rights described below do not represent a statement of how courts will rule
regarding which cases fall within their jurisdiction. If you wish to seek review of
this final decision, you should immediately review the law applicable to your
claims and carefully follow all filing time limits and requirements. Failure to file
within the applicable time limit may result in the dismissal of your case by your
chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703 (b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition 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
6
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 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/C ourt_Locator/CourtWebsites.aspx .
7
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702 (b)(1). You must file any such request with the
EEOC’s 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
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
8
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. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D .C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the 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 R eview Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other c ircuit court of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115 -195,
132 Stat. 1510.
9
Contact information for the courts of appeals can be found at their
respective websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator /CourtWebsites.aspx .
FOR THE BOARD:
Washington, D.C. /s/ for
Jennifer Everling
Acting Clerk of the Board | ORTIZ_RENE_SF_0752_21_0536_I_1_FINAL_ORDER_1946361.pdf | 2022-07-28 | null | SF-0752-21-0536-I-1 | NP |
4,241 | https://www.mspb.gov/decisions/nonprecedential/GRIFFIN_JORDAN_SF_0752_21_0571_I_1_FINAL_ORDER_1946382.pdf | UNITED STATES OF AME RICA
MERIT SYSTEMS PROTEC TION BOARD
JORDAN GRIFFIN,
Appellant,
v.
DEPARTMENT OF THE NA VY,
Agency.
DOCKET NUMBER
SF-0752 -21-0571 -I-1
DATE: July 28, 2022
THIS FINAL ORDER IS NONPRECEDENTIAL1
Matthew Camacho , Marine Corps Base Hawaii, Kaneohe Bay , Hawaii, for
the appellant.
Steven K. Forjohn , Esquire, Marine Corps Base Hawaii, Kaneohe Bay,
Hawaii, for the agency.
BEFORE
Cathy A. Harris, Vice Chairman
Raymond A. L imon, Member
Tristan L. Leavitt, Member
FINAL ORDER
¶1 The appellant has filed a petition for review of the initial decision, which
dismissed his probationary termination appeal for lack of jurisdiction . Generally,
we grant petitions such as this one only i n 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 a dministrative judge’s rulings
during either the course of the appeal or the initial decision were not consistent
with required procedures or involved an abuse of discretion, and the resulting
error affected the outcome of the case; or new and material evid ence or legal
argument is available that, despite the petitioner’s due diligence, was not
available when the record closed. Title 5 of the Code of Federal Regulations,
section 1201.115 ( 5 C.F.R. § 1201.115 ). After fully considering the filings in this
appeal, we conclude that the petitioner has not established any basis under
section 1201.115 for granting the petition for review. Therefore, we DENY the
petition for review and AFFIRM the initial decision, which is now the Board’s
final decision. 5 C.F.R. § 1201.113 (b).
¶2 The appellant asserts that he does not have a copy of the agency’s
“unredacted file .” Petition for Review (PFR) File, Tab 1 at 4.2 The appellant,
however, does not explain how the agency’s file or redact ions therefrom pertain
to the Board’s jurisdiction, if at all. Thus, his assertion does not warrant a
different outcome . See Davis v. Department of Defense , 103 M.S.P.R. 516 , ¶ 13
(2006 ) (explaining that , when an appeal is dismissed for lack of jurisdiction, there
is no prejudice to an appellant’ s substantive rights based on the absence of
discovery that did not seek information that would establish the Board’ s
jurisdiction ).
2 Specifically, the appellant states as follows: “I have not yet received the file they
originally gave me an unredacted file and then threatened me with criminal and civil
charges along with debarring me from base.” PFR File, Tab 1 at 4 (grammar as in
original) . To the extent the appellant , through this statement, raises claims regarding
his debarment, file redactions, or threatened charges, we discern no basis for Board
jurisdiction over the same . See Maddox v. Merit Systems Protection Board , 759 F.2d 9 ,
10 (Fed. Cir. 1985) (stating that the Board’ s jurisdiction is limited to those matters over
which it has been given jurisdiction by law, rule, or regulation ).
3
¶3 The appellant makes several arguments that seemingly pertain to the merits
of the agency’s removal action. PFR File, Tab 1 at 4, 7. For example, he asserts
that he “did not receive any training for [his] position ” and that he received
performance -based a wards from the agency. Id. at 7. Because the Board lacks
jurisdiction over the matter, we cannot consider these arguments. See
Schmittling v. Department of the Army , 219 F.3d 1332 , 1336 -37 (Fed. Cir. 2000)
(explaining that the Board must first resolve the threshold issue of jurisdiction
before proceeding to the merits of an appeal).
¶4 For the first time on review, t he appellant asserts that both he and his
nonattorney representative experienced diffic ulties accessing documents in
e-Appeal Online. PFR File, Tab 1 at 3 . 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. See Banks v. Department of the Air Force , 4 M.S.P.R. 268, 271
(1980 ); 5 C.F.R. § 1201.115 (d). In any event, w e find this vague assertion
unavailing. As a registered e -filer, the appellant consented to accept all
documents issued by the Board in electronic form and to monitor case activity at
the Repository at e -Appeal Online to ensure that he had received all case -related
documents . Initial Appeal File ( IAF), Tab 1 at 2; see 5 C.F.R. § 1201.14 (j)(3) .
The appellant provides no clear explanation as to why he was unable to access
documents via the e -Appeal Online Repository or why, after realizing that he was
apparently unable to access documents, he did not alert the Boa rd to the issue or
otherwise seek technical assistance .3 Thus, the appellant’s vague assertion is
3 When Board documents are issued, email messages are sent to e -filers to notify them
of the issuance . 5 C.F.R. § 1201.14 (j)(1). These messages contain links to the
Repository where the documents can be viewed and downloaded. Id. There is no
record of either the appellant or his nonattorney representative ever contacting the
Board with any technical problems. In any event, the appellant filed his petition for
review challenging the initial decision on the same day tha t it was issued ; thus, he was
apparently able to access the administrative judge’s decision without issue . PFR File,
Tab 1; IAF, Tab 5, Initial Decision (ID) at 1 ; Tab 6 at 1. The initial decision provided
4
unavailing. To the extent the appellant faults his nonattorney representative for
any purported technical difficulties , his assertion is similarly unavailing. See
Sparks v. U.S. Postal Service , 32 M.S.P.R. 422 , 425 (1987) (explaining that the
Board has long held that appellants are responsible for the actions and inactions
of their chosen representatives ).
¶5 Last, w ith his petition for review, the appellant pro vides a copy of a
September 23, 2021 letter debarring him from entering Marine Corp s Base
Hawaii. PFR File, Tab 1 at 6. The a ppellant provides no explanation as to why
he did not provide this letter, which predates the initial decision, to the
administrative judge. See Avansino v. U.S. Postal Service , 3 M.S.P.R. 211 , 214
(1980) (finding that the Board generally will not consider evidence submitted for
the first time with the petition for review absent a showing that it was unavailable
before the record was closed despi te the party’s due diligence); 5 C.F.R.
§ 1201.115 (d). In any event, the letter is not material to the outcome of this
appeal. See Russo v. Veterans Administration , 3 M.S.P.R. 345 , 349 (1980)
(stating that the Board will not grant a petition for review based on new evidence
absent a showing that it is of sufficient weight to warrant an outcome different
from that of the initial decision).
¶6 Accordingly, we affirm the initial decision.
the appellant with notice of the applicable burden regarding jurisdiction. ID at 2 -5.
Accordingly , even assum ing that the appellant did not receive such notice prior to the
issuance of the initial decision due to technical issues, a different outcome would not be
warranted. See Easterling v. U.S. Postal Service , 110 M.S.P.R. 41 , ¶ 11 (2008) ( stating
that an administrative judge’ s failure to provide an appellant with proper notice can be
cured if the initial decision provides appropriat e notice, thus affording the appellant an
opportunity to meet his jurisdictional burden on review ).
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 your claims determines the time limit for seeking such
review and the appropriate forum with which to file. 5 U.S.C. § 7703 (b).
Although we offer the following summary of available appeal rights, the Merit
Systems Protection Board does not provide legal advice on which option is most
appropriate for your situation and the rights described below do not represent a
statement of how courts will rule re garding which cases fall within their
jurisdiction. If you wish to seek review of this final decision, you should
immediately review the law applicable to your claims and carefully follow all
filing time limits and requirements. Failure to file within th e applicable time
limit may result in the dismissal of your case by your chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for rev iew with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703 (b)(1)(A).
If you submit a petition for 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 indica ted in the notice, the
Board cannot advise which option is most appropriate in any matter.
6
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision —including a disposition of 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
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/Cou rt_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702 (b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702 (b)(1) . If you have a representative in this case,
and your representative receives this decision before you do, then 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:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal 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
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 may file a petition for judicial
review either with the U.S. Court of Appeals for the Federal Circuit or any court
of appeals of competent jurisdiction.5 The court of appeals must receive your
petition for review within 60 days of the date of issuance of this decision.
5 U.S.C. § 7703 (b)(1)(B).
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D .C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
5 The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115 -195,
132 Stat. 1510.
9
Contact information for the courts of appeals can be found at their
respective websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/C ourtWebsites.aspx .
FOR THE BOARD:
Washington, D.C. /s/ for
Jennifer Everling
Acting Clerk of the Board | GRIFFIN_JORDAN_SF_0752_21_0571_I_1_FINAL_ORDER_1946382.pdf | 2022-07-28 | null | SF-0752-21-0571-I-1 | NP |
4,242 | https://www.mspb.gov/decisions/nonprecedential/HARDY_MAXINE_LEMAY_DC_0831_21_0585_I_1_FINAL_ORDER_1946417.pdf | UNITED STATES OF AME RICA
MERIT SYSTEMS PROTEC TION BOARD
MAXINE LEMAY HARDY,
Appellant,
v.
OFFICE OF PERSONNEL
MANAGEMENT,
Agency.
DOCKET NUMBER
DC-0831 -21-0585 -I-1
DATE: July 28, 2022
THIS FINAL ORDER IS NONPRECEDENTIAL1
Maxine Lemay Hardy , Creedmoor, North Carolina, pro se.
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 filed a petition for review of the initial decision,
which affirmed the reconsideration decision of the Office of Personnel
Management (OPM) , denying her application for a Civil Service Retirement
System former spouse survivor annuity . On petition for review, the appellant
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or 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
argues that according to the law the dec edent’s election to provide her with
a survivor annuity was irrevocable and he was not required to make a new
election after their divorce in 2007. Petition for Review File, Tab 1 at 4. The
appellant also rea sserts that she is “seeking benefits as a survivor under
procedures prescribed by [OPM] , not as a former spouse .” Id. Generally, we
grant petitions such as this one only in the following circumstances: the initial
decision contains erroneous findings of mater ial 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 decis ion were not consistent with required
procedures or involved an abuse of discretion, and the resulting error affected the
outcome of the case; or new and material evidence or legal argument is available
that, despite the petitioner’s due diligence, was not available when the record
closed. Title 5 of the Code of Federal Regulations, section 1201.115 ( 5 C.F.R.
§ 1201.115 ). After fully considering the filings in this appeal, we conclude t hat
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 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
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 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 you r case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Cir cuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703 (b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition 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
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 to you only if you have claimed that 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 recei ves this decision. If the action involves a claim of
discrimination based on race, color, religion, sex, national origin, or a disabling
condition, you may be entitled to representation by a court -appointed lawyer and
to waiver of any requirement of prepa yment of fees, costs, or other security. See
42 U.S.C. § 2000e -5(f) and 29 U.S.C. § 794a .
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702 (b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 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 revie w to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pur suant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302 (b)(8) or
other protected activities listed in 5 U.S.C. § 2302 (b)(9)(A)(i), (B), (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.3 The court of appeals must receive your
3 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.
6
petition for review within 60 days of the date of issuance of this decision.
5 U.S.C. § 7703 (b)(1)(B).
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washi ngton, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Prote ction Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
Contact information for the courts of appeals can be found at their
respective websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
FOR THE BOARD:
Washington, D.C. /s/ for
Jennifer Everling
Acting Clerk of the Board | HARDY_MAXINE_LEMAY_DC_0831_21_0585_I_1_FINAL_ORDER_1946417.pdf | 2022-07-28 | null | DC-0831-21-0585-I-1 | NP |
4,243 | https://www.mspb.gov/decisions/nonprecedential/ANDERSON_ARTHUR_DC_0752_18_0350_I_1_FINAL_ORDER_1946465.pdf | UNITED STATES OF AME RICA
MERIT SYSTEMS PROTEC TION BOARD
ARTHUR ANDERSON,
Appellant,
v.
GOVERNMENT PUBLISHIN G
OFFICE,
Agency.
DOCKET NUMBER
DC-0752 -18-0350 -I-1
DATE: July 28, 2022
THIS FINAL ORDER IS NONPRECEDENTIAL1
Arthur Anderson , Cheverly, Maryland, pro se.
Craig D. Barrett and Larra J. Pleasant , 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 23, 2018 initial decision in
this appeal. Petition for Review (PFR) File, Tab 1. For the reasons set forth
below, we VACATE the initial decision and DISMISS the appeal as settled.
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
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 a joint motion to dismiss signed
and dated by the parties on March 28, 2019 . PFR File, Tab 4. The document s
provide, among other things, for the initial decisio n to be vacated and for the
appeal to be dismissed with prejudice.2 Id. at 5, 7.
¶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 the y 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 Pers onnel 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 4 at 4 -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 vacating the initial decision and dismissing the
appeal “with prejudice to refiling” (i.e., the parties normally may not refile this
2 The settlement agreement and joint motion to dismiss also provide that the appeal be
reopened. PFR File, Tab 4 at 5, 7. However, the agency filed a petition for review of
the initial decision bef ore it became the final decision of the Board under 5 C.F.R.
§ 1201.113 , and the parties settled the appeal before the Board issued a decision on the
petition for review. Accordingly, t here is no final decision to reopen under 5 C.F.R.
§ 1201.118 .
3
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 System s 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 pe tition 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 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
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
filing time limits and requirements. Failure to file within the applicable time
limit may result in the dismissal of your case by your chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703 (b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the 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 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 through the link 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
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. 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
disposition of allegations of a prohibited personnel practice described in
section 2302(b) other than practices described in section 2302(b)(8), or
2302(b)(9)(A)(i), (B), (C), or (D),” then you may file a 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
whistlebl ower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court 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 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.
Contact information for the courts of appeals can be 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 | ANDERSON_ARTHUR_DC_0752_18_0350_I_1_FINAL_ORDER_1946465.pdf | 2022-07-28 | null | DC-0752-18-0350-I-1 | NP |
4,244 | https://www.mspb.gov/decisions/nonprecedential/WILEY_BARBARA_DC_0843_15_0925_A_1_FINAL_ORDER_1945911.pdf | UNITED STATES OF AME RICA
MERIT SYSTEMS PROTEC TION BOARD
BARBARA WILEY,
Appellant,
v.
OFFICE OF PERSONNEL
MANAGEMENT,
Agency.
DOCKET NUMBER
DC-0843 -15-0925 -A-1
DATE: July 27, 2022
THIS FINAL ORDER IS NONPRECEDENTIAL1
Stephen Domenic Scavuzzo , Esquire, McLean, Virginia, for the appellant.
Tynika Faison Johnson , 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 addendum initial
decision, which denied her motion for attorney fees . 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
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case 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
interpretation of statute or regulation or the erroneous application of the law to
the facts of the case; the administrative judge’s rulings during either the course of
the appeal or the initial decision were not consistent with required procedures or
involved an abuse of discretion, and the resulting error affected the outcome of
the case; or new and material evidence or legal argument is available that, despite
the petitioner’s due diligence, was not av ailable when the record closed. Title 5
of the Code of Federal Regulations, section 1201.115 ( 5 C.F.R. § 1201.115 ).
After fully considering the 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 thi s Final Order to address the appellant’s argument that the
Board should award her attorney fees as a sanction against the agency , we
AFFIRM the initial decision.
DISCUSSION OF ARGUME NTS ON REVIEW
¶2 The appellant previously filed a pro se appeal of a final de cision of the
Office of Personnel Management (OPM) that found her daughter ineligible for
child survivor benefits . Wiley v. Office of Personnel Management , MSPB Docket
No. DC -0843-15-0207-I-1, Initial Appeal File ( 0207 IAF), Tab 1. The
administrative jud ge issued an initial decision that vacated OPM’s final decision ,
finding that the regulation OPM relied upon in denying the benefits was contrary
to statute and, thus, invalid. 0207 IAF, Tab 11, Initial Decision (0207 ID) at 3-5.
She therefore remand ed the matter to OPM for further adjudication and the
issuance of a new final decision. 0207 ID at 6. Neither party petitioned for
review , and the initial decision became the Board’s final decision .
¶3 Thereafter, OPM issued a second final decision, again find ing the
appellant’s daughter ineligible for child survivor benefits. Wiley v. Office of
Personnel Management , MSPB Docket No. DC -0843-15-0925 -I-1, Initial Appeal
File (0925 IAF), Tab 1 at 4-7. The appellant obtained counsel and appealed
3
OPM’s decision to the Board . 0925 IAF, Tabs 1, 4. While the appeal was
pending, OPM rescinded its decision and the administrative judge consequently
issued an initial decision dismissing the appeal for lack of jurisdiction.
0925 IAF, Tab 10, Initial Decision .
¶4 After the second initial decision became final when neither party petitioned
for review , the appellant filed a motion for attorney fees incurred during her
second Board appeal. Wiley v. Office of Personnel Management , MSPB Docket
No. DC-0843-15-0925 -A-1, Attorney F ees File (AFF) , Tab 1. She informed the
Board that OPM had issued a decision awarding child survivor benefits to her
daughter and that, because OPM reversed its initial denial of benefits as a result
of her filing the Board appeal , she was entitled to an award of attorney fees . Id.
at 4-5. The administrative judge issued an addendum initial decision denying the
motion, finding that the appellant was not entitled to an award of attorney fees
because she was not a prevailing party under Buckhannon Board & Care Home ,
Inc. v. West Virginia Department of Health & Human Resources , 532 U.S. 598
(2001) . AFF, Tab 8 , Addendum Initial Decision (AID) at 3-4.
¶5 The appellant has filed a petition for review , and the agency has responded
in opposition. Petition for Review (PFR) File, Tabs 1, 3. In her petition for
review, the appellant does not challenge the administrative judge’s finding that
she was not a prevailing party under Buckhannon , and we discern no basis to
disturb that finding. Rather, the appellant argues that she is entitled to an award
of attorney fees as a sanction against OPM for its failure to comply with the
administrative judge’s f irst initial decision, 0207 ID. PFR File, Tab 1 at 4 -6. We
find this argument unavailing.
¶6 Here, although the appellant is seeking a sanction against OPM for
noncompliance, she did not seek compliance with the Board by filing a petition
for enforcement . Even if she had sought compliance , however, the Board is not
authorized to impose an award of attorney fees as a sanction in compliance
proceedings ; it is limited to the sanction of withholding the pay of the agency
4
employee responsible for the lack of complian ce. 5 U.S.C. § 1204 (e)(2)(A);
see Tubesing v. Department of Health & Human Services , 115 M.S.P.R. 327 , ¶ 21
(2010 ). Moreover, the Board has held that the purpose of sanctions in compliance
proceedings is to obtain compliance and that, once compliance is achieved,
sanctions are inappropriate. Martin v. Department of Justice , 86 M.S.P.R. 13, ¶ 2
(2000). Therefore, b ecause the appellant asserts that OPM has complied with the
first initial decision , it wo uld be inappropriate for the Board to impose sanctions
in this case even if he r request had been made during the course of compliance
proceeding s.
¶7 In addition , as correctly noted by the administrative judge, although the
appellant was the prevailing party in her first appeal, she appeared pro se and thus
is not entitled to claim attorney fees based on that decision. AID at 4 n.2 ; Holmes
v. Office of Personnel Management , 99 M.S.P.R. 330 , ¶ 6 (2005) (explaining that,
to be entitled to an award of attorney fees, an appellant must prove an
attorney -client relationship) . Accordingly , we find that the appellant has
provided no basis to dist urb the administrative judge’s finding that she is not
entitled to an award of attorney fees.
NOTICE OF APPEAL RIG HTS2
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 tim e limit for seeking such review and 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
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.
5
the rights described below do not represent a statement of how courts will rule
regarding which cases fall within their jurisdiction. If you wish to seek review of
this final decision, you should immediately review the law applicable to your
claims and carefully follow all filing time limits and requirements. Failure to file
within the applicable time limit may result in the dismissal of your case by your
chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which mus t be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703 (b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are inte rested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
6
for Merit Systems Protection Board app ellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . Th is option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 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
7
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal 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 personnel practice described in
section 2302(b) other than practices described in section 2302(b)(8), or
2302(b)(9)(A)(i), (B), (C), or (D),” then you may file 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.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 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.
8
petition for review within 60 days of the date of issuance of this decision.
5 U.S.C. § 7703 (b)(1)(B).
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D .C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the 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 | WILEY_BARBARA_DC_0843_15_0925_A_1_FINAL_ORDER_1945911.pdf | 2022-07-27 | null | DC-0843-15-0925-A-1 | NP |
4,245 | https://www.mspb.gov/decisions/nonprecedential/GOELZ_COLLEEN_THERESA_PH_0831_21_0345_I_1_FINAL_ORDER_1945933.pdf | UNITED STATES OF AME RICA
MERIT SYSTEMS PROTEC TION BOARD
COLLEEN THERESA GOEL Z,
Appellant,
v.
OFFICE OF PERSONNEL
MANAGEMENT,
Agency.
DOCKET NUMBER
PH-0831 -21-0345 -I-1
DATE: July 27, 2022
THIS FINAL ORDER IS NONPRECEDENTIAL1
Colleen Theresa Goelz , Doylestown, Pennsylvania, pro se.
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 Office of Personnel Management (OPM) has filed a petition for review
of the initial decision, which dismissed as moot this appeal from its
reconsideration decision denying the appellant’s application for a Civil Service
Retirement System annuity . On review, OPM argues that the app eal should be
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case 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
dismissed, instead, for lack of jurisdiction. For the reasons discussed below, we
GRANT OPM ’s petition for review and AFFIRM the initial decision as
MODIFIED to DISMISS the appeal for lack of jurisdiction.
¶2 If OPM completely rescinds a reconsideration decision, its rescission
divests the Board of jurisdiction over the appeal in which that decision is at issue,
and the appeal must be dismissed. Moore v. Office of Personnel Management ,
114 M.S.P.R. 549 , ¶ 4 (2010); Rorick v. Office of Personnel Management ,
109 M.S.P.R. 597 , ¶ 5 (2008). Although the rescission of a final OPM decision
can cause an appeal of that decision to become moot, for an appeal to be deemed
moot, the appellant must have received all of the relief that she could have
received if the matter ha d been adjudicated and she had prevailed. Moore ,
114 M.S.P.R. 549 , ¶ 5; Rorick , 109 M.S.P.R. 597 , ¶ 6.
¶3 As OPM correctly notes, although it rescinded its final decision , it has not
granted the appellant’s Civil Service Retirement System retirement annuity
applic ation and has only represented that it would review the appellant’s case
based on the new information she provided and issue a new reconsideration
decision with Board appeal rights based on its review of the new information.
Petition for Review File, Tab 1 at 7. Accordingly, the appellant has not been
afforded all of the relief she has sought and so her appeal is not moot.2
Consequently, we grant OPM’s petition for review and modify the initial decision
to dismiss the appeal for lack of jurisdiction based on the fact OPM completely
rescinded its final decision thereby divesting the Board of jurisdiction over the
appeal. If OPM issues a new reconsideration decision and the appellant is
dissatisfied with the result, she may appeal that decision to the Board.
2 Additionally, because OPM has represented that it will issue a new reconsideration
decision on the contested matter, this is not a circumstance in which the Board should
retain jurisdiction over the appeal to adjudi cate it on the merits based on OPM’s
apparent intention not to issue a new final decision. See Morin v. Office of Personnel
Management , 107 M.S.P.R. 534 , ¶ 9 (2007); Luzi v. Office of Personnel Management ,
106 M.S.P.R. 160 , ¶ 9 (2007) .
3
See 5 U.S.C. § 8461 (e)(1); 5 C.F.R. § 841.308 . Any future appeal must be fi led
within the time limits set forth in the Board’s regulations. See 5 C.F.R.
§ 1201.22 .
NOTICE OF APPEAL RIG HTS3
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
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. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of partic ular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by a n action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703 (b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. ____ , 137 S. Ct. 1975 (2017). If you have a
representative in this case, and your representative re ceives 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.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
6
(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.4 The court of appeals must receive your
petition for review within 60 days of the date of issuance of this decision.
5 U.S.C. § 7703 (b)(1)(B).
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D .C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
4 The 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 information regarding pro bono representation
for Merit Systems Protection Board appellants before the 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 | GOELZ_COLLEEN_THERESA_PH_0831_21_0345_I_1_FINAL_ORDER_1945933.pdf | 2022-07-27 | null | PH-0831-21-0345-I-1 | NP |
4,246 | https://www.mspb.gov/decisions/nonprecedential/SCOTT_TYRONE_D_SF_0752_16_0596_I_1_FINAL_ORDER_1945939.pdf | UNITED STATES OF AME RICA
MERIT SYSTEMS PROTEC TION BOARD
TYRONE D. SCOTT,
Appellant,
v.
DEPARTMENT OF THE AR MY,
Agency.
DOCKET NUMBER
SF-0752 -16-0596 -I-1
DATE: July 27, 2022
THIS FINAL ORDER IS NONPRECEDENTIAL1
Tyrone D. Scott , Biloxi , Mississippi , pro se.
Inam Rabbani , APO, AP , 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 revie w of the initial decision, which
dismissed his removal appeal for lack of jurisdiction . Generally, we grant
petitions such as this one only in the following circumstances: the initial decision
contains erroneous findings of material fact; the in itial 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 appeal or the initial decision were not con sistent with required
procedures or involved an abuse of discretion, and the resulting error affected the
outcome of the case; or new and material evidence or legal argument is available
that, despite the petitioner’s due diligence, was not available when the record
closed. Title 5 of the Code of Federal Regulations, section 1201.115 ( 5 C.F.R.
§ 1201.115 ). After fully considering the filings in this appeal, we conclude that
the petition er 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 decis ion. 5 C.F.R.
§ 1201.113 (b). However, we FORWARD the appellant ’s claim s of whistleblower
retaliation to the Western Regional Office for docketing as a new individual right
of action (IRA) appeal .
¶2 The agency imposed the appellant’s re moval due to the expiration of his
overseas tour and his failure to remain eligible for its Priority Placement
Program. Initial Appeal File (IAF), Tab 16 at 125 -26. On the day that the agency
issued its decision , the appellant filed a complaint with the Office of Special
Counsel (OSC) regarding, among other things, the removal action . IAF, Tab 3
at 8-31. Subsequently, he sent an email to OSC requesting to withdraw his
complaint and OSC confirmed the withdrawal. Id. at 32, 65. He then filed the
instant appeal challenging his removal. IAF, Tab 1 . The administrative judge
dismissed t he appeal for lack of jurisdiction because she found that the appellant
made a binding election when he filed his OSC complaint . IAF, Tab 53, Initial
Decision (ID).
¶3 The a ppellant has filed a petition for review, the agency has responded in
opposition to the petition , and the appellant has replied. Petition for Review
(PFR) File, Tabs 1, 4 -5. On September 23, 2016, after the record closed on
review, the appellant submitted a motion in which he sought leave from the Board
3
to file an additional pleading. PFR File, Tab 6. The Board issued an order
granting the appellant’s motion and permitting h im the opportunity to submit
specific documentation. PFR File, Tab 8. The appellant filed the document
specified in the Board’s order, and the agency submitted a response to the order
furnished by the appellant.2 PFR File, Tabs 9 -10.
¶4 By statute , an ap pellant who has been subjected to an action appealable to
the Board, and who alleges that he has been affected by a prohibited personnel
practice in retaliation for whistleblowing under 5 U.S.C. § 2302(b)(8) or in
retaliation for other prot ected activity under 5 U.S.C. § 2302 (b)(9), may elect
one, and only one, of the following remedies: (1) an appeal to the Board under
5 U.S.C. § 7701 ; (2) a grievance filed under the provisions of a negotiated
grievance procedure; or (3) a complaint following the procedures for seeking
corrective action from OSC under 5 U.S.C. chapter 12, subchapter s II and III .
5 U.S.C. § 7121 (g); see Corthell v. Department of Homeland Security ,
123 M.S.P.R. 417 , ¶ 15 ( 2016); 5 C.F.R. § 1209.2 (d)(1). The remedy that the
aggrieved employee seeks first is deemed an election of that procedure and
precludes pursuing the matter in either of the other two forums. Edwards v.
Department of the Air Force , 120 M.S.P.R. 307 , ¶ 12 (2013). In determining the
appellant’s election, the administrative judge must consider whether any election
was knowing and informed. 5 U.S.C. § 7121 (d), (g); see Agoranos v. Department
of Justice , 119 M.S.P.R. 498 , ¶ 16 (2013).
¶5 We agree that , despite his assertions to the contrary, the appellant failed to
show nonreceipt of the first and fourth pages of the comprehensive notice of
2 The appellant filed several subsequent motions for leave to file an additional pleading.
PFR File, Tabs 13, 16, 18 , 22, 27. Because the Board is forwarding the appellant’s
claims of whistleblower retaliation to th e regional office for docketing as a new IRA
appeal, we find the additional evidence an d argument he sought leave to submit, as
described by the appellant in these motions, to be immaterial to the outcome of this
appeal. Accordingly, the appellant’s motio ns for leave to submit additional evidence
and argument on review are denied.
4
rights , included with the removal decision, which explained the binding nature of
an initial electio n of remedies . ID at 5 -6. Thus, we also agree that he did not
show that his election to file an OSC complaint was not knowing and informed .
Id. Accordingly, we affirm the administrative judge’s decision to dismiss this
appeal for lack of jurisdiction.
¶6 However, we forward the appellant’s claims of whistleblower retaliation for
docketing as an IRA appeal. On September 27, 2016 , the appellant submitted a
previously unavailable OSC closeout letter, dated September 22, 2016 , which
addressed his allegations regarding several agency actions, including his removal.
PFR File, Tab 9 at 34-36. As the appellant may now have become entitled to
bring an IRA appeal, we forward his whistleblower retaliation claim s to the
Board ’s Western Regional Office for docketing and adjudication as a new IRA
appeal as to the matters raised therein. 5 U.S.C. §§ 1214 (a)(3), 1221(a); 5 C.F.R.
§ 1209.5 (a). After docketing the appeal, the administrative judge should apprise
the appellant of the jurisdictional requirements for filing an IRA appeal. Graves
v. Department of Veterans Affairs , 123 M.S.P.R. 434, ¶ 12 (2016).
NOTICE OF APPEAL RIGHTS3
You may obtain review of this final decision. 5 U.S.C. § 7703 (a)(1) . By
statute, the nature of your claims determines the time limit for seeking such
review and the appropriate forum with which to file. 5 U.S.C. § 7703 (b).
Although we offer the following 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
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, th e
Board cannot advise which option is most appropriate in any matter.
5
immediately review the law applicable to your claims and carefully follow all
filing time limits and requirements. Failure to file within the applicable time
limit may result in the dismissal of your case by your chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to 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
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
6
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision —including a disposi tion of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 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:
7
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
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 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 competen t jurisdiction.4 The court of appeals must receive your
petition for review within 60 days of the date of issuance of this decision.
5 U.S.C. § 7703 (b)(1)(B).
4 The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit o r any other circuit court of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115 -195,
132 Stat. 1510.
8
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D .C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
Contact information for the courts of appeals can be found at their
respective websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/C ourtWebsites.aspx .
FOR THE BOARD:
Washington, D.C. /s/ for
Jennifer Everling
Acting Clerk of the Board | SCOTT_TYRONE_D_SF_0752_16_0596_I_1_FINAL_ORDER_1945939.pdf | 2022-07-27 | null | SF-0752-16-0596-I-1 | NP |
4,247 | https://www.mspb.gov/decisions/nonprecedential/PETERS_JAMES_C_AT_831M_16_0548_I_1_FINAL_ORDER_1945949.pdf | UNITED STATES OF AME RICA
MERIT SYSTEMS PROTEC TION BOARD
JAMES C. PETERS, JR.,
Appellant,
v.
OFFICE OF PERSONNEL
MANAGEMENT,
Agency.
DOCKET NUMBER
AT-831M -16-0548 -I-1
DATE: July 27, 2022
THIS FINAL ORDER IS NONPRECEDENTIAL1
James C. Peters, Jr. , Cordova, Tennessee, pro se.
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 filed a petition for review of the September 28, 2016
initial decision in this appeal . Initial Appeal File, Tab 14, Petition for Review
(PFR) File, Tab 1. During later discussions with a Board Settlement Attorney ,
the appellant submitted an April 2017 letter withdrawing his 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
and stating his understanding that the Board would dismiss the petition for review
with prejudice to refiling. PFR File, Tab 5 at 1. The appellant’s letter included a
statement signed by the agency’s representativ e, declaring that the agency had no
objection to the appellant withdrawing the petition for review. Id. at 2-3.
¶2 Subsequently, in June 2018, the Clerk of the Board informed the parties
that, pursuant to a May 11, 2018 Delegation of Authority, the Clerk of the Board
had been “delegated authority to grant a petitioner’s request to withdraw his
petition for review.” PFR File, Tab 7 at 1. That order noted the appellant’s
April 2017 submission withdrawing his petition for review and informed the
appellant that, consistent with the May 11, 2018 Delegation of Au thority, he was
ordered to submit a confirmation of his request to withdraw his petition for
review. Id. at 2. The appellant did not respond.
¶3 On August 1, 2018, the Clerk of the Board issued a second order in which it
noted the appellant’s failure to res pond to the June 2018 order, and stated that ,
“[i]f the appellant wishes the Clerk of the Board to grant his request to withdraw
his petition for review, he must respond” within 7 days. PFR File, Tab 8 at 1.
That order also stated that, “[i] f the appella nt does not file a pleading confirming
his intent, the Clerk of the Board will not act on his request to withdraw the
petition for review, and the Board will instead issue a decision following the
restoration of a Board quorum.” Id. at 1-2.
¶4 The appellant again did not respond. Thereafter, the Clerk of the Board
issued an order informing the parties that, “[i]n light of the appellant’s failure to
confirm his intent to withdraw the petition for review, the Office of the Clerk of
the Board will take no furth er action to process the appellant’s request to
withdraw the petition for review under the May 11, 2018 policy.” PFR, File,
Tab 9 at 1 (emphasis removed) . The order further informed the parties that the
petition for review would be returned to the Board for consideration, and that the
Board would issue a decision on the appellant’s petition for review following the
restoration of a Board quorum. Id. at 1-2.
3
¶5 Accordingly, now that a Board quorum has been restored, we can act on the
matters presented on rev iew. While the appellant did not avail himself of the
option of having the Clerk of the Board dismiss his petition for review as
withdrawn pursuant to the May 11, 2018 Delegation of Authority, we discern no
reason not to give effect to the appellant’ s Apr il 2017 withdrawal . As noted
previously, during discussions with a Board Settlement Attorney, the appellant
submitted a document stating his desire to withdraw his petition for review and
his understanding that, as a result, the Board would dismiss his pe tition for
review with prejudice to refiling at a later time. PFR File, Tab 5 at 1. As also
noted, the agency provided a statement that it does not object to the withdrawal of
the petition for review. Id. at 2-3. Finding that withdrawal is appropriate under
these circumstances, we DISMISS the petition for review as withdrawn with
prejudice to refiling.
¶6 The initial decision of the administrative judge is final. This is the Board’s
final decision in this matter. Title 5 of the Code of Federal Regulation s, section
1201.113 ( 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).
Although we offer the follo wing summary of available appeal rights, the Merit
Systems Protection Board does not provide legal advice on which option is most
appropriate for your situation and the rights described below do not represent a
statement of how courts will rule regarding w hich 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.
4
immediately review the law applicable to your claims and carefully follow all
filing time limits and requirements. Failure to file within the applica ble time
limit may result in the dismissal of your case by your chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a partic ular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review wit h the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703 (b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Ru les of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
5
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision —including a disposition of 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
to waiver of any 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 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:
6
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302 (b)(8) or
other protected activities listed in 5 U.S.C. § 2302 (b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
disposition of allegations of a prohibited 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.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 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 | PETERS_JAMES_C_AT_831M_16_0548_I_1_FINAL_ORDER_1945949.pdf | 2022-07-27 | null | AT-831M-16-0548-I-1 | NP |
4,248 | https://www.mspb.gov/decisions/nonprecedential/SULLIVAN_THOMAS_F_DE_0752_16_0309_I_1_REMAND_ORDER_1945959.pdf | UNITED STATES OF AME RICA
MERIT SYSTEMS PROTEC TION BOARD
THOMAS F. SULLIVAN,
Appellant,
v.
DEPARTMENT OF HEALTH AND
HUMAN SERVICES,
Agency.
DOCKET NUMBER
DE-0752 -16-0309 -I-1
DATE: July 27, 2022
THIS ORDER IS NONPRECEDENTIAL1
David H. Shapiro , Esquire and Richard W. Stevens , Esquire, Washington,
D.C., for the appellant .
Christopher Tully , Esquire and Christy Te , 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 his removal and involuntary retirement claims 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 nonprece dential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and 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 discussed below, we GRANT the appellant’s petition for review,
VACATE the initi al decision, and REMAND the case to the Denver Field Office
for further adjudication in accordance with this Remand Order .
BACKGROUND
¶2 On May 6, 2016, the agency noti fied the appellant of its decision to remove
him “effective immediately ” from his position as Regional Administrator of the
agency’s Administration of Children and Families. Initial Appeal File (IAF),
Tab 11 at 21, 26 -27, Tab 18 at 21. Later that day, the appellant initiated his
retirement. IAF, Tab 17 at 12. According to email records from May 9-20, 2016,
a Retirement Specialist with the Administration of Children and Families
discussed with the Administration’s Executive Officer how to process the
appellant’s retirement and ultimately determined that the Executive Officer had to
cancel the removal action that she previously had entered in the agency’s
electronic data system. IAF, Tab 18 at 15-20. It is undisputed that the agency
processed the ap pellant’s retirement on May 20, 2016, and pursuant to his
request, made it effective May 5, 2016 . IAF, Tab 12 at 12, Tab 17 at 12-13. On
May 24, 2016, the appellant filed this appeal, challenging the merits of his
removal and raising the affirmative defenses of discrimination and retaliation for
protected equal employment opportunity (EEO) activity , whistleblower reprisal,
and harmful procedural error. IAF, Tab 1 at 4, 6, Tab 10 at 5-14.
¶3 During a status conference, the administrative judge raised the issue of
whether, in light of the appellant’s retirement, the Board has jurisdiction over his
remov al. IAF, Tabs 16, 19. He ordered the parties to file argument and evidence
on whether 5 U.S.C. § 7701 (j) applied, given the agency’s purported cancellation
of the appellant’s removal, and if ina pplicable, whether the appellant’s retirement
was involuntary. IAF, Tabs 16, 19. Both parties submitted multiple responses.
IAF, Tabs 17-18, 23 -24.
3
¶4 The appellant argued that 5 U.S.C § 7701 (j) i s applicable, and thus his
retirement status should not be considered in determining Board jurisdiction over
his removal. IAF, Tab 17 at 7 -9. He further alleged that the agency failed to
completely cancel his removal, sought to exclude the cancellation S tandard Form
(SF) 50 submitted by the agency , and questioned the evidentiary value of an
agency declaration attesting to the cancellation of his removal. IAF, Tab 23
at 11-15. He also claimed that his retirement was involuntary because he “needed
his ret irement income to live on” while challenging his removal. Id. at 17.
¶5 The administrative judge issued an initial decision dismissing the appeal for
lack of jurisdiction, without holding the appellant’s requested hearing. IAF,
Tab 1 at 2, Tab 26, Initial D ecision (ID) at 1-2, 7. He found that before the
appellant filed the appeal, the agency cancelled the removal and instead effected
his retirement, an action over which the Board generally does not have
jurisdiction. ID at 4-6. In making this findin g, he relied upon the May 9-20,
2016 email chain. ID at 5. Given the appellant’s evidentiary challenges, he did
not consider the cancellation SF -50 or the agency official’s declaration. ID
at 5-6. He further found that the appellant’s reason for retiring, t o ensure that he
would continue to receive a paycheck, was insufficient to render his retirement
involuntary. ID at 7.
¶6 The appellant has filed a petition f or review. Petition for Review (PFR)
File, Tab 1. The agency has submitted a response, to which th e ap pellant has
replied. PFR File, Tabs 3 -4.
DISCUSSION OF ARGUME NTS ON REVIEW
¶7 On review, the appellant challenges the administrative judge’ s findings that
the Board lacks jurisdiction over his removal and that he voluntarily retired. PFR
File, Tab 1 at 19-32, Tab 4 at 8 -20. He reasserts his claims that his removal
remains effective because the agency failed to completely rescind the action
before he filed his appeal. PFR File, Tab 1 at 22 -26, Tab 4 at 11 -13.
4
Specifically, he reargues that the cancella tion was ineffective because the agency
provided no reliable, official documentation of the cancellation; the cancellation
decision was not made by an authorized official ; he was not properly notified of
the decision ; and he was not returned to status quo ante.2 PFR File, Tab 1
at 22-26. He also continues to claim that hi s retirement was involuntary because
the removal decision caused him to retire. PFR File, Tab 1 at 29 -32, Tab 4
at 18-20. For the reasons discussed below, we find that remand is necessa ry.3
The appellant nonfrivolously alleged that the agency failed to cancel his removal
and therefore is entitled to a jurisdictional hearing .
¶8 The Board’s jurisdiction is determined by the nature of the agency action
being appealed at the time that the appe al is filed. Anderson v. U.S. Postal
Service , 75 M.S.P.R. 494 , 498 (1997). Under 5 U.S.C. § 7701 (j), when an
appellant retires after receiving a final removal decision, the Board may not
consider his retirement status in determining the appealability of the removal,
even if his retirement is made effective on or before t he removal date. Mays v.
Department of Transportation , 27 F.3d 1577 , 1578 -79, 1581 (Fed. Cir. 1994).
The Board lacks jurisdiction, however, if t he agency cancels the removal or
2 The appellant reasserts his request to strike the cancellation SF -50 as a sanction fo r
the agency’s purported “failure to timely produce” the document. PFR File, Tab 1
at 28-29. The administrative judge denied sanctions , finding that the agency did not
produce the form earlier because the appellant did not mention his retirement in his
initial appeal . IAF, Tab 1 at 4, 6; ID at 5. We decline to reverse this finding. See El v.
Department of Commerce , 123 M.S.P.R. 76 , ¶ 16 (2015) ( observing that the imposition
of sanctions is a matter within the administrative judge’s sound discretion , and his
decision will not be reversed absent a showing that such discretion has been abused ),
aff’d per curiam , 663 F. App’x 921 (Fed. Cir. 2016).
3 The appellant also submitted, for the first time on review, affidavi ts from his EEO
case. PFR File, Tab 1 at 9, 34 -51. He indicated that he received the affidavits after the
initial decision was issued. Id. at 9. Under 5 C.F.R. § 1201.115 (d), the Board generally
will not consider evidence submitted for the first time on petition for review absent a
showing that it was unavailable before the record was closed despite the party’s due
diligence. Avansino v. U.S. Postal Service , 3 M.S.P.R. 211 , 214 (1980). However, we
need not resolve the issue of their availabili ty because we do not rely on these
documents in deciding to remand this appeal.
5
modifies it to a non appealable action prior to the filing of an appeal. Taber v.
Department of the Air Force , 112 M.S.P.R. 124 , ¶ 8 (2009) .
¶9 The appellant primarily relies on Tennyson v. Department of the Air Force ,
to support his contention that the agency failed to effectively cancel his removal
before he appealed. 3 M.S.P.R. 416 , 419 (1980), overruled on o ther grounds by
Koop v. Federal Emergency Management Agency , 16 M.S.P.R. 605 (1983); PFR
File, Tab 1 at 23 -25. In Tennyson , the appellant resigned and applied for
retirement after the agency notified him of its final decision to remove him.
3 M.S.P.R. at 417. As a result, a pe rsonnel specialist stopped the processing of
the appellant’s removal in its computer system, and the agency instead processed
his retirement . Id. at 417 -18. The Board found that it had jurisdiction over the
appeal because there was no evidence that the i ndividual who stopped processing
the appellant’s removal had the authority to cancel the action, and the appellant
had not been notified at the time that he filed his appeal of the cancellation . Id.
at 419. We find the underlying facts analogous.
¶10 The a gency argues that Tennyson is inapplicable because there, the agency
issued the resignation SF -50 after the appellant filed his appeal, whereas here, the
agency issued an SF -50 effecting the appellant’s retirement before he filed his
appeal. PFR File, Tab 3 at 9. We disagree. As here, the relevant inquiry in
Tennyson was whether the agency effectively cancelled the removal action before
the appellant filed his appeal. Moreover, an SF -50 does not constitute a
personnel action itself and does not on its f ace control an employee’ s status and
rights . Fox v. Department of the Army , 120 M.S.P.R. 529, ¶ 22 (2014) .
¶11 The Board must look to t he totality of the circumstances to determine
whether the agency’s removal action was effective at the time that the appellant
filed his appeal . Id. Looking to past precedent, some potential f actors to
consider include, but are not limited to : (1) who au thorized the cancellation and
the basis for his or her authority to make that decision; (2) whether the agency
issued a cancellation SF -50, sent a cancellation letter, or completed some other
6
similar cancellation procedure; (3) whether the agency notified the appellant of
its decision to cancel the removal action; and (4) the timing of the agency’s
cancellation efforts. See, e.g. , Jenkins v. Merit Systems Protection Board ,
911 F.3d 1370 , 1374 (Fed. Cir. 2019) ( hold ing that the agency completely
rescinded the action by cancelling the removal and scrubbing the appellant’s
personnel file of any reference of it) ; Fox, 120 M.S.P.R. 529, ¶ 22 (finding that
the agency removed the appellant, notwithstanding her subsequent retroactiv e
retirement, when it issued the removal decision, as evidenced by the
accompanying removal SF -50); Taber , 112 M.S.P.R. 124 , ¶ 9 (finding that ,
although the effective date of the removal decision had passed, the Board lacked
jurisdict ion over the appeal because the agency mailed the appellant a letter
notifying him of the cancellation of his removal before he filed his appeal) ;
Tennyson , 3 M.S.P.R. at 419 (finding that the agency failed to effectively cancel
the removal action because there was no indication that an authorized official
made the cancellation decision or that the appellant was notified of it).4
¶12 Here, the appellant represents that he first learned of the cancellation SF -50
during the pendency of the Board appeal. IAF, Tab 23 at 9; PFR File, Tab 1
at 15. The agency, on the other hand, has provided no evidence on the notice
issue. The administrative judge did not identify this aspect of the appellant’s
jurisdictional burden in his orders or the initial decision, and he made no finding
as to whether the appellant received proper notice of the cancellation before filing
his appeal. IAF, Tab 16 at 1 -2, Tab 19, ID at 4 -6.
4 The appellant argues that the administrative judge erred in not following Johnson v.
Department of Agriculture , 14 M.S.P.R. 181 , 184 -85 (1982), which requires complete
rescission of the action being appealed and restoration to status quo ante for a
cancellation to be effective. PFR File, Tab 1 at 22. We find that Johnson is inapposite
to the instant appeal. The rule set forth in Johnson applies to cancellations of actions
that occur after an appeal ha s been filed. 14 M.S.P.R. at 184. Rather, Anderson is
applicable here because it concerns an agency’s cancellation of an otherwise appealable
action before an appeal is filed. 75 M.S.P.R. at 498.
7
¶13 Similarly, because he found that the email chain establishe d that the agency
cancelled the removal action, the administrative judge did not fully consider the
cancellation SF -50, the appellant’s challenges to that document, or the agency’s
declaration addressing the appellant’s official personnel folder . ID at 5-6.
Furthermore, the administrative judge did not address the appellant’s argument
that the agency failed to provide any evidence indicating that the individuals on
the email chain had the authority to cancel his removal. We find that the email
chain alon e is insufficient to determine whether a final cancellation decision was
made. Id. Instead, the administrative judge should have assessed the totality of
the evidence presented, inclu ding the cancellation SF -50, the agency official’s
declaration, and the appellant’s evidentiary challenges to those documents .
¶14 In summary, the appellant alleges that the agency failed to effectively
document its decision to cancel his removal, the employee s involved lacked the
authority to cancel his removal , and the agency d id not notify him of its
cancellation decision before he filed his appeal. PFR File, Tab 1 at 22 -26. As
stated previously, the administrativ e judge dismissed the appellant’s appeal for
lack of jurisdiction , without holding his requested hearing. IAF, Ta b 1 at 2; ID
at 1-2. However, if an appellant makes a nonfrivolous allegation of Board
jurisdiction over his appeal , he is entitled to a jurisdictional hearing. Ferdon v.
U.S. Postal Service , 60 M.S.P.R. 325 , 329 (1994). Nonfrivolous allegations of
Board jurisdiction are allegations of fact that , if proven, could establish a prima
facie case that the Board has jurisdiction over the matter at issue. Id. at 329 . We
find that the appellant’s allegations constitute a nonfrivolous allegation that ,
based on the totality of the circumstances, the agency did not cancel his removal
before filing his appeal.
¶15 Accordingly , remand for a jurisdiction al hearing is necessary to address the
factual disputes raised by the parties’ arguments and evidence and to determine
whether the appellant proved by preponderant evidence that the Board has
jurisdiction over his removal . 5 C.F.R. § 1201.56 (b)(2)(i)(A). If the
8
administrative judge finds that the Board lacks jurisdiction over the appellant’s
removal, he may reinstate his findings on the appellant’s involuntary retirement
claims .
¶16 The app ellant alleges that 5 U.S.C. § 7701 (j) mandates a finding that
retirements, which would not have occurred but for being faced with a final
removal decision, are involuntary as a matter of law. PF R File, Tab 1 at 29 -32.
We disagree. The provision was intended to protect employees from having to
choose between forfeiting their appeal rights and obtaining retirement benefits.
Mays , 27 F.3d at 1580. It does not establish that a retirement in the f ace of a final
removal decision is per se involuntary. Cf. Fox, 120 M.S.P.R. 529 , ¶ 23 (finding
that if the Board has jurisdiction over a removal under 5 U.S.C. § 7701 (j), any
involuntary retirement claim is subsumed into the removal appeal ).
¶17 Here, the administrative judge correctly notified the appellant of his
jurisdictiona l burden on his involuntary retirement claims. IAF, Tabs 16, 19; ID
at 3-4. We discern no error with his finding that the appellant’s reason for
retiring, to ensure that the he would continue to receive a paycheck, did not
render his retirement involunta ry. ID at 7; see Morrison v. Department of the
Navy , 122 M.S.P.R. 205 , ¶¶ 5-6 (2015) (finding that the choice between two
unplea sant alternatives does not rebut the presumed voluntariness of the ultimate
choice of retirement) .
¶18 We nonetheless vacate the administrative judge’s findings on this issue
because a separate finding on the appellant ’s involuntary retirement claim is
appropr iate only if the Board lacks jurisdiction over his removal. See Fox,
120 M.S.P.R. 529 , ¶ 23 (finding that it is error to adjudicate an appellant’s
involuntary retirement claim as a matter distinct from a removal action).
However, on remand, if the administrative judge finds that the appellant did not
establish jurisdiction by preponderant evidence over his removal , then the
administr ative judge may reinstate his findings on the appellant’s involuntary
retirement claims .
9
ORDER
¶19 For the reasons discussed above, we vacate the initial decision and remand
this case to the field office for further adjudication in accordance with this
Remand Order. On remand, the administrative judge should hold a jurisdictional
hearing to determine whether the appellant can meet his burden of proving Board
jurisdiction over his removal by preponderant evidence. To determine whether
the agency effectively ca ncelled the removal action, the administrative judge
should consider the totality of the circumstances, including , but not limited to,
who made the decision, whether the appellant was notified of the cancellation
decision, and whether the SF -50 and agency records accurately reflect that
decision. If the administrative judge finds that the appellant has met his
jurisdictional burden, then he should adjudicate the merits of the appeal and the
appellant’s affirmative defenses.
FOR THE BOARD:
Washington, D.C . /s/ for
Jennifer Everling
Acting Clerk of the Board | SULLIVAN_THOMAS_F_DE_0752_16_0309_I_1_REMAND_ORDER_1945959.pdf | 2022-07-27 | null | DE-0752-16-0309-I-1 | NP |
4,249 | https://www.mspb.gov/decisions/nonprecedential/CUNNINGHAM_WILLIAM_TYRONE_DC_315H_17_0167_I_1_FINAL_ORDER_1945972.pdf | UNITED STATES OF AME RICA
MERIT SYSTEMS PROTEC TION BOARD
WILLIAM TYRONE CUNNI NGHAM,
Appellant,
v.
DEPARTMENT OF LABOR,
Agency.
DOCKET NUMBER
DC-315H -17-0167 -I-1
DATE: July 27, 2022
THIS FINAL ORDER IS NONPRECEDENTIAL1
William Tyrone Cunningham , Fort Washington, Maryland, pro se.
Elizabeth L. Beason and Katrina Liu , Washington, D.C., for the agency.
BEFORE
Cathy A. Harris , Vice Chairman
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
dismissed his appeal of his probationary termination for lack of jurisdiction.
Generally, we grant petitions such as this one only in the following
circumstances: the initial decision contains erroneous findings of material fact;
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
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 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).
¶2 In his petition for review, the appellant argu es that he thought he was being
reinstated and, per his rights as a former Postal Service employee, he was not
required to serve a probationary period and/or the agency never told him he
would be required to do so. Petition for Review (PFR) File, Tab 1 at 7, 11; Initial
Appeal File ( IAF), Tab 30, 33 -34. As a general matter, a person who is “given a
career or career -conditional appointment” must complete a 1 -year probationary
period. See 5 C.F.R. § 315.801 (a). Here, the administrative judge correctly
found that the appellant’s prior Federal service did not accord him the status of an
“employee” under 5 U.S.C. § 7511 (a)(1)(A). Th at statute provides that, to
qualify as an “employee” with appeal rights under 5 U.S.C. chapter 75, a
competitive -service employee must show that he either was not serving a
probationary period or , with an exception not relevant here, had completed 1 year
of current continuous service under an appointment other than a temporary one
limited to a year or less. The administrative judge properly concluded that the
appellant failed to show that his prior service could be counted toward the
probationary period b ecause the prior service would have to be: (1) rendered
immediately preceding the probationary period; (2) performed in the same
3
agency; (3) performed in the same line of work; and (4) completed with no more
than one break in service of less than 30 days. 5 C.F.R. § 315.802 (b); see
Hurston v. Department of the Army , 113 M.S.P.R. 34, ¶ 9 (2010); see also
Vannoy v. Department of the Air Force , 73 F.3d 380 (Fed. Cir. 1995) (per
curiam).2
¶3 The administrative judge determined that the appellant in this case was
employed by the U.S. Postal Service from 1993 to 2000. IAF, Tab 41, Initial
Decision (ID) at 4; IAF, Tab 21 at 112 -13. Under 5 C.F.R. § 315.802 (b), though,
such prior service could not be tacked on toward completing a probationary
period in any agency other than in the s ame agency (the U.S. Postal Service). See
Baggan v. Department of State , 109 M.S.P.R. 572, ¶ 7 (2008). In addition, the
administr ative judge correctly found t hat the appellant was on notice that he was
subject to a probationary period when he was appointed. ID at 4 -5. The agency’s
vacancy announcement clearly stated that selectees would be required to serve a
1-year probationary t erm of employment if they were not already tenured Federal
employees. IAF, Tab 21 at 99. The administrative judge also properly found
that, even if the agency failed to notify the appellant that, if selected, he would
need to serve a probationary term of employment, that alleged failure would still
not confer appeal rights on the appellant. ID at 5 (citing Cunningham v.
Department of the Army , 119 M.S.P.R. 147, ¶ 5 (2013) ; cf. Williams v. Merit
Systems Protection Board , 892 F.3d 1156 , 1162 -63 (Fed. Cir. 2018) (recognizing
that an agency’s failure to advise an employee that he would lose his Board
appeal rights if he voluntarily transferred to a different position did not create
appeal rights), cert. denied , 139 S. Ct. 1472 (2019) . Further, as to the appellant ’s
argument that he thought he was being reinstated, the Board lacks jurisdiction
over an agency’s decision not to reinstate an employee pursuant to 5 C.F.R.
2 The Board may rely on unpublished decisions of the U.S. Court of Appeals for the
Federal Circuit if, as here, it finds the reasoning persuasive. Vores v. Department of the
Army , 109 M.S.P.R. 191 , ¶ 21 (2008), aff’d , 324 F. App’x 883 (Fed. Cir. 2009).
4
§ 315.401 . See Hicks v. Depa rtment of the Navy , 33 M.S.P.R. 511 , 512 -13 (1987)
(holding that the Board lacks jurisdiction over an agency’s alleged denial of an
employee ’s reinstatement rights).
¶4 The appellant also argues for the first time that he was terminated for
partisan political and/or preappointment reasons. PFR File, Tab 1. The Board
generally will not consider an argument raised for the first time in a petition for
review absent a showing that it is based on new and material evidence not
previously available despite the party’s due diligence. Banks v. Department of
the Air Force , 4 M.S.P.R. 268 , 271 (1980); 5 C.F.R. § 1201.115 (d). The
appellant has not made such a sufficient showing here. The appellant also
submits two emails and argues the documents were unavailable due to being on a
USB drive he had given to his daughter; however, the information itself was not
new and will not be considered . PFR File, Tab 1 at 14 -15; see 5 C.F.R.
§ 1201.115 (d); see also Grassell v. Department of Transportation , 40 M.S.P.R.
554, 564 (1989) (holding that the information contained in the documents, not
just the documents themselves, must have been unavailable despite due diligence
when the record closed). Regardless, even if we were to consider the appellant’s
arguments or documents on revie w, it would not provide the Board with
jurisdiction.
¶5 The appellant asserts that, because he was considering becoming a union
shop steward, the agency discriminated against him for partisan political reasons.
PFR File, Tab 1 at 2, 5, 8. In furtherance o f this argument, he submits a narrative
description of his interactions with the union and his supervisor and emails with
the union regarding his core duty hours at the agency. Id. at 14-18. However,
even if we were to consider the appellant’s argument t hat his termination was due
to his affiliation with the union, it would not provide the Board with jurisdiction.
See Mastriano v. Federal Aviation Administration , 714 F.2d 1152 , 1156 (holding
that allegations of discrimination based on union affiliation do not state a cause
of action within the Board’s jurisdiction under 5 C.F.R. § 315.806 (b)).
5
¶6 The appellant also argues that he was terminated for a preappointment
reason based on the agency’s failure to hire him under the vacancy announcement
for applicants under the Veteran s Employment Opportunity Act. PFR File, Tab 1
at 5; IAF , Tab 13 at 4. However, the appellant’s arguments do not suggest that
the agency terminated him because of the hiring appointment authority. Rather, it
is undisputed that the appellant was terminated for attendance issues and
misrepresentations made abou t his work hours as reported on his daily timesheets.
IAF, Tabs 9 -12, Tab 21 at 6, 21 -92, Tabs 23 -25. Therefore , we find that the
appellant has not raised a nonfrivolous allegation that he was terminated for a
preappointment reason.
¶7 Finally, t he appel lant argues that the agency willfully obstructed his
employment by not allowing him to change his shift, not allowing him to come
into work early, and not giving him any verbal or written warnings before his
termination , as required by the collective barga ining agreement. PFR File, Tab 1
at 8. However, the Board cannot review these claims as they do not relate to the
issue of the Board’s jurisdiction over an appeal by a probationary employee.
Mastriano , 714 F.2d at 1156 . Moreover, these claims do not provide an
independent source of Board jurisdiction absent an otherwise appealable action.
Penna v. U.S. Postal Service , 118 M.S.P.R. 355 , ¶ 13 (2012) ( finding that absen t
an otherwise appealable action, the Board lacks jurisdiction over a claim of
harmful error , discrimination, or other prohibited personnel practice); Burnett v.
U.S. Postal Service , 104 M.S.P.R. 308 , ¶ 15 (2006 ) (making the same finding in
Penna as to a due process claim).
¶8 Accordingly, we find the administrati ve judge correctly dismissed the
appeal for lack of jurisdiction.
6
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 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 and 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 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:
3 Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise which option is most appropriate in any matter.
7
U.S. Court of Appeals
for the Federal 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
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 yo u have a
representative in this case, and your representative receives this decision before
you do, then you must file with the district court no later than 30 calendar days
after your representative receives this decision. If the action involves a claim of
discrimination 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 through the link below:
http://ww w.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702 (b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702 (b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC 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
9
disposition of allegations of a pro hibited personnel practice described in
section 2302(b) other than practices described in section 2302(b)(8), or
2302(b)(9)(A)(i), (B), (C), or (D),” then you may file a petition for judicial
review either with the U.S. Court of Appeals for the Federal Cir cuit or any court
of appeals of competent jurisdiction.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 gi ven case.
4 The original statutory provision that provided for judicial review o f certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial revie w of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No . 115 -195,
132 Stat. 1510.
10
Contact information for the courts of appeals can be found at their
respective websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
FOR THE BOARD:
Washington, D.C. /s/ for
Jennifer Everling
Acting Clerk of the Board | CUNNINGHAM_WILLIAM_TYRONE_DC_315H_17_0167_I_1_FINAL_ORDER_1945972.pdf | 2022-07-27 | null | DC-315H-17-0167-I-1 | NP |
4,250 | https://www.mspb.gov/decisions/nonprecedential/SCOTT_TYRONE_D_SF_1221_22_0512_W_1_FINAL_ORDER_(SF_16_0596_I_1)_1946034.pdf | UNITED STATES OF AME RICA
MERIT SYSTEMS PROTEC TION BOARD
TYRONE D. SCOTT,
Appellant,
v.
DEPARTMENT OF THE AR MY,
Agency.
DOCKET NUMBER
SF-0752 -16-0596 -I-1
DATE: July 27, 2022
THIS FINAL ORDER IS NONPRECEDENTIAL1
Tyrone D. Scott , Biloxi , Mississippi , pro se.
Inam Rabbani , APO, AP , 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 revie w of the initial decision, which
dismissed his removal appeal for lack of jurisdiction . Generally, we grant
petitions such as this one only in the following circumstances: the initial decision
contains erroneous findings of material fact; the in itial 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 appeal or the initial decision were not con sistent with required
procedures or involved an abuse of discretion, and the resulting error affected the
outcome of the case; or new and material evidence or legal argument is available
that, despite the petitioner’s due diligence, was not available when the record
closed. Title 5 of the Code of Federal Regulations, section 1201.115 ( 5 C.F.R.
§ 1201.115 ). After fully considering the filings in this appeal, we conclude that
the petition er 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 decis ion. 5 C.F.R.
§ 1201.113 (b). However, we FORWARD the appellant ’s claim s of whistleblower
retaliation to the Western Regional Office for docketing as a new individual right
of action (IRA) appeal .
¶2 The agency imposed the appellant’s re moval due to the expiration of his
overseas tour and his failure to remain eligible for its Priority Placement
Program. Initial Appeal File (IAF), Tab 16 at 125 -26. On the day that the agency
issued its decision , the appellant filed a complaint with the Office of Special
Counsel (OSC) regarding, among other things, the removal action . IAF, Tab 3
at 8-31. Subsequently, he sent an email to OSC requesting to withdraw his
complaint and OSC confirmed the withdrawal. Id. at 32, 65. He then filed the
instant appeal challenging his removal. IAF, Tab 1 . The administrative judge
dismissed t he appeal for lack of jurisdiction because she found that the appellant
made a binding election when he filed his OSC complaint . IAF, Tab 53, Initial
Decision (ID).
¶3 The a ppellant has filed a petition for review, the agency has responded in
opposition to the petition , and the appellant has replied. Petition for Review
(PFR) File, Tabs 1, 4 -5. On September 23, 2016, after the record closed on
review, the appellant submitted a motion in which he sought leave from the Board
3
to file an additional pleading. PFR File, Tab 6. The Board issued an order
granting the appellant’s motion and permitting h im the opportunity to submit
specific documentation. PFR File, Tab 8. The appellant filed the document
specified in the Board’s order, and the agency submitted a response to the order
furnished by the appellant.2 PFR File, Tabs 9 -10.
¶4 By statute , an ap pellant who has been subjected to an action appealable to
the Board, and who alleges that he has been affected by a prohibited personnel
practice in retaliation for whistleblowing under 5 U.S.C. § 2302(b)(8) or in
retaliation for other prot ected activity under 5 U.S.C. § 2302 (b)(9), may elect
one, and only one, of the following remedies: (1) an appeal to the Board under
5 U.S.C. § 7701 ; (2) a grievance filed under the provisions of a negotiated
grievance procedure; or (3) a complaint following the procedures for seeking
corrective action from OSC under 5 U.S.C. chapter 12, subchapter s II and III .
5 U.S.C. § 7121 (g); see Corthell v. Department of Homeland Security ,
123 M.S.P.R. 417 , ¶ 15 ( 2016); 5 C.F.R. § 1209.2 (d)(1). The remedy that the
aggrieved employee seeks first is deemed an election of that procedure and
precludes pursuing the matter in either of the other two forums. Edwards v.
Department of the Air Force , 120 M.S.P.R. 307 , ¶ 12 (2013). In determining the
appellant’s election, the administrative judge must consider whether any election
was knowing and informed. 5 U.S.C. § 7121 (d), (g); see Agoranos v. Department
of Justice , 119 M.S.P.R. 498 , ¶ 16 (2013).
¶5 We agree that , despite his assertions to the contrary, the appellant failed to
show nonreceipt of the first and fourth pages of the comprehensive notice of
2 The appellant filed several subsequent motions for leave to file an additional pleading.
PFR File, Tabs 13, 16, 18 , 22, 27. Because the Board is forwarding the appellant’s
claims of whistleblower retaliation to th e regional office for docketing as a new IRA
appeal, we find the additional evidence an d argument he sought leave to submit, as
described by the appellant in these motions, to be immaterial to the outcome of this
appeal. Accordingly, the appellant’s motio ns for leave to submit additional evidence
and argument on review are denied.
4
rights , included with the removal decision, which explained the binding nature of
an initial electio n of remedies . ID at 5 -6. Thus, we also agree that he did not
show that his election to file an OSC complaint was not knowing and informed .
Id. Accordingly, we affirm the administrative judge’s decision to dismiss this
appeal for lack of jurisdiction.
¶6 However, we forward the appellant’s claims of whistleblower retaliation for
docketing as an IRA appeal. On September 27, 2016 , the appellant submitted a
previously unavailable OSC closeout letter, dated September 22, 2016 , which
addressed his allegations regarding several agency actions, including his removal.
PFR File, Tab 9 at 34-36. As the appellant may now have become entitled to
bring an IRA appeal, we forward his whistleblower retaliation claim s to the
Board ’s Western Regional Office for docketing and adjudication as a new IRA
appeal as to the matters raised therein. 5 U.S.C. §§ 1214 (a)(3), 1221(a); 5 C.F.R.
§ 1209.5 (a). After docketing the appeal, the administrative judge should apprise
the appellant of the jurisdictional requirements for filing an IRA appeal. Graves
v. Department of Veterans Affairs , 123 M.S.P.R. 434, ¶ 12 (2016).
NOTICE OF APPEAL RIGHTS3
You may obtain review of this final decision. 5 U.S.C. § 7703 (a)(1) . By
statute, the nature of your claims determines the time limit for seeking such
review and the appropriate forum with which to file. 5 U.S.C. § 7703 (b).
Although we offer the following 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
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, th e
Board cannot advise which option is most appropriate in any matter.
5
immediately review the law applicable to your claims and carefully follow all
filing time limits and requirements. Failure to file within the applicable time
limit may result in the dismissal of your case by your chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to 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
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
6
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision —including a disposi tion of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 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:
7
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
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 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 competen t jurisdiction.4 The court of appeals must receive your
petition for review within 60 days of the date of issuance of this decision.
5 U.S.C. § 7703 (b)(1)(B).
4 The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit o r any other circuit court of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115 -195,
132 Stat. 1510.
8
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D .C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
Contact information for the courts of appeals can be found at their
respective websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/C ourtWebsites.aspx .
FOR THE BOARD:
Washington, D.C. /s/ for
Jennifer Everling
Acting Clerk of the Board | SCOTT_TYRONE_D_SF_1221_22_0512_W_1_FINAL_ORDER_(SF_16_0596_I_1)_1946034.pdf | 2022-07-27 | null | SF-0752-16-0596-I-1 | NP |
4,251 | https://www.mspb.gov/decisions/nonprecedential/COAN_TIMOTHY_NY_0752_14_0300_C_1_ORDER_1946062.pdf | UNITED STATES OF AME RICA
MERIT SYSTEMS PROTEC TION BOARD
TIMOTHY COAN,
Appellant,
v.
DEPARTMENT OF VETERA NS
AFFAIRS,
Agency.
DOCKET NUMBER
NY-0752 -14-0300 -C-1
DATE: July 27, 2022
THIS ORDER IS NONPRECEDENTIAL1
Timothy Coan , Patchogue, New York, pro se.
Jack P. DiTeodoro , Esquire, Brooklyn, New York, for the agency.
BEFORE
Cathy A. Harris , Vice Chairman
Raymond A. Limon , Member
Tristan L. Leavitt , Member
ORDER
¶1 The agency has filed a petition for review of the compliance initial
decision, which granted the appellant’s petition for enforcement. For the reasons
set forth below, we GRANT the agency’s petition for review with respect to the
relief granted to the appellant, VACATE the compliance initial decision’s
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or 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
compliance order, and AFFIRM the compliance initial decision as MODIFIED by
this Order finding that: (1) the agency failed to restore the appellant to the status
quo ante because the agency did not show a strong overriding in terest or
compelling reason to assign the appellant to a position other than the one he
encumbered at the ti me of his indefinite suspension; and (2) the appellant was
entitled only to reinstatement to his former position from the effective date of his
reassignment until the date of his resignation . We refer the petition for
enforcement to the Board’s Office of General Counsel to obtain compliance with
the parties’ settlement agreement and issuance of a fin al decision. See 5 C.F.R.
§ 1201.183 (c). We FORWARD the appellant’s claim of involuntary resignation
to the Board’s New York Field Office for docketing as a separate appeal .
BACKGROUND
¶2 In June 2014, the appellant timely filed an appeal contesting the agency’s
decision to indefinitely suspend him from his position as a Police Officer based
on a criminal charge pending against him . MSPB Docket No. NY-0752 -14-0300 -
I-1, Initial Appeal File (IAF), Tab 1. In August 2014, the parties e xecuted a
settlement agreement, which provided that in exchange for the appellant’s
withdrawing his appeal and any other causes of action pending against the
agency , the agency agreed to rescind the indefinite suspension, expunge all
references regarding t he indefinite suspension from his personnel file, restore him
to the status quo ante with no break in service , and pay him back pay and adjust
his benefits in accordance with Office of Personnel Management (OPM)
regulations . IAF, Tab 8; MSPB Docket No. NY -0752 -14-0300 -C-1, C ompliance
File (CF), Tab 1 at 2 -4. Also in August 2014, the administrative judge issued an
initial decision incorporating the settlement agreement into the record for
enforcement purposes in accordance with the terms of the agreement a nd
dismissing the initial appeal. IAF, Tab 9, Initial Decision (ID). In dismissing the
appeal, the administrative judge found that the Board had jurisdiction over the
3
initial appeal, the settlement agreement was lawful , and the parties understood the
terms of the agreement and had fre ely entered into the agreement . Id.
¶3 In May 2015, the appellant timely filed a petition for enforcement alleging
that the agency had breached the settlement agreement.2 CF, Tab 1 at 1. The
appellant asserted that the partie s had agreed that he would be placed in an
administrative leave status until the disposition of his pending criminal charge,
and at that time he would either be returned to full duty or remain in an
administrative leave status.3 Id. The appellant also alleged that in January 2015,
he notified the agency that his criminal charge was resolved through an
adjournment in c ontemplation of dismissal , but the agency did not return him to
duty as a Pol ice Officer, GS -0083 -06, in the Police Service . Id. at 1, 5, 11.
Instead, the agency notified him in May 2015 , that it was reassigning him to the
position of Secretary, GS -0318 -06, in the Em ergency Management Service ,
effective May 17, 2015 . Id. at 1, 5. The appellant argued that, because he was
not found guilty of the criminal charge, he should have been returned to full duty
rather than reassigned. Id. at 1.
¶4 The agency filed a response disputing that it had breached the settlement
agreement. CF, Tab 3. The agency argued that it had reinstated the appella nt to
his Police Officer position as of the effective date of the settlement agreement
and completed its other obligations under the agreement, and that the agreement
did not bar a later reassignment. Id. at 2. The agency further alleged that in
February 2015, the agency’s Law Enforcement Training Center (LETC) issued a
decision revoking the appellant’s badge and credentials, and because the ability to
hold a badge and credential s are a required qualification for a police officer, the
2 The administrative judge found that the appellant’s petition for enforcement was
timely filed, the agency has not challenged that finding, and we see no reason to d isturb
it. CF, Tab 17, Compliance Initial Decision at 1.
3 As discussed below, see infra ¶ 13, this particular agreement is not reflected in the
executed settlement agreement.
4
appellant could no l onger occupy his position, and the agency reassigned him to a
different position . Id. at 3. The administrative judge subsequently ordered the
agency to submit evidence of compliance with the agreement. CF, Tab 4. The
agency submitted a copy of the appellant’s ele ctronic official personnel file to
show that his record did not mention the indefinite suspension. CF, Tab 7. The
agency also acknowledged that it had placed the appellant in an administrative
leave status pending the outcome of the crimin al charge, but that upon resolution
of the charge, the agency reassigned him to another position, and that the
settlement agreement did not preclude the agency from placing him in an
administrative leave status or reassigning him. Id. at 1.
¶5 In June 2016 , the appellant asked the administrative judge about the status
of his petition for enforcement and notified her that he had resigned from the
Secretary position as a result of the financial burden of losing his night pay,
weekend pay, and 12 -hour shifts, which had allowed him to work at a second job.
CF, Tab 11 at 1 -2. Also in June 2016, the appellant submitted a letter to the
administrative judge in which he requested reinstatement to his Police Officer
position, back pay, and reimbursement for the leave he had taken from
May 17-August 8, 2015.4 CF, Tab 14.
¶6 The administrative judge issued a compliance initial decision granting the
appellant’s petition for enforcement. CF, Tab 17, Compliance Initial Decision
(CID). She found that the settlement agree ment required the agency to return the
appellant to the status quo ante, which required the agency to reinstate him to the
position he occupied before the adverse action or to a substantially equivalent
4 The appellant appeared to allege that his last day with the agency was August 8, 2015.
CF, Tab 14. On review, the agency submitted a July 28, 2015 letter from the appellant
tendering his resignation and a Standard Form 50 effecting the appellant’s resignation
on July 28, 2015 , in support of the agency’s argument that the administrative judge
erred in restoring the appellant after his July 28, 2015 resignation. Petition for Review
(PFR ) File, Tab 1 at 7, 19-20. The appe llant has not disputed the agency’s evidence
showing that his resignation was effective on July 28, 2015. PFR File, Tab 3.
5
position. CID at 5 -7. The administrative judge then found that the agency had
reassigned the appellant to a differe nt position than the one he previously had
held. CID at 6 -7. She also found that the agency did not articulate the specific
concerns underlying the request for the return of the appellant’s badge and
credentials , which led to his disqualification from his former position and then
reassignment to the Secretary position. CID at 6 -7. The administrative judge
further fo und that, even if she were to find that the agency had a strong overriding
interest or compelling reason to reassign the appellant to a different position , the
agency nevertheless failed to reassign him to a position that was subs tantially
similar to that of a Police O fficer , as the positions of Police Officer and Secretary
were in different j ob classification series and agency divisions, and the
reassignment resulted in the loss of the appellant’s pay differential. CID at 7-8.
Thus, the administrative ju dge concluded that the agency had materially breached
the settlement agreement and ordered the agency to reinstate the appellant to the
Police Officer position , or to reassign him to a positi on that is substantially
similar to that of a Police Officer , effective May 17, 2015. Id.
¶7 The agency has timely filed a petition for review of the compliance initial
decision , and the appellant has responded in opposition to the agency’s petition.
Petition for Review (PFR) File, Tabs 1 , 3. As set forth below, we affi rm the
administrative judge’s finding that the agency failed to demonstrate compliance
with the settlement agreem ent; we affirm the compliance initial decision to find
that the agency breached the settlement agreement when it reinstated the
appellant to a position other than the one he encumbered at the time of his
indefinite suspension. We further find that the appellant is entitled to
reinstatement to the Police Officer position only from the effective date of the
reassignment until the date he resigned from the agency and refer this matter to
the Office of General Counsel to obtain compliance . We also find that the
appellant has raised a claim of involuntary resignation and forward the claim to
the New York Field Office for docketing as a separate appe al.
6
DISCUSSION OF ARGUME NTS ON REVIEW
The agency has failed to demonstrate its compliance with its obligation under the
settlement agreement to restore the appellant to the status quo ante.
¶8 The Board has the authority to enforce a settlement agreement that has b een
entered into the record in the same manner as any final Board decision or order.
Vance v. Department of the Interior , 114 M.S.P.R. 679 , ¶ 6 (2010). A settlement
agreement is a contract, and the Board will therefore adjudicate a petition to
enforce a settlement agreement in accordance with contract law. Id. In a
compliance action based on a settlement agreement, the burd en of proving
noncompliance rests with the party asserting that the agreement has been
breached. Raymond v. Department of the Navy , 116 M.S.P.R. 223 , ¶ 4 (2011).
The appellant, as the party asserting the breach, must show that the agency failed
to abide by the terms of the settlement agreement. Id. The agency nonetheless is
required to produce evidence that it has complied with the settlement agreement.
Id.
¶9 The administrative judge agreed with the appellant that the agency was in
noncompliance with the settlement agreement because the agency did not return
him to his former position or to a substantially similar position . CF, Tab 1 at 1 ;
CID at 5 -8. On review, the agency argues that it complied with the settlement
agreement because the revocation of the appellant’s badge and credentials, which
was a condition of his em ployment as a Police O fficer, was a compelling reason
to reassign him to a different position than the o ne he occupied before the
decision to indefinitely suspend him , and it was not feasible to reassign him to a
substantially similar position because no other position in the agency performed
similar duties. PFR File, Tab 1 at 7.
¶10 The settlement agreement in this case requires the agency to , among other
things, “rescind the June 16 , 2014 indefinite suspension of the appellant from his
position as a police officer at the VA Medical Center in Northport, New Yo rk,”
and “restore the appellant to the status quo ante .” CF, Tab 1 at 2 . When a term
7
of art , such as “status quo ante,” is used in a settlement agreement, the Board will
apply the ordinary meaning of that term found in case law, statute, or regulation,
unless it is shown that the parties intended otherwise. Sweet v. U.S. Postal
Service , 89 M.S.P.R. 28 , ¶ 11 (2001) . The settlement a greement does not define
“status quo ante ,” and there is no indication that the parties intended to afford the
term any meaning other than its ordinary meaning. CF, Tab 1 at 2. Notably, the
settlement agreement provides that the appellant is “entitled to all benefits and
privileges of employment that he would have received had he not been
indefinitely suspended,” which is reminiscent of the status quo ante analysis
applied by the Board , as set forth below . Id. The Board also has held that a
status quo ante analysis applies if a settlement agreement includes a term
specifying that the employee should be returned to the “status quo ante.”
Kuykendall v. Department of Veterans Affairs , 68 M.S.P.R. 314 , 321 n.3 (1995).
Accordingly, we a pply the ordinary meaning of “status quo ante” to ascertain the
extent of the agency’s ob ligation to reinstate the appellant to his former position
under the settlement agreement .
¶11 Placing the appellant in the status quo ante means restoring him, as nearly
as possible, to the situation he would have been in had the personnel action that
formed the basis of the Board appeal not occurred. Tubesing v. Department of
Health & Human Services , 112 M.S.P.R. 39 3, ¶ 5 (2009 ). A return to the status
quo ante requires that the agency place the appellant in a position with all the
essential privileges of his previous position. Black v. Department of Justice ,
85 M.S.P.R. 650 , ¶ 6 (2000). In particular, the agency must reinstate the
appellant to his former position and duties absent a strong overriding interest or
compelling reasons for not doing so. Tubesing v . Department of Health & Human
Services , 115 M.S.P.R. 327 , ¶ 5 (2010) . When a compelling reason exists for
reassigning an appellan t to a position other than the one he encumbered at the
time of the adverse action at issue , the agency must establish that the duties and
responsibilities of the position to which the appellant has been assigned are
8
substantially equivalent in scope and s tatus to those of the position the appellant
previously held. Id., ¶ 7. In determining whether the duties and responsi bilities
of the appellant’s pre - and post -reinstatement positions are substantially
equivalent , the Board looks beyond the title and grade of the positions involv ed
and conducts an assessment comparing the scope of the duties and responsibilities
of the post -reinstatement position with those of the pre -reinstatement position.
Id.
¶12 Here, i t is undisputed that the appellant occupied the P olice Officer position
before the agency’s decision to effect the indefinite suspension that formed the
basis of his initial appeal. CF, Tab 1 at 1; PFR File, Tab 1 at 5. The parties agree
that, after the settlemen t agreement was executed in August 2014 , the agency
placed the appellant in an administrative leave status , pending the outcome of his
criminal case, until reassigning him to Secretary position in May 2015. CF,
Tab 1 at 1 , Tab 7 at 1 ; PFR File, Tab 1 at 6. Although the agency alleges that it
complied with the settlement agreement by reinstating the appellant to his Police
Officer position and retaining him in a paid, non -duty status, placing an appellant
in an administrative leave status following the cancellation of an adverse action
does not constitute complete rescission of the agency action and thus a return to
the status quo ante. PFR File, Tab 1 at 6; see De Luca v. U.S. Postal Service ,
76 M.S.P.R. 487 , 488 (1997) (determining that the agency’s explanation that it
had placed the appellant in an administrative leave sta tus and had not returned
him to his position because it was contemplating reinstating charges against him
was not a legitimate basis for its refusal to return him to duty). Thus, we find that
the agency did not return the appellant to the status quo ante when it placed him
in an administrative leave status.
¶13 Nevertheless , the appellant did not allege below that his placement in an
administrative leave status constituted a breach of the settlement agreement;
rather, he alleged that upon ending his administ rative leave status, the agency
9
breached the settlement by failing to reinstate him to his Police Officer position .5
CF, Tab 1 at 1. The agency does not dispute that , upon ending the appellant’s
placement in an administrative leave status, it did not pla ce him in the position he
occupied at the time of his indefinite suspension. PFR File, Tab 1 at 6 -7.
However, the agency argues that it had a compelling reason to reassign the
appellant to a different position, as the agency’s LETC revoked the appellant’ s
badge and credentials, which is a condition of his em ployment as a police officer,
so he was no longer qualified to hold that position . Id. at 7.
¶14 If an outside event or determination has rendered the appellant incapable of
performing the duties of his former position, as long as that incapacity exists, the
agency is not obligated to reinstate the appellant to his former position. Doe v.
Department of Justice , 95 M.S.P.R. 198 , ¶ 13 (2003) . For e xample, the Board has
held that an agency had a compelling reason not to reinstate an appell ant to his
former position when he lost the security clearance required for the job he held
prior to the adverse action at issue . LaBatte v. Department of the Air Force ,
58 M.S.P.R. 586 , 594 (1993) . Similarly, the Board has held that an agency
demonstrated a compelling reason to not return a n appellant, a criminal
investigator, to the same work assignments he formerly performed when the two
U.S. Attorneys’ Offices in the districts in which the appellant would routinely
operate had informed the agency that they would not call him as a witness absent
exceptional circumstances , and neither the Board nor the agency had authority
over the U.S. Attorneys’ Offices . Doe, 95 M.S.P.R. 198 , ¶¶ 8-9, 15-17.
However, the Board may reach a different conclusion when the agency exercises
5 In his petition for enforcement, the appellant asserted that he and the agency had
agreed that he would be placed in an administrative leave status until his criminal
charge was resolved, and that upon receiving a decision in that matter, he would be
returned to duty or remain in an admi nistrative leave status. CF, Tab 1 at 1. The
settlement agreement does not reflect this agreement, nor do we consider it as a
potential modification of the settlement because the agreement provides that it may not
be modified “except by a writing signed by all of the parties,” and there is no such
writing in the record. Id. at 3.
10
its own discretion in altering the appellant’s duties. For example, the Board has
held that an agency did not restore the appellant to the status quo ante when the
agency did not restore the appellant’s special agent badge and cred entials , and the
grant of those items was within the agency’s District Director’s discretion . See
Black , 85 M.S.P.R. 650 , ¶¶ 6-8.
¶15 In this case, the agency did not base its decision not to return the appellant
to his former position and duties on an event or determination external to the
agency . Rather, the Director of the LETC, a division internal to the agency,
issued a decision requesting the return of the appellant’s badge and credentials
based on a January 28, 2015 letter from one of the appellant’s supervisors .6 CF,
Tab 1 at 6. The agency argues that this action was taken in accordance with the
agency policy set forth in VA Ha ndbook 0730, section 7(b)(4)(a) , which provides
that “Directors are authorized to suspend the arrest authority of any VA police
officer whose judgment or professional competence is in doubt .” PFR File, Tab 1
at 7; VA Handbook 0730 § 7(b)(4)(a) (2000), https://www.va.gov/vapubs/search
_action.cfm?dType=2 (last visited July 26, 202 2).7 The policy leaves the
suspension of an officer’s arrest authority to the discretion of the appropriate
director, who is under the agency’s authority. Thus, the agency exercised its own
discretion in suspending the appellant’s arrest authority and declining to reinstate
him to his former position on that basis .
¶16 The January 28, 2015 letter , on which the Director’s request for the return
of the appellant’s badge and credentials is based , and which the agency submits
6 The letter is incorrectly dated January 28, 2014. PFR File, Tab 1 at 10. The agency
states that the letter was sent in January 2015, and the letter refers to events occurrin g
as late as September 26, 2014 ; thus, we conclude, as did the administrative judge, that
the letter was in fact written on January 28, 2015. Id. at 6, 10; see CID at 7.
7 Although the agency did not provide a copy of the policy it cited in support of its
argument, the policy is publicly available online at the link cited above. PFR File,
Tab 1 at 7; see Graves v. Department of Veterans Affairs , 123 M.S.P.R. 434 , 443 n.3
(2016) (taking official notice of a publicly available Department of Veterans Affairs
directive).
11
for the first time on review, does not bolster the agency’ s argument that it had a
compelling reason to not reinstate the appellant to his form er position. PFR File,
Tab 1 at 10. 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 p arty’s due diligence. 5 C.F.R.
§ 1201.115 (d); see Avansino v. U.S. Postal Service , 3 M.S.P.R. 211 , 214 (1 980).
The agency has not asserted that the letter was not available during the pendency
of the compliance proceeding before the administrative judge, and thus we do not
consider it on review. Moreover, the agency has not asserted that the letter
identifi es an event or dete rmination, from a source over which the agency did not
have authority that required the return of the appellant’s badge and credentials
and thus rendered him incapable of performing his duties. Accordingly, the
agency has not set forth a compel ling reason for why it did not return the
appellant to his fo rmer duties as a Police Officer and therefore, it has not returned
the appellant to the status quo ante as required under the settlement agreement .8
¶17 It is on this basis that w e affirm the administrative judge’s finding that the
agency materially breached the settlement agreement. CID at 8. In light of this
finding, we need not reach the issue of whether the agency reinstated the
appellant to a substantially equivalent position to that of his former position . See
Tubesing , 115 M.S.P.R. 327 , ¶ 7 (providing that when a compelling reason exists
for reassigning an employee to a position other than the one he encumbered at the
time of his separation, the agency must establish that the duties and
8 Certainly, an agency may institute a second adverse action based on different charges
from those that formed the basis of the adverse action at issue and pla ce the appellant in
a paid, non -duty status pending the resolution of the second action, but here the agency
has not asserted that it had taken such an action. See Nelson v. Veterans
Administration , 27 M.S.P.R. 133 , 135 & n.2 (1985) (noting that the agency’s decision
to place the appellant in a paid, non -duty status pending the disp osition of another
removal action against him did not, by itself, show the agency had failed to comply
with the Board’s order to reinstate him).
12
responsibilities of the position to which the employee has been assigned are
substantially equivalent to those of his f ormer position ).
The appellant is entitled to relief from the date of the agency’s breach of the
settlement agreement until the date of his resignation, and his claim of
involuntary resignation shall be docketed as a separate appeal.
¶18 When an appellant esta blishes that an agency is in breach of a settlement
agreement, he may elect either enforcement of the agreement or rescission of the
agreement and reinstatement of his claim on appeal . West v. Department of the
Army , 96 M.S.P.R. 531 , ¶ 12 (2004); Wonderly v. Department of the Navy ,
68 M.S.P.R. 529 , 532 (1995). Here, the appellant initially asked that the
administrative judge enforce the agreement by reinstating him to his position as a
Police O fficer, and in June 2016, he informed the administrative judge that he had
resigned from his position due to the financial difficulties stemmin g from his
reassignment to the S ecretary position and requested reinstatement and
reimbursement f or the leave he had taken after his reassignment . CF, Tab 1 at 1,
Tab 11 at 1 -2, Tab 14 at 1. Upon finding the agency had breached the settlement
agreement, the administrative judge ordered the agency to reinstate the appellant
to the Police Officer position , or to reassign him to a substa ntially similar
position, effective May 17, 2015, and to pay the appellant back pay and adjust his
benefits in accordance with OPM regulations. CID at 8 . On review, the agency
argues that the administrative judge erred in ordering the appe llant’s
reinsta tement beyond July 28, 2 015, his voluntary resignation date. PFR File,
Tab 1 at 7 , 19.
¶19 Enforcing the terms of the settlement agreement would normally require
that the Board issue an order directing the agency to cancel the appellant’ s
reassignment, reinstate him to the position of Police Officer, and pay him back
pay and benefits retroactive to the date of reassignment . See Gullette v. U.S.
Postal Service , 77 M.S.P.R. 459 , 467 (1998) (ordering the agency to cancel the
appellant’s reassignment when the Board found the agency had reassigned her in
13
violation of the settlement agreement) . However, the appellant resigned from t he
agency prior to the issuance of the compliance initial decision , and we find that
he is not entitled , as part of the compliance process, to reinstatement after the
date of his resignation . See Collier v. Office of Personnel Management ,
29 M.S.P.R. 38 , 41-42 (1985) (stating that the appellant’s voluntary retirement
was a discrete, intervening factor limiting the appellant’s right to rei nstatement
similar to a subsequent resignation or to an agency action that constitutes an
independent basis for an appeal to the Board and is not cancelled by a Board
order reversing a preceding agency action) , aff’d , 795 F.2d 1019 (Fed. Cir. 1986)
(Table), superseded by statute as recognized in Paula v. Social Security
Administration , 119 M.S.P.R. 138 , 141 -42 (2013) ; cf. Armstrong v. Department of
Justice , 107 M.S.P.R. 375 , ¶ 13 (2007) (determining that the administrative judge
erred in ordering interim relief upon granting the appellant’s request for
corrective action, as the Board lacked the authority to order th e appellant’s
reinstatement on a permanent or interim basis when he had resigned his position
by the time the initial decision was issued and did not claim that his resignation
was involuntary or raise such a claim before the Office of Special Counsel ),
overruled on other grounds by Edwards v. Department of Labor , 2022 MSPB 9 .
¶20 The appellant is not entitled to be placed in a better positio n than he would
have enjoyed had the breach of the sett lement agreement not occurred. Sink v.
Department of Energy , 110 M.S.P.R. 153, ¶ 19 (2008) ; see White v. Delta
Construction International, Inc. , 285 F.3d 1040 , 1043 (Fed. Cir. 2002) (stating
that a corollary of the pri nciple that the primary objective of damages for breach
of contract is to place the non -breaching party “in as good a position pecuniarily
as he would have been by performance of the contract” is that the non -breaching
party is “not entitled to be put in a better position by the recovery than if the
[other party] had fully performed the contract”) . Here, the administrative judge’s
order to reinstate the appellant to his former position did not take into account the
effect of his resignation , which separate d him from Federal employment . CID
14
at 8; see Collier , 29 M.S.P.R. at 41-42. Thus, the administrative judge erred in
order ing the appellant’s reinstatement to his former position without limitation ,
and we vacate the compliance initial decision’s compliance order and order the
agency to cancel the appellant’s reassignment and reinstate him with appropriate
back pay and other benefits from the date of the reassignment at issue to the date
of his resignation.
¶21 We further find that the appellant’s claim that he was forced to resign could
constitute a constructive removal claim. Ordinarily, an employee -initiated action,
such as a resignation, is presumed to be voluntary and thus outside the Board’s
jurisdiction. Searcy v. Department of Commerce , 114 M.S.P.R. 281 , ¶ 12 (2010).
An involuntary resignation, however, is tantamount to a removal an d is thus
within the Board’s jurisdiction. Adams v. U.S. Postal Service , 108 M.S.P.R. 250 ,
¶ 9 (2008), aff’d , 309 F. App’x 413 (Fe d. Cir. 2009) (Table) . An appellant may
overcome the presumption of voluntariness by presenting sufficient evidence to
establish that the action was obtained through duress or coercion or show that a
reasonable person would have been misled by the agency. Searcy , 114 M.S.P.R.
281, ¶ 12. In particular, to establish involuntariness on the basis of coercion, an
employee must show that t he agency effectively imposed the terms of his
resignation, he had no realistic alternative but to resign, and his resignation was
the result of improper acts by the agency. Brown v. U.S. Postal Service ,
115 M.S.P.R. 609 , ¶ 10, aff’d , 469 F. App’x 852 (Fed. Cir. 2011). If an
employee’s working conditions are so intolerable that he is forced to resign, his
resignation is involuntary and constitutes a constructive removal. Id.
¶22 An appellant must receive explicit information on what is required to
establish an appealable jurisdictional issue. Burgess v. Merit Systems Protection
Board , 758 F.2d 641 , 643 -44 (Fed. Cir. 198 5). The administrative judge did not
provide the appellant with information concerning what was required to establish
Board jurisdiction over a constructive r emoval claim. Accordingly, we forward
the appellant’s potential constructive removal claim to the New York Field Office
15
for docketing as a separate appeal. See Searcy v. Department of Agriculture ,
115 M.S.P.R. 260 , ¶ 15 (2010) (forwarding the appellant’s alleged involuntary
resignation claim to the appropriate regional office ). After the claim is forwarded
to the field office, t he administrative judge shall inform the appellant of his
burden of proof to establish that his July 28, 2015 resignation , raised before the
Board for the first time on June 27, 2016, was involuntary and of his burden to
prove that his claim of involuntary resignation was timely raised or that good
cause existed for the delay in raising the claim . Id.; see also Porter v.
Department of Defense , 98 M.S.P.R. 461 , ¶ 17 (2005) (setting forth the
appellant’s burden to show good cause for an untimely filing) .
¶23 Because we have found the agency in noncompliance, the agency is being
direc ted to file evidence of compliance with the Clerk of the Board, and the
appellant will be afforded the opportunity to respond to that evidence. The
agency’s petition for enforcement will be referred to the Board’s Office of
General Counsel, and, depending on the nature of the submissions, an attorney
with the Office of General Counsel may contact the parties to further discuss the
compliance process. The parties are required to cooperate with that individual in
good faith. Because the purpose of the proc eeding is to obtain compliance, when
appropriate, an Office of General Counsel attorney or paralegal may engage in ex
parte communications to, among other things, better understand the evidence of
compliance and any objections to that evidence. Thereafter , the Board will issue
a final decision fully addressing the agency’s petition for review of t he
compliance initial decision9 and setting forth the parties’ further appeal rights and
the right to attorney fees, if applicable.
9 The subsequent decision may incorporate the analysis and findings set forth in this
Order.
16
ORDER
¶24 We ORDER the agency to s ubmit to the Clerk of the Board within 60 days
of the date of this Order satisfactory evidence of compliance. This evidence shall
adhere to the requireme nts set forth in 5 C.F. R. § 1201 .183 (a)(6)(i), including
submission of evidence and a narrative statement of compliance. The agency’s
submission shall demonstrate that it properly cancelled the appellant’s
reassignment to the position of Secretary, GS-0318 -06, and reinstated him to the
position of Police Officer, GS -0083 -06, for the period from May 17, 2015 to
July 28, 2015, and paid the appellant the correct amount of back pay, interest on
back pay, and other benefits under the Office of Personnel Management’s
regulations. The agency must serve all parties with copies of its submission.
¶25 The agency’s submission should be filed under the new docket number
assigned to this compliance referral matter, MSPB Docket No. NY-0752 -14-
0030 -X-1. All subsequent filings should refer to the compliance r eferral docket
number set forth above and should be faxed to (202) 653 -7130 or mailed to the
following address:
Clerk of the Board
U.S. Merit Systems Protection Board
1615 M Street, N .W.
Washington, D .C. 20419
Submissions may also be made b y electronic filing at the Board’s e -Appeal site
(https://e -appeal.mspb.gov ) in accordance with its regulation at 5 C.F.R.
§ 1201.14 .
¶26 The appellant may respond to the agency’s evidence of compliance within
20 days of the date of service of the agency’s submission.
5 C.F.R. § 1201.183 (a)(8). If the appellant does not respond to the agency’s
evidence of compliance, the Bo ard may assume that he is satisfied with the
agency’s actions and dismiss the petition for enforcement.
¶27 The agency is reminded that, if it fails to provide adequate evidence of
compliance, the responsible agency official and the agency’s representative may
17
be required to appear before the General Counsel of the Merit Systems Protection
Board to show cause why the Board should not impose sanctions for the agency’s
noncom pliance in this case. 5 C.F.R. § 1201.183 (c). The Board’s authority to
impose sanctions includes the authority to order that the responsible agency
official “shall not be entitled to receive payment for service as an employee
during any period that the order has not been complied with.” 5 U.S.C.
§ 1204 (e)(2)(A).
¶28 This Order does not constitute a final order and therefore is not subject to
judicial review under 5 U.S.C. § 7703 (a)(1). Upon the Board’s final resolution of
the remaining issues in the petition for enforcement, a final order shall be issued,
which then shall be subject to judicial review.
FOR THE BOARD:
Washington, D.C. /s/ fo r
Jennifer Everling
Acting Clerk of the Board | COAN_TIMOTHY_NY_0752_14_0300_C_1_ORDER_1946062.pdf | 2022-07-27 | null | NY-0752-14-0300-C-1 | NP |
4,252 | https://www.mspb.gov/decisions/nonprecedential/MCCOMB_WILLETTE_AT_0432_17_0265_I_1_REMAND_ORDER_1945388.pdf | UNITED STATES OF AME RICA
MERIT SYSTEMS PROTEC TION BOARD
WILLETTE MCCOMB,
Appellant,
v.
DEPARTMENT OF THE AI R FORCE,
Agency.
DOCKET NUMBER
AT-0432 -17-0265 -I-1
DATE: July 26, 2022
THIS ORDER IS NONPRECEDENTIAL1
Joseph D. Ybarra , Esquire, San Antonio, Texas, for the appellant.
Marc Lerch , Biloxi, Mississippi, for the appellant.
James T. Hedgepeth , JBSA Randolph A ir Force Base, Texas, for the
agency.
BEFORE
Cathy A. Harris, Vice Chair man
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 her removal. For the reasons discussed below, we GRANT the 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, VACATE the initial decision, and REMAND the case to the Atlanta
Regional Office for further adjudication in accordance with this Remand Order
and Santos v. National Aeronautics & Space Administration , 990 F.3d 1355
(Fed. Cir. 2021).
BACKGROUND
¶2 The appellant held the Information Technology (IT) Specialist (Policy &
Planning) position with the agency at Keesler Air Force Base (AFB). I nitial
Appeal File (IAF), Tab 5 at 15. Performance for the appellant’s position was
measured by four critical elements, and each element had corresponding
standards. Id. at 167 -68. As is relevant here, element two, which comprises
30% of her entire perf ormance plan, required the following:
Performs as plans and policy advisor to functional users of
information technology. Develops and interprets policy for
administering IT systems. Assesses policy needs and reviews,
revises, and develops policies to govern IT activities and presents
recommendations to higher -level management. Where necessary,
modifies established plans and policies in response to changes in
legislation or other directives. Through feasibility studies, assesses
impact of changes on c urrent programs and recommends changes to
existing plans to ensure compliance. This includes long range
planning, and involves defining current and future business
requirements. Analyzes IT system development as it relates to the
organization and ensures policy and guidance are available for its
use, that necessary controls are in place, and systems operate as
intended and provide all necessary capabilities. Develops migration
plans for implementation of new technology. Assesses and identifies
training needs that address activities where gaps in competency exist
in other current or new technology. Develops training programs, or
locates and recommends sources of training that ensure users can
apply the best techniques in using IT. Provides technical ass istance
to system users and contractors. This includes keeping abreast of the
latest developments in technology and conducting feasibility studies
to evaluate systems performance as it relates to the organization.
Id. at 167. The standards that accompan ied this elem ent include the following:
(a) routinely maintains effective relationships with functional users; (b) with few
exceptions, accurately evaluates status of policy and reviews , revises , and
3
develops necessary policy; and (c) almost always provid es effective technical
advice, assistance, and training to customers on changing technology. Id. at 168.
¶3 On April 29, 2016, the appellant was rated as not meeting elements two and
four of her position description.2 Id. at 163. By letter dated May 19, 2016, the
appellant’s supervisor issued her a notice of unacceptable job performance and
improvement opportunity. Id. at 154 -57. Under element two, the appellant was
found to be deficient in her contact with functional u sers, which the agency stated
was “limited” and that she “engaged only when directed.” Id. at 155. It also
found that the appellant’s technical advice to users was minimal and that she was
dependent upon others to produce information. Id. The agency fu rther noted that
the appellant had “no intent to develop or use tools to assist in providing
functional users possible course[s] of actions.” Id. As a result, the appellant’s
supervisor placed her on a 60 -day performance improvement plan (PIP) to
provide her an opportunity to raise her performance. Id. at 154 -57.
¶4 The goals that the appellant was required to achieve to obtain a successful
rating for element two —as set forth in the PIP letter —are summarized below:
(1) engage functional users frequently , provide appropriate
responses, develop working relationships, track status on assigned
work orders; (2) ensure work is commensurate to pay grade and
utilize s [Air Force] guidance ’s [sic] instructions and provide d
tracking tools to complete task; (3) enga ge with assigned customers
and provide customer support, pla ns of action to include establishing
reasonable time lines to the customer; (4) ensure time lines are
provided to leadership with action plans and properly maintain status
of the initiatives assig ned. Develop self -imposed timelines; (5)
formulate processes to ensure consistent results in documentation
and record keeping. Eliminate corrections/rework by first line
supervisor; and (6) develop a lessons learned, best practices
document in order to r espond to users. Utilize the work center
2 The administrative judge only addressed element two because he found that the
agency proved i nadequate performance on that element and that it was, therefore,
unnecessary to analyze element four. IAF, Tab 31, Initial Dec ision (ID) at 3 n.1.
Because we agree with that ultimate conclusion, we also decline to analyze element
four.
4
templates provided in accomplishing task/suspense’s [sic] and
coordination.
Id. at 155. The letter also informed the appellant that, to the extent possible,
feedback will be provided a minimum of once a week during the improvement
period and that, if her performance was still rated unacceptable at the end of the
PIP period, appropriate acti on, such as removal from Federal service , may be
considered. Id. at 156.
¶5 Several months after the PIP’s conclusion, the appellant’s supervisor
determined that her performance continued to be unacceptable, and on
December 6, 2016, he issued the appellant a notice of proposed removal for
unacceptable performance in the two elements noted as deficient in the PIP.
Id. at 28-33. Following the appellant’s reply to the notice, id. at 23-26, the
agency issued a decision letter imposing her removal, effective January 12, 2017,
id. at 20-21.
¶6 The appellant filed this appeal challenging the removal and raising
affirmative defense s of equal employment opportunity (EEO) retaliation and
discrimination on the bases of race and color . IAF, Tab 1 at 6, Tab 18 at 5. The
administrative judge held a hearing, IAF, Tab 26, and issued an initial decision
affirming the agency’s removal action and denying the appellant’s affirmative
defense s, IAF, Tab 31, Initial Decision (ID). The administrative judge found that
the agency proved all of the elements for taking a performance -based action under
5 U.S.C. chapter 43. ID at 5 -13. He further found that the appellant failed to
establish by preponderant ev idence that the removal action was taken in
retaliation for her EEO activity or the result of discrimination based on race or
color . ID at 13 -18.
¶7 The appellant has filed a petition for review, arguing that the administrative
judge erred in finding that th e agency proved all of the elements required to
5
support a chapter 43 action. Petition for Review (PFR) File, Tab 1 at 8 -18.3 The
agency has filed a response in opposition.4 PFR File, Tab 3.
ANALYSIS
¶8 As noted above, consistent with the U.S. Court of Appe als for the Federal
Circuit’s decision in Santos , 990 F.3d at 1360 -63, we are remanding this appeal
for further adjudication. In Santos , the court held for the first time that, in
addition to the elements of a chapter 43 case set forth by the administrati ve judge
and discussed below, an agency also must show that the initiation of a PIP was
justified by the appellant’s unacceptable performance before the PIP. Id. Prior to
addressing the remand, however, we address the administrative judge’s findings
on the elements of a chapter 43 appeal , as they existed at the time of the initial
decision , and the appellant’s arguments on review.
The agency proved the basis for a chapter 43 performance -based removal under
pre-Santos law.
¶9 At the time the initial decision was issued, the Board’s case law stated that,
in a performance -based action under 5 U.S.C. chapter 43, an agency must
establish by substantial evidence5 that: (1) OPM approved its performance
3 The appellant’ s petition for review appears to have been untimely filed. PFR File,
Tab 1 at 3. However, as noted in the Clerk of the Board’s acknowledgment letter,
because the petition was filed in a timely manner from the Central Time Zone, as
opposed to the Eastern Time Zone as designated by the e -Appeal Online system, see
5 C.F.R. § 1201.14 (m)(1), it was timely filed . PFR File, Tab 2.
4 The appellant does not appear to challenge on review the administrative judge’s
finding regarding her affirmative defenses. We have reviewed the record, and we
discern no error with those findings. In light of the administrative judge’s uncontested
finding that the appellant did not prove her race, color , or EEO activity were a
motivating factor in the agency’s removal decision, ID at 13-18, we do not reach the
question of whether discrimination or reprisal was a “but for” cause of the removal
action. See Babb v. Wilkie , 589 U.S. ___, 140 S. Ct. 1168 , 1177 -78 (2020).
5 The agency’s burden of proof in an action taken under chapter 43 is “su bstantial
evidence,” defined as the degree of relevant evidence that a reasonable person,
considering the record as a whole, might accept as adequate to support a conclusion,
even though other reasonable persons might disagree. 5 C.F.R. § 1201.4 (p). This is a
lower burden than preponderant evidence.
6
appraisal system and any signi ficant changes thereto; (2) the agency
communicated to the appellant the performance standards and critical elements of
her position at the beginning of the appraisal period; (3) the appellant’s
performance standards are valid under 5 U.S.C. § 4302 (c)(1); (4) the agency
warned the appellant of the inadequacies of her performance during the appraisal
period and gave her a reasonable opportunity to demonstrate acceptable
performance; and (5) the appel lant’s performance remained unacceptable in one
or more of the critical elements for which she was provided an opportunity to
demonstrate acceptable performance. See Lee v. Environmental Protection
Agency , 115 M.S.P.R. 533 , ¶ 5 (2010).
¶10 On review, the appellant argues that the agency failed to meet its burden to
prove by substantial evidence that the agency communicated to her the
performan ce standards and critical elements of her position, that the performance
standards were valid, that the agency provided her with a reasonable opportunity
to improve, and that she remained deficient in at least one critical element. PFR
File, Tab 1 at 8-14. She also argued on review that the administrative judge
improperly relied solely on her supervisor’s testimony to prove unacceptable
performance.6 Id. at 16. As explained below, the appellant’s arguments do not
provide a basis to disturb the administr ative judge’s findings.
The agency proved that it communicated the performance standards and
critical elements of the appellant’s job description to her.
¶11 In the initial decision, the administrative judge found it undisputed that the
appellant received he r performance plan, which identified the critical elements at
issue, prior to her placement on the PIP. ID at 6. On review, the appellant
vaguely alleges that the agency failed to communicate the performance standards
6 The appellant does not appear to challenge on review the administrative judge’s
finding that the agency proved OPM approved its performance appraisal system and any
significant change thereto. We have reviewed the record, and we discern no error in
that finding .
7
to her. PFR File, Tab 1 at 12 -13. However, in an order and summary of a
telephonic prehearing conference, the administrative judge stated that, during the
teleconference, the appellant indicated that she was not challenging whether the
standards were properly communicated to her. IAF, Tab 13 at 2 -3. Generally, the
Board will not consider an argument raised for the first time in a petition for
review absent a showing that it is based on new and material evidence not
previously available despite the party’s due diligence. Banks v. Departme nt of
the Air Force , 4 M.S.P.R. 268 , 271 (1980). As to this claim, the appellant has not
asserted that it was based on new and material evidence nor has she made such a
showing.7
The agency proved that the performance standards were valid.
¶12 Section 4302( c)(1) requires that performance standards, to the maximum
extent feasible, permit the accurate ev aluation of job performance on the basis of
objective criteria related to the job in question. Lee, 115 M.S.P.R. 533 , ¶ 29.
Standards m ust be reasonable, realistic, attainable, and clearly stated in writing.
Id. Provided these requirements are met, however, the Board will defer to
managerial discretion in determining what agency employees must do to perform
acceptably in their positions . Id. In the initial decision, the administrative judge
found that the standards outlined by the agency set forth a performance metric
that is measurable by frequency, task, and quality. ID at 7. The administrative
judge noted that the appellant did no t dispute these standards, and he, therefore,
found that the agency proved by substantial evidence that the performance
standards are facially valid. ID at 7 -8.
¶13 On review, the appellant argues that the agency failed to present any
evidence that the perfo rmance standards were valid and that the administrative
judge shifted the burden to the appellant to contest their validity. PFR File, Tab 1
7 Additionally, it appears that the appellant signed the performance standards
documentation , which certified receipt of the standards. IAF, Tab 5 at 166.
8
at 8-9. We disagree. As the administrative judge pointed out, the standards
provided to the Board use terms to d efine the frequency of performance , such as
“routinely,” “with few exceptions,” and “almost always.” IAF, Tab 5 at 167 -68;
ID at 7-8. Regarding the specific tasks to be performed, the standards require that
an employee “maintain effective relationships,” “accurately evaluate,” and
provide “effective technical advice, assistance and training.” Id. We find that
these standards set forth a minimum level of performance that an employee must
achieve to avoid removal for unacceptable performance. We further find that
these standards are reasonable, realistic, and attainable. Accordingly, we find
that the agency proved that the performance standards are valid. See Towne v.
Department of the Air Force , 120 M.S.P.R. 239 , ¶¶ 21 -22 (2013) .
¶14 Additionally, we find the appellant’s argument that the administrative judge
shifted the burden to her to prove the invalidity of the standards is withou t merit.
Rather, we find that the administrative judge merely noted that the appellant did
not provide any argument or evidence to detract from the agency’s evidence or
argument that the standards are valid. Accordingly, we agree with the
administrative judge that the agency proved this element by substantial evidence.
The agency proved that it provided the appellant with a reasonable
opportunity to improve.
¶15 In determining whether an agency has afforded an employee a reasonable
opportunity to demonstrate acceptable performance, relevant factors include the
nature of the duties and responsibilities of the employee’s position, the
performance deficiencies involv ed, and the amount of time that is sufficient to
enable the employee to demonstrate acceptable performance. Lee, 115 M.S.P.R.
533, ¶ 32. Here, the administrative judge stated that the PIP lasted for 60 days
and that there was no reasoned basis to conclude that this period was inadequate
because the appellant had not challenged it. ID at 8. Based on that assessment,
the administrative ju dge found that the agency proved by substantial evidence
9
that it provided the appellant with a reasonable opportunity to improve.
ID at 8-9.
¶16 Although we agree with the administrative judge’s ultimate conclusion, we
find that his analysis is somewhat spars e and that it requires supplement ing. To
support the conclusion that the duration of the appellant’s PIP was reasonable, we
note that the Board previously has found a 60 -day PIP sufficient to satisfy the
agency’s obligation to provide the employee with a reasonable opportunity to
demonstrate acceptable performance.8 Lee, 115 M.S.P.R. 533 , ¶ 33. Further, the
appellant has argued, both bel ow and again on review, that the agency did not
inform her of her specific performance deficiencies or what specifically she was
required to do to correct those deficiencies. PFR File, Tab 1 at 12 -13. However,
the record directly contradicts this content ion, as the PIP letter explicitly
discusses the appellant’s deficiencies and provides bullet points of actions the
appellant could take to improve those deficiencies. IAF, Tab 5 at 154-57.
¶17 Regardless, even if the appellant genuinely believed that she wa s unaware
of her performance deficiencies or how the agency expected her to improve those
deficiencies, the record is clear that her supervisor attempted to meet with, and
did meet with, the appellant approximately two times per week to review her
understa nding of the PIP and to discuss her progress. Hearing Compact Disc
(HCD) (testimony of the appellant’s supervisor); IAF, Tab 5 at 35-152. The
supervisor testified during the hearing that the appellant avoided these meetings,
refused to sign or acknowledg e documentation produced as a result of the
meetings, and occasionally chose not to engage in the assistance he offered. Id.
His notes regarding these meetings are contained in the record and confirm these
8 On May 25, 201 8, President Trump signed an Executive Order (EO) generally
requiring PIPs to be 30 days long. Exec. Order No. 13,839, 83 Fed. Reg. 25343,
25344 -45 (May 25, 2018). On January 22, 2021, President Biden signed EO 14,003,
which, among other things, revoked EO 13,839. Exec. Order No. 14,003, 86 Fed. Reg.
7231 (Jan. 22, 2021). We find that these EOs have no effect on the outcome of this
case.
10
assertions. Id. Although the appellant argued to the contrary, claiming that she
never received any substantive assistance, HCD (testimony of the appellant); PFR
File, Tab 1 at 12-13, the administrative judge did not credit her testimony, and we
defer to that finding, I D at 11 -13; see Haebe v. Department of Justice , 288 F.3d
1288 , 1301 (Fed. Cir. 2002) (stating that the Board must defer to an
administrative jud ge’s credibility determinations when they are based, explicitly
or implicitly, on observing the demeanor of witnesses testifying at the hearing
and that the Board may overturn such determinations only when it has
“sufficiently sound” reasons for doing so) .
¶18 On the whole, t he degree of assistance provided to the appellant was greater
than that which the Board has found sufficient to meet the agency’s obligation to
provide a reasonable opportunity to improve. See Goodwin v. Department of the
Air Force , 75 M.S.P.R. 204 , 208 -09 (1997) (finding that the agency afforded the
appellant a reasonable opportunity to improve by giving her a detai led PIP letter
and written feedback during the PIP and that her supervisor made herself
available to provide assistance but that the appellant did not request further
assistance) . Therefore, we find that the agency proved by substantial evidence
that it p rovided the appellant with a reasonable opportunity to improve her
performance.
The agency proved that the appellant’s performance was deficient
following her completion of the PIP .
¶19 The appellant also argues that 5 U.S.C. § 4303 requires the agency to
include references to “specific instances of unacceptable performance by the
employee on which the proposed action is based” and that the agency failed to
provide any detailed references to specific deficiencies. PFR File, Tab 1
at 13-14. We disagree. Although the proposal notice discusses some of the
appellant’s performance deficiencies in a general fashion, IAF, Tab 5 at 28, it
goes on to include specific instances of deficiencies with the appellant’s
performance, id. at 30-31.
11
¶20 For example, the proposal notice discusses specific dates on which the
appellant required explicit direction from her supervisor for several of the tasks
outlined in the PIP. Id. In at least one of those instances, the appellant’s
supervisor emphasized to her that she still failed to show that she could
independently take on work without detailed assistance, which was an item
discussed in element two of her performance standards. Id. at 31. On another
occasion, the appellant’s supervisor reminded her that, pursuant to the goals set
forth in the PIP, she still did not appear to be self -imposing deadlines to provide
other staff with enough time to complete their own work. Id. Additionally, the
appellant’s supervisor testified that, despite the appellant being directed in the
PIP letter to “eliminate corrections/rework by first line supervisor,” he still
needed to verbally identify issues with the appellant’s work, print out speci fic
documents, and redline them to discuss the appellant’s errors with her.
HCD (testimony of the appellant’s supervisor). Accordingly, we find the agency
provided specific examples of the appellant ’s performance issues and , therefore,
proved by substant ial evidence that her performance remained inadequate in at
least one of the critical elements of her performance standards.
The administrative judge did not err in relying on the testimony of the
appellant’s supervisor.
¶21 The appellant also argues on revie w that the administrative judge
improperly relied solely on the testimony of her supervisor to find that the agency
proved her performance was unacceptable. PFR File, Tab 1 at 16 -18. The Board
has held that an administrative judge’s failure to mention all of the evidence of
record does not mean that he did not consider it in reaching his decision. See
Marques v. Department of Health & Human Services , 22 M.S.P.R. 129 , 132
(1984), aff’d , 776 F.2d 1062 (Fed. Cir. 1985) (Table). In any event, although the
appellant makes arguments on review that challenge her supervisor’s test imony,
she has not identified any particular evidence that the administrative judge may
have overlooked that might affect the outcome of this appeal. See Panter v.
12
Department of the Air Force , 22 M.S.P.R. 281 , 282 (1984) (finding that an
adjudicatory error that is not prejudicial to a party’s substantive rights provides
no basis to reverse an initial decision).
Remand is required under Santos.
¶22 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 App eals 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 also must justify the institution of a PIP by
proving by substantial evidence that t he employee’s performance was
unacceptable prior to the PIP. The Federal Circuit’s decision in Santos applies to
all pending cases, including this one, regardless of when the events took place.
Lee v. Department of Veterans Affairs , 2022 MSPB 11 , ¶ 16. Although the record
in this appeal already contains evidence suggesting that the appellant’s
performance leading up to the PIP was ind eed unacceptable , we remand the
appeal to give the parties the opportunity to present argument and additional
evidence on whether the appellant’s performance during the period leading up to
the PIP was unacceptable in one or more critical elements . See Lee, 2022 MSPB
11, ¶¶ 15-17. On remand, the administrative judge shall accept argument and
evidence on this issue and shall hold a su pplemental hearing if appropriate.
Id., ¶ 17.
¶23 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 and the Board’s findings here on the
other elements of the agency’s case and the appellant’s affirmat ive defenses in
the remand initial decision. See id . Regardless of whether the agency meets its
13
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 reasonin g, as
well as the authorities on which that reasoning rests).
ORDER
¶24 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 Clerk of the Board | MCCOMB_WILLETTE_AT_0432_17_0265_I_1_REMAND_ORDER_1945388.pdf | 2022-07-26 | null | AT-0432-17-0265-I-1 | NP |
4,253 | https://www.mspb.gov/decisions/nonprecedential/STEWART_TYLER_JAMES_DC_1221_20_0666_W_2_FINAL_ORDER_1945544.pdf | UNITED STATES OF AME RICA
MERIT SYSTEMS PROTEC TION BOARD
TYLER JAMES STEWART,
Appellant,
v.
DEPARTMENT OF HEALTH AND
HUMAN SERVICES,
Agency.
DOCKET NUMBER
DC-1221 -20-0666 -W-2
DATE: July 26, 2022
THIS FINAL ORDER IS NONPRECEDENTIAL1
Tyler James Stewart , Derwood, Maryland, pro se.
Sariana Garcia -Ocasio , 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 th e initial decision,
which dismissed his appeal without prejudice . After the appellant submitted his
arguments on review, and pursuant to the administrative judge’s initial decision,
the appellant’s initial appeal was automatically refiled with the regional office on
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
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
February 7, 2022. See MSPB Docket No. DC -1221 -20-0666 -W-3. In light of the
automatic refiling of the appellant’s initial appeal, the appellant’s petition for
review is DENIED as moot.2 See Madrid v. Department of Justice , 3 M.S.P.R.
123, 125 (1980) (“[T]he issue raised in the petition for review has been rendered
moot because the [initial appeal] was refiled with the field office.”); see also
Sherman v. U.S. Postal Service , 116 M.S.P.R. 86 (2010) (Table) (“The refiled
appeal supersedes [the prior appeal], extinguishing any controversy.”).
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 represen t a
statement of how courts will rule regarding which cases fall within their
jurisdiction. If you wish to seek review of this final decision, you should
immediately review the law applicable to your claims and carefully follow all
filing time limits and requirements. Failure to file within the applicable time
limit may result in the dismissal of your case by your chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case . If 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 Because the petition for review is moot, we need not and do not decide the question of
its timeliness.
3 Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise which option is most appropriate in any matter.
3
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703 (b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison P lace, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appell ants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http:// www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept re presentation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
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
4
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
to waiver of any 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 this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request fo r review to the EEOC by regular U.S. mail, the
address of the EEOC is:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
5
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302 (b)(8) or
other protected activities listed in 5 U.S.C. § 2302 (b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
disposition of allegations of a prohibited personnel practice 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.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 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
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.
6
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
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 | STEWART_TYLER_JAMES_DC_1221_20_0666_W_2_FINAL_ORDER_1945544.pdf | 2022-07-26 | null | DC-1221-20-0666-W-2 | NP |
4,254 | https://www.mspb.gov/decisions/nonprecedential/SANDERS_MITCHELL_L_DE_0752_17_0238_I_1_FINAL_ORDER_1944990.pdf | UNITED STATES OF AME RICA
MERIT SYSTEMS PROTEC TION BOARD
MITCHELL L. SANDERS,
Appellant,
v.
DEPARTMENT OF HOMELA ND
SECURITY,
Agency.
DOCKET NUMBER
DE-0752 -17-0238 -I-1
DATE: July 25, 2022
THIS FINAL ORDER IS NONPRECEDENTIAL1
Michael J. Petitti, Jr. , Esquire and Paige C. Pataky , Esquire, Phoenix,
Arizona, for the appellant.
Julie L. Kitze , Philadelphia, Pennsylvania, for the agency.
Kelleen O ’Fallon , Irving, Texas, 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 September 29, 2017 initial
decision in this appeal. Initial Appeal File, Tab 29 , Initial Decision ; Petition for
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
July 7, 2020, and by the agency on July 29, 2020. PFR File, Tab 10. The
document provides, among o ther things, for the dismissal of 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 understand its
terms, and whether they intend t o 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 do not intend for the agreement to be entered into the
record for enforcement by the Board. PFR File, Tab 10. 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 rec ord for enforcement by the Board.
3
¶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. This is the final decision of th e 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 t his final decision. 5 U.S.C. § 7703 (a)(1). By
statute, the nature of your claims determines the time limit for seeking such
review and the appropriate forum with which to file. 5 U.S.C. § 7703 (b).
Although we offer the following summary of available appeal rights, the Merit
Systems Protection Board does not provide legal advice on which option is most
appropriate for your situation and the rights described below do not represent a
statement of how courts will rule regarding which cases fall within their
jurisdiction. If you wish to seek review of this final decision, you should
immediately review the law applicable to your claims and carefully follow all
filing time limits and requirements. Failure to file within the applicable time
limit may result in the dismissal of your case by your chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a gene ral rule, an appellant seeking
judicial review of a final Board order 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 canno t advise which option is most appropriate in any matter.
4
within 60 calendar days of the date of issuance of this decisi on. 5 U.S.C.
§ 7703 (b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevan ce is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals 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
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
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 decis ion.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
6
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302 (b)(8) or
other protected activities listed in 5 U.S.C. § 2302 (b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
disposition of allegations of a prohi bited 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 Circu it or any court
of appeals of competent jurisdiction. The court of appeals must 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
contai ned within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono f or information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a give n case.
7
Contact information for the courts of appeals can be found at their
respective websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locato r/CourtWebsites.aspx .
FOR THE BOARD:
Washington, D.C. /s/ for
Jennifer Everling
Acting Clerk of the Board | SANDERS_MITCHELL_L_DE_0752_17_0238_I_1_FINAL_ORDER_1944990.pdf | 2022-07-25 | null | DE-0752-17-0238-I-1 | NP |
4,255 | https://www.mspb.gov/decisions/nonprecedential/YANCEY_ALISSA_N_SF_315H_18_0022_I_1_FINAL_ORDER_1945183.pdf | UNITED STATES OF AME RICA
MERIT SYSTEMS PROTEC TION BOARD
ALISSA N. YANCEY,
Appellant,
v.
DEPARTMENT OF THE AR MY,
Agency.
DOCKET NUMBER
SF-315H -18-0022 -I-1
DATE: July 25, 2022
THIS FINAL ORDER IS NONPRECEDENTIAL1
Alissa N. Yancey , Kailua, Hawaii, pro se.
Howard Allen Nollenberger, Jr. , Honolulu, Hawaii, 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 probationary termination appeal for lack of jurisdiction . On
petition for review, the appellant argues that the Board has jurisdiction over her
appeal because the agency failed to afford her prior notice and an opportunity to
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
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
respond before effectuating her probationary termination . Generally, we grant
petitions such as this one only in the following circumstances: the initial decision
contains erroneous findings of material fact; 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 Reg ulations, section 1201.115 ( 5 C.F.R.
§ 1201.115 ). After fully considering the 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 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 th e appropriate forum with which to file. 5 U.S.C. § 7703 (b).
Although we offer the following summary of available appeal rights, the Merit
Systems Protection Board does not provide legal advice on which option is most
appropriate for your situation and the rights described below do not represent a
statement of how courts will rule regarding which cases fall within their
jurisdiction. 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 o f the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703 (b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition t o the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, ww w.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the 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 clai med that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 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 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 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 law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial 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 within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov /probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the 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/Co urt_Locator/CourtWebsites.aspx .
FOR THE BOARD:
Washington, D.C. /s/ for
Jennifer Everling
Acting Clerk of the Board | YANCEY_ALISSA_N_SF_315H_18_0022_I_1_FINAL_ORDER_1945183.pdf | 2022-07-25 | null | SF-315H-18-0022-I-1 | NP |
4,256 | https://www.mspb.gov/decisions/nonprecedential/APIAG_ERNESTO_N_SF_0831_16_0465_I_1_FINAL_ORDER_1944592.pdf | UNITED STATES OF AME RICA
MERIT SYSTEMS PROTEC TION BOARD
ERNESTO N. APIAG,
Appellant,
v.
OFFICE OF PERSONNEL
MANAGEMENT,
Agency.
DOCKET NUMBER
SF-0831 -16-0465 -I-1
DATE: July 22, 2022
THIS FINAL ORDER IS NONPRECEDENTIAL1
Rufus F. Nobles, I , Zambales, Philippines, for the appellant.
Tanisha Elliott Evans , Washington, D.C., 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 petition for review of the initial decision, which
sustained the reconsideration decision of the Office of Personnel Management
(OPM) denying his application for a deferred retirement annuity . Generally, we
grant petitions such as this one only in the following circumstances: the initial
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
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
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 Regulati ons, section 1201.115
(5 C.F.R. § 1201.115 ). After fully considering the 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 decis ion.
5 C.F.R. § 1201.113 (b).
BACKGROUND
¶2 The appellant was employed by the Department of the Navy as a pipefitter
in Subic Bay, Philippines , under a series of excepted -service appointments made
during the period of June 1972 to June 1987 . Initial Ap peal File (IAF), Tab 4
at 20-28. From June 15, 1972 , to February 11 , 1976 , his excepted -service
appointments designated not -to-exceed (NTE) dates. Id. at 20, 22, 24 -25. On
February 12, 1976, the Navy converted the appellant’s appointment to an
excepted -service indefinite appointment, and he served continuously under this
appointmen t until June 19, 1987, when he was terminated involuntarily. Id.
at 27-28.
¶3 In October 2013, the appellant applied for a deferred retirement annuity
under the Civil Service Retirement System (CSRS) . Id. at 29 -42. In
Decemb er 2013, OPM issued an initial decision denying his application, and , in
October 2014 , the appellant requested reconsideration of the decision. Id.
at 8-19. In April 2015, OPM issued a reconsideration decision that it
3
subsequently rescinded. Apiag v. Office of Personnel Management , M SPB
Docket No. SF -0831 -15-0617 -I-1, Initial Decision ( Sept. 15, 2015). On
March 14, 2016, OPM issued a new reconsideration decision, which is now before
the Board. IAF, Tab 4 at 5 -7. OPM’s March 14, 2016 reconsideration decision
affirmed its initial dec ision denyi ng the appellant’s application, finding that,
although the appellant’s service was creditable, he was not eligible for civil
service retirement benefits because his service was not subject to civil service
retirement coverage .2 Id. at 5-6. OPM also found tha t the appellant was not
eligible to make a deposit to qualify for an annuity . Id.
¶4 In May 2016, the appellant filed a Board appeal challenging OPM’s
March 14, 2016 reconsideration decision . IAF, Tab 1. He claimed that, under
5 C.F.R. § 831.303 (a), two requirement s for eligibilit y for an annuity did not
apply to him. In particular, the appellant asserted that he did not need to show
that his service was covered under the Civil Service Retirement Act (CSRA) .
IAF, Tab 6 at 5, 9, 14‑19. He also argued that, under this regulation, he was
entitled to receive a reduced annuity without making a paid deposit based on his
credita ble servic e prior to October 1, 1982. Id. at 17 -19. Based on the written
record, the administrative judge issued an initial decision affirming OPM’s
reconsideration decision. IAF, Tab 7 , Initial Decision (ID) at 6. The
administrative judge f ound that the appellant served under a series of NTE
appointments and an indefinite excepted appointment that were excluded from
coverage under th e CSRA, and no retirement d eductions were ever taken from his
pay, thus he did not serve i n a position covered by the CSRA and was not eligible
2 OPM’s decision incorrectly stated that the appellant was not eligible for an annuity
because he did not complete at least 5 years in a position subject to civil service
retirement coverage. IAF, T ab 4 at 5. To qualify for a civil service retirement annuity,
an employee must complete at least 5 years of creditable civilian service and must have
served at least 1 of his last 2 years of Federal service in a covered position. 5 U.S.C.
§ 8333 (a)-(b). However, OPM’s error was not harmful because the appellant had not
served in a covered position for at least 1 of his last 2 years of Federal service and was
not eligible for an annuity. IAF, Tab 4 at 20-28.
4
for an annuity und er the CSRS . ID at 4 -5. The administrative judge further
found that , because the appellant was not eligible for a CSRS annuity, the
appellant was not entitled to make a deposit or recei ve a reduced annuity. ID
at 5-6. He found the appellant’s reliance on 5 C.F.R. § 831.303 (a) to claim
entitlement to a reduced annuity was misplaced because the regulation dictated
the computation of an annuity for a class of individuals already covered b y the
CSRA and did not provide any separate entitlement to an annuity. Id.
¶5 The appellant has filed a petition for review of the initial decision , which
the agency has opposed.3 Petition for Review ( PFR ) File, Tab s 1, 4.
DISCUSSION OF ARGUME NTS ON REVIE W
¶6 The appellant , as an applicant for retirement benefits, bears the burden of
proving by preponderant evidence his entitlement to the benefits he seeks .
5 C.F.R. § 1201.56 (b)(2)(ii). In determining whether an individual is entitled to a
retirement annuity under the CSRS , two types of service are pertinent:
“creditable service” and “covered service.” Noveloso v. Office of Personnel
Management , 45 M.S.P.R. 321 , 323 (1990), aff’d , 925 F.2d 1478 (Fed. Cir. 1991)
(Table) . Almost all F ederal service is creditable service. Id. Covered service is
more limit ed in scope and refers only to F ederal employees who are “subject to”
the CSRA, meaning that they must deposit part of their basic pay into the Civil
Service Retirement and Disability Fund. Id. To qualify for a civil service
3 The appellant’s petition for review was postmarked 2 days after the deadline to file a
petition for review; however, we have considered the petition for review timely filed for
the following reasons. Despite the petition’s postmark date of September 1, 2016, the
petition was dated August 26, 2016, and the appellant submitted a sworn statement
stating that he mailed the petition on August 30, 2016. P FR File, Tab 1 at 1, Tab 5
at 1-2. Because the appellant has submitted an unrebutted sworn statement attesting
that the petition was mailed on the filing deadline, we have considered the petition
timely filed and have addressed its merits. See Raph el v. Department of the Army ,
50 M.S.P.R. 614 , 618 (1991) (holding that a party may establish that his pleading was
timely filed by presenting credible, unrebutted evidence in the form of an affidavit or
sworn statement that, despite t he postmark date, the pleading was actually placed in the
Postal Service mail stream before the filing deadline).
5
retirement annuity, an employee must complet e at least 5 years of creditable
civilian service and must have served at least 1 of his last 2 years of F ederal
service in a covered position. Id. at 324; 5 U.S.C. § 8333 (a)-(b).
¶7 Certain appoin tments are excluded from CSR S coverage, including
temporary, intermittent, term, and indefinite appointments. 5 C.F.R.
§ 831.201 (a)(1), (2), (6), (13), (14); see Rosete v. Office of Personnel
Management , 48 F.3d 514 , 519 (Fed. Cir. 1995) (upholding the regulatory
exclusion of i ndefinite appointments from CSR S coverage); De Jesus v. Office of
Personnel Management , 63 M.S.P .R. 586 , 589 , 592 -93 (1994) ( finding that , under
5 U.S.C. § 8347(g), OPM can exclude from CSRS coverage intermittent and
temporary employees, the latter of which includes indefinite appointees ), aff’d ,
62 F.3d 1431 (Fed. Cir. 1995) (Table) .
¶8 Here , the administrative judge properly found that the appellant’s
appointments were exclu ded from coverage under the CSR S and, thus, he was not
entitled to an annuity . ID at 5 -6. The appellant served in temporary and
indefinite excepted -service appointments , which are excluded from CSRS
coverage. IAF, Tab 4 at 20-28; see 5 C.F.R. § 831.201 (a)(1), (13). He does not
contend, and there is no evidence to suggest, that retirement deductions w ere
withheld from his pay. IAF, Tab 4 at 20 -28. The absence of deductions is an
indication that an employee did not serve in a covered position. Quiocson v.
Office of Personnel Management , 490 F.3d 1358 , 1360 ( Fed. Cir. 2007) . In
addition, the ap pellant’s Standard Form 50s (SF -50s) desi gnated his retirement
plan as “4” or “5,” which stand for “none” or “other,” respectively. IAF, Tab 4
at 20-28. The reference to “none” or “other” in an applicant’s SF -50s also means
that the individual was not employed in a covered position. Espiritu v. Office of
Personnel Management , 114 M.S.P.R. 192 , ¶ 8 (2010), aff’d , 431 F. App’x 897
(Fed. Cir. 2011). Therefore, the appellant’s appointments were not covered
service , and he is not eligible for a CSRS annuity.
6
¶9 On review, t he appellant does not dispute that his service is excluded from
CSR S coverage under 5 C.F.R. § 831.201 (a); however, he maintains that 5 C.F.R.
§ 831.303 (a) “lifted ” such exclusions . PFR File, Tab 1 at 4-5. He argues that
section 831.303(a) operated as a waiver of the deposit required to be eligible for a
CSRS annuity for all current Federal employees at the time of the regulation’s
promulgation . Id. at 2-4. The appellant reasons that this waiver of the deposit
created an automatic deposit that converted his creditable service prior to the
regulation’s promulgation into covered service , thus entitling him to an annuity .
Id. at 4-7.
¶10 We find unpersuasive the appellant’s argument that the promulgation of
5 C.F.R. § 831.303 (a) converted his creditable servic e—which is excluded from
CSRS coverage under 5 C.F.R. § 831.201 (a)—into covered service. As set forth
above, a certain amount of service in a covered position is a prerequisite to
qualify for a CSRS annuity . 5 U.S.C. § 8333 (b). Under 5 C.F.R. § 831.201 (a),
certain categories of employees are specifically excluded from coverage . The
plain language of section 831.303(a) does not modify section 831.201(a) or
otherwise change the categories of individuals who qualify for an annuity .
Fontilla v. Office of Personnel Management , 482 F. App’x 563 , 565 ( Fed. Cir.
2012). Rather, section 831.303(a) allows those already covered by the CSRS to
include certain creditable service in calculating an annuity. Id.
Section 831.303(a) is located in subpart C of part 831, which pertains to credit for
service, rather than subpart B of part 831, which pertains to coverage. There is
no indication that section 831.303 was intended to modify or supplant
section 831.201, which is located in subpart B. Read together, section 831.201
excludes certain individuals from coverage, which renders section 831.303
inapplicable to individuals , such as the appellant, who are excluded from
coverage.
¶11 The appellant’ s argument that 5 C.F.R. § 831.303 (a) crea ted a waiver of the
deposit and an automatic deposit fails, not only because the plain language of the
7
regulation does not support such an interpretation, but also because he must first
have covered service to be eligible for a deposit or waiver thereof. An individual
must be an “employee” as defined by 5 C.F.R. § 831.112 (a) to make a deposit .
Fontilla , 482 F. App’x at 565. As defined in 5 C.F.R. § 831.112 (a), an
“employee” is either a current employee subject to the civil service retirement
law or a former employee who retains civil service retirement annuity rights.
Rosimo v. Office of Personnel Management , 448 F. App’x 60 , 62 ( Fed. Cir. 2011).
It is undisputed that , when 5 C.F.R. § 831.303 (a) was promulgated , the appellant
was not serving and had not served in a positio n subject to the CSRA;
accordingly, he was not an employee under 5 C.F.R. § 831.112 (a) and would not
have been eligible for any purported deposit without an expansion of covered
service . IAF, Tab 4 at 20 -28. Finally, it is well established that a deposit does
not convert a noncovered position into a covered position. Quiocson , 490 F.3d
at 1360 .
¶12 Thus , there is no support for the proposition that 5 C.F.R. § 831.303 (a)
created an entitlement to coverage or a deposit under the CSRS for employees ,
such as the appellant, who are excluded from coverage under 5 C.F.R.
§ 831.201 (a). We therefore affirm the initial decision finding that the appellant
did not serve in a covered position and is not eligible for an annuity under the
CSRS.
NOTICE OF APPEAL RIG HTS4
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 Merit
4 Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review rights included in final decision s. As indicated in the notice, the
Board cannot advise which option is most appropriate in any matter.
8
Systems Protection Board does not provide legal advice on which option is most
appropriate for your situation and the rights described below do not represent a
statement of how courts will rule regarding 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
about whether a particular 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
releva nce is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals fo r the Federal Circuit, you may visit our website at
9
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action th at is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 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 th is decision before
you do, then you must file with the district court no later than 30 calendar days
after your representative receives this decision. If the action involves a claim of
discrimination based on race, color, religion, sex, national origin, o r a disabling
condition, you may be entitled to representation by a court -appointed lawyer and
to waiver of any requirement of prepayment of fees, costs, or other security. See
42 U.S.C. § 2000e -5(f) and 29 U.S.C. § 794a .
Contact information for U.S. distri ct courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702 (b)(1). You must file any such request with th e
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702 (b)(1) . If you have a representative in this case,
10
and your representative receives this decision before you do, then 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:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal 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
section 2302(b) other than practices described in section 2302(b)(8), or
2302(b)(9)(A)(i), (B), (C), or (D),” then you may file a petition for judicial
review either with the U.S. Court of Appeals for the Federal Circuit or any court
of appeals of competent jurisdiction.5 The court of appeals must receive your
5 The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018 , permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
11
petition for review within 60 days of the date of issuance of this decision.
5 U.S.C. § 7703 (b)(1)(B).
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.
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/CourtWeb sites.aspx .
FOR THE BOARD:
Washington, D.C. /s/ for
Jennifer Everling
Acting Clerk of the Board | APIAG_ERNESTO_N_SF_0831_16_0465_I_1_FINAL_ORDER_1944592.pdf | 2022-07-22 | null | SF-0831-16-0465-I-1 | NP |
4,257 | https://www.mspb.gov/decisions/nonprecedential/DONAHUE_SEAN_M_PH_3330_16_0357_I_1_FINAL_ORDER_1944616.pdf | UNITED STATES OF AME RICA
MERIT SYSTEMS PROTEC TION BOARD
SEAN M. DONAHUE,
Appellant,
v.
DEPARTMENT OF LABOR,
Agency.
DOCKET NUMBER S
PH-3330 -16-0357 -I-1
PH-3330 -16-0385 -I-1
PH-3443 -17-0262 -I-1
DATE: July 22, 2022
THIS FINAL ORDER IS NONPRECEDENTIAL1
Sean M. Donahue , Hazleton, Pennsylvania, pro se.
Jennifer L. Bluer , Esquire, Richard T. Buchanan , Esquire, Anthony D.
DiBacco , and Kimberly Amaya , 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 petition s for review of three initial decision s, which
denied his Veterans Employment Opportunities Act of 1998 (VEOA) veterans’
preference claim on the merits, dismissed his VEOA right -to-compete claim 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
lack of jurisdiction, and dismissed his prohibited personnel practices claim for
lack of jurisdiction . Generally, we grant petitions such as th ese 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 th ese appeal s, we conclude 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 and AFFIRM the initial decision s,
which are now the Board’s final decision s. 5 C.F.R. § 1201.113 .
¶2 The instant decision involves three ap peals, each concerning the agency’s
Economist or Statistician position in Philadelphia and the appellant’s
nonselections. See Donahue v. Department of Labor , MSPB Docket
No. PH-3330 -16-0357 -I-1 (0357 Appeal), Initial Appeal File (0357 IAF), Tab 54,
Initia l Decision (0357 ID); Donahue v. Department of Labor , MSPB Docket
No. PH-3330 -16-0385 -I-1 (0385 Appeal), Initial Appeal File (0385 IAF), Tab 51,
Initial Decision (0385 ID); Donahue v. Department of Labor , MSPB Docket
No. PH-3443 -17-0262 -I-1 (0262 Appeal), Initial Appeal File (0262 IAF), Tab 15,
Initial Decision (0262 ID). As further detailed below, the agency advertised the
position under a nu mber of vacancy announcements. 0385 ID at 2 & n.1. Most
relevant to the instant appeals, the agency posted Announ cement Number PW -16-
PHIL -BLS -0010 to fill the position at the GS -07 level. 0357 IAF, Tab 3 at 6 -11.
The agency posted this vacancy announcement under the Pathways Recent
Graduate Program (Pathways Program). Id. at 6 -8. Therefore, as recognized in
3
that announcement, the position was only open to applicants that graduated from
a qualifying educational program within the 2 preceding years or veterans who
graduated within the 6 preceding years if they were unable to participate in the
Pathways Program durin g their 2 -year post -graduate period because of military
service. Id.; see Exec. Order No. 13,562, 75 Fed. Reg. 82,585 (Dec. 27, 2010).
The agency later posted Announcement Number DE -16-PHIL -BLS -0042 to fill
the same position at the GS -09 level. 0385 IAF, Tab 5 at 9 -10. Unlike the prior
announcement, this vacancy announcement did not fall under the Pathways
Program or include a recent graduate requirement. See id .
¶3 The appellant is a prefere nce eligible, but he did not meet the recent
graduate requirement of the Pathways Program because his most recent
educatio nal endeavor ended more than 10 years earlier. 0357 IAF, Tab 3
at 34-38, 53 -58. Nevertheless, he applied for the PW -16-PHIL -BLS -0010
announcement. Id. at 12 -33. Initially, the agency scored and rated his
application as “Category B” but later recognized that he failed to meet the recent
graduate requirement. 0357 IAF, Tab 10 at 7 -8. Because only two applicants fell
within the higher “Category A” rating and agency pol icy required there be at least
three such candidates before moving forward, the agency altogether canceled
announcement PW -16-PHIL -BLS -0010 and replaced it with announcement
DE-16-PHIL -BLS -0042. Id. at 7, 16, 49.
¶4 The a ppellant also applied for announcement DE -16-PHIL -BLS -0042.
0385 IAF, Tab 3 at 11 -32. Once again, based on the scoring of his responses to
competency based questions, the appellant’s application was rated as
“Category B,” but only those with higher score s and rated as “ Category A” were
placed on the certificate of e ligibles and referred to the selecting official.
0385 IAF, Tab 5 at 6, 23 -28, Tab 36 at 38. Ultimately, the agency instead filled
the position through an internal merit promotion vacancy anno uncement, MS -16-
PHIL -BLS -0066. 0385 IAF, Tab 36 at 7 -9, 383 -87.
4
¶5 The appellant filed the 0357 Appeal, disputing his nonselection for
announcement PW -16-PHIL -BLS -0010. 0357 IAF, Tab 1. Without holding the
requested hearing, the administrative judge denied his request for corrective
action under VEOA, finding that the appellant failed to meet his burden of
proving that the agency violated his veterans’ preference rights. 0357 ID.
¶6 The appellant filed the 0385 Appeal, disputing his nonselection for
announce ment DE -16-PHIL -BLS -0042. 0385 IAF, Tab 1. The administrative
judge in that appeal similarly issued a decision without holding the requested
hearing. 0385 ID at 1. He found that , while the appellant establish ed jurisdiction
over a veterans’ preference VEOA claim, he failed to meet his burden on the
merits. Id. at 6 -7, 10 -17. The administrative judge also noted that the appellant
appeared to present a right -to-compete VEOA claim concerning announcement
MS-16-PHIL -BLS -0066 but dismissed that matter for lack of jurisdiction. Id.
at 1, 7-9.
¶7 The appellant filed the 0262 Appeal, alleging that the agency committed a
prohibited personnel practice concerning announcement PW -16-PHIL -BLS -0010.
0262 IAF, Tab 1. The administrative judge in that appeal dismissed the matter
for lack of jurisdiction. 0262 ID.
¶8 The appellant has filed a petition for review in each of these appeals.
Donahue v. Department of Labor , MSPB Docket No. PH -3330 -16-0357 -I-1,
Petition for Review (0357 PFR) File, Tab 1; Donahue v. Department of Labor ,
MSPB Docket No. PH -3330 -16-0385 -I-1, Petition for Review (0385 PFR) File,
Tab 1; Donahue v. Department of Labor , MSPB Docket No. PH-3443 -17-0262 -
I-1, Petition for Review (0262 PFR) File, Tab 1. The agency has filed responses ,
and the appellant h as replied. 0357 PFR File, Tabs 3 -4; 0385 PFR File, Tabs 5 -6;
0262 PFR File, Tabs 3 -4. Although adjudicated separately below, we JOIN the
three appeals on review because the facts are interrelated and joinder will
expedite processing without adversely af fecting the interests of the parties. See
5 C.F.R. § 1201.36 (b).
5
The appellant failed to prove that the agency violated his veterans’ preference
rights in the 0357 Appeal or 0385 Appeal.
¶9 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. §§ 3330a (a)(1)(B), 3304(f)(1) (right -to-compete claims); see
generally Piirainen v. Department of the Army , 122 M.S.P.R. 194 , ¶ 8 (2015)
(analyzing a VEOA claim to determine under which theory it belonged). To
prevail on the merits of a claim that the agency vi olated his veterans’ preference
rights, the appellant must prove by preponderant evidence that: (1) he exhausted
his remedy with DOL; (2) he is a preference eligible within the meaning of
VEOA; (3) the action at issue took pl ace on or after the October 30, 1998
enactment date of VEOA; and (4) the agency violated his rights under a statute or
regulation relating to veterans’ preference. See Lazaro v. Department of Veterans
Affairs , 666 F.3d 1316 , 1319 (Fed. Cir. 2012) (setting forth these elements in
terms of the appellant’s lesser jurisdictional burden); Isabella v. Department of
State , 106 M.S.P.R. 333 , ¶¶ 21-22 (2007) (finding that to prevail on the merits,
the appellant must prove these elements by preponderant evidence) , aff’d on
recons. , 109 M.S.P.R. 453 (2008) . The administrative judges in the 0357 Appeal,
concerning announcement PW -16-PHIL -BLS -0010, and the 0385 Appeal,
concerning announceme nt DE -16-PHIL -BLS -0042, each found that the appellant
failed to meet his burden of proving the fourth element, that the agency violated
his veterans’ preference rights. 0357 ID at 4 -6; 0385 ID at 10 -17. We agree.
¶10 First, it is undisputed that the PW-16-PHIL -BLS -0010 vacancy
announcement included a recent graduate requirement, pursuant to the Pathways
Program, and the appellant did not meet that requirement. 0357 IAF, Tab 3
at 6-8, 53 -58. Our reviewing court has considered this very matter and fou nd that
an agency does not act contrary to any veterans’ preference laws or rules, or
violate veterans’ preference rights, by deeming a veteran ineligible for a position
6
based on the Pathways Program’s recent graduate requirement. Dean
v. Department of Labor , 808 F.3d 497 , 506-08 (Fed. Cir. 2015) . Second, it also is
undisputed that the agency cancelled the PW -16-PHIL -BLS -0010 vacancy
announceme nt and replaced it with the DE -16-PHIL -BLS -0042 announcement ,
but ultimately filled the position through a separate, internal, merit promotion.
0357 IAF, Tab 10 at 7, 16, 49; 0385 IAF, Tab 36 at 7 -9, 383 -87. The appellant
has failed to present any basis for us to conclude that the use of multiple vacancy
announcements was unlawful or violated his veterans’ preference rights. See
Joseph v. Federal Trade Commission , 505 F.3d 1380 , 1384 (Fed. Cir. 2007)
(finding that the agency did not violate VEOA by utilizing both the competitive
examination and merit promotion processes to fill the same position and selecting
someone other than the veteran under the merit promotion process); Abell v.
Department of the Navy , 343 F.3d 1378 , 1384 (Fed. Cir. 2003) (recognizing that
“[a]n agency may cancel a vacancy announcement for any reason that is not
contrary to law”). Third, it is undisputed that the agency scored the appellant’s
applications for the two vacancy announcements, even though he was only
eligible for one, each time resulting in a “Category B” rating, and not the higher
rated “Category A.” 0357 IAF, Tab 10 at 7 -8; 0385 IAF, Tab 36 at 38. Generally
speaking, this method of sorting applicants is not a violation of any veterans’
preference rights. See generally Launer v. Department of the Ai r Force ,
119 M.S.P.R. 252 , ¶ 7 (2013) (explaining the category rating system of 5 U.S.C.
§ 3319 ; noting that an agency may assign numerical scores for purposes of
placing applicants in categories and that certain individuals with
service -connected disabilities must be placed in the highest category, but
veterans’ preference po ints are not added to the scores).
¶11 On review of the 0357 Appeal, the appellant asserts that the agency
“showed favoritism towards a black applicant from [A]frica.” 0357 PFR File,
Tab 1 at 4. He also disputes the quality of that applicant’s education, arg uing that
it should have been disqualifying. Id. at 4 -5. However, VEOA does not provide
7
the Board with the authority to review allegations of discrimination. Ruffin
v. Department of the Treasury , 89 M.S.P.R. 396 , ¶¶ 11 -12 (2001). Nor does it
provide the Board with the authority to determine which applicant was most
qualified. See Miller v. Federal Deposit Insurance Corporation , 121 M.S.P.R.
88, ¶ 11 (2014) (explaining that the Board’s role under VEOA is not to determine
whether a preference eligible is qualified for a particular position or whether he
should have been selected for the position in question, but instead to focus on the
narrower question of whether the agency violated veterans’ preference rights),
aff’d , 818 F.3d 1361 (Fed. Cir. 2016). For the same reason, the appellant’s
assertion that his education warranted a “Category A” rating is unavailing.
0357 PFR File, Tab 1 at 4-5; see Miller , 121 M.S.P.R. 88 , ¶ 11; Launer ,
119 M.S.P.R. 252 , ¶ 7.
¶12 On review of the 0385 Appeal, the appellant notes that the agency offered
him a GS -09 Statistician position in 2012. 0385 PFR File, Tab 1 at 3; 0385 IAF,
Tab 8 at 4 -5. He argues that thi s was the same position as the ones at issue in the
instant appeals and the qualifications remain the same, so it was improper for the
agency to now deny him the position. 0385 PFR File, Tab 1 at 3. We find no
merit to the argument. Even if the appellan t had presented evidence to show that
the positions were the same and he submitted the same or similar application
package, he has failed to present any argument or evidence that the differing
results are in any way related to his veterans’ preference righ ts. See Miller ,
121 M.S.P.R. 88 , ¶ 11.
¶13 In sum, we find that the appellant has failed to meet his burden of proving
that the age ncy violated his veterans’ preference rights when it did not select him
for the Economist or Statistician vacancy announcements, PW -16-PHIL -BLS -
0010 and DE -16-PHIL -BLS -0042.
8
The appellant failed to establish jurisdiction over a right -to-compete claim in th e
0385 Appeal.
¶14 As previously discussed, in addition to veterans’ preference claims, the
Board also may address right -to-compete claims under VEOA. Supra , ¶ 9. To
establish jurisdiction over a right -to-compete VEOA claim, an appellant must
prove by prepon derant evidence that: (1) he exhausted his remedy with DOL;
(2) he is a veteran within the meaning of 5 U.S.C. § 3304 (f)(1); (3) the action at
issue took place on or after the December 10, 2004 en actment date of the
Veterans’ Benefits Improvement Act of 2004; and (4) the agency denied him the
opportunity to compete under merit promotion procedures for a vacant position
for which the agency accepted applications from individuals outside its own
work force in violation of 5 U.S.C. § 3304 (f)(1). Becker v. Department of
Veterans Affairs , 115 M.S.P.R. 409 , ¶ 5 (2010); see Graves v. Department of
Veterans Affairs , 114 M.S.P.R. 209 , ¶ 19 (2010) (reflecting that the appellant’ s
burden on the merits of a right -to-compete claim is preponderant evidence).
¶15 In addition to his veterans’ preference arguments concerning the
announcements he did apply for, the appellant suggested that he should have bee n
allowed to apply for MS -16-PHIL -BLS -0066, the internal merit promotion
announcement. See 0385 ID at 7; 0385 IAF, Tab 21 at 9. The administrative
judge considered this as a right -to-compete claim but found that, even if the
appellant had met his burden concerning the other elements, the appellant failed
to prove he exhausted that matter with DOL. 0385 ID at 8 -9; see Gingery
v. Department of the Treasury , 113 M.S.P.R. 157 , ¶¶ 13 -15 (2009) (finding that
an appellant proved DOL exhaustion regarding the one vacancy announcement
identified in his DOL complaint but not other concurrent announcements for the
same position), aff’d , 403 F . App’x 498 (Fed. Cir. 2010). Specifically, he noted
that the appellant’s correspondence pertaining to the DOL exhaustion requirement
did not include any mention of the internal merit promotion announcement,
9
MS-16-PHIL -BLS -0066. 0385 ID at 9. Therefore, the administrative judge
concluded that the appellant did not meet his jurisdictional burden. Id.
¶16 On review, the appellant summarily asserts that he was “clearly denied a
right to compete.” 0385 PFR File, Tab 1 at 3. However, the appellant has not
presented any argument or evidence regarding the DOL exhaustion requirement.
Accordingly, we discern no basis for reaching a conclusion contrary to that of the
administrative judge. The appellant failed to meet his jurisdictional burden of
proving that he exhausted a right -to-compete claim concerning vacancy
announcement MS -16-PHIL -BLS -0066.
The appellant failed to establish jurisdiction over his prohibited personnel
practice claim in the 0262 Appeal.
¶17 In the 0262 Appeal, the appellant presented arguments si milar to those
addressed above. 0262 IAF, Tab 1 at 5; see supra , ¶ 11. He alleged that the
agency committed a prohibited personnel practice when it failed to deem an
applicant for vacancy announcement PW -16-PHIL -BLS -0010 ineligible based on
the nature or quality of his education in Nigeria. 0262 IAF, Tab 1 at 5.
According to the appellant, that purported inaction evidenced discrimination on
the basis of race or national origin. Id. With this 0262 A ppeal, the appellant also
presented evidence that he p reviously had raised this allegation with the Office of
Special Counsel. 0262 IAF, Tab 1 at 7 -13, Tab 3 at 9 -12.
¶18 While dismissing the 026 2 A ppeal for lack of jurisdiction, the
administrative judge properly noted that the appellant’s nonselection is not an
appealable adverse action. 0262 ID at 8; see Tines v. Department of the Air
Force , 56 M.S.P.R. 90 , 93 (1992). He also correctly noted that, in the absence of
an otherwise appealable matter, the Board lacks jurisdiction over discrimination
and prohibited personnel practice claims. 0262 ID at 8; see Wren v. Department
of the Army , 2 M.S.P.R. 1 , 2 (1980), aff’d , 681 F.2d 867 , 871 -73 (D.C. Cir. 1982).
Finally, the administrative judge recognized that the appellant had not presented a
reprisal claim that the Board could consider as an individual right of action
10
appeal . 0262 ID at 8; see Yunus v. Department of Veterans Affairs , 242 F.3d
1367 , 1371 (Fed. Cir. 2001).
¶19 Although the appellant filed a petition for review, it contains no argument
or evidence concerning the Board ’s jurisdiction. 0262 PFR File, Tab 1.
Accordingly, we find that the administrative judge properly dismissed the 0262
Appeal for lack of jurisdiction.
NOTICE OF APPEAL RIGHTS2
You may obtain review of this final decision. 5 U.S.C. § 7703 (a)(1). By
statute, the nature of your claims determines the time limit for seeking such
review and the appropriate forum with which to file. 5 U.S.C. § 7703(b).
Although we offer the following summary of available appeal rights, the Merit
Systems Protection Board does not provide legal advice on which option is most
appropriate for your situation and the rights described below do not represent a
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.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board ord er 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 w hich 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 petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W .
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is 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.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in who le or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 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
12
you do, then you must file with the district court no later than 30 calendar days
after your representative receives this decision. If the action involves a claim of
discrimination based on race, color, religion, sex, national origin, or a disabling
condition, you may be entitled to representation by a court -appointed lawyer and
to waiver of any requirement of prepayment of fees, costs, or other security. See
42 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:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
13
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302 (b)(8) or
other protected activities listed in 5 U.S.C. § 2302 (b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
disposition of allegations of a prohibited personnel practice described in section
2302(b) other than practices described in 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
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
3 The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit 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.
14
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 | DONAHUE_SEAN_M_PH_3330_16_0357_I_1_FINAL_ORDER_1944616.pdf | 2022-07-22 | null | S | NP |
4,258 | https://www.mspb.gov/decisions/nonprecedential/HENLEY_ANDRE_DE_315H_17_0375_I_1_FINAL_ORDER_1944617.pdf | UNITED STATES OF AME RICA
MERIT SYSTEMS PROTEC TION BOARD
ANDRE HENLEY,
Appellant,
v.
DEPARTMENT OF AGRICU LTURE,
Agency.
DOCKET NUMBER
DE-315H -17-0375 -I-1
DATE: July 22, 2022
THIS FINAL ORDER IS NONPRECEDENTIAL1
Andre Henley , Chadron, Nebraska, pro se.
Shannon L. Swaziek , Esquire, Albuquerque, New Mexico, for the agency.
BEFORE
Cathy A. Harris , Vice Chairman
Raymond A. Limon , Member
Tristan L. Leavitt , Member
FINAL ORDER
¶1 The appell ant has filed a petition for review of the initial decision, which
dismissed his probationary termination appeal for lack of jurisdiction. On
petition for review, the appellant argues that the agency failed to provide him
with the proposal letter, decision letter, and S tandard Form 50 at the time he filed
1 A nonprecedential order is one that the Board has determined does not add
significantly to the 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 appeal with the Board and that the administrative judge failed to afford him an
opportunity to submit additional evidence in support of his appeal . Generally , we
grant petitions such as this o ne 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 ca se; the administrative judge’s rulings during either
the course of the appeal or the initial decision were not consistent with required
procedures or involved an abuse of discretion, and the resulting error affected the
outcome of the case; or new and mate rial evidence or legal argument is available
that, despite the petitioner’s due diligence, was not available when the record
closed. Title 5 of the Code of Federal Regulations, section 1201.115 ( 5 C.F.R.
§ 1201.115 ). After fully considering the 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,2 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 below do not rep resent a
statement of how courts will rule regarding which cases fall within their
2 In light of the jurisdictional dismissal, we make no finding as to the timeliness of the
petition for review . See Dean v. U.S. Postal Service , 115 M.S.P.R. 56 , ¶ 13 n.5 (2010).
3 Since the issuance of the initial decision in this matter, the Board may have updated
the notice of re view rights included in final decisions. As indicated in the notice, the
Board cannot advise which option is most appropriate in any matter.
3
jurisdiction. If you wish to seek review of this final decision, you should
immediately review the law applicable to your claims and carefully follow all
filing time limits and requirements. Failure to file within the applicable time
limit may result in the dismissal of your case by your chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a f inal Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703 (b)(1)(A).
If you submit a petition for review to 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
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contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
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for Merit Systems Protection Board appellants before the Federal Circuit. The
4
Board neither endorses the services provided by any a ttorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
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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
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to waiver of any requirement of prepayment of fees, costs, or other security. See
42 U.S.C. § 2000e -5(f) and 29 U.S.C. § 794a .
Contact information for U.S. district courts can be found at their respective
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Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702 (b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 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.4 The court of appeals must receive your
4 The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115 -195,
132 Stat. 1510.
6
petition for review within 60 days of the date of issuance of this decision.
5 U.S.C. § 7703 (b)(1)(B).
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D .C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
Contact information for the 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 | HENLEY_ANDRE_DE_315H_17_0375_I_1_FINAL_ORDER_1944617.pdf | 2022-07-22 | null | DE-315H-17-0375-I-1 | NP |
4,259 | https://www.mspb.gov/decisions/nonprecedential/SINCLAIR_ANTONIO_LAMAR_AT_0752_16_0376_I_1_FINAL_ORDER_1944668.pdf | UNITED STATES OF AME RICA
MERIT SYSTEMS PROTEC TION BOARD
ANTONIO LAMAR SINCLA IR,
Appellant,
v.
DEPARTMENT OF THE AI R FORCE,
Agency.
DOCKET NUMBER
AT-0752 -16-0376 -I-1
DATE: July 22, 2022
THIS FINAL ORDER IS NONPRECEDENTIAL1
David C. Jones , Warner Robins, Georgia, for the appellant.
Biron Ross , Warner Robins, 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
mitigated the appellant ’s removal to a 5 -day suspension . Generally, we grant
petitions such as this one only in the following circumstances: the initial decision
contains erroneous findings of material fact; the initial decision is based on an
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board ’s case law. See 5 C.F.R. § 1201.117 (c).
2
erroneous interpretation of statute or regulation or the erroneous application of
the law to the facts of the case; the administrative judge ’s rulings during either
the course of the appeal or the initial decision were not consistent with required
procedures or involved an abuse of discretion, and the resulting error affected the
outcome of the case; or new and material evidence or legal argument is available
that, despite the petitioner ’s due diligence, was not available when the record
closed. Title 5 of the Code of Federal Regulations, section 1201.115 ( 5 C.F.R.
§ 1201.115 ). After fully considering the filings in this appeal, we conclude that
the petitioner has not established any basis under section 1201.115 for granting
the petition for review. Therefore, we DENY the petition for review , and
AFFIRM the initial decision.
BACKGROUND
¶2 The appellant was employed as a GS-07 Production Support Technician at
Robins Air Force Base (Robins AFB) , Georgia. Initial Appeal File (IAF), Tab 6
at 18 . On August 7, 2015, the agency proposed to suspend him for 5 calendar
days based on charges of failure to properly request leave (7 specifications) ,
unauthorized absence (5 specifications) , tardiness , and failure to report for
scheduled overtime . Id. at 114 -15. The agency subsequently rescinded the n otice
of proposed suspension and proposed the appellant’s removal based on the
follo wing six charges : (1) misuse of a G overnment owned vehicle (GOV) ;
(2) failure to follow instructions ; (3) failure to properly reque st leave
(10 specifications) ; (4) unauthorized absence (10 specifications) ; (5) tardiness ;
and (6) failure to report for scheduled overtime. Id. at 42-46, 113. The deciding
official affirmed the proposed action and the appellant’s removal was effective
January 29, 2016 . Id. at 18, 22 -23. The appellant timely filed a Board appeal in
which he requested a hear ing and alleged that he was denied due process . IAF,
Tab 1.
3
¶3 After holding a hearing, the administrative judge issued an initial decision
mitigating the removal action to a 5 -day suspension. IAF, Tab 33, Initial
Decision (ID) at 1, 17. She found that t he agency proved only three of its six
charges. ID at 2 -14. Regarding the charge of misuse of a GOV , she found that
the agency failed to prove that the appellant willfully, deliberately, or negligently
misused a GOV , and thus failed to prove the charge . ID at 2-7. In particular, she
found that the appellant ’s nonofficial use of the GOV to drive one mile to his
home to change clothe s he had soiled due to incontinence , with the intent to
return to continue to perform his duties , fell within the minor pers onal use
exception . ID at 6. She also found that the agency did not meet its burden of
prov ing that the appellant failed to follow instructions to report that his driver ’s
license had been suspended because he established that he did not know of the
suspension earlier than when it was reported to the agency. ID at 7. The
administrative judge sustained the failure to properly request leave charge but
found that the agency prove d only 5 of the 10 specifications underlying the
charge. ID at 8 -10. She also sustained the unauthorized absence charge , but
sustained only two and a half of the speci fications underlying the charge . ID
at 10-13. The administrative judge did not sustain the tardiness charge but found
that the agency proved the charge of failing to repor t for overtime. ID at 13 -14.
She further found that the appellant failed to prove that the agency denied him
due process. ID at 14-15. Finally, she found that the agency failed to prove that
the pena lty of removal was within the bounds of reasonableness for the sustained
charges, and she mitigated the penalty to a 5 -day suspension. ID at 15 -17. She
ordered interim relief. ID at 18.
¶4 The agency has petitioned for review. Petition for Review (PFR) Fi le,
Tab 1. In its petition, the agency argues that it proved that the appellant willfully
and negligently misused a GOV . Id. at 9-13. The agency asserts that , under the
circumstances, the administrative judge erred in applying the minor personal use
exception to the appellant ’s use of a GOV. Id. Regarding the charge of failure to
4
follow instructions, the agency asserts that the administrative judge erred in
finding that the appellant credibly testified that he did not report the suspension
of his driver ’s license because he was unaware that it had been suspended . Id.
at 13-15. The agency also argues that the administrative judge applied an
incorrect legal standard in assessing this charge. Id. Additionally, the agency
contends that the administrative judge erred in finding that it did not prove some
of the specifications under the charges of unauthorized absence and failure to
properly request leave. Id. at 16 -24. The a gency argues , moreover, that the
administrative judge misapplied th e law in finding that the agency failed to prove
its tardiness charge. Id. at 23 -24. The appellant has filed what appears to be a
request that the agency comply with the administrative judge ’s interim relief
order by issuing him a card that would give him access to his personal records
and allow him to use base facilities such as the Chi ld Development Center and the
base exchange . PFR File, Tab 3.
DISCUSSION OF ARGUME NTS ON REVIEW
The administrative judge properly found th at the agency failed to prove misuse of
a GOV.
¶5 The agency provided the following specification in support of this charge:
On 19 September 2015, your supervisor, [D.H.] was notified by a
Warner Robins Police Officer that you had been apprehended due to
an outstanding warrant for your arrest at an off base location. At the
time you were apprehended you were driving government owned
vehicle # AF06B00642. You did not have permission to drive the
government owned vehicle off of Robins Air Force Base. This is a
violation of Air Force Instruction (AFI) 24 -301, Transportation,
Vehicle Operations, dated 1 November 2008, Chapter 3,
[paragraph] 3.1, and in violation of WR -ALC Operating Instruction
24-2, Management and Use of Vehicles, dated 1 October 2015,
Chapter 2, paragraph 2.6.5.
IAF, Tab 6 at 42.
¶6 The administrative judge found that both regulatory provisions cited by the
agency in its charge prohibit the use of GOVs for other than official use, and that
5
AFI 24 -301 provides that the penalty for negligent, will ful misconduct, or
deliberate unauthorized misuse , may result in “[s]uspension from duty . . .
without pay, for not less than 1 month, suspension, or removal.” ID at 3; IAF,
Tab 6 at 88. She further found that the agency’s regulation specifically refers to
and, therefore, incorporates by reference 31 U.S.C. § 1344 , to which 31 U.S.C.
§ 1349 (b) relates. ID at 4 -5. Section 1344 of title 31 sets forth certain
circumstances under which GOVs are authorized , and section 1349(b) p rovides
that those who violate section 1344 or willfully misuse a GOV for other than
official purposes “shall be suspended without pay . . . for at least one month.”
31 U.S.C. § 1349 (b). The administrative judge therefore found that, for the
agency to impose the statutory mandatory 30 -day punishment, the agency must
prove the “willfu l” misuse of the GOV. ID at 4 -5.
¶7 The administrative judge also acknowledged, however, that the agency’s
regulation regarding misuse of a GOV is broader than section 1349(b) because in
addition to the willful and deliberate elements, it makes negligent mi suse a
violation of the regulation. ID at 5; IAF, Tab 6 at 88. She interpreted the
agency’s regulation to mean that in the case of negligent misuse of a GOV , the
agency could impose a suspension of less than 30 days. ID at 5. On petition for
review, th e agency does not disagree with the administrative judge’s
interpretation of its regulations and we find no basis for doing so . Thus , in
determining whether the agency proved that the appellant misused a GOV , we
have considered whether it proved either wi llful or negligent misuse.
¶8 To establish misuse of a GOV under section 1349(b) of title 31 , the agency
has to show that the appellant had actual knowledge that the use in question
would be characterized as nonofficial or that he acted in reckless disregard as to
whether the use was for nonofficial purposes. See Kimm v. Department of the
Treasury , 61 F.3d 888 , 891 -92 (Fed. Cir. 1995). However, t he Board will not
sustain a charge of misuse of a GOV if the conduct at issue involve d a minor
personal use and if the vehicle was used primarily to further agency business.
6
Fischer v. Department of the Treasury , 69 M.S.P.R. 614, 617 (19 96); see D’Elia
v. Departme nt of the Treasury , 14 M.S.P.R. 54 , 56 (1982) ( finding that a stop at a
disco on the return route to a motel while on temporary duty was minor personal
use); Ferguson v. Depa rtment of the Army , 8 M.S.P.R. 615 , 617 -18 (1981)
(finding that a stop at the employee ’s residence with a GOV to pick up his own
vehicle constituted minor personal use ).
¶9 As the administrative judge found , the facts surrou nding the appellant ’s
misuse of a GOV charge are largely undisputed. The appellant ’s supervisor
authorized the appellant ’s use of a GOV for transport to a different area of the
base so that the appella nt could check equipment for the agency’s annua l
inventory. IAF, Tab 6 at 78 . However, w hen the appellant arrived at the site
where he was to conduct the inventory, he encountered stomach pains related to
his gastrointestinal conditions and experienced a bout of diarrhea. Id. at 84. He
went to the bathroom and determined that he needed to go home to clean up. Id.
The administrative judge noted that the appellant testified that he was
embarrassed by his predicament and did not want to call attention to his situation.
ID at 3. The appellant therefore drove the GOV home , a mile or less away, to
clean up and change clothes. Id. He testified that , given the situation, he did not
believe that his taking the vehicle a short distance to get cleaned up would be
deemed an unauthorized use. ID at 4.
¶10 We agree with the administrative judge that, under the unique
circumstances of this case, the appellant ’s nonofficial use of the GOV fell within
the boundaries of the minor p ersonal use exception. Even though the appellant
left his official duty site to drive the short distance to his personal re sidence, he
did so under difficult and distressing circumstances. The agency cannot have
reasonably expected him to continue his du ties in that particular state. The
evidence reflect s that the appellant did not do anything other than clean himself
and change his clothes while at his home so that he could return and resume his
official duties , thus using the GOV to continue conduct ing the inventory , the
7
Government ’s business that he was charged with performing . Given the
appe llant ’s harrowing situation , and the fact that his deviation from the base in
the GOV was s hort in distance and duration, and expedite d Government business,
we agree with the administrative judge that the minor personal use exception
applies, and that the willful or deliberate misuse charge cannot be sustained. See
Fischer , 69 M.S.P.R. at 617.
¶11 Next, t o prove negligent misuse , the agency must show a failure to ex ercise
the degree of care required under the particular circumstances, which a person of
ordinary prudence in the same situation and with equal experience would not
commit. See, e.g. , Mendez v. Department of the Treasur y, 88 M.S.P.R. 596 , ¶ 26
(2001). We agree with the administrative judge that, for the same reasons that the
agency failed to prove willful misuse of a GOV, it also faile d to prove negligent
misuse. We find that the appellant exercised the degree of care required under
the particular circumstances of this case. He used the GOV to go to his nearby
home to change his soiled clothing so that he could quickly continue with h is duty
of conducting an inventory . We find that the appellant ’s actions are not outside
the degree of care expected of a person of ordinary prudence in the same situation
with equal experience. Under the circumstances, we find that the appellant could
reasonably have determined that his GOV use would promote the successful
operation of the agency ’s mission by saving considerable time in completing the
inventory. We therefore agree with the administrative judge’s finding that the
agency failed to prove its charge of misuse of a GOV.
The administrative judge correctly found that the agency did not establish that the
appellant failed to follow instructions.
¶12 In support of this second charge, the agency provided the following
specification:
On 19 September 2015, [D.H.] became aware that during
March 2015, your state driver’s license had been suspended. You
failed to notify [your] supervisor of your suspended stat e driver’s
license and to turn in Air Force Form 2293. This is in violation of
8
WR-ALC Operating Instruction 24 -2, Management and Use of
Vehicles, dated 1 Oct ober 2015, Chapter 2, [paragraph] 2.6.4.
IAF, Tab 6 at 42 -43.
¶13 The administrative judge found tha t the appellant credibly testified that he
did not inform his supervisor of the suspension because he did not know his
license had been suspended. ID at 7. She similarly found credible his testimony
that he had appeared in court for traffic violations, had completed all the
court -mandated requirements, and that no one had ever informed him that his
license had been suspended. Id.
¶14 The agency offered no evidence to refute the appellant ’s claim. The
administrative judge noted the agency ’s argument that whether the appellant
knew his license was suspended is irrelevant because a charge of failure to follow
instructions doe s not require proof of intent. Id. The administrative judge agreed
with the agency ’s statement of the law , citing Hamilton v. U.S. Postal Service,
71 M.S.P.R. 547 , 555 (1 996) . She found, however, that a lthough the failure -to-
report charge can be sustained with out the agency proving the appellant
intentionally failed to follow instructions, the agenc y must nevertheless prove
that he appellant was aware that the act that would trigger the reporting
requirement had occurred . ID at 7.
¶15 As the administrative judge properly found, the agency has failed to rebut
the appellant ’s credible testimony that he was not aware that his license had been
revoked. The Board must defer to an administrative judge ’s credibility
determinations when they are based, explicitly or imp licitly, 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) . The agency has
not proven a sufficiently sound reason to overturn the administrative judge ’s
finding that the appellant testified credibly that he did n ot know that his license
had been revoked. Id.
9
¶16 Moreover, we agree with the administrative judge that, if it is true that the
appellant did not know his license had been revoked, he could not reasonably
have been expected to report the matter. The agency ’s argument that the
administrative judge improperly incorporated an intent requirement into the
applicable legal standard , PFR File, Tab 1 at 13 -14, constitute s mere
disagreement with her well -reasoned finding s on this issue, and therefore do es not
provide a basis for review , see Crosby v. U.S. Postal Service , 74 M.S.P.R. 98 , 106
(1997) (finding no reason to d isturb the adminis trative judge’ s findings whe n 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 administrative judge properly found that the agency failed to prove its charge
of tardiness.
¶17 In support of this charge, the agency provided the following specifica tion:
On 8 July 2015, from 0700 to 0900, you were absent, without
authorization, from 559 AMXS, Robins AFB, your required duty
station; you [did] not request leave for that period. Your absence
was not authorized nor did you request leave for that period. You
reported for duty at approximately 0830. You had no annual or sick
leave avail able and you were carried in an [A bsence Without L eave ]
(AWOL) status for 1.5 hours on 8 July 2015.
IAF, Tab 6 at 45.
¶18 The agency’s contention , that the administrative judg e misapplied
applicable law when she found that it failed to prove that the appellant was tardy ,
is unavailing. The administrative judge determined that the appellant’s
supervisor carried the appellant in an AWOL status on July 8, 2015 , solely
because he had no available sick or annual leave . ID at 13. We find that the
administrative judge properly found that the supervisor abused his discretion in
automatically carrying the appellant in an AWOL status without weighing other
factors that might have warra nted a grant of leave without pay . See White v.
Department of Housing & Urban Development , 95 M.S.P.R. 299, ¶ 17 (2 003)
10
(stating that, even when the employee lacks sufficient leave to cover his absence s,
an AWOL charge based on those absence s cannot be sustained if the agency
abused its dis cretion in denying the employee’ s request for leave without pay );
Murray v. Department of the Navy , 41 M.S.P.R. 260 , 263 -65 (1989) (finding an
abuse of discretion when an agency denied leave without pay for 69 hours of
absence for which the employee did not have sufficient sick and annual leave
because the agency knew that his absence stemmed from an on -the-job injury ).
We need not address the agency ’s assertions that the administrative judge erred in
failing to sustain some of the specif ications underlying the unauthorized absence
and failure to properly request leave charges .
¶19 When more than one event or factual specification supports a charge , proof
of one or more, but not all, o f the supporting specifications is sufficient to sustain
the charge . Burroughs v. Department of the Army , 918 F.2d 170 , 172 (Fed. Cir.
1990) . Here, each of the charges of unauthorized absence and failur e to properly
request leave had more than one factual specification, and the administrative
judge found that the agency prove d one or more of those specifications for each
charge. IAF, Tab 6 at 42 -45; ID at 8-13. Because proof of at least one
specification is sufficient to sustain each of these charges, we do not address
whether the administrative judge erred in not sustaining certain specifications .
A 5-day suspension is a reasonable penalty for the sustained misconduct.
¶20 When the Board sustain s fewer than all of the agency ’s charges, it may
mitigate the agency ’s penalty to the maximum reasonable penalty, so long as the
agency has not indicated in either its final decision or in proceedings before the
Board that it desires that a lesser penal ty be imposed on fewer charges. Lachance
v. Devall , 178 F.3d 1246 , 1260 (Fed. Cir. 1999); Edwards v. U.S. Postal Service ,
116 M.S.P.R. 173 , ¶ 7 (2010). Here, t he administrative judge found that the
agency did not indicate that it desired a lesser penalty be imposed if all the
charges were not sustained. ID at 16.
11
¶21 The deciding official may not have indicated whether he would have
imposed a lesser penalty if fewer than all the charges were sustained . Yet, it is
nonetheless significant for purposes of our penalty analysis that, prior to issuing
the notice of proposed removal, the agency issued a notice of proposed 5 -day
suspension based only on the charges of failure to properly request leave,
unauthorized absence, tardiness, and failure to report for unscheduled overtime.
IAF, Tab 6 at 114-15. Subsequently, the agency added additional specifications
of misconduct to the failure to properly request leave and unauthorized absence
charges when proposing the appellant’s removal . Notably, though, three of the
charges that formed the basis of the proposed 5 -day suspension are exactly the
same charges that the administrative judge sustained. Thus, the fact that the
agency previously proposed the appellant’s suspension based on these same
sustained charges weighs in favor of mitigat ion.
¶22 Moreover, as the administrative judge indicated , there are compelling
factors in this case that warrant strong mitigating weight. Three of the six
charges, including the serious charges of misuse of a GOV and failure to follow
instructions , were not sustained. Undoubtedly, the sustained charges of failure to
properly request leave, unauthorized absence, and failure to report for
unscheduled overtime are also serious. See Wilkinson v. Department of the Air
Force , 68 M.S.P.R. 4 , 7 (1995) ( sustaini ng the appellant’s removal when he failed
to fol low leave -requesting procedures). However , we agree with the
administrative judge’s fin ding that the agency had information in its possession
that should have put it on notice that the appellant was suffering f rom serious
medical conditions that might have entitle d him to leave under the Family and
Medical Leave Act of 1993 (FMLA) . ID at 16. The administrative judge noted
that the appellant testified that he was suffering from depression , and that the
appella nt’s first -line supervisor acknowledged that the appellant had discussed
medical issues with him. ID at 9 , 16. In addition, the record reflects that this
12
supervisor was concerned about the appellant’s well -being and had referred him
to the Employee Assistance Program (EAP) . IAF, Tab 6 at 76.
¶23 The record also contains a memorandum from a nother agency supervisor
stating that in July 2015, he received a call from the appellant during which the
appellant stated he was experiencing stress and felt the need to consume alcohol,
but had not. Id. at 71. This supervisor explained that he was aware that the
appellant was a recovering a lcoholic, and that he later called back the appellant to
express concern about his situation. Id. The following day, this supervisor met
with the appellant’s first and second -line supervisor s to discuss the call. Id. In
addition, the record also reflec ts that the appellant’s second -line supervisor
suggested to the appellant that he contact the EAP . Id. at 73. In light of the
testimonial and record evidence indicating that the appellant’s supervisors were
aware that he was suffering from medical conditions, we agree with the
administrative judge’s finding that the agency’s failure to provide the appellant
with information on how he could request leave under the FMLA constituted a
mitigating factor in this case.
¶24 In add ition, the administrative judge found that the appellant’s depression
likely contributed to some or all of the misconduct in this case. In reaching this
finding, the administrative judge considered the appellant’s testimony that he did
not report for work because of his depression. ID at 9. The appellant’s testimony
that he was suffering from depression is corroborated by the record. For
example, the appellant submitted records from the EAP indicating that he had
reported suffering from depression. IAF , Tab 10 at 5. The appellant also
furnished medical documentation reflecting that he was initially prescribed
medication for depression in June 2015. Id. at 26. Evidence that an employee’s
medical condition or mental impairment played a part in the char ged misconduct
is entitled to considerable weight as a mitigating factor. See Malloy v. U.S.
Postal Service , 578 F.3d 1351 , 1356 -57 (Fed. Cir. 2009).
13
¶25 In balancin g the seriousness of the sustained misconduct against the
mitigating factors and circumstances in this case, we agree with the
administrative judge’s determination that mitigating the agency -imposed penalty
is warranted.
The appellant ’s challenge to the agency ’s certification of complianc e with the
interim relief order
¶26 With its petition for review, the agency submitted a statement that, in
accordance with the instructions in the Board ’s initial decision, it placed the
appellant on an interim appointment, effective the date of the initial decision was
issued , pending resolution of the petition for review. PFR File, Tab 1 at 29.
Accompanying the agency ’s statement is a Standard Form 50 giving the appellant
an interim appointment. Id. at 26. After the ag ency submitted its certification of
compliance with the interim relief order, the appellant submitted a pleading
alleging that the agency has not provided him with a card by which he can gain
access to certain of his records and to base facilities. PFR Fi le, Tab 3.
¶27 We have consider ed the appellant ’s pleading as a challenge to the agency ’s
certification of compliance. 5 C.F.R. § 1201.116 (b). Ordinarily, when an
appellant challenges the agency ’s certification of compliance with an interim
relief order, the Board will issue an order affording the agency the opportunity to
submit evidence of compliance. Id. If the agency fails to provide evidence of
compliance in response to such an orde r, the Board may, at its discretion, dismiss
the agency ’s petition for review. 5 C.F.R. § 1201.116 (e). In this case, however,
we find that the agency ’s petition does not meet the criteria for review in any
event, and issuing our final decision renders moot any dispute concerning the
agency ’s compliance with the interim relief order. See Elder v. Department of the
Air Force , 124 M.S.P.R. 12, ¶ 20 (2016) . If the appellant believes that the agency
is in noncompliance with the Board ’s final order, he may file a petition for
enfo rcement in accordance with the instructions provided below. Id.
14
ORDER
¶28 We ORDER the agency to cancel the removal and substitute a 5 -day
suspension. 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.
¶29 We also ORDER the agency to pay the appellant the correct amount of back
pay, inte rest on back pay, and other benefits under the Office of Personnel
Management ’s regulations, no later than 60 calendar days after the date of this
decision. We ORDER the appellant to cooperate in good faith in the agency ’s
efforts to calculate the amount of back pay, interest, and benefits due, and to
provide all necessary information the agency requests to help it carry out the
Board ’s Order. If there is a dispute about the amount of back pay, interest due,
and/or other benefits, we ORDER the agency to p ay the appellant the undisputed
amount no later than 60 calendar days after the date of this decision.
¶30 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).
¶31 No later than 30 days after the agenc y tells the appellant that it has fully
carried out the Board ’s Order, the appellant may file a petition for enforcement
with the office that issued the initial decision on this appeal if the appellant
believes that the agency did not fully carry out the Board ’s Order. The petition
should contain specific reasons why the appellant believes that the agency has not
fully carried out the Board ’s Order, and should include the dates and results of
any communications with the agency. 5 C.F.R. § 1201.182 (a).
¶32 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 t he information and documentation
necessary to process payments and adjustments resulting from a Board decision
15
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 age ncy 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 mo tion for attorney fees and costs with the office that issued
the initial decision on your appeal.
NOTICE OF APPEAL RIGHTS2
You may obtain review of this final decision. 5 U.S.C. § 7703 (a)(1). By
statute, the nature of your claims determines the time limit for seeking such
review and the appropriate forum with which to file. 5 U.S.C. § 7703 (b).
Although we offer the following summary of a vailable appeal rights, the Merit
Systems Protection Board does not provide legal advice on which option is most
appropriate for your situation and the rights described below do not represent a
statement of how courts will rule regarding which cases fall w ithin their
jurisdiction. 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 ad vise which option is most appropriate in any matter.
16
filing time limits and requirements. Failure to file within the applicable time
limit ma y result in the dismissal of your case by your chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703 (b)(1)(A).
If you submit a petition for r eview to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
17
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 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 receive s this decision. If the action involves a claim of
discrimination based on race, color, religion, sex, national origin, or a disabling
condition, you may be entitled to representation by a court -appointed lawyer and
to waiver of any requirement of prepaym ent of fees, costs, or other security. See
42 U.S.C. § 2000e -5(f) and 29 U.S.C. § 794a .
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702 (b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702 (b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is:
18
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
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
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Revie w Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circu it court of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115 -195,
132 Stat. 1510.
19
If you submit a petition for judicial review to the U.S. Court of Appeals 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.
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
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. | SINCLAIR_ANTONIO_LAMAR_AT_0752_16_0376_I_1_FINAL_ORDER_1944668.pdf | 2022-07-22 | null | AT-0752-16-0376-I-1 | NP |
4,260 | https://www.mspb.gov/decisions/nonprecedential/MCDONNELL_VELLOGIE_CH_0752_14_0612_X_1_FINAL_ORDER_1944173.pdf | UNITED STATES OF AME RICA
MERIT SYSTEMS PROTEC TION BOARD
VELLOGIE MCDONNELL,
Appellant,
v.
DEPARTMENT OF VETERA NS
AFFAIRS,
Agency.
DOCKET NUMBER
CH-0752 -14-0612 -X-1
DATE: July 21, 2022
THIS FINAL ORDER IS NONPRECEDENTIAL1
Kurt Cummiskey , Esquire, St . Louis, Missouri, for the appellant.
Michael K. Brown , Esquire, Cincinnati, Ohio, for the appellant.
Kent E. Duncan , 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 administrative judge issued a January 21, 2016 compliance initial
decision granting the appellant’s petition for enforcement and finding the agency
in noncompliance with the Board’s final decision in MSPB Docket No. CH -0752 -
1 A nonprecedential order is one that the Board has determined does not add
significantly to the 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 signific antly contributing to the Board’ s case law. See 5 C.F.R. § 1201.117 (c).
2
14-0612 -I-1. McDonnell v. Department of Veterans Affairs , MSPB Docket
No. CH-0752 -14-0612 -C-1, Compliance File, Tab 11, Compliance Initial
Decision; McDonnell v. Department of Veterans Affairs , MSPB Docket
No. CH-0752 -14-0612 -C-1, Initial Appeal Fil e, Tab 61, Initial Dec ision (ID) .
The appellant’s petition for enforcement was then referred to the Board for a
final decision on iss ues of compliance pursuant to 5 C.F.R. § 1201.183 (b)-(c).
McDonnell v. De partment of Veterans Affairs , MSPB Docket No. CH -0752 -14-
0612 -X-1, Compliance Referral File (CRF), Tab 1. For the reasons set forth
below, we DISMISS the appellant’s petition for enforcement as settled.
¶2 After referral of the referenced compliance matter t o the Board, the parties
submitted a document entitled “SETTLEMENT AGREEMENT” signed and dated
by the appellant on March 1, 2019, and by the agency on March 4, 2019. CRF,
Tab 8. 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 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 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 ente red 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 th at 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, in fact, entered into a settlement
agreement , that they understand the terms of the agreement, and that they want
3
the Board to enforce those terms. CRF, Tab 8 at 7. In addition, we find that the
agreement is lawful on its face and that the parties freely entered into it. Id.
at 4-7. Accordingly, we find that dismissing the appellant’s petition for
enforcement “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 enforcement purposes.2
¶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 initia l
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 t he parties. 5 C.F.R. § 1201.182 (a).
2 The settlement agreement also provides for the withdrawal of the appeal underlying
this enforcement proceeding, MSPB Docket Number, CH -0752 -14-0612 -I-1. CRF,
Tab 8 at 4. However, the underlying a ppeal is separate from this enforcement
proceeding , and the matter has been closed since the administrative judge’s initial
decision became the final decision of the Board on May 1, 2015, after neither party
filed a petition for review. ID at 2. If the p arties would like the Board to reopen the
underlying appeal, vacate the initial decision, and dismiss that appeal as settled, they
may file such a request under MSPB Docket Number CH-0752 -14-0612 -I-1.
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 s ummary of available appeal rights, the Merit
Systems Protection Board does not provide legal advice on which option is most
appropriate for your situation and the rights described below do not represent a
statement of how courts will rule regarding which c ases fall within their
jurisdiction. If you wish to seek review of this final decision, you should
immediately review the law applicable to your claims and carefully follow all
filing time limits and requirements. Failure to file within the applicable ti me
limit may result in the dismissal of your case by your chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular f orum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703 (b)(1)(A).
If you submit a pet ition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
3 Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise which option is most appropriate in any matter.
5
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703 (b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. ____ , 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 receive s this decision. If the action involves a claim of
discrimination 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 prepaym ent of fees, costs, or other security. See
42 U.S.C. § 2000e -5(f) and 29 U.S.C. § 794a .
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702 (b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702 (b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C . 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302 (b)(8) or
other protected activities listed in 5 U.S.C. § 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 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 Circu it
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petit ioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our w ebsite 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 r eview of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicia l review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court 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 attorn ey 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 | MCDONNELL_VELLOGIE_CH_0752_14_0612_X_1_FINAL_ORDER_1944173.pdf | 2022-07-21 | null | CH-0752-14-0612-X-1 | NP |
4,261 | https://www.mspb.gov/decisions/nonprecedential/HOFFMAN_SUSAN_D_CH_0752_16_0242_I_1_FINAL_ORDER_1944178.pdf | UNITED STATES OF AME RICA
MERIT SYSTEMS PROTEC TION BOARD
SUSAN D. HOFFMAN,
Appellant,
v.
UNITED STATES POSTAL SERVICE,
Agency.
DOCKET NUMBER
CH-0752 -16-0242 -I-1
DATE: July 21, 2022
THIS FINAL ORDER IS NONPRECEDENTIAL1
Alf E. Sivertson , Esquire, Saint Paul, Minnesota, for the appellant.
Deborah M. Levine , Esquire, Denver, Colorado, for the agency.
BEFORE
Cathy A. Harris , Vice Chairman
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
dismissed her constructive removal appeal for lack of jurisdiction because she
failed to nonfrivolously allege that her decision to retire was involuntary due to
improper agency action and , thus, tantamount to an appealable removal action .
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case 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
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).
BACKGROUND
¶2 The appellant was employed with the agency as a n EAS -20 Customer
Services Manager. Initial Appeal File (IAF), Tab 1 at 1, Tab 7 at 10 . In 1998 , in
the midst of a 35-year career with the agency, she suffered a back injury causing
her to work in a limited -duty position. IAF, Tab 7 at 10 . The main components
of her modified job were that she could work in a supervisor y capacity for only
4 hours per day. Id. at 9. From June 2013 through the time period relevant to
this appeal, the appellant reported for duty at 5:30 a.m. as the opening supervisor.
IAF, Tab 1 at 41. In October 2014 , the appellant underwent a 3 -day functional
capacity evaluation. IAF, Tab 7 at 10 -16. The Industrial R ehabilitation Therapist
concluded that he could not determine her objective capabilities due to the
appellant’s “self -limitation secondary to pain and her need to attend to her pain
by disengaging from work activities ” throughout the evaluation. Id. at 15.
¶3 In April 2015, the appellant’s supervisor changed her shift from the opening
supervisor to the closing supervisor, which required her to report to du ty at
3
3:30 p.m., as opposed to 5:30 a.m. IAF, Tab 1 at 20, 41. The appellant was not
receptive to the schedule change and requested a formal job offer so that she
could present it to her physician to determine what medical restrictions would be
required on the new shift . IAF, Tab 7 at 17. The agency informed the appellant
that the closing supervisor assignment was the same as the opening supervisor
assignment , and on April 8, 2015, it instructed her to report to work at 3 :30 p.m.
for the following day. IAF, Tab 1 at 20 , 37.
¶4 While on duty on April 9, 2015, the appellant met with her supervisor and
expressed her concern that looking at package scans to clear evening packages
would violate her bending restrictions because packages could be on the floor.
IAF, Tab 6 at 13. The appellant’s supervisor told her to take a picture of the bar
code to be scanned so that she would not have to bend down . Id. Later that same
day, the appellant suffered an on -duty injury while tugging on a vehicle door to
see if it was locked; the injury was later accepted by the Office of Workers’
Compensation Programs . IAF, Tab 1 at 21, 30, 44. A fter meeting with her
physician following the injury, the appellant was out of work through June 12,
2015. Petition for Review ( PFR ) File, Tab 1 at 8.
¶5 Upon her return to duty on June 12, 2015, the appellant provided the agency
with a “Work Ability” form wherein her physician requested that she “ [r]eturn to
work light duty. 4 [hours]/day. AM’s if possible .” IAF, Tab 7 at 18. In
response, th e agency presented her with an offer of modified assignment (limited
duty). Id. at 19 -22. The record shows that two offers were created on June 12,
2015, the first of which limited the appellant’s lifting restrictions to 50 pounds
and reflected a lower salary, and the second of which displayed handwritten
corrections of a 20-pound lifting restriction and her accurate salary. Id. The
appellant disputes that she received th e second offer of modified a ssignment
form. PFR File, Tab 1 at 8 -9. On J une 12, 2015, t he appellant returned to work
as the opening supervisor. Id. at 8.
4
¶6 On June 30, 2015, the District Reasonable Accommodation Committee
(DRAC) notified the appellant that she may have restrictions that do not allow her
to adequately perform th e essential functions of her position . IAF, Tab 7 at 23.
She agreed to meet with the DRAC to be considered for a reasonable
accommodation. Id. Prior to the meeting , the appellant filed a formal Equal
Employment Opportunity (EEO) complaint of discrimination alleging that the
agency discriminated against her when it denied her request for a reasonable
accommodation beginning April 1, 2015 , by changing her schedule. IAF, Tab 1
at 9. The appellant met with the DRAC on August 11, 2015 , and schedu led
retirement counseling on August 13, 2015. Id. at 37. Before the DRAC reached a
decision regarding the appellant’s medical restrictions, she retire d effective on, or
about , September 1, 2015. Id. at 4, 37. Following her retirement, the appellant
amended her discrimination complaint to allege that the agency forced her to
retire. Id. at 9. The agency issued a Final Agency Decision, finding no
discriminatio n. Id. at 52-53.
¶7 The appellant filed an appeal with the Board alleging that her retirement
was involuntary and constituted a constructive removal . Id. at 2. The
administrative judge dismissed the appeal for lack of jurisdiction, finding that the
appellant failed to nonfr ivolously allege that her working conditions were so
intolerable that she was forced to retire. IAF, Tab 8, Initial Decision ( ID) at 5-6.
The appellant has filed a petition for review arguing that the Board has
jurisdiction over her appeal because her re tirement was involuntary. PFR File,
Tab 1 at 6-9. The agency has not responded to the appellant’s petition.
DISCUSSION OF ARGUME NTS ON REVIEW
¶8 The appellant has the burden of proving by preponderant evidence that the
Board has jurisdiction over her appe al. 5 C.F.R. § 1201.56 (b)(2)(i) (A). An
employee -initiated action, such as retirement, is presumed to be voluntary and ,
thus, outside the Board’s jurisdiction. Vitale v. Department of V eterans Affairs ,
5
107 M.S.P.R. 501 , ¶ 17 (2007). An involuntary retirement, however, is
equivalent to a forced removal and, therefore, is within the Board’s jurisdiction.
Id. If an appellant presents nonfrivolous allegations of Board jurisdiction, i.e.,
allegations of fact that, if proven, could establish the Board’s jurisdiction, then
she is entitled to a hearing at which she must prove jurisdiction by a
preponderance of the evidence. Id., ¶ 18.
¶9 To overcome the presumption that a retirement is voluntary, the employee
must show that it was the result of the agency’s misinformation or deception or
that she was coerced by the agency to retire . Id., ¶ 19. The touchstone of the
“voluntariness” analysis is whether, considering the totality of the circumstances,
factors operated on the employee’s decision -making process that deprived her of
freedom of choice. Id. On rev iew, the appellant contends that her working
conditions were so intolerable that she had no choice but to retire . PFR File,
Tab 1 at 9. In cases such as this, the Board will find an action involuntary only if
the employee demonstrates that the employer e ngaged in a course of action that
made working conditions so difficult or unpleasant that a reasonable person in
that employee’s position would have felt compelled to retire. Vitale ,
107 M.S.P.R. 501 , ¶ 20. The Board addresses allegations of discrimination and
reprisal in connection with an alleged involuntary retirement only insofar as those
allegations relate to the issue of voluntariness and not whether they would
establish discrimination or reprisal as an affirmative defense. See, e.g. ,
Pickens v. Social Security Administration , 88 M.S.P.R. 525 , ¶ 6 (2001).
¶10 On review, the appellant alleges that her working conditions were difficult
and unpleasant for several reasons. She claims that the agency switched her
position from the opening supervisor to the closing supervisor and would not
provide her with a new job offer for her physician to approve. PFR File, Tab 1
at 7-8. She also asserts that, when the agency did respond, it informed her t hat
she was required to perform the closing supervisor shift or she would “be out of
work.” Id. at 8. She also claims that, after her April 9, 2015 injury, the agency
6
failed to efficiently communicate with her and her physician, causing her to take
sick leave for several more weeks. Id. She asserts that, when she was put back to
work on the morning shift after her injury, the agency’s offer of modified
assignment (limited d uty) improperly required her to lift up to 50 pounds, despite
her physician ’s recommendation of a 20 -pound lifting restriction. Id.; IAF, Tab 7
at 19-20. Although the a ppellant acknowledges a second offer of m odified
assignment (limited d uty), she asserts that she never received that document.
PFR File, Tab 1 at 8 -9. The appel lant argues that, cumulatively, “ [the] stressors
imposed upon her by [the agency] would not end and [,] with her doctor’s
recommendation that her quality of life would be better if she retired, [she]
involuntarily chose to retire effective September 1 , 2015 .” Id. at 9.
¶11 Regarding the schedule shift from the morning supervisor to the evening
supervisor, which the appellant categorized as a failure to accommodate, the
administrative judge found that the appellant did not sufficiently allege that the
agency subjected her to intolerable wo rking conditions by denying the alleged
request for a reasonable accommodation to schedule her bac k on the morning
shift. ID at 6 . The administrative judge reasoned that the appe llant did not claim
or assert that “any facet of her day -to-day working conditions was intolerable.”
Id. She also stated that the appellant had not “show n” that the agency refused to
engage in the interactive process or otherwise acted improperly. Id. We note that
the appellant was not required to prove her allegations at this stage , see Bump v.
Department of the Interior , 64 M.S.P. R. 326 , 332 (1994) , but we find that the
appellant failed to make a nonfrivolous allegation that the agency did not engage
in the interactive process. It is undisputed that both the appellant and the DRAC
met on August 11, 2015 , and discussed her physical limitations and possible
options . IAF, Tab 1 at 37 . Further, she does not allege that she remained on the
closing shift , subject to intolerable conditions , until the date of her retirement.
Rather , she acknowledges that, when she returned afte r her April 9, 2015 injury,
she was returned to the op ening shift position. PFR File, Tab 1 at 8.
7
¶12 We agree with the administrative judge ’s finding that the appellant failed to
nonfrivolously allege that she reasonably feared serious injury as a conseque nce
of performing her modified duties. ID at 6. Although the appellant allegedly
feared injury, she has made no allegation that , in any specific instance, the agency
forced her to perform any particular duty outside of her medical restrictions,
namely , lifting more than 20 pounds. Even if we take as true her assertion that
she was ne ver presented with the amended offer of modified assignment (limited
duty), which reduced her lifting restrictions from 50 to 20 pounds, she has made
no specific allegation t hat the agency actually required her to lift anything
weighing either 50 or 20 pounds.
¶13 Regarding the appellant’s discrimination and retaliation claims, which she
does not renew on review, the administrative judge correctly determined that the
Board does not have jurisdiction over these claims. ID at 7. To the extent they
relate to the question of voluntariness, we find that the appellant has failed to
nonfrivolously allege that any discri mination or retaliation on the part of the
agency rendered the appel lant’s retirement involuntary. The appellant had
already begun the process of addressing the alleged discrimination before she
retired and could have waited for the outcome of her formal EEO complaint to
determine if retirement was necessary . See Axsom v. Department of Veterans
Affairs , 110 M.S.P.R. 605 , ¶ 17 (2009) . Simply because the appellant may have
been faced with the option of waiting for the agency’s ruling on her formal
discrimination complaint or deciding to retire does not render her decision
involuntary. See Lawson v. U.S. Postal Serv ice, 68 M.S.P.R. 345 , 350 (1995).
¶14 Based on the foregoing, w e find that the appellant has failed to
nonfrivolously allege that a reasonable person faced with these working
conditions would have felt compelled to retire. As correctly found by the
administrative judge, without any such allegation , the Board lacks jurisdiction
over the appellant’s claim that she retired involuntarily. ID at 6-7; see Brown v.
8
U.S. Postal Service , 115 M.S.P.R. 609 , ¶¶ 10-11, aff’d , 469 F. App’x 852 (Fed.
Cir. 2011) .
NOTICE OF APPEAL RIGHTS2
You may obtain review of this final decision. 5 U.S.C. § 7703 (a)(1). By
statute, the nature of your claims determines the time limit for seeking such
review and the appropriate forum with which to file. 5 U.S.C. § 7703 (b).
Although we offer the following summary of available appeal rights, the Merit
Systems Protection Board does not provide legal advice on which option is most
appropriate for your situation and the rights described below do not represent a
statement of how courts will rule regarding which cases fall within their
jurisdiction. If you wish to seek review of this final decision, you should
immediately review the law applicable to your claims and carefully follow all
filing time limits and requirements. Failure to file within the applicable time
limit may result in the dismissal of your case by your chosen forum.
Please read carefully each of the three main possibl e choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issu ance of this decision. 5 U.S.C.
§ 7703 (b)(1)(A).
2 Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise which option is most appropriate in any matter.
9
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
follo wing address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. C ourt of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the se rvices provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affect ed by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 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 representa tive receives this decision before
you do, then you must file with the district court no later than 30 calendar days
after your representative receives this decision. If the action involves a claim of
10
discrimination based on race, color, religion, sex, na tional origin, or a disabling
condition, you may be entitled to representation by a court -appointed lawyer and
to waiver of any requirement of prepayment of fees, costs, or other security. See
42 U.S.C. § 2000e -5(f) and 29 U.S.C. § 794a .
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702 (b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702 (b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302 (b)(8) or
11
other protected activities listed in 5 U.S.C. § 2302 (b)(9)(A)(i), (B), (C), or (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.3 The court of appeals must receive your petition for
review within 60 days of the date of issuance of this decision. 5 U.S.C.
§ 7703 (b)(1)(B).
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D .C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
3 The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 2 7, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Fed eral Circuit or any other circuit court of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115 -195,
132 Stat. 1510.
12
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 | HOFFMAN_SUSAN_D_CH_0752_16_0242_I_1_FINAL_ORDER_1944178.pdf | 2022-07-21 | null | CH-0752-16-0242-I-1 | NP |
4,262 | https://www.mspb.gov/decisions/nonprecedential/GROSS_SARETTA_M_AT_3443_21_0593_I_1_FINAL_ORDER_1944214.pdf | UNITED STATES OF AME RICA
MERIT SYSTEMS PROTEC TION BOARD
SARETTA M. GROSS,
Appellant,
v.
UNITED PARCEL SERVIC E,
Agency .
DOCKET NUMBER
AT-3443 -21-0593 -I-1
DATE: July 21, 2022
THIS FINAL ORDER IS NONPRECEDENTIAL1
Saretta M. Gross , Mableton, Georgia, pro se.
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 against the United Parcel Service (UPS) for lack of
jurisdiction . Generally, we grant petitions such as this one only in the following
circumstances: the initial decision contains erroneous findings of material fact;
the initial decision is based on an erroneous interpretation of statute or regulation
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case 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 the erroneous application of the law to the facts of the case; the administrative
judge’s rulings during either the course of the appeal or the initial decision
were not consistent with required procedures or involved an abuse of discretion,
and the res ulting error affected the outcome of the case; or new and material
evidence or legal argument is available that, despite the petitioner’s due
diligence, was not available when the record closed. Title 5 of the Code of
Federal Regulations, section 1201.115 (5 C.F.R. § 1201.115 ). After fully
considering the 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).
¶2 The appellant filed this appeal against her former employer, UPS,
challenging her removal and other employment actions . Initial Appeal File (IAF),
Tab 1 at 2, 9. The administrative judge issued a jurisdictional order informing
the appellant that the Board may lack jurisdict ion over her appeal and affording
her the opportunity to submit evidence and argument showing that she is
an “employee ,” as defined by 5 U.S.C. § 7511 (a), with adverse appeal rights to
the Board . IAF, Tab 3 at 1 . The appellant did not submit a response .
The administrative judge then dismissed the appeal for lack of jurisdiction .
IAF, Tab 4 at 1 -2. On petition for review, the appellant states that she disagrees
with the initial decision but does not make any specific challenges to it. Petition
for Review File, Tab 1 at 3 . See Tines v. Department of the Air Force ,
56 M.S.P.R. 9 0, 92 (1992) (finding that a petition for review must contain
sufficient specificity to enable the Board to ascertain whether there is a more
serious evidentiary challenge justifying a complete review of the record). We
agree that t he appellant, as an emp loyee of UPS, is not an employee within the
competitive or excepted service in an executive agency or the Postal Service, and
thus she does not meet the statutory definition of “employee” with Board appeal
3
rights. 5 U.S.C. § 7511 . Accordingly, the Board lacks jurisdiction over this
appeal.2
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 forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order 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 The appellant’s initial appeal made several allegations against her union, Teamsters
Local 728. IAF, Tab 1 at 2, 5, 9, 17 -20. To the extent the appellant seeks to appeal
actions taken by Teamsters Local 728, we fi nd that the Board lacks jurisdiction for the
same reasons set forth herein .
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. 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
5
you do, then you must file with the district court no later than 30 calendar days
after your represe ntative receives this decision. If the action involves a claim of
discrimination based on race, color, religion, sex, national origin, or a disabling
condition, you may be entitled to representation by a court -appointed lawyer and
to waiver of any require ment of prepayment of fees, costs, or other security. See
42 U.S.C. § 2000e -5(f) and 29 U.S.C. § 794a .
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed throu gh the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your di scrimination claims only, excluding
all other issues . 5 U.S.C. § 7702 (b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702 (b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washin gton, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW1 2G
Washington, D.C. 20507
6
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302 (b)(8) or
other protected activities listed in 5 U.S.C. § 2302 (b)(9)(A)(i ), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
disposition of allegations of a prohibited personnel practice described in
section 2302(b) other than practices described in section 2302(b)(8), or
2302( b)(9)(A)(i), (B), (C), or (D),” then you may file a petition for judicial
review either with the U.S. Court of Appeals for the Federal Circuit or any court
of appeals of competent jurisdiction.4 The court of appeals must receive your
petition for review w ithin 60 days of the date of issuance of this decision.
5 U.S.C. § 7703 (b)(1)(B).
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submi t your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “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 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 information regarding pro bono representation
for Merit Systems Protection Board appellants before the 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 | GROSS_SARETTA_M_AT_3443_21_0593_I_1_FINAL_ORDER_1944214.pdf | 2022-07-21 | null | AT-3443-21-0593-I-1 | NP |
4,263 | https://www.mspb.gov/decisions/nonprecedential/WITTENBERG_BIANCA_C_SF_315H_17_0196_I_1_FINAL_ORDER_1944250.pdf | UNITED STATES OF AME RICA
MERIT SYSTEMS PROTEC TION BOARD
BIANCA C. WITTENBERG ,
Appellant,
v.
DEPARTMENT OF
TRANSPORTATION,
Agency.
DOCKET NUMBER
SF-315H -17-0196 -I-1
DATE: July 21, 2022
THIS FINAL ORDER IS NONPRECEDENTIAL1
Bianca C. Wittenberg , El Dorado Hills, California, pro se.
Jared Hatch , Los Angeles, California, for the agency.
Maria Surdokas , Esquire, Washington, D.C., for the agency.
BEFORE
Cathy A. Harris , Vice Chairma n
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 termination appeal for lack of jurisdiction. Generally, we grant
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or 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
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 evi dence or legal argument is available
that, despite the petitioner’s due diligence, was not available when the record
closed. Title 5 of the Code of Federal Regulations, section 1201.115 ( 5 C.F.R.
§ 1201.115 ). After fully considering the filings in this appeal, we conclude that
the petitioner has not established any basis under section 1201.115 for granting
the petition for review. Therefore, we DENY the petition for review . However,
we VACATE the initial decision and DISMISS the appeal for lack of jurisdiction
for the reasons set forth in this Final O rder.
BACKGROUND
¶2 Effective April 22, 2016, the agency appointed the appellant to a term
appointment in the excepted service as an Air T raffic Control Specialist with the
Federal Aviation Administration (FAA) to attend FAA Academy training. Initial
Appeal File (IAF), Tab 8 at 11. The agen cy converted the appellant to a
conditional appointment in the excepted service on July 21, 2016. Id. at 8-9. The
Standard Form 50 (SF -50) effecting the appointment stated that the appellant held
a drug and alcohol “testing designated position” and that the appointment was
“subject to completion of [a] one year trial period beginning 04 -22-16.” Id. On
December 28, 2016, the agency terminated the appellant for failing a random drug
test, performed in accordance with Department of Transportation policy and the
terms of the appellant’s position. IAF, Tab 7 at 28 -29.
¶3 The appellant filed an appeal of her termination with the Board and
requested a hearing. IAF, Tab 1. She claimed that the agency committed harmful
3
procedural error and demonstrated a “lack o f a reasonable standard of care ” du e
to irregularities in the drug testing procedures. Id. at 5. She attached a copy of
the agency’s “Termination during Probation” me morandum, which referenced a
1-year probationary period and informed her that she could appeal her termination
to the Board if she believed that it was based on discrimination bec ause of marital
status or partisan political reasons. Id. at 7-8.
¶4 In an acknowledgment order, the administrative judge informed the
appellant that the Board may not have jurisdiction over her appeal and apprised
her of the regulatory right to appeal for p robationers in the competitive service
and the r equirements for meeting the definiti on of an “employee” for purposes of
5 U.S.C. chapter 75 appeal rights. IAF, Tab 2 at 2 -4. In response, the appellant
claimed that the agency had terminated her due to a p reexisting condition
constituting a preappointment reason, discriminated against her based on marital
status and other bases, and violated her due process rights. IAF, Tab 4 at 10 -13.
The agency filed a response, arguing that the appeal should be dismiss ed due to
lack of jurisdiction. IAF, Tab 9.
¶5 Without holding the requested hearing, the administrative judge issued an
initial decision dismissing the appeal for lack of jurisdiction . IAF, Tab 13 , Initial
Decision (ID) at 1, 7. She found that the appella nt did not meet the statutory
definition of an “employee” under 5 U.S.C. § 7511 (a)(1)(A) , having been
terminated during a 1 -year probationary period under a c ompetitive -service
appointment . ID at 2, 5. She also found that the appellant failed to make a
nonfrivolous allegation that she had a regulatory r ight to appeal under 5 C.F.R.
§§ 315.80 5-.806. ID at 5 -6. Finally, the administrative judge stated that the
Board could not address the appellant’s due process and harmful procedural error
claims because she had not established jurisdiction over her appeal. ID at 6-7.
¶6 The appellant has filed a petition for review. Petition for Review (PFR)
File, Tab 1. The agency has fi led a response opposing the petition. PFR File,
Tab 4.
4
DISCUSSION OF ARGUME NTS ON REVIEW
¶7 Although the administrative judge correctly determined that the appeal is
not within the Board’s jurisdiction, she based her decision on the belief that the
appellant was appointed to the competitive service. ID at 2. The documentary
evidence demonstrates that the agency appointed the appellant to the excepted
service, in which case neither 5 U.S.C. § 7511 (a)(1)(A) nor 5 C.F.R. part 315 ,
subpart H, applies to the appellant. See Ramirez -Evans v. Department of
Veterans Affairs , 113 M.S.P.R. 297 , ¶ 8 (2010). Thus, we vacate the initial
decision and dismiss the appeal for the reasons set forth below.
¶8 The Board’s jurisdiction is limited to those matters over w hich 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 1 996 Department of
Transportation and Related Agency Appropriations Act (DOT Act) established
the FAA Personnel Management System, which moved FAA employees from the
competitive service to the excepted service and exempted t he FAA from most
provisions of t itle 5 of the U.S. Code . De Santis v. Merit Systems Protection
Board , 826 F.3d 1369 , 1371 (Fed. Cir. 2016). The U.S. Court of Appeals for the
Federal Circuit subsequently held that FAA employees could no longer file
appeals with the Board because 5 U.S.C. § 7701 (a), the basic Board ju risdictional
provision, was not one of the enumerate d exceptions to the t itle 5 exemption . Id.
Congress restored certain Board appeal rights in 2000 through the Wendell H.
Ford Aviation Investment and Reform Act for the 21st Century (Ford Act), which
granted FAA employees the right to a ppeal any action that was appealable to the
Board under any law, rule, or regulation as o f March 31, 1996. 49 U.S.C.
§ 40122 (g)(2) -(3); De Santis , 826 F.3d at 1371 . Although not addressed directly
in the DOT Act or the For d Act, the applicable definition of “employee” for
purposes of determining Board jurisdiction is 5 U.S.C. § 7511 , not the FAA
Personnel Management System. Roche v. Merit Systems Protection Board ,
596 F.3d 1375 , 1379 , 1383 (Fed. Cir. 2010).
5
¶9 For a non preference -eligible individual in the excepted service, this means
that she either must not be serving a probationary or trial period under an initial
appointment pending conversion to the competiti ve service or have completed
2 years of current continuous service in the same or similar positions in an
Executive agency under other than a temporary appointment limited to 2 years or
less. 5 U.S.C. § 7511 (a)(1)(C); Barrand v. Department of Veterans Affairs ,
112 M.S.P.R. 210 , ¶ 10 (2009). As set forth in the initial decision , probationers
in the competitive service have limited regulatory appeal rights when terminated
under the provisions set forth in 5 C.F.R part 315 , subpart H. ID at 4. However,
5 C.F.R. § 315.806 (b)-(c), which provide s certain appeal rights concerning
terminations for preappointment reasons, and terminations based on marital status
or partisan political reasons, do not apply to individuals in the excepted service ,
including FAA employees . De Santis , 826 F.3d at 1376 ; Barrand , 112 M.S.P.R.
210, ¶ 13.
¶10 In her initial appeal, the appellant did not identify the nature of her
appointment, which was “unk nown” to her , and she instead checked the box
marked “ other. ” IAF, Tab 1 at 1. She state d that she was not entitled to veteran s’
preference. Id. The agen cy’s response to the acknowledg ment order included the
SF-50s effecting the appellant’s initial term appointment, conversion
appointment, and termination, all identifying the type of ap pointment as excepte d
service. IAF, Tab 8 at 9, 11 , Tab 7 at 26. The agency’s narrative response
asserted that, at the time of her termination, the appellant was serving in a
“new -hire prob ationary period” of an excepted -service appointment. IAF, Tab 7
at 8. On review, the appellant does not dispute that she was in a probationary or
trial period at the time of termination, and she refers to her “probationary status. ”
PFR File, Tab 1 at 4. Therefore, although the administrative judge found that the
appellant’s appointment was in the competitive service, due, in part, to the
erroneous notice of appeal rights in the termination notice, IAF, Tab 1 at 7 -8, the
record is clear that she was in the excepted service.
6
¶11 Although the administrative judge did not provide the appellant explicit
jurisdictional notice regarding 5 U.S.C. § 7511 (a)(1)(C) , we may rule on the
jurisdictional issue without prejudicing her substantive rights because the record
on the dispositive facts is fully developed and plainly shows that the Board is
without jurisdiction over this appeal. See Ramirez -Evans , 113 M.S.P.R. 297 , ¶ 9 .
It is undisputed t hat the appellant had no prior F ederal service and had served in
her position less than 1 year at the time of her termination. The appellant and
agency agree that the appellant was subject to a 1 -year probationary or trial
period, and the record contains no indication that she held an initial appointment
pending conversion to the competitive service . Thus, the appellant does not meet
the definition of “employee” under 5 U.S.C. § 7511 (a)(1)( C),2 and the B oard
lacks jurisdiction over her termination appeal . See Roche , 596 F.3d at 1383 . The
appellant repeats on review her cursory statements that she was terminated due to
“age, sex, and marital status” discrimination . PFR File, Tab 1 at 3. However,
5 C.F.R. § 315.806 does not apply to her as an individual in the excepted service ,
De Santis , 826 F.3d at 1376, and the Board lacks jurisdiction over her
discrimination claims absent an otherwise ap pealable action , Wren v. Department
of the Army , 2 M.S.P.R. 1 , 2 (1980), aff’d, 681 F.2d 867 , 871 -73 (D.C. Cir. 1982).
The agency’s incorrect notice of appeal rights cannot expand the Board’s
jurisdiction. Barrand , 112 M.S.P.R. 210 , ¶ 13. Therefor e, although the
administrative judge erroneously found that the appellant held a
competitive -service appointment, at most , the administrative judge made a
nonprejudicial error that had no effect on the appellant’s substantive rights or the
outcome of this appeal. See Ramirez -Evans , 113 M.S.P.R. 297 , ¶ 8.
2 Despite the agency’s assertion in its response to the appellant’s petition for review
that the FAA Personnel Management System governs whether the appellant is an
“employee” for purposes of determining j urisdiction , PFR File, Tab 4 at 7, the
applicable definition of “employee” is found at 5 U.S.C. § 7511 , see Roche , 596 F.3d
at 1379 .
7
¶12 On review, the appellant asserts that the actions of the medical review
officer involved in the drug testing constituted a “prohibited personnel action of
discrimination,” and , for the first time on review, she cites generally 5 U.S.C.
§ 1221 regarding individual right of action appeals . PFR File, Tab 1 at 3 -4. She
made no allegation in her initial appeal or responses to the acknowledgment order
that she engaged in any whistleblower activity and makes no such allegation on
review . Id.; IAF, Tab s 1, 4-6. She has not shown that this argument is based on
new and material evidence not previou sly available despite her due diligence.
See Banks v. Department of the Air Force , 4 M.S.P.R. 268 , 271 (1980) ; 5 C.F.R
§ 1201.115 . In any event, absent an otherwise appealable action, her vague
assertion of a prohibited personnel practice based on “discriminatio n” does not
provide an independent basis f or finding Board jurisdiction. See Wren ,
2 M.S.P.R. at 2. The appellant has not raised any facts that would trigger Board
review of this matter as a potential individual right of action ap peal. Thus, the
Board has no jurisdiction to consider the merits of the appellant’s termination
appeal , including her claims that the agency used flawed testing procedures and
violated her due process right s.
¶13 Accordingly, we dismiss the appeal for lack of jurisdiction for the reason s
set forth in this Final Order , which is now the Board’s final decision in this
matter. 5 C.F.R. § 1201.113 .
NOTICE OF APPEAL RIGHTS3
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 Meri t
3 Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise which option is most appropriate in any matter.
8
Systems Protection Board does not provide legal advice on which option is most
appropriate for your situat ion 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 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 to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general ru le, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703 (b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
9
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 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 th is decision before
you do, then you must file with the district court no later than 30 calendar days
after your representative receives this decision. If the action involves a claim of
discrimination based on race, color, religion, sex, national origin, o r a disabling
condition, you may be entitled to representation by a court -appointed lawyer and
to waiver of any requirement of prepayment of fees, costs, or other security. See
42 U.S.C. § 2000e -5(f) and 29 U.S.C. § 794a .
Contact information for U.S. distri ct courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702 (b)(1) . You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702 (b)(1). If you have a representative in this case,
10
and your representative receives this decision before you do, then you must file
with the EEOC no later than 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 described in section 2302(b)(8), or 2302(b)(9)(A)(i),
(B), (C), or (D),” then you may file a petition for judicial review either with the
U.S. Court of Appeals for the Federal Circuit or any court of appeals of
competent jurisdiction.4 The court of appeals must receive your petition for
4 The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB d ecisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
11
review within 60 days of the date of issuance of this decision. 5 U.S.C.
§ 7703 (b)(1)(B).
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circu it
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petit ioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our w ebsite at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorn ey 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.
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 | WITTENBERG_BIANCA_C_SF_315H_17_0196_I_1_FINAL_ORDER_1944250.pdf | 2022-07-21 | null | SF-315H-17-0196-I-1 | NP |
4,264 | https://www.mspb.gov/decisions/nonprecedential/SIMMONS_TINA_M_SF_0842_16_0701_I_1_FINAL_ORDER_1944261.pdf | UNITED STATES OF AME RICA
MERIT SYSTEMS PROTEC TION BOARD
TINA M. SIMMONS,
Appellant,
v.
OFFICE OF PERSONNEL
MANAGEMENT,
Agency.
DOCKET NUMBER
SF-0842 -16-0701 -I-1
DATE: July 21, 2022
THIS FINAL ORDER IS NONPRECEDENTIAL1
Tina M. Simmons , Los Angeles, 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
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 (OPM) denying her
request to pay the deposit to obtain retirement credit for certain periods of service
because she had not made the deposit before final adjudication of her application
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
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
for retirement . 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 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. 5 C.F.R. § 1201.113 (b).
BACKGROUND
¶2 The appellant retired on disability on May 31, 2014, after service with the
Department of Justice between October 1, 19 88, and July 10, 2012. Initial
Appeal File (IAF), Tab 7 at 6 , 45, 52-57. Her service had been subject to the
Federal Employees’ Retirement System (FERS). Id. Prior to her retirement, she
received and signed a Standard Form (SF) 3107 -1, Certified Summary of Federal
Service, informing her that four periods of prior service be tween June 21, 1982 ,
and September 30, 1988, were not subject to a Federal employee retirement
system, no retirement deductions had been withheld from her salary for this
service, and no deposit for this service had been paid. Id. at 49-50.
¶3 On May 22, 2014, OPM notified the appellant that her application for
disability retirement under FERS had been approved. Id. at 28 -30. The appellant
submitted a SF -3108, Application to Make Service Credit Payment, on June 16,
2014, seeking to make a deposit for the four periods of service . Id. at 21. OPM
3
responded on September 27, 2014, informing her about the process for making a
deposit to obtain service credit and warning her that failure to do so would affect
the amount of her retirement annuity. IAF, Tab 15 at 4 -5. The notice stated that
she had 30 days in which to make a deposit of $1 ,189.00 , her election to do so or
not to do so was irrevocable, and payment by installment s would not be
permitted. Id. at 5. The notice further stated that making a depo sit would
increase her monthly annuity to $1,270.00 , whereas her monthly annuity would
remain at $1,131.00 if she failed to do so. Id.
¶4 On October 29, 2014, t he appellant elect ed to make the deposit of
$1,189.00 , but she also request ed that the amount of the deposit be deducted from
her annuity on an installment basis because of financial hardship . IAF, Tab 7
at 20, 27, Tab 15 at 5. The agency th us issued another election notice on
November 8, 2014, which reiterated the information in the September 2 7, 2014
notice but stated that the total amount due was $1,729.00. IAF, Tab 15 at 6 -7.
Because the appellant subsequently failed to pay the deposit and interest , OPM
issued a letter on December 22, 2014, informing he r that the amount of her
annuity would not increase . IAF, Tab 7 at 19.
¶5 Pursuant to the appellant’s September 18, 2015 and February 2 4, 2016
reconsideration requests , OPM on June 18, 2016, provided he r with another
opportunity to make a deposit for service credit . Id. at 17 -18, 24 -26. OPM
reiterat ed that the total amount due was $1,729.00 and payment of such amount
would increase the appellant’s monthly annuity payment to $1,291.00. Id.
at 17-18. On June 30, 2016, OPM notified the appellant of a final 45-day
opportunity to pay the deposi t for service credit and instructed her to remit the
full amount due by check or money order if she wished to do so . Id. at 15.
¶6 After a telephone call with an OPM representative on July 14, 2016, during
which OPM assert ed that she indicated she would no t make the deposit and
requested that OPM waive the deposit , OPM issued its final decision o n July 21,
2016, stating that the appellant’s annuity had been finalized without the service
4
credit for the nondeduction service because she did not pay the required deposit
and interest. Id. at 6-8, 16. This appeal followed. IAF, Tab 1.
¶7 The administrative judge characterized the issue in this appeal as whether
the appellant met her burden of proving that the agency’s July 21, 2016
reconsideration decision improperly found that she could not have the deposit
plus interest waived for her nondeduction service prior to October 1, 1988, and
have such service included in the computation of her FERS annuity . IAF, Tab 18
at 2-3. The administrative judge found tha t the appellant failed to meet her
burden of pro of because she undisputedly failed to make the requi red deposit
after having been given multiple opportunities to do so. IAF, Tab 20, Initial
Decision (ID) at 6 . As for her contention that the agency err oneously failed to
notify her that she had to make a deposit to receive credit for the four periods of
service prior to October 1, 1988 , the administrative judge found that she did not
identify any regulation that the agency purportedly violated and further t hat she
had known by October 29, 2012 , that these periods of service had not been
credited because she had not paid a deposit . ID at 7. The administrative judge
additional ly found that the appellant was notified within 4 months of her
retirement date that she needed to pay a deposit to receive service credit for these
periods of service but that she failed to do so after having been given multiple
opportunities. Id. As for the appellant’s contention that OPM denied her
minimum due process, the admini strative judge found that OPM gave her
adequate noti ce of the consequences of fail ing to make a deposit and that she
made a knowing decision not to pay the deposit. ID at 8. The administrative
judge further found that the appellant received notice of OPM ’s initial decision,
the opportunity to seek reconsideration of that decision, and a final decision from
that agency . ID at 8-9. As such, the administrative judge found no evidence that
she was denied minimum due process. ID at 9. The administrative judge thus
affirmed OPM’s reconsideration decision . Id.
5
¶8 The appellant has filed a petition for review. Petition for Review (PFR)
File, Tab 1. The agency has filed a response opposing the petition, and the
appellant has filed a reply. PF R File, Tabs 4 -5.
ANALYSIS
¶9 On review, the appellant argues that she possesses additional documents
that would change the outcome of th is appeal. PFR File, Tab 1 at 4, 8-9. She
appears to have submit ted these documents with her petition for review. Id.
at 15-23, 25-28, 30 . She explains that she did not submit the se documents when
the appeal was before the administrative judge because he told her that he would
not consider documents that were not relevant to the issue in the appeal. Id.
at 8-9; IAF, Tab 18 at 2 -3.
¶10 Under 5 C.F.R. § 1201.115 (d), 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). Some of
the documents accompanying the petition for review clearly predate the close of
the record below , and the appellant has not established that the information in
these documents was previously unavailable despite her due diligence; therefore,
we will not consider them. PFR File, Tab 1 at 25-28, 30. The documents that do
not predate the close of the record pertain to the circumstances under whic h the
appellant separated from employment at the Department of Justice, a matter that
is not before the Board in this appeal. Id. at 15-23. We find these documents are
immaterial because they would not affect the outcome of the initial decision . See
Russo v. Veterans Administration , 3 M.S.P.R. 345 , 349 (1980) (holding that the
Board will not grant a petition for review based on new evidence absent a
showing that it is of sufficient weight to warrant an outcome different from that
of the initial decision) .
6
¶11 The appellant argues that OPM should have allowed her to make her deposit
in installments because making a lump -sum payment would have presented a
financial hardship. PFR File, Tab 1 at 4, 10. Her argument is unavailing. She
has not identified any statute or regulation that would have require d OPM to offer
her the opportunity to pay the deposit in installments . To the extent that she
relies on an OPM guidance document entitled “Information About Service Credit
Payments ” for the proposition that she may pay a deposit in installments, id. at 4,
10, 26, she has failed to identify any statute or regulation requiring OPM to
accept a deposit in installm ents after an application for retirement has been
finaliz ed. If OPM were to do so here, it would effectively grant the appellant
service credit before she made a full deposit, which would be contrary to law.
See 5 U.S.C. § 8411 (f)(2) (“An employee . . . may not be allowed credit . . . for
any service . . . for which retirement deductions . . . have not been made, unless
such employee . . . deposits an amount equal to 1.3 percent of basic pay for such
service, with interest. ”). Absent a specific statutory provision allowing the
appellant to receive a requested benefit, both the Board and OPM lack the
authority to grant the benefit for equit able reasons. See Office of Personnel
Management v. Richmond , 496 U.S. 414 , 416 (1990) .
¶12 The appellant also argues that the administrative judge misapplied the law ,
presumably regarding his findings on due process , because she was unaware “of
any set rules and guidelines of my rede posit service credit years.” PFR File,
Tab 1 at 10 ; ID at 8 -9. However, we find that the record supports the
administ rative judge’s finding that the appellant received notice setting forth the
procedures to follow in m aking a deposit several times. ID at 8; IAF, Tab 7 at 15,
17-18, 20 -23, Tab 15 at 4 -7.2 The appellant additionally argues that , when OPM
issued its final decision on July 21, 2016, it failed to honor the 45-day response
period set forth in its June 30, 2016 letter giving her a final opportunity to make a
2 We further find that the appellant’s allegations of delays by OPM are not a basis for
granting a waiver in the circumstances of this case. PFR File, Tab 1 at 8, 12.
7
deposit. PFR File, Tab 1 at 4, 12, Tab 5 at 2-3; IAF, Tab 7 at 15. The appellant,
however, did not directly assert this argument during the proceeding before the
administrative judge. IAF, Tabs 1, 16 -18. The Board generally will not consider
an argument raised for the first time on review absent a showing that it is based
on new and mate rial 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 app ellant has not submitted such evidence. Even if we were to consider this
argument, we would find it unavailing because OPM issued its final decision in
reliance upon a July 14, 2016 telephone conversation with the appellant during
which she indicated that she would not be making a deposit and reiterated her
request that OPM waive the requirement for a deposit. IAF, Tab 7 at 7, 16 . The
appellant has not disputed OPM’s account of the July 14, 2016 telephone call or
argued that she would have made the full deposit had she been afforded the full
45 days in which to respond.
¶13 Next, t he appellant argues that the administrative judge denied her the
witnesses whose testimony she wanted to present. PFR File, Tab 1 at 3 -4, 8. An
administrative judge has wide discr etion under 5 C.F.R. § 1201.41 (b)(8), (10) to
exclude witnesses whe n it has not been shown that their testimony would be
relevant, material, and nonrepetitious. Franco v. U.S. Postal Ser vice,
27 M.S.P.R. 322 , 325 (1985). Here, the administrative judge approved the
appellant’s testimony but did not approve that of other witnesses, including he r
former attorney, doctors, and former coworkers. IAF, Tab 18 at 2. Although the
administrative judge did not explicitly explain why he denied th ose witnesses, we
find that the appellant sought to introduce issues unrelated to the reconsideration
decision on appeal, including matters related to her initial application for
disability retirement and to her employing agency’s decisions regarding
accommodation of her disabling conditions. IAF, Tabs 16 -17. She asserts on
review that th e testimony of the proposed witnesses would have been relevant to
the review of OPM’s reconsideration decision because those witnesses “had
8
personal knowledge of [her] medical condition and delays caused by . . . OPM ” in
the initial processing of her appli cation for disability retirement . PFR File, Tab 1
at 8. We find that the appellant concurred with the administrative judge’s
characterization of the issue in this appeal , IAF, Tab 18 at 2 -3, and she has not
shown that this testimony would have been relev ant or material to that issue.
Thus, we find that the administrative judge did not abuse his discretion in
excluding these witnesses’ testimony .
¶14 Finally, the appellant argues that OPM submitted incomplete prehearing
submissions . PFR File, Tab 1 at 4. She has not, however, identif ied what
information might have been omitted from OPM’s filings or explained how such
information would have change d the outcome of her appeal.3 We have reviewed
the administrative judge’s analysis and find the appeal to have been correctly
decided. Accordingly, we affirm the initial decision.
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. 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
3 The appellant similarly point s out that OPM incorrectly stated in its response to her
petition for review that the initial decision was issued on December 28, 2016, rather
than November 23, 2016. PFR File, Tab 5 at 2. She does not explain how such an error
provides any basis for disturbing the initial decision.
4 Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise which option is most appr opriate in any matter.
9
filing time limits and requirements. Failure to file within the applicable time
limit may result in the dismissal of your case by your chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review y our case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal C ircuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703 (b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition 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.
10
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on 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:
11
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.5 The court of appeals must receive your petition for
review within 60 days of the date of issuance of this decision. 5 U.S.C.
§ 7703 (b)(1)(B).
5 The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of compete nt 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 “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 | SIMMONS_TINA_M_SF_0842_16_0701_I_1_FINAL_ORDER_1944261.pdf | 2022-07-21 | null | SF-0842-16-0701-I-1 | NP |
4,265 | https://www.mspb.gov/decisions/nonprecedential/JONES_RICKY_D_CH_0752_15_0286_I_1_FINAL_ORDER_1944313.pdf | UNITED STATES OF AME RICA
MERIT SYSTEMS PROTEC TION BOARD
RICKY D. JONES,
Appellant,
v.
DEPARTMENT OF VETERA NS
AFFAIRS,
Agency .
DOCKET NUMBER
CH-0752 -15-0286 -I-1
DATE: July 21, 2022
THIS FINAL ORDER IS NONPRECEDENTIAL1
Oliver T. Sanders , Ecorse, Michigan, for the appellant .
Amy C. Slameka , Detroit, Michigan, 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 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 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 Opinion and Order has been identified by the Board
as significantly contribu ting 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 p rocedures or involved an abuse of discretion,
and the resulting error affected the outcome of the case; or new and material
evidence or legal argument is available that, despite the petitioner’s due
diligence, was not available when the record closed. See title 5 of the Code of
Federal Regulations, section 1201.115 ( 5 C.F.R. § 1201.115 ). After fully
considering the filings in this appeal, we conclude that the petitioner has not
establis hed 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 Housekeeping Aide, WG-2, at the Detroit Veterans
Administration (VA) Medical Center until he was removed effective February 25,
2015, on two charges : violating the agency’s Violent, Intimida ting and
Disruptive Behavior Prevention Program (nine specifications) and Creating a
Hostile Work Environment (five specifications) . Initial Appeal File (IAF), Tab 1
at 6, Tab 7, Subtabs 4a, 4h . The appellant ’s disciplinary history dates to
January 2012 , when the agency reprimanded him for rude and intimidating
behavior and profane language and for failure to follow the agency’s Violent,
Intimidating and Disruptive Behavior Prevention Program. IAF, Tab 7,
Subtab 4ee at 3. In June 2012, he was suspended for 3 days for rude, intimidating
and threatening behavior and for failure to follow the prevention program. Id.
at 2. In June 2014, he was suspended for 14 days for rude and disrespectful
behavior toward a supervisor, and for inappropriate and unprofessional behavior
in a patient care setting. Id. at 1.
¶3 The appellant also had a history of filing equal employment opportunity
(EEO) complaints . The complaints he deemed relevant to this appeal follow: a
3
February 13, 2012 complaint for hara ssment; a February 28, 2014 complaint for a
hostile work environment and EEO activity reprisal; a March 28, 2014 complaint
for sexual harassment and a hostile work environment; an August 16, 2014
complaint for a hostile work environment and EEO activity reprisal; and an
April 6, 2015 complaint for an improper administrative investigation and EEO
activity reprisal . IAF, Tab 7, Subtab 3, Tab 18 at 1, Tab 42 at 4-5. The Associate
Director of the VA M edical Center initiated an administrative investigati on board
(AIB) to look into the appellant’s allegations of a hostile work environment.
Hearing Transcript (HT) at 175-76 (testimony of the Associate Director). The
AIB convened on July 15, 2014 , to investigat e the facts and circumstances
regardi ng the appellant’s allegations of sexual harassment, hostile work
environment, and unfair treatment within his assigned department , the
Environmental Management Service ( EMS ). IAF, Tab 45 at 6. The A IB also was
advised that “other EMS employees, Management [sic] officials, and other VA
employees have reported allegations of inappropriate behavior such as threat s of
violence (verbal and non -verbal) ” perpetrated by the appellant. Id. The A IB
concluded its investigation on Octo ber 16, 2014, finding that the appellant
“engaged in a pattern of aggressive behavior, intimidation, altercations, threats,
and dereliction of duty . . . towards other employees, supervisors and patients” of
the VA Medical Center. IAF, Tab 18 at 41. The AIB recommended disciplinary
action at the convening authority’s discretion. Id. The appellant thus was placed
on authorized absence and removed. Id. at 39; IAF, Tab 7, Subtabs 4a, 4d, 4h.
¶4 The appellant appealed his removal to the Board and raised the affirmative
defenses of due process violations , harmful procedural error , and retaliation for
EEO activity . IAF, Tab 1, Tab 42 at 4-6. After a hearing, the administrative
judge sustained all but one of the specifications of the first charge , sustaine d all
five specifications of the second charge, found that the agency established nexus ,
and, concerning the penalty , found that the agency considered all the relevant
factors and exercised management discretion within the tolerable limits of
4
reasonablenes s. IAF, Tab 57, Initial Decision (ID) at 6-29. The administrative
judge also determined that the appellant did not prove his affirmative defenses
and affirmed the agency’s removal action. ID at 29-40. The appellant filed this
petition for review. Petition for Review (PFR) File, Tab 5.
ANALYSIS
¶5 The Board normally will grant a petition for review when the petitioner
establishes one of the following conditions : (a) the initial decision contains
erroneous findings of material fact; (b) 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 ; (c) the administrative judge ’s rulings during
either the course of the appeal or the initial decision were not cons istent with
required procedures or involved an abuse of discretion, and the resulting error
affected the outcome of the case; or (d) new and material evidence or legal
argument is available that, despite the petitioner ’s due diligence, was not
available wh en the re cord closed. 5 C.F.R. § 1201.115 .
¶6 Here, the appellant alleges that the administrative judge failed to include
testimony favorable to his case in the findings of fact . PFR Fil e, Tab 5 at 12-15;
see 5 C.F.R. § 1201.115 (a). The administrative judge’s findings regarding the
charged conduct were largely based upon the testimony of witnesses she found to
be credible. The appellant’s observations that individual witnesses considered
him to have been a hard worker or had not testified that his actions contributed to
a hostile work environment are immaterial. The Board must defer to an
administrative judge’s credibility determinations when they are based, explicitly
or implicitly, on observing the demeanor of witnesses testifying at a hearing; the
Board may overturn such determinations only when it has “sufficiently sound”
reasons for doing so. Haebe v. Department of Justice , 288 F.3d 1288 , 1301 (Fed.
Cir. 2002) . Reasons that are sufficiently sound include findings that are
incomplete, inconsistent with the weight of the evidence, and do not reflect the
5
record as a whole. Faucher v. Department of the Air Force , 96 M.S.P.R. 203, ¶ 8
(2004). To resolve credibility issues, an administrative judge must identify the
factual question s 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) 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 evid ence; (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) .
¶7 The hearing in this case was for the most part held in person.2 The initial
decision describes the testimony of each witness upon wh om the administrative
judge relied. ID at 6-17, 19 -26, 28 -31, 34 -35, 38 -39. Generally , the appellant
does not dispute the testimony of these witnesses describing his misconduct. ID
at 11-14, 17, 20, 22, 26. Where the accounts conflicted, however, the
administrative judge applied the Hillen factors when making credibility
assessments , relying strongly on the witness’s demeanor, the prior testimony
given during the AIB, and the consistency of the witnesses’ testimony . ID
at 6-11, 13 -17, 20-21, 24 -25, 31. The appellant’s objections on review are little
more than mere disagreement with the administrative judge ’s well -reasoned
findings , to which the Board will defer. Weaver v. Department of the Navy ,
2 M.S.P.R. 129, 133 -34 (1980) (holding that mere disagreement with the
administrative judge’s findings and credibility determinations does not warrant
full review of the record by the Board) ; see also Broughto n v. Department of
2 An in -person hearing took place on September 28 and 29, 2015, in Detroit, Michigan.
IAF, Tab 49. Because testimony was not completed after the 2 days that had been
scheduled, the parties agreed that the administrative judge would hear the remaining
testimony by telephone on November 17, 2015. ID at 1-2; IAF, Tab 54.
6
Health & Human Services , 33 M.S.P.R. 357, 359 (1987) (finding that the Board
will not disturb an initial decision when the administrative judge considered the
evidence as a whole, drew appropriate inferences, and made reasoned conclusions
on issues of credibility ).
¶8 The appellant also alleges that the administrative judge erred in applying
the laws and regulations to the facts of this case concerning his affirmative
defenses. See 5 C.F.R. § 1201.115 (b). As to his allegation that the agency denied
him due process, courts have held that procedural due process requires notice and
an oppor tunity to respond. Stone v. Federal Deposit Insurance Corporation ,
179 F.3d 1368 , 1375 -76 (Fed. Cir. 1999) (citing Cleveland Board of Education v.
Loudermill , 470 U.S. 532 , 546 (1985)). Due process guarantees are not met if the
employee has notice of only certain charges or por tions of the evidence and the
deciding official considers new and material information. Id. at 1376.
¶9 Regarding his due process claim , the appellant first reiterates his argument
that he was not provided with an extension of time in which to make an oral
response to the proposal notice. PFR File, Tab 5 at 11; ID at 31-33; IAF, Tab 42
at 6. An agency’s failure to provide a tenured public employee with notice and an
opportunity to reply to an appealable agency action that deprives him of his
property righ t in his employment constitutes an abridgement of his constitutional
right to minimum due process of law. Darnell v. Department of Transportation ,
807 F.2d 943 , 945 (Fed. Cir. 1986) (citing Loudermill , 470 U.S. at 546). The
appellant received both notice and an opportunity to reply. IAF, Tab 7,
Subtab 4h. The notice of proposed removal gave instructions to the appellant
concerning the submissio n of written and oral responses. Id. at 4. The notice
stated that the appellant had 14 calendar days from the date of his receipt in
which to reply orally, in writing, or both, to the VA Medical Center Director, who
was also the deciding official. Id. The notice advised him to call the Director’s
Executive Secretary to schedule an oral reply and included the Executive
Secretary’s telephone number. Id. The appellant did not contact the VA Medical
7
Center Director or her Executive Secretary within the 1 4-day time period. Absent
such action on his part, the agency did not deny him the opportunity to submit a
written or oral reply. Cf. Darnell , 807 F.2d at 945 (distinguishing between the
opportunity to present a reply and the actual presentation of a reply).
¶10 We note, however, that the appellant sent a written response that the
Medical Center Director received after the time for submitting such responses had
ended. IAF, Tab 7, Subtab 4f. Although the deciding official already had
decided that the remov al action was warranted , she testified that she nevertheless
considered this late -filed response and concluded that it did not change her
decision. Id., Subtab 4e at 2, Subtab 4d at 1. At that point, she was under no
obligation to consider the appellant’ s response, but having done so, she
effectively negated his due process argument. Cf. Kinsey v. Department of the
Navy , 59 M.S.P.R. 226 , 229 (1993).
¶11 Second, concerning his due process claim, the appellant reasserts his
contention that the administrative judge wrongly de termined that the agency
did not withold security camera footage pertaining to the fourth specification of
the first charge. PFR File, Tab 5 at 11-12; ID at 10-11; IAF, Tab 42 at 5-6. The
appellant contends that he did not receive the footage prior to his removal . IAF,
Tab 42 at 6; HT at 373-74 (testimony of the appellant). We disagree. Th e
Human Resource (HR) Specialist who prepared the agency’s proposal notice
testified that she included a compact disc (CD) containing the security camera
footage with the proposal notice package . HT at 131-32 (testimony of the HR
Specialist); IAF, Tab 54, Hearing CD (testimony of the HR Specialist), Tab 7,
Subtab 4g. Additionally, the proposal notice package included with the AIB
transcript contains a page stating, “CD of Evidence [was] sent to employee
(original included in AIB binder) .” IAF, Tab 7, Subtab 4l at 4. The appellant
also received general notice that he had the right to review the evidence upon
which the agency relied in preparing the proposal notice . Id., Subtab 4h at 5.
The appellant’s response to the proposal notice did not contain a ny reference to
8
his not having receiv ed the CD, and his testimony d id not address wh en or how he
eventually received it . Id., Subtab 4f; HT at 373-74 (testimony of the appellant) .
The appellant thus has not shown that the agency failed to provide him due
process because it did provide him access to the security camera footage before
the removal decision was issued .
¶12 Third, concerning due process, the appellant asserts that he was not given a
copy of the AIB’s recommendation. PFR File, Tab 5 at 11. This appears to be a
new due process argument raised for the first time on review. IAF, Tab 42 at 5-6.
The Board generally will not consider an argument raised for the first time in a
petition for review , however, absent a showing th at it is based on new and
material evidence not previously available despite the party’s due diligence.
Banks v. Department o f the Air Force , 4 M.S.P.R. 268, 271 (1980). The appellant
has not made such a showing and so we will not address it.
¶13 Similarly, t he appellant has not shown that the agency committed harmful
procedural error , i.e., an error that is likely to have caused the agency to rea ch a
conclusion different from the one it would have reached in the absence or cure of
the error , by declining to schedule an oral reply . See 5 C.F.R. § 1201.4 (r). He
has not identified any information he might have presented that likely would have
caused the VA Medical Center Director to reach a different decision . Kinsey ,
59 M.S.P.R. at 230.
¶14 The appellant’s other allegations of harmful procedural error are similarly
unavailing. He argues that the VA Medical Center Director waited 3 months after
the AIB investigation ended, until a new department head was in place to serve as
proposing official , to begin removal proceedings and, prior to that, she consulted
with HR regarding the poss ibility of disciplinary action . PFR File, Tab 5 at 10.
He has not, however, identified any policy or procedure that would have require d
9
the agency to act on the AIB report immediately ,3 nor has he shown that the VA
Medical Center Director would have reac hed a different decision in the absence
of the 3-month delay . In any event, it is likely that assigning an employee with
no history of dealing with the appellant to serve as the proposing official may
have accrued to his benefit .
¶15 The appellant next asserts that a disciplinary action being taken against him
was an improper use of the AIB, which initially had been convened to investigate
his complaints about other employees. PFR File, Tab 5 at 11. However, h e
has not identified any specific policy or procedure that the agency violated by
taking a disciplinary action against him after the investigation confirmed that he
had engaged in misconduct . Moreover , the memorandum convening the AIB
specifically states that “other EMS employees, Management offic ials, and other
VA employees have reported allegations of inappropriate behavior such as threats
of violence (verbal and non -verbal) displayed by” the appellant . IAF, Tab 45
at 6. The appellant also a ssert s that his union never received notice that the A IB
investigation had commenced . PFR File, Tab 5 at 6. To the contrary, the record
shows that the union receive d such a notification , IAF, Tab 45 at 6-7, and the
appellant’s representative attended the AIB with him, IAF, Tab 48 at 3.
¶16 The appellant , moreover, reiterates his argument from below, stating that
the removal action constituted reprisal for his prior EEO activity. PFR File,
Tab 5 at 9-10; ID at 36-39; IAF, Tab 42 at 4-5. The administrative judge found
that the appellant failed to show that the deciding official exhibited any
retaliatory animus toward the appellant for engaging in protected EEO activity.
ID at 38-39. The administrative judge further found that the agency clearly had a
legitimate, nondiscriminatory , and non retaliatory reaso n for removing the
3 A charge may be dismissed if an agency ’s delay in prop osing the adverse action is
unreasonable and if th e delay prejudiced the employee’ s ability to defend against it.
Messersmith v. General Services Administration , 9 M.S.P.R. 150 , 155 (1981) . The
appellant has not asserted such an argument here, and, even if he had, we would find
the 3 -month delay reasonable under the circumstances.
10
appellant , and that he presented no evidence to support a finding that the agency’ s
stated reasons for its action s were pretextual. ID at 39. We agree.
¶17 Federal employees are protected against retaliation for the exerc ise of their
rights under Title VII. 42 U.S.C. § 2000e –16; Savage v. Department of the Army ,
122 M.S.P.R. 612, ¶¶ 36-37 (2015). An appellant can establish that a violation
has occurred by showing that retaliation “was a moti vating factor in the contested
personnel action, even if it was not the only reason.” Savage , 122 M.S.P.R. 612,
¶ 41. The appell ant maintain ed that he was removed in retaliation for filing
several EEO complaints dating back to 2012. IAF, Tab 18 at 1, Tab 42 at 4-5.
He alleged that the deciding official exploited the AIB investigation with the aim
of removing him . IAF, Tab 53 at 1-2. Further, he asserts that the agency waited
3 months after the AIB concluded before proposing his removal in order to do so
in close proximity to the hearing in one of his EEO complaints, denying him
access to his computer and files that were importa nt both for substantiating his
EEO complaint and supporting his response to the propos ed removal . Id. at 1.
¶18 The appellant failed to meet his burden of proof on this issue . The deciding
official testified she had no personal interaction with the appellan t; and as part of
his chain of command knew of his EEO com plaints, but was unaware that she was
the subject of any of them . HT at 279, 306, 325, 333 (testimony of the deciding
official). She also testified that she convened the AIB to investigate a serie s of
issues in the EMS, and that she placed the appellant on authorized absence shortly
after the AIB ended because she thought his behavior was escalating and it might
pose a danger to himself and others . HT at 281, 299-301, 303 (testimony of the
deciding official); IAF, Tab 18 at 39, 41 . She testified that, while she “may have
been aware” of his EEO hearing in January 2015, she did not specifically recall
having such knowledge, that she did not consider the appellant’s EEO activity in
making the decision to remove him; rather, she based her decision on his
escalating behavior and its effect on the EMS department as a whole. HT at 305,
332-33 (testimony of the deciding official).
11
¶19 Based on this testimony and other items in the record, the adm inistrative
judge reasonably found that the appellant failed to show that his removal was
motivated, in full or in part, by his EEO activity . ID at 39. Further, t he appellant
did not present any evidence to show that similarly situated employees who
had not engaged in protected EEO activity were treated more favorably when
charged with the same or similar misconduct . Because the agency previously had
imposed lesser penalties on the appellant for instances of similar misconduct,
IAF, Tab 7, Subtab 4ee at 1-2, it was reasonable for the agency to increase the
severity of the penalty for his continuing in the behavior .
¶20 The appellant asserts, moreover, that administrative judge ’s rulings during
the proceedings below were inconsistent with required procedures or involved
abuse s of discretion . 5 C.F.R. § 1201.115 (c). He allege s that the administrative
judge erred “ in allowing the Agency to change witnesses ”; in giving false
information to o ne of the appellant’ s witnesses , which caused that person not to
appear in person ; and in f ailing to address hi s motion for sanctions “which could
have change [d] the outcome of the hearing .” PFR File, Tab 5 at 15. The
appellant’s mere allegation s of improper rulings are unavailing. He did not
explain how such rulings were inconsistent with required procedures or involved
abuse s of discretion, or how the administrative judge might have reached a
different result in the absence of such rulings. We not e that t he witness who
did not appear in person at the hearing was allowed to give telephonic testimony.4
HT at 271 (testimony of the local union president).
¶21 Finally, in a separate letter to the Board filed with his petition for review
the appellant all eges that the administrative judge was biased and should be
4 The petition for review includes several documents that appear to be from the record
below and pertain to the rulings to which the appellant objects. PFR File, Tab 5
at 17-18, 24-32; compare, e.g. , PFR File, Tab 5 at 17-18, 24 -29, with IAF, Tabs 32, 37,
46, 56. To the extent these documents are in the record below, the Board will not
consider them to be new evidence. Meier v. Department of the Interior , 3 M.S.P.R.
247, 256 (1980); 5 C.F.R. § 1201.115 (d).
12
disqualified pursuant to 5 C.F.R. § 1201.42 .5 PFR File, Tab 5 at 19-20. The
appellant objected to various procedural rulings by the administrative judge and
he also alleged that she fai led to respond to his requests for information. Id. In
making a claim of bias or prejudice against an administrative judge, a party must
overcome the presumption of honesty and integrity that ac companies
administrative adjudicators . Oliver v. Department of Transportation , 1 M.S.P.R.
382, 386 (1980). An administrative judge’s conduct during the course of a Board
proceeding warrants a new adjudication only if her comments or actions evidence
“a deep -seated favoritism or antagonism that would make fair judgment
impossible.” Bieber v. Department of the Army , 287 F.3d 1358 , 1362 -63 (Fed.
Cir. 2002) (quoting Liteky v. United States , 510 U.S. 540 , 555 (1994)). Here, t he
appellant has not shown that the administrative judge’s actions , including her
procedural rulings, evidenced such favoritism or antagonism. Likewise, a party
must file a motion for disqualification as soon as he has reason to believe there is
a basis for disqualification , and such motion must be supported by a sworn
statement . McCollum v. Department of Veterans Affairs , 75 M.S.P.R. 449, 461
(1997); 5 C.F.R. § 1201.42 (b). The appellant’s letter is dated March 15, 2016,
nearly a year after the initial action about which the appellant complained took
place. PFR File, Tab 5 at 19. It does not include a sworn statement . As such, his
motion under 5 C.F.R. § 1201.42 is neither timely nor sufficient. Accordingly,
we deny his request and affirm the initial decision .
5 The appellant also requests that the Board take action against the administrative judge
pursuant to 5 U.S.C. § 7521 (“Actions against administrative law judges ”). However,
this statute does not apply to the Board’s administrative judges, who are not appointed
pursuant to 5 U.S.C. § 3105 . 5 U.S.C. § 7521 (a).
13
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 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 f or 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 issuan ce of the initial decision in this matter, the Board may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise which option is most appropriate in any matter.
14
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful 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
15
to waiver of any requirement of prepayment of fees, costs, or other security. See
42 U.S.C. § 2000e -5(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 no challenge to the Board’s
16
disposition of allegations of a prohibited personnel practice described in
section 2302(b) other than practices described in section 2302(b)(8), or
2302(b)(9)(A)(i), (B), ( C), or (D),” then you may file a 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 th e date of issuance of this decision.
5 U.S.C. § 7703 (b)(1)(B).
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www. cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained 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
Board n either endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
7 The original statutory pro vision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appel lants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
The All Circuit Review Act is ret roactive to November 26, 2017. Pub. L. No. 115 -195,
132 Stat. 1510.
17
Contact information for the courts of appeals can be found at their
respective websites, which can be accessed through the 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 | JONES_RICKY_D_CH_0752_15_0286_I_1_FINAL_ORDER_1944313.pdf | 2022-07-21 | null | CH-0752-15-0286-I-1 | NP |
4,266 | https://www.mspb.gov/decisions/nonprecedential/DONAHUE_SEAN_M_PH_3330_16_0342_I_1_REMAND_ORDER_1944317.pdf | UNITED STATES OF AME RICA
MERIT SYSTEMS PROTEC TION BOARD
SEAN M. DONAHUE,
Appellant,
v.
DEPARTMENT OF VETERA NS
AFFAIRS,
Agency.
DOCKET NUMBER S
PH-3330 -16-0342 -I-1
PH-3330 -16-0435 -I-1
DATE: July 21, 2022
THIS ORDER IS NONPRECEDENTIAL1
Sean M. Donahue , Hazleton, Pennsylvania, pro se.
Alison M. Debes , Esquire, Philadelphia, Pennsylvania, for the agency.
Marcus S. Graham , Esquire, Pittsburgh, Pennsylvania, for the agency.
BEFORE
Cathy A. Harris , Vice Chairman
Raymond A. Limon , Member
Tristan L. Leavitt , Member
REMAND ORDER
¶1 The appellant has filed petition s for review of the initial decision s, which
denied his request for corrective action concerning two nonselections under the
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
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
Veterans Employment Opportunities Act of 1998 (VEOA) . For the reasons
discussed below, we JOIN the appeals, GRANT the appellant’s petition s for
review , VACATE the initial decisions, and REMAND the case s to the regional
office for further adjudication in accordance with this Remand Order.
DISCUSSION OF ARGUME NTS ON REVIEW
¶2 This decision involves two appeals, each regarding the appellant’s
nonselection for a vacancy announcement. See Donahue v. Department of
Veterans Affairs , MSPB Docket No. PH -3330 -16-0342 -I-1 (0342 Appeal), Initial
Appeal File (0342 IAF), Tab 1; Donahue v. Department of Veteran Affairs , MSPB
Docket No. PH -3330 -16-0435 -I-1 (0435 Appeal), Initial Appeal File (0435 IAF),
Tab 1. The first appeal concerned Announcement Number 693 -16-HB-1701907 -
BU, wh ich corresponded to a GS -05/09 Budget Analyst Intern position at the
agency’s facility in Wilkes -Barre, Pennsylvania. 0342 IAF, Tab 11 at 12. The
second concerned Announcement Number 693 -16-HB-1727761 -BU, the same
position at the GS -07 level. 0435 IAF, Tab 4 at 11.
¶3 The agency posted both vacancy announcements under the Pathways Recent
Graduate Program (Pathways Program). 0342 IAF, Tab 11 at 12 -14; 0435 IAF,
Tab 4 at 11 -14. Therefore, as recognized in those announcements, the positions
were only open to applicants that graduated from a qualifying educational
program within the 2 preceding years or veterans who graduated within the
6 preceding years if they were unable to participate in the Pathways Program
during their 2 -year post -graduate period beca use of military service. 0342 IAF,
Tab 11 at 13 -14; 0435 IAF, Tab 4 at 13; see Exec. Order No. 13,562, 75 Fed.
Reg. 82,585 (Dec. 27, 2010).
¶4 The appellant applied for both vacancy announcements, acknowledging that
he completed his most recent educational e ndeavor more than 10 years earlier.
0342 IAF, Tab 11 at 23 -24; 0435 IAF, Tab 4 at 19, 22. The agency found that he
was not eligible. 0342 IAF, Tab 11 at 33; 0435 IAF, Tab 4 at 31. For the first
3
vacancy announcement, the agency ultimately cancelled the posting without
selecting anyone. 0342 IAF, Tab 4 at 4 -6, Tab 11 at 34. For the second vacancy
announcement, the agency determined that a number of applicants were eligible,
the selecting official chose a primary and two alternates, each of which were
veterans, and the agency filled the position with one of those veteran candidates.
0435 IAF, Tab 4 at 33 -46, 48.
¶5 After exhausting his administrative remedies with the Department of Labor
(DOL) , the appellant filed timely appeals of his nonselections. 0342 IAF, Tab 1;
0435 IAF, Tab 1. For each, the administrative judges denied the appellant’s
request for corrective action under VEOA, without holding the requested hearing.
0342 IAF, Tab 32, Initial Decision (0342 ID); 0435 IAF, Tab 15, Initial Decision
(0435 ID). The appellant has filed a petition for review in each appeal. Donahue
v. Department of Veterans Affairs , MSPB Docket No. PH -3330 -16-0342 -I-1,
Petition for Review (0342 PFR) File, Tabs 1 -2; Donahue v. Department of
Veteran Affairs , MSPB Docket No. PH-3330 -16-0435 -I-1, Petition for Review
(0435 PFR) File, Tab 1. The agency has filed responses, 0342 PFR File, Tab 4;
0435 PFR File, Tab 3, and the appellant has repl ied, 0342 PFR File, Tab 5;
0435 PFR File, Tab 4.
¶6 Though adjudicated separately below, we join the two appeals on review
because the facts are interrelated and joinder will expedite processing without
adversely affecting the interests of the parties. See 5 C.F.R. § 1201.36 (b).
The administrative judge properly denied the appellant’s request for corrective
action under VEOA in the 0342 Appeal.
¶7 To prevail on the merits of his claim that the agency violated his veterans’
preference rights , the appellant must prove by prepond erant evidence that: (1) he
exhausted his remedy with DOL; (2) he is a preference eligible within the
meaning of VEOA; (3) the action at issue took place on or after the October 30,
1998 enactment date of VEOA; and (4) the agency violated his rights under a
statute or regulation relating to veterans’ preference. See Lazaro v. Department
4
of Veterans Affairs , 666 F.3d 1316 , 1319 (Fed. Cir. 2012) ( setting forth these
elements in terms of the appellant’s lesser jurisdictional burden); Isabella v.
Department of State , 106 M.S. P.R. 333 , ¶¶ 21‑22 (2007) (finding that , to prevail
on the merits, the appellant must prove these ele ments by preponderant evidence) ,
aff’d on recons ., 109 M.S.P.R. 453 (2008) .
¶8 It is undisputed that the vacancy at issue in the 0342 Appeal included a
recent graduate requirement, pursuant to the Pathways Program, and the appellant
did not meet that requirement. 0342 IAF, Tab 11 at 12 -14. It is also undisputed
that the agency acce pted the appellant’s application and acknowledged his 5 -point
veteran s’ preference eligibility , but found him ineligible for the vacancy . Id.
at 33. Among other things, the administrative judge properly noted that an
agency’s decision to utilize the Pathways Program, including its recent graduate
requirement, does not violate any veterans’ preference law or regulation. 0342 ID
at 4-5; see Dean v. Department of Labor , 808 F.3d 497 , 504 -08 (Fed. Cir. 2015).
Accordingly, t he administrative judge found that the appellant failed to meet his
burden of proving a violation of any veterans’ pref erence rights . 0342 ID at 4 -6.
¶9 On review, the appellant argues that the agency improperly canceled the
initial vacancy announcement in retaliation for his complaints.2 0342 PFR File,
Tab 1 at 6. As our reviewing court has recognized, “[a]n agency may cancel a
vacancy announcement for any reason that is not contrary to law.” Abell
v. Department of the Navy , 343 F.3d 1378 , 1384 (Fed. Cir. 2003 ). Here, the
record suggests that the agency canceled the initial GS -05/09 vacancy
announcement and replaced it with the second GS -07 vacancy announcement just
2 The appellant also suggests that the administrative judge erred by finding that he
failed to meet his jurisdictional burden. 0342 PFR File, Tab 1 at 4. However, he is
mistaken. The administrativ e judge did not dismiss his appeal for lack of jurisdiction;
she denied the appeal on the merits. 0342 ID. In addition, the appellant asserts that
additional discovery is necessary. 0342 PFR File, Tab 1 at 4, 7. However, without any
further explanation , that broad assertion does not warrant review of the administrative
judge’s discovery rulings, which included her partial grant ing of the appellant’s motion
to compel. 0342 IAF, Tabs 20, 22, 27.
5
days later to correct the advertised grade level. 0342 IAF, Tab 4 at 4, Tab 11
at 4-5, 36-46. We are not persuaded by the appellant’s bare assertion that the
cancellation was, instead, an act of retaliation or otherwise contrary to law.
¶10 Next, the appellant reasserts that it was improper for the agency to use the
Pathways Program, arguing that th e program is altogether illegal and invalid.
0342 PFR File, Tab 1 at 4 -5, 7-8. However, as noted above, our reviewing court
has held otherwise. Dean , 808 F.3d at 504 -06. The court also has found that an
agency does not act contrary to any veterans’ preference laws or rules, or violate
veterans’ preference rights, by considering the Pathways Program’s education
requirement as the basis for excluding a veteran from consideration. Id.
at 506-08.
¶11 The appellant also alleges that the agency engaged in discrimination,
“favoring non -whites, especially immigrants,” and failed to properly compare his
academic credentials to the individual ultimately selected for the second vacancy.
0342 PFR File, Tab 1 at 5 -7. The Board’s role under VEOA is not to determine
whether a preference eligible is qualified for a particular position or whether he
should have been selected for the position in question , but instead focuses on the
narrower question of wheth er the agency violated veterans’ preference rights .
Miller v. Federal Deposit Insurance Corporation , 121 M.S.P.R. 88 , ¶ 11 (2014) ,
aff’d , 818 F.3d 1361 (Fed. Cir. 2016). Moreover, VEOA does not provide the
Board with the authority to review allegations of discrimination. Ruffin
v. Department of the Treasury , 89 M.S.P.R. 396 , ¶¶ 11 -12 (2001). Therefore, we
cannot address the appellant’s allegations con cerning his credentials or
discrimination.
¶12 Accordingly, we agree with the administrative judge and find that the
appellant has failed to meet his burden under VEOA for the 0342 Appeal.
6
The administrative judge prematurely denied the appellant’s request f or
corrective action under VEOA in the 0435 Appeal.
¶13 Like the 0342 Appeal, the record in the 0435 Appeal includes evidence that
the vacancy at issue included a recent graduate requirement, pursuant to the
Pathways Program, and the appellant did not meet tha t requirement. 0435 IAF,
Tab 4 at 11 -13, 22. The record also includes evidence that the agency accepted
the appellant’s application and acknowledged his 5 -point veteran s’ preference
eligibility , but found him ineligible for the vacancy . Id. at 31.
¶14 The administrative judge denied the appellant’s VEOA claim, concluding
that he failed to meet his burden. 0435 ID at 6 -8. However, as the appellant
noted in his petition for review , 0435 PFR File, Tab 1 at 4 , and, as further
explained below, the administrat ive judge issued the initial decision prematurely.
Therefore, remand is appropriate.
¶15 The appellant filed the 0435 Appeal on August 18, 2016. 0435 IAF, Tab 1.
On August 22, 2016, the administrative judge issued an acknowledgment order
with relevant infor mation, including discovery procedures. 0435 IAF, Tab 2.
The order provided 30 days for initial discovery requests and 20 days for
responses. Id. at 4. On August 25, 2016, the administrative judge issued a
separate jurisdictional order, instructing the appellant to submit a statement
concerning jurisdiction within 12 days. 0435 IAF, Tab 6 at 6 -7. That order
indicated that , if the appellant met his jurisdictional burden, the administrative
judge would allow additional development of the record and a hearing, if
necessary. Id. at 7 -8. On September 7, 2016, the administrative judge issued the
initial decision, finding that t he appellant met his jurisdictional burden and
denying his claim on the merits. 0435 ID at 1 -2.
¶16 Consistent with the instructions provided in his acknowledgment and
jurisdictional orders, the administrative judge should have permitted the parties to
comple te discovery and further develop the record before denying the appellant’s
VEOA claim on the merits. See Jarrard v. Department of Justice , 113 M.S.P.R.
7
502, ¶¶ 11, 14 (2010) (remanding a VEOA appeal when the administrative judge
found jurisdiction and then ruled on the merits of the appeal without issuing a
close of the record order or affording the parties the opportunity to make
submissions regarding the merits of the appeal); Ruffin , 89 M.S.P.R. 396 , ¶¶ 8 -9
(same); 5 C.F.R. § 1201.59 (b). Although the reasons his 0342 Appeal failed
under VEOA may similarly apply in the 0435 Appeal, the appellant must be
allowed the opportunity to develop the record and present his arguments.
¶17 On remand, the ad ministrative judge must provide the parties with an
opportunity to complete discovery and make submissions regarding the merits of
his VEOA appeal. Ruffin , 89 M.S.P.R. 396 , ¶ 9. Because the appellant has
requested a hearing, if the parties’ submissions show that there is a factual
dispute material to the issue of whether he is entitled to relief under VEOA, the
administrative judge s hall hold one. Id.; 0435 IAF, Tab 1 at 2.
The administrative judge must further develop any potential Uniformed Services
Employment and Reemployment Rights Act of 1994 (USERRA) claim concerning
the appellant’s nonselections .
¶18 In his petitions for review of both appeals, the appellant argues that the
underlying facts should be considered under a number of other provisions of law
or regulations. 0342 PFR File, Tab 1 at 5 -6; 0435 PFR File, Tab 1 at 5 -6. Most
notably, he refers to USERRA and generally alleg es that he was punished for
being a Gulf War veteran.3 0342 PFR File, Tab 1 at 5 -6; 0435 PFR File, Tab 1
3 The appellant also referred to other provisions of law an d regulation, including
5 U.S.C. § 3319 , The Defense Authorization Act of Fiscal Year 1998, 5 C.F.R.
§ 1201.3 (a)(7), (b)(2), 5 C.F.R. § 300.103 -.104 , 5 U.S.C. § 7701 , and “any other
jurisdictions that [he] failed to mention or is unaware of.” 0342 PFR File , Tab 1 at 5 -6;
0435 PFR File, Tab 1 at 5 -6. However, even if the appellant raised these matters below,
it is not apparent how these provisions relate to his nonselections, and he has provided
no substantive explanation on these matters . Therefore, we wi ll not address them
further . See generally Clark v. U.S. Postal Service , 123 M.S.P.R. 466 , ¶¶ 6 -7 (2016)
(discussing the difference between pro forma and nonfrivolous allegations) , aff’d per
curiam , 679 F. App’x 1006 (Fed. Cir. 2017) .
8
at 5-6; see Henson v. U.S. Postal Service , 110 M.S.P.R. 624 , ¶ 10 n.6 (2009)
(recognizing that USERRA claims are broadly and liberally construed).
¶19 In the 0342 Appeal, it appears that the appellant failed previously to invoke
or otherwise present a USERRA claim. Nevertheless, the Board will adjudicate a
USERRA claim even if the appellant raises it for the first time on review.
Henson , 110 M.S.P.R. 624 , ¶ 10 n.6. In the 0435 Appeal, the appellant did
invoke USERRA, 0435 IAF, Tab 7 at 7, Tab 8 at 4, but the administrative judge
failed to explain the Board’s jurisdiction in USERRA appeals or addres s
USERRA in any other way, see Burgess v. Merit Systems Protection Board ,
758 F.2d 641 , 643 -44 (Fed. Cir. 1985) (recognizing that an appellant mu st receive
explicit information on what is required to establish an appealable jurisdictional
issue); Rassenfoss v. Department of the Treasury , 121 M.S.P.R. 512 , ¶¶ 18 -19
(2014) (remanding a USERRA claim when, among other things, the
administrative judge did not adequately apprise the appellant of the burdens of
proof and the type of evidence necessary to satisfy those burdens).
¶20 On remand, the administrative judge must provide the appellant with the
applicable standards in a USERRA appeal and address any responsive argument
and evidence accordingly. Rassenfoss , 121 M.S.P.R. 512 , ¶¶ 18 -19. Because we
have joined the 0342 Appeal and 0435 Appeal, the administrative judge should
address USERRA in both, if necessary.
9
ORDER
¶21 For the reasons discussed above, we remand the now -joined appeals to the
regional office for further adjudication in accordance with this Remand Order.
The administrative judge should permit the appellant an opportunity to develop
his VEOA claim for the second vacancy announcement and any USERRA claim
he may have for either vacancy announcement . The administrative judge should
incorporate by reference our analysis and disposition of the appellant ’s VEOA
claim for the first vacancy announcement into a new initial decision so that the
appellant will have a single decision with appropriate notice of appeals rights
addressing both nonselections , VEOA, and USERRA. See Goldberg v.
Department of Homeland Security , 99 M.S.P.R. 660 , ¶ 12 (2005).
FOR THE BOARD:
Washington, D.C. /s/ for
Jennifer Everling
Acting Clerk of the Board | DONAHUE_SEAN_M_PH_3330_16_0342_I_1_REMAND_ORDER_1944317.pdf | 2022-07-21 | null | S | NP |
4,267 | https://www.mspb.gov/decisions/nonprecedential/ADAMS_NINA_A_DC_0752_16_0670_I_1_REMAND_ORDER_1944383.pdf | UNITED STATES OF AME RICA
MERIT SYSTEMS PROTEC TION BOARD
NINA A. ADAMS,1
Appellant,
v.
DEPARTMENT OF DEFENS E,
Agency.
DOCKET NUMBER
DC-0752 -16-0670 -I-1
DATE: July 21, 2022
THIS ORDER IS NONPRECEDENTIAL2
Nina A. Adams , Gaithersburg, Maryland , pro se .
Lundi McCarthy Shafiei and James Vietti , 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 for lack of jurisdiction her appeal of a reduction in pay or grade . For
the reasons discussed below, we GRANT the appellant’s petition for review ,
1 The appellant’s name appears as “Nina Faulk” in part of the record below.
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
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
VACATE the initial de cision, and REMAND the case to the regional office for
further adjudication in accordance with this Remand Order.
BACKGROUND
¶2 The appellant held an Administratively Determined (AD) -06 Police Officer
position with the agency’s Pentagon Force Protection Ag ency (PFPA) in
Arlington, Virginia. Initial Appeal File (IAF), Tab 4 at 42. After the PFPA’s
Medical Review Board determined that the appellant failed to meet the medical
standards that were required for the Police Officer position, she applied, and was
selected, for a General Schedule (GS) -07 Physical Security Specialist position.
IAF, Tab 5 at 4 -6, Tab 11 at 16. Prior to accepting the Physical Security
Specialist position, the agency told t he appellant that her salary in the new
position would be the same as the salary she had been receiving in the AD -06
Police Officer position. IAF, Tab 11 at 13, 16 -17, 19 . The appellant’s
reassignment was effective May 22, 2011, and her salary remained unchanged
because the agency believed that she was entitled to retained pay. IAF, Tab 4
at 42.
¶3 On October 20, 2011, the agency notified the appellant that it made a
pay-setting error by affording her retained pay and that it would reduce her pay to
correct the error effective October 23, 2011. IAF, Tab 11 at 13, 19 -21. The
agency explained that pay retention did not apply to her reassignment to the
Physical Security Specialist position because she voluntarily applied for and
accepted the position. Id. at 19. The agency told her that she did not have the
right to appeal the reduction in pay to the Board. Id. at 20. Retroactive to
May 22, 2011, t he agency canceled the retained pay and reduced the appellant’s
salary from $60,277.00 to $54,875.00. IAF, Tab 1 at 10, Tab 4 at 41 .
¶4 In 2011, t he appellant raised an involuntary demotion/reduction in pay
claim with the Equal Employment Opportunity Commission (EEOC) . IAF,
3
Tab 11 at 14.3 In a letter dated April 29, 2016, the agency notified the appellant
that, pursuant to an EEOC Office of Federal Operations (OFO) decision dated
April 14, 2016, her claim of demotion/loss of pay is a mixed -case complaint that
is appealable to the Board and provided her with notice of her Board appeal
rights. Id. at 14, 22. In a sworn declaration under penalty of perjury, the
appell ant averred that she did not receive the agency’s letter until May 19, 2016,
because it was “sent to the wrong place.” Id. at 14.
¶5 On June 20, 2016, the appellant filed a Board appeal challenging the
reduction in pay or grade and alleging that her move to the new position was
involuntary, based on the agency’s misinformation, and she requested a hearing.
IAF, Tab 1 at 2, 4, 6. She further asserted that she sought the reassignment
because the agency failed to accommodate her disability in her Police Office r
position. Id. at 6. In an order on jurisdiction, the administrative judge informed
the appellant that the Board may not have jurisdiction over her appeal, apprised
her of her jurisdictional burden, and ordered her to submit evidence and argument
on the jurisdictional issue. IAF, Tab 8. The appellant responded, IAF, Tab 11,
and the agency replied to the appellant’s response, IAF, Tab 12. The essence of
the agency’s argument was that providing retained pay was contrary to law or
regulation and , thus, the reduction in pay was outside of the Board’s jurisdiction.
Id.
¶6 Without holding the appellant’s requested hearing, the administrative judge
issued an initial decision dismissing the appeal for lack of jurisdiction. IAF,
Tab 13, Initial Decision (ID) at 2, 6 -7. The administrative judge found that,
although the appellant was not reduced in grade, her rate of basic pay was
reduced when the agency canceled her entitlement to retained pay. ID at 4 -5.
3 While the appellant’s complaint of hostile work environment was pending before an
EEOC administrative judge in 2011, the appellant raised her claim of pay reduction.
Petition for Review File, Tab 11 at 5, 8. The EEOC administrative judge and EEOC’s
Office of Federal Operations found the pay reduction claim to be timely raised under
EEOC’s regulations. Id.
4
However, the administrative judge further found that the agency showed that it
reduced the appellant’s rate of basic pay from a rate that was contrary to law or
regulation and , thus, the Board lacked jurisdiction over the reduction -in-pay
action. ID at 6. Because the administrative judge dismissed the appeal for lack
of jurisdiction, she did not make a determination on the timeliness of the appeal.
ID at 2 n.1.
¶7 The appellant filed a petition for review in which she argues that her
reassignment from the Police Officer position to the Physical Security Speciali st
position was involuntary and , thus, an appealable “demotion. ” Petition for
Review (PFR) File, Tab 1 at 8 -11. She also argues that the administrative judge
should have afforded her an opportunity to respond to the agency’s argument that
providing pay r etention was improper. Id. at 12. The agency filed a response to
the petition for review, PFR File, Tab 5, to which the appellant replied, PFR File,
Tab 8.
¶8 The Board then issued an order on timeliness informing the appellant that it
appears that the fili ng period in this case began on October 23, 2011, and
therefore her appeal filed on June 20, 2016, appears to be more than 55-months
late. PFR File, Tab 9 at 2. The Board apprised the appellant of her burden
regarding timeliness and ordered the parties to file evidence and/or argument
concerning the timeliness issue. Id. at 1-4. Both parties responded to the Board’s
timeliness order , and the appellant filed a reply to the agency’s response to the
timeliness order . PFR File, Tabs 10 -11, 14.
DISCUSSION OF ARGUMENTS ON REVI EW
The appellant timely filed her appeal .
¶9 A mixed -case appeal arises when an employee has been subjected to an
action that is appealable to the Board, and she alleges that the action was
effected, in whole or in part, because of discrim ination. Miranne v. Department
of the Navy , 121 M.S.P.R. 235 , ¶ 8 (2014) ; 29 C.F.R. § 1614.302 (a)(2) . An
5
appellant has two options when filing a mixed case: she initially may file a
mixed -case complaint with the agency, followed by an appeal to the Board, or she
may file a mixed -case appeal with the Board and ra ise h er discrimination claim in
connection with h er appeal . Miranne , 121 M.S.P.R. 235 , ¶ 8. When an appellant
first elects to file her complaint with the agency, she generally must file a Board
appeal within 30 days after she receives the final agency decision on the
discrimination issue. 5 C.F.R. § 1201.154 (b). If she first elects to file her
mixed -case appeal directly with the Board, she must do so no later than 30 days
after the effective date of the action being appealed, or 30 days after the date she
receives the agency’s decision on the appealable action , whichever is later.
5 C.F.R. § 1201.154 (a).
¶10 At the outset of this matter, however, the agency did not treat the
reassignment and demotion as a mixed case. Instead, in its letter to the appellant
informing her of the reduction in pay, it expressly stated that she did not have
appeal rights to the Board. IAF, Tab 1 1 at 20. As a result, the appellant added to
an ongoing complaint before the EEOC her allegations of “demotion/loss of pay.”
PFR File, Tab 10 at 7 -8. The EEOC administrative judge concluded that the
appellant properly added these issues to her EEOC case , and the EEOC OFO
agreed with that determination. Id.; see Cano v. U.S. Postal Service ,
107 M.S.P.R. 284 , ¶ 16 (2007) (concluding that when an EEOC administrative
judge permitted the appellant to amend his complaint to include an allegation
regarding his alleged involuntary retirement, there was no basis for the Board to
find that the EEOC’s administrative judge acted improperly in doing so). The
EEOC OFO further determined that the inclusion of these allegations made this a
mixed case and ordered the agency to provide the appellant with notice of
mixed -case appeal rights. IAF, Tab 10 at 8 -9.
¶11 Under 5 U.S.C. § 7702 (f), a mixed -case appeal is timely if an appellant
timely filed it with the wrong agency , rather than with the Board. Miller v.
Department of the Army , 987 F.2d 1552 , 1554 -55 (Fed. Cir. 1993). Due to the
6
agency ’s failure to inform the appellant of her mixed -case appeal rights until the
EEOC OFO ordered it to do so, she fil ed her allegations regarding her demotion
and loss of pay with the EEOC, rather than the Board , and the EEOC accepted
those allegations into her ongoing case . Thus, we find that the appellant timely
filed her mixed -case appeal, but with the wrong agency. See Cano , 107 M.S.P.R.
284, ¶¶ 15 -16 (f inding that the Board will accept an EEOC administrative judge’s
decision to permit the amendment of the discrimination complaint to include an
involuntary retirement allegation).
¶12 Moreover, the agency first informed the appellant of her Board appeal
rights in a letter dated April 29, 2016. IAF, Tab 11 at 14, 22. In her sworn
declaration under penalty of perjury, the appellant stated that she did not receive
this letter until May 19, 2016, because it was “sent to the wrong place.” Id. at 14.
The agency has not contested this assert ion by the appellant. Accordingly, her
appeal was due on June 18, 2016, which was a Saturday, meaning that her
June 20, 2016 filing was timely . See 5 C.F.R. § § 1201.23 (if a filing deadline
falls on a Saturday, Sunday, or Federal holiday, the filing period includes the first
workday after that date) , 1201.154(b)(1). Under the circumstances presented in
this appeal, we find that it was timely filed.
The appellant has made a nonfrivolous allegation that she suffered an appealable
reduction in pay.
¶13 The Board’ s jurisdiction is limited to those matters over which it has been
given jurisdiction by law, rule , or regulation . Maddox v. Merit Systems
Protection Board , 759 F.2d 9 , 10 (Fed. Cir. 1985). Generally, a reduction in pay
is an appealable action . 5 U.S.C. § 7512 (4); Arrington v. Department of the
Navy , 117 M.S.P.R. 301 , ¶ 8 (2012) . “Pay” is defined in 5 U.S.C. chapter 75 as
“the rate of basic pay fixed by law or administrative action for the position held
by an employee.” 5 U.S.C. § 7511 (a)(4). This means “the rate of pay before any
deductions and excl usive of additional pay of any kind ,” 5 C.F.R. § 752.402 , but
the “rate of pay” includes locality pay, Zajac v. Department of Agriculture ,
7
112 M.S.P.R. 160 , ¶ 5 (2009); 5 C.F.R. § 531.203 . A reduction of an employee’s
rate of basic pay from a rate that is contrary to law or regulation is not an
appealable action. Kile v. Department of the Air Force , 104 M.S.P.R. 49 , ¶ 16
(2006); 5 C.F.R. § 752.401 (b)(15).
¶14 The appellant bears the burden of proving the Board’s jurisdiction by
preponderant evidence. 5 C.F.R. § 1201.56 (b)(2)(i)(A). An appellant makes a
prima facie showing of jurisdiction over a reduction -in-pay action by establishing
that her rate of basic pay was reduced. Kile, 104 M.S.P.R. 49 , ¶ 17. If the
agency reduced the appellant’s pay to correct what it believe d was a pay -setting
error, then the agency bears the burden of showing that it set her pay at a rate
contrary to law or regulation. Id. An appellant should not be forced to prove that
the agency did not ma ke a pay-setting error because the agency is in a much
better positi on to know why it originally set her pay as it did and what later led it
to conclude that it made an error. Id.
¶15 Generally, a n appellant is entitled to a jurisdictional hearing if she raises a
nonfrivolous allegation of Board jurisdiction over her appeal . Edwards v.
Department of the Air Force , 120 M.S.P.R. 307 , ¶ 6 (2013). A nonfrivolous
allegation is an assertion that, if proven , could establish the matter at issue.
5 C.F.R. § 1201.4 (s). In determining whether an appellant has made a
nonfrivolous allegation of jurisdiction entitling her to a hearing, the
administrative judge may consider the agency’s documentary submissions;
however, to the extent that the agency’s evidence constitutes mere factual
contradiction of an appellant’s otherwise adequat e prima facie showing of
jurisdiction, the administrative judge may not weigh evidence and resolve
confli cting assertions of the parties , and the agency’s evidence may not be
dispositive. Ferdon v. U.S. Postal Service , 60 M.S.P.R. 325 , 329 (1994).
¶16 Here, it is undisputed that the appellant’s rate of basic pay was reduced
when the agency retroactively canceled her retained pay . IAF, Tab 1 at 10-11,
Tab 4 at 41-42, Tab 11 at 1 9, Tab 12 at 6 . Accordingly, we find that the appellant
8
has made a nonfrivolous allegation that she suffered an appealable reduction in
pay. For the following reasons, we find that the record is insufficiently
developed on the issue of the appellant’s entitlement to retained pay to determine
whether the agency initially set her pay at a rate that was contrary to law or
regulation , as t he agency argued both below and on review .
¶17 The agency contends that the appellant was no t entitled to pay retention
when she moved from the AD-06 Police Officer position to the GS-07 Physical
Security Specialist position because the AD pay schedule is not a “covered pay
schedule” and instead was established pursuant to the Secretary of Defense’s
authority to appoint law enforcement and security personnel “without regard to
the pay provisions of title 5.” PFR File, Tab 5 at 10-11; IAF , Tab 12 at 5; see
5 U.S.C. § 5361 (5)-(6); 10 U.S.C. § 2674 (b)(5) . However, OPM’s regulations
governing pay retention extend to an employee who is “moving to a position
under a covered pay system from a position not under a covered pay system.”
5 C.F.R. § 536.102 (a)(2). The parties have not addressed whe ther such
regulations applied to the appellant when she move d to the Physical Security
Specialist position in the GS pay system. See 5 U.S.C. § 5361 (5) (considering the
GS pay system a “covered pay s chedule ”); 5 C.F.R. § 536.103 (same) .
¶18 Further, the agency has argued that the appellant was ineligible for pay
retention under 5 C.F.R. § 536.102 (b)(1) because her reassignment that resulted
in a reduction in pay was not the result of a management action but was made at
her request and for her benefit . PFR File, Tab 5 at 11-12; IAF, Tab 12 at 5 -6.
Under 5 C.F.R. § 536.102 (b)(1), an agency may not provide pay retention to an
employee who is reduced in pay “for personal cause or at the employee’s
request. ” A reduction in pay is “at the employee’s request ” when it is “initiated
by the employee for his or her benefit, convenience, or personal advantage.”
5 C.F.R. § 536.103 . A re duction in pay is “for personal cause” when it is “based
on the conduct, character, or unacceptable performance of an employee.” Id.
However, a reduction in pay is not “for personal cause” when it is based on an
9
employee’s “inability to perform the dutie s of his or her position because of a
medical or physical condition beyond the employee’s control.” Id.
¶19 The appellant argued below and on review that she sought a reassignment
because the agency failed to accommodate her disability in her Police Officer
position, and that her reassignment with a reduction in pay was involuntary based
on her reliance on the agency’s misinformation regarding her entitlement to
retained pay. PFR File, Tab 1 at 9 -11; IAF, Tab 1 at 6, Tab 11 at 9, 12 -13.
Because the parties have not presented sufficient evidence and argument
concerning the issues set forth above, w e find that further adjudication is
necessary to determin e whether the appellant was entitled to pay retention and,
accordingly , we remand the a ppeal for a jurisdictional hearing. On remand, the
administrative judge should also allow the parties to present further evidence and
argument regarding the question of whether the appellant was entitled to pay
retention , including evidence on the followi ng: whether OPM’s regulations
applied to the appellant when she moved to the Physical Security Specialist
position in the GS pay system ; and whether the appellant was ineligible for pay
retention under 5 C.F.R. § 536.102 (b)(1) as th e agency argues or whether she wa s
in fact eligible because the reduction in pay was based on the appellant’s
“inability to perform the duties of his or her position because of a medical or
physical condition beyond the employee’s control.”
The administrative judge also must address on remand the appellant’s claim of an
involuntary re assignment resulting in a reduction in pay or grade .
¶20 The facts of this appeal present another jurisdictional issue regarding
whether the appellant has been subjected to an involuntary reassignment that
resulted in a reduction in pay or grade . Although t he Board generally does not
have jurisdiction over reassignments , the Board has jurisdiction over agency
actions that result in a reduction in pay or grade . See McAlexander v. Department
of Defense , 105 M.S.P.R. 384, ¶ 7 (2007) ; see also 5 U.S.C. § 7512 (3)-(4). A
reduction in pay or grade that an employee accepts voluntarily is not within the
10
Board’s jurisdiction. McAlexander , 105 M.S.P.R. 384, ¶ 8; see 5 C.F.R.
§ 752.401 (b)(9). However, t he Board has long recognized that employee -initiated
actions that appear voluntary on their face are not always so. Bean v. U.S . Postal
Service , 120 M.S.P.R. 397, ¶ 7 (2013); Spiegel v. Department of the Army ,
2 M.S.P.R. 140 , 14 2 (1980). For example, the Board has held that “[a]n
employee -initiated action is considered involuntary if it resulted from the
employee’s reasonable reliance on the agency’ s misleading statements, or from
the agency’s failure to provide the employee with adequate information on which
to make an informed choice.” Pawlowski v. Department of Veterans Affairs ,
96 M.S.P.R. 353, ¶ 10 (2004) (quoting Smitka v. U.S. Postal Service , 66 M.S.P.R.
680, 689 (1995), aff’d , 78 F.3d 605 (Fed. Cir. 1996) (Table)); see Goodwin v.
Department of Transportation , 106 M.S.P.R. 520 , ¶ 15 (2007) (finding that the
appellant nonfrivolously alleged that her reassignment and resulting reduction in
pay were inv oluntary when she asserted that she relied on the agency’s
misinformation regarding pay when deciding to accept the reassignment);
Wright v. Department of Transportation , 99 M.S.P.R. 112 , ¶ 10 (2005) (finding
that the appellant’s assertion that he accepted a position based on the agency’s
misinformation regarding the nature of the reassignment and its effect on his base
pay constituted a nonfrivolous allegation that his redu ction in pay was
involuntary).
¶21 Here, the appellant has argued throughout her appeal that her reassignment
to the Physical Security Specialist position was involuntary based on her reliance
on the agency’s misinformat ion concerning her entitlement to retained pay in that
position. PFR File, Tab 1 at 8-11; IAF, Tab 1 at 6, Tab 11 at 8-9, 12-13. The
record shows that the agency informed the appellant in the offer letter that she
would receive the same salary that she h ad been receiving in her Police Officer
11
position.4 IAF, Tab 11 at 17. Moreover, the appellant stated in her sworn
declaration that she relied on the agency’s misrepresentation that she would
receive retained pay in the Physical Security Specialist position when she
accepted the new position. Id. at 12 -13. We find that the appellant has
nonfrivolously alleged that he r acceptance of the reassignment to the Physical
Security Specialist position was involuntary , thereby entitling her to a
jurisdictional hearing .5
ORDER
¶22 For the reasons discussed abo ve, we remand this case to the regional office
for further adjudication i n accordance with this Remand Order.
FOR THE BOARD:
Washington, D.C. /s/ for
Jennifer Everling
Acting Clerk of the Board
4 The agency initially offered the appellant the Physical Security Specialist position at
an annual salary of $57,713.00, which was her salary in the Police Officer position.
IAF, Tab 11 at 17. The appellant requested that her reassignment be delayed for a brief
period until after she received a periodic step increase, and the agency agreed. Id.
After she received the step increase, her annual salary in the Police Officer position
increased to $60,277.00. IAF, Tab 4 at 43. She then was reassigned to the Physical
Security Specialist position at the higher salary. Id. at 42.
5The administrative judge made a conclusory finding that the appellant was not reduced
in grade. ID at 4. On remand, the administrative judge should provide further analysis
on this issue and consider the appellant’s argument that she suffered a reduction in
grade. PFR File, Tab 1 at 9 -10; IAF, Tab 11 at 8 -9. | ADAMS_NINA_A_DC_0752_16_0670_I_1_REMAND_ORDER_1944383.pdf | 2022-07-21 | null | DC-0752-16-0670-I-1 | NP |
4,268 | https://www.mspb.gov/decisions/nonprecedential/MUNIZ_TYESHIA_R_NY_0752_15_0282_C_1_REMAND_ORDER_1944394.pdf | UNITED STATES OF AME RICA
MERIT SYSTEMS PROTEC TION BOARD
TYESHIA R. MUNIZ,
Appellant,
v.
DEPARTMENT OF VETERA NS
AFFAIRS,
Agency.
DOCKET NUMBER
NY-0752 -15-0282 -C-1
DATE: July 21, 2022
THIS ORDER IS NONPRECEDENTIAL1
Tyeshia R. Muniz , Albany, New York, pro se.
Mark Williams, Jr. , Buffalo, New York, for the agency.
Thien -Nga Nguyen , Albany, New York, 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 compliance initial
decision, which denied her petition for enforcement for failure to show that the
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
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 materially breached the settlement agreement. For the reasons d iscussed
below, we GRANT the appellant’s petition for review and REMAND the case to
the New York Field Office for further adjudication in accordance with this Order.
BACKGROUND
¶2 The appellant filed a removal appeal with the Board , which the parties
settled. Muniz v. Department of Veterans Affairs , MSPB Docket No. NY -0752 -
15-0282 -I-1, Initial Appeal File (IAF), Tab 1 at 4, 6 , Tabs 12-13. In relevant
part, the agency agreed to rescind the July 10, 2015 removal decision and issue a
new removal letter for medical inability to perform. IAF, Tab 13 at 1.
¶3 After determining that the settlement agreement was within the Board’s
jurisdiction, voluntarily entered into, understood by the parties, and lawful on its
face, the administrative judge entered it into the record for enforcement purposes
and dismissed the appeal as settled . IAF, Tab 14, Initial Decision (ID) at 2 -3.
She also notified the appellant of her right to file a petition for review of the
initial decision if she believed that the settlement agreeme nt was unlawful,
involuntary, or the result of fraud or mutual mistake. ID at 4. The initial
decision became final on February 25, 2016, after neither party filed a petition for
review. Id.
¶4 Approximately 5 months later, the appellant filed a petition fo r
enforcement, in which she made bare assertions that the agency breached the
settlement agreement and that she was misled into settling her appeal.
Compliance File (CF), Tab 1 at 1. In response, the agency alleged that it had
fully complied with its obl igations under the agreement and submitted supporting
argument and evidence . CF, Tab 5 at 6, 15, 17 -18, 21 -38, 40.
¶5 During a telephonic status conference, the appellant elabora ted on her
noncompliance claims. CF, Tab 6 . She alleged that the agency had br eached the
“clean paper” provision of the settlement agreement by disclosing to prospective
employers that she had been “fired .” Id. She also claimed that, although the
3
agency had submitted her disability retirement paperwork to the Office of
Personnel Management , its delay in doing so constituted a breach of its promise
to assist her in applying . Id. Finally, she argued that the written agreement was
incomplete and attributed her failure to address all of her concerns during
negotiations to her inexpe rience with settlement matters, as she appeared pro se.
Id. The administrative judge indicated that the settlement agreement contained
neither of the provisions referenced by the appellant; but, she nonetheless
permitted the appellant to supplement her p etition for enforcement with those
additional allegations . Id.
¶6 After the appellant failed to further supplement her petition for
enforcement , the administrative judge issued a compliance initial decision ,
denying it. CF, Tab 7, Compliance Initial Decisio n (CID) at 2, 4. She found that
the “promises” referenced by the appellant wer e not in the agreement and that the
appellant failed to establish a violation of the agreement’s express terms. CID
at 3-4. She also found that the agency showed that it had complied with its
obligations. CID at 4.
¶7 The appellant filed a petition for review of the compliance initial decision.
Compliance Petition for Review (CPFR) File, Tab 1. The agency has filed a
response. CPFR File, Tab 3.
DISCUSSION OF ARGUME NTS ON REVI EW
¶8 The Board has the authority to enforce a settlement agreement that has been
entered into the record in the same manner as a final Board decision or order.
Doe v. Department of the Army , 116 M.S.P.R. 160 , ¶ 7 (2011) . On review, t he
appellant asserts that the agency materially breached the “clean paper” settlement
agreement by defaming her character and requests a n agency contact that can
provide a neutral reference . CPFR File, Tab 1 at 6. We remand this claim .2
2 The appellant does not further challenge the validity of the settlement agreement or
reargue her claims of agency delay concerning her retirement application. We decline
4
¶9 The appellant is essentially arguing that the settlement agreement contained
a nondisclosure provision. CPFR File, Tab 1 at 6 ; CF, Tab 6 . Both the
U.S. Court of Appeals for the Federal Circuit and the Board have construed
settlement agreements that call for rescission of a removal for cause and issuance
of a Standard Form 50 reflecting a resignation to also contain implied provisions
for expungement of re moval -related documents from the employee ’s Official
Personnel File and nondisclosure to third parties —in other words, a “clean
record” settlement . Conant v. Office of Personnel Management , 255 F.3d 1371 ,
1376 ( Fed. Cir. 2001); Doe, 116 M.S.P.R. 160 , ¶ 8.
¶10 We find this principle eq ually applicable to the instant case. Here, the
settlement agreement calls for the appellant to accept a removal for medical
inability to perform in exchange for the rescission of the removal for cause . IAF,
Tab 13 at 1. In Conant , an agency agreed to replace an employee’s
conduct -based proposed removal with a resignation “for personal reasons .”
255 F.3d at 1373 . In both situations, by agreeing to rescind and replace the prior
removals, the agencies effectively agreed to erase them. Id. at 1376; IAF, Tab 13
at 1. The substitution of a disability -based removal for a removal for cause is
analogous to the substitution of a resignation. To find otherwise would unfairly
relieve the agency from its responsibilit y to comply with the implicit clean -record
provision and den y the appellant her reasonably anticipated benefit of the
bargain . See Pagan v. Department of Veterans Affairs , 170 F.3d 1368 , 1371-72
(Fed. Cir. 1999) (explaining that appellant s must receive the benefit of the
bargain despite the potential enforcement problems that may arise with clean
record settlement agreements) . As a result, we find that the settlement agreement
contained an implied nondisclosure provision . The nondisclosure provision
generally prevents the agency from discussing information r elated to the
to disturb the administrative judge’s finding that the agreement was enforceable and her
implicit finding that the agreement did not obligate the agency to take any particular
action concerning the appellant’s disability retirement application. CID at 3-4.
5
appellant’s rescinded removal with third parties.3 Doe, 116 M.S.P.R. 160,
¶¶ 9-11.
¶11 Although t he appellant clarified her “clean record agreement” claims during
the status conference, the administrative judge did not issue an order summarizing
those claims . Similarly, the administrative judge, in the compliance initial
decision , did not analyze the question of whether the agency’s potential
disclosure of information regarding the rescinded adverse action constituted a
material breach of the implied nondisclosure provision of the clean record
settlement agreement. Because this essential question cannot be resolved based
on the information in the record , we must vacate the compliance initial decision
and remand the appeal . See Doe, 116 M.S.P.R. 160, ¶¶ 11-12 (ordering the case
to be remanded because the administrative judge did not fully address the
appellant’s claims of breach of the implied nondisclosure provision of the clean
record agreement) .
ORDER
¶12 For the reasons discussed abov e, we remand this case to the Board’s field
office for further adjudication in accordance with this Remand Order. On
remand, the administrative judge shall address the issues discussed above and
allow the parties to submit further evidence and argument as to whether the
agency breached the settlemen t agreement. It appears that the appellant wishes to
enforce the terms of the agreement. PFR File, Tab 1 at 6. However, on remand,
the administrative judge also should provide the appellant, who is pro se, with the
opportunity to make an informed election betwee n enforcement and rescission of
3 Additionally, under 5 C.F.R. § 293.311 , an agency is limited as to what information
may be shared from agency files regarding a former agency employee.
6
the agreement in the event that a breach is found. See Zumwalt v. Department of
Veterans Affairs , 118 M.S.P.R. 574 , ¶ 14 (2012).
FOR THE BOARD:
Washington, D.C. /s/ for
Jennifer Everling
Acting Clerk of the Board | MUNIZ_TYESHIA_R_NY_0752_15_0282_C_1_REMAND_ORDER_1944394.pdf | 2022-07-21 | null | NY-0752-15-0282-C-1 | NP |
4,269 | https://www.mspb.gov/decisions/nonprecedential/CONYERS_SHAVON_DC_315H_17_0307_I_1_FINAL_ORDER_1944423.pdf | UNITED STATES OF AME RICA
MERIT SYSTEMS PROTEC TION BOARD
SHAVON CONYERS,
Appellant,
v.
DEPARTMENT OF COMMER CE,
Agency .
DOCKET NUMBER
DC-315H -17-0307 -I-1
DATE: July 21, 2022
THIS FINAL ORDER IS NONPRECEDENTIAL1
Pamela F. Mucklow , Esquire, Englewood, Colorado, for the appellant .
Tyree P. Ayers , 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 as untimely filed . Generally, we grant petitions such as this
one only in the following circumstances: the initial decision contains erroneous
findings of material fact; the initial decision is based on an erroneous
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 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
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 appe al 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 c onclude 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 and AFFIRM the initial
decision, which is now the Board ’s final decision. 5 C.F.R. § 1201.113 (b).
BACKGROUND
¶2 The agency appointed the appell ant to a GG -11 Program Analyst position
with the Census Bureau Field Division. Initial Appeal File (IAF), Tab 12
at 13-15. On January 4, 2017, the agency terminated the appellant from her
excepted -service position because she incorrectly listed on her résumé a degree
that she had not obtained. IAF, Tab 1, Attachment. The notice informed the
appellant that she had a right to appeal her ter mination to the Board within
30 days of the date that she received the termination notice, a period that ended
on February 3, 2017. Id. She filed a Board appeal on February 7, 2017, four days
after the filing deadline. IAF, Tab 1.
¶3 The administrative judge issued an order informing the appellant of her
burden to show that her appeal was timely filed or that good caus e existed for the
delay in filing . IAF, Tab 8. Based on the parties’ responses to that order, IAF,
Tabs 13, 16, the administrative judge issued an initial decision finding that the
appellant’s discussions with the agency regarding her possible reinstatement
ended on the afternoon of February 3, 2017, IAF, Tab 17, Initial Decision (ID)
at 7. The administrati ve judge determined that, because February 3, 2017, was
3
the filing deadline, the appellant, who is an electronic filer, could have filed her
appeal before midnight of the due date, but instead , she waited an additional
4 days to file. Id. The administrat ive judge found that the appellant failed to
show that she exercised ordinary prudence or due diligence under the
circumstances , and therefore , she dismissed the appeal as untimely filed. ID
at 7-8.
¶4 In her petition for review, the appellant asserts, amo ng other things, that she
filed late because she reasonably relied on agency misstatements that she would
be reinstated , and the administrative judge erred in disregarding case law
concerning the effect of such misstatements. Petition for Review (PFR) Fil e,
Tab 1 at 10-21. She also contends that the filing delay was minimal , that her
termination was actually a suitability action , and that the administrative judge
erred in disregarding evidence that the agency’s failure to comply with 5 C.F.R.
§ 731.402 caused her delay in filing. Id. at 10, 21 -22. The agency responded in
opposition to the petition. PFR File, Tab 5.
ANALYSIS
¶5 If an appellant fails to timely file her appeal, it will be dismissed as
untimely absent a showing of good cause for the delay in filing. 5 C.F.R.
§ 1201.22 (c). To establish good cause for the untimely filing of an appeal, an
appellant must show that she exercised due diligence or ordinary prudence under
the particular circumstances of the case. Marcantel v. Department of Energy ,
121 M.S.P.R. 330 , ¶ 10 (2014). To determine if an appellant has shown good
cause, the Board will consider the length of the delay, the reasonableness of the
excuse and her showing of diligence, whether she is proceeding pro se, and
whether she has presented evidence of the existence of circumstances beyond her
control that affected her ability to comply with the time limits or of unfavora ble
casualty or misfortune that similarly shows a causal relationship to her inability
to timely file her claim. Little v. U.S. Postal Service , 124 M.S.P.R. 183, ¶ 10
4
(2017). Beyond the appellant’s assertion that the appeal was filed late because
she relied on agency misstatements, she has not offered any evidence or argument
regarding any additional circumstances that affected her ability to timely file her
appeal.
¶6 In support of her assertion that the agency caused her delay in fili ng, the
appellant provided a declaration made under penalty of perjury recounting various
conversations related to her termination and possible reinstatement. IAF, Tab 13
at 10-14. In her declarati on, however, the appellant does not identify an instance
after January 4, 2017 —the date of the termination notice —in which an agency
manager directly led her to believe that her termination would be rescinded. Id.
Any suggestion that the appellant might have been reinstated came through the
appellant’s union r epresentative, and there is no evidence that he was authorized
to make a decision on the appellant’s reinstatement. Under the circumstances, we
find that the appellant failed to show that any agency official made misstatements
that caused her to lose time in filing her appeal. Likewise, we find that the cases
cited by the appellan t in her petition for review do not support a finding that
agency misrepresentation cause d the appellant’s filing delay. See Shubinsky v.
United States , 488 F.2d 1003 (Ct. Cl. 1973) ; Gordy v. Merit Systems Protection
Board , 736 F.2d 1505 (Fed. Cir. 1984) ; Gometz v. Department of the Navy ,
69 M.S.P.R. 284 (1996) , overruled on other grounds by Sturdy v. Department of
the Army , 88 M.S.P.R. 502 (2001). Both Shubinsky and Gometz are
distinguishable because, unlike here, there was a finding in those cases that the
employees actually received inaccurate information from agency officials. And ,
Gordy is distinguishable fr om th e instant case because, unlike the employee in
Gordy , the appellant here was fully aware of the basis for the claim on which she
could file a Board appeal before the filing deadline had passed.
¶7 Regarding the appellant’s claim that the 4 -day filing d elay was minimal, in
the absence of a showing of good cause, the Board has dismissed appeals as
untimely filed when the filing delay was minimal. Melendez v. Department of
5
Homeland Security , 112 M.S.P.R. 51 , ¶ 16 (2009) (holding that , despite a 3-day
delay, the Board would waive its filing time limit only upon a showing of good
cause ); White v. Department of Justice , 103 M.S.P.R. 312 , ¶ 10 (2006)
(addressing a 5 -day filing delay and finding that the B oard has consistently
denied a waiver of the filing deadline if a good re ason for the delay is not shown,
even when the delay is minimal ), aff’d , 230 F. App’x 976 (Fed. Cir. 2007) .
¶8 The appellant ’s assertion that the agency caused her untimely filing by n ot
complying with the proper procedures for a suitability determination at 5 C.F.R.
§§ 731.402 -.404 is also unavailing. Employees in the excepted service, like the
appellant, are not covered by the suitability regulations identified by the
appellant. 5 C.F.R. § 731.101 .
¶9 In sum, we agree with the administrative judge ’s finding that the appellant’s
appeal was untimel y filed and that she failed to show good cause for the filing
delay .
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 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.
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 f or review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.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.
7
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703 (b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. ____ , 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 represe ntative receives this decision. If the action involves a claim of
discrimination based on race, color, religion, sex, national origin, or a disabling
condition, you may be entitled to representation by a court -appointed lawyer and
to waiver of any require ment of prepayment of fees, costs, or other security. See
42 U.S.C. § 2000e -5(f) and 29 U.S.C. § 794a .
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.us courts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702 (b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702 (b)(1). If you h ave a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the E EOC by regular U.S. mail, the
address of the EEOC is:
8
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method re quiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302 (b)(8) or
other protected activities listed in 5 U.S.C. § 2302 (b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
disposition of allegations of a prohibited personnel practice described in section
2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i),
(B), (C), or (D),” then you may file a petition for judicial review either with the
U.S. Court of Appeals for the Federal Circuit or any court of appeals of
competent jurisdict ion.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
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.
9
If you submit a petition for judicial review t o the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U .S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and For ms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the 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 a ppeals can be 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 | CONYERS_SHAVON_DC_315H_17_0307_I_1_FINAL_ORDER_1944423.pdf | 2022-07-21 | null | DC-315H-17-0307-I-1 | NP |
4,270 | https://www.mspb.gov/decisions/nonprecedential/PARHAM_MONTE_M_DA_0432_16_0254_I_1_REMAND_ORDER_1943781.pdf | UNITED STATES OF AME RICA
MERIT SYSTEMS PROTEC TION BOARD
MONTE M. PARHAM
Appellant,
v.
DEPARTMENT OF HOMELA ND
SECURITY,
Agency.
DOCKET NUMBER S
DA-0432 -16-0254 -I-1
DA-1221 -15-0345 -W-1
DATE: July 20, 2022
THIS ORDER IS NONPRECEDENTIAL1
Stephanie Bernstein , Esquire, Dallas, Texas, for the appellant.
Shaun Southworth , Esquire and Terina Williams , Esquire, Atlanta, Georgia,
for the appellant.
Benjamin Owen and Daniel Rodriguez , 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 s, which
dismissed the appellant’s individual right of action (IRA) appeal and his
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117 (c).
2
chapter 43 removal appeal as settled .2 For the reasons discussed below, we
GRANT the agency’s petition for review , VACATE the initial decision s, and
REMAND both appeal s to the regional office for further adjudication i n
acco rdance with this Remand Order.
BACKGROUND
¶2 On April 24, 2015, the appellant filed an IRA appeal with the Board .
Parham v. Department of Homeland Security , MSPB Docket
No. DA-1221 -15-0345 -W-1, Initial Appeal File (W -1 AF), Tab 1. Thereafter, on
March 1, 2016, he filed an appeal challenging his chapter 43 removal. Parham v.
Department of Homeland Security , MSPB Docket No. DA-0432 -16-0254 -I-1,
Initial Appeal File (IAF ), Tab 1. The appeals wer e assigned to different
administrative judges. Following a hearing o n his IRA appeal, but prior to a
hearing on his removal appeal, the parties ente red into an oral settlement
agreement that resolved both matters . W-1 AF, Tab 30; IAF, Tab 30.3
The agenc y agreed to rescind the appellant’s removal and reinstate him.
W-1 AF, Tab 30; IAF, Tab 30 . It further agreed that, once it rescinded the
appellant’s removal , it would place him in a sick leave status from the date of
reinstatement until his return to work. W-1 AF, Tab 30; IAF, Tab 30 .
Thereafter, on June 8, 2016, t he administrative judge s issued two separate initial
decisions entering the settlement agreement into the record and dismissing each
2 We JOIN the t wo appeals under 5 C.F.R. § 1201.36 (b), because doing so would
expedite the processing of the appeals without adversely affecting the interests of the
parties. On remand, the regional office may elect to sever these appeals, if appropriate.
See 5 C.F.R. § 1201.36 .
3 In both its petition for review and reply, the agency indicates that the record does not
contain a complete recording o f the parties’ oral settlement agreement . Parham v.
Department of Homeland Security , MSPB Docket No. DA-0432 -16-0254 -I-1, Petition
for Review File, Tab 2 at 4 n.1, Tab 5 at 4. Although the record of the appellant’s IRA
appeal contain s only a partial reco rding of the oral agreement , W-1 AF, Tab 30, the
record of the appellant’s chapter 43 removal appeal contain s the complete recording,
IAF, Tab 30.
3
appeal as settled. W-1 AF, Tab 31, Initial Decision; IAF, Tab 31,
Initial Decision.
¶3 The agency has filed a petition for review for both appeals in which it
asserts that the settlement agreement should be set aside based upon the parties’
mutual mistake because Federal regulations prevent it from placing the appellant
in a sick leave status when he was not incapacitated . Parham v. Department of
Homeland Security , MSPB Docket No. DA-1221 -15-0345 -W-1, Petition for
Review File, Tab 1 at 4 -11; Parham v. Department of Homeland Security ,
MSPB Dock et No. DA-0432 -16-0254 -I-1, Petition for Review (PFR) File, Tab 2
at 4-11, Tab 7 at 4 -5. The appellant has responded , asserting that the settlement
agreement was not unlawful and should instead be set aside based upon the
agency’s refusal to abide by the agreement. PFR File, Tab 4 at 3. The appellant
does not appear to assert that the agency failed to properly reinstate him.4
PFR File, Tab 2 at 14 -15, Tab 4 at 3. The agency has filed a reply wherein it
avers that it did not act in bad faith and that it is unable to lawfully comply with
an essential term of the settlement agreement . PFR File, Tab 5 at 4-6.
ANALYSIS
¶4 It is well settled that a settlement agreement is a contract between the
parties that may be set aside or voided only on the basis of certai n limited
grounds, including fraud or a mutual mistake of material fact under which both
parties acted . Vance v. Department of the Interior , 114 M.S.P.R. 679 , ¶ 12
(2010). A mutual mistake of fact is a shared, mistaken belief of the parties
regarding a material assumption of fact underlying their agreement. Id.
¶5 Here, both parties entered into the settlement agreement under the
assumption that the agency had the authority to place the appellant in a sick leav e
status. W-1 AF, Tab 30; IAF, Tab 30 ; PFR File, Tab 2 at 17-18. The parties
4 The appellant avers in his response that the agency’s “bad faith negotiations” caused
him “to endure additional time without employment ,” PFR File, Tab 4 at 3 ; however, it
appears that he is referring to his inability to use sick leave , PFR File, Tab 2 at 14.
4
were mistaken, however , because the agency may only place an employee in a
sick leave status un der certain circumstances specified by regulation, such as
when he is incapacitated . 5 C.F.R. §§ 630.401 (a), 630.405(a). We find that this
mistake relates to a material assumption of fa ct underlying the settlement
agreement because , as the parties state, without the ability to place the appellant
in a sick leave status, the agency cannot comply with the settlement agreement .
PFR File, Tab 2 at 9-10, 14; see Brady v. Department of the Navy , 95 M.S.P.R.
619, ¶ 8 (2004) . Thus , the settlement agreement must be set aside. See Miller v.
Department of Defense , 45 M.S.P.R. 263, 266 (1990) ( finding that a settlement
agreement that granted the appellant retroactive administrative leave for 1 year
should be se t aside based upon a mutual mistake because the agency lacked
discretion to authorize a grant of administrative leave for an extended period of
time under the circumstances of the case) ; see also Mansfield v. National
Mediation Board , 103 M.S.P.R. 237, ¶ 23 (2006) (recognizing that the Board has
the discretion not to accept a settlement agreement into the record for
enforcement purposes when it provides the appellant with pay and benefits not
authorized by law).
¶6 Whe n a settlement agreement must be set aside because of the failure of an
essential part of the agreement but the appellant has obtained other benefits
pursuant to that agreement, such as reinstatement, the Board has found it
appropriate to offer the appellant a choice between reinstating his appeal or
accepting the settlement agreement as is. Vance , 114 M.S.P.R. 679 , ¶¶ 16-17.
Accordingly , upon remand, the administrative judge shall inquire whether the
appellant wishes to reinstate his appeals or accept the settlement agreement
notwithstanding the agency’s failure to place him in a sick leave status for the
relevant period . Alternatively, the parties may choose to negotiate a new
settlement agreement. The administrative judge then shall issue a new initial
decision.
5
¶7 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
Acti ng Clerk of the Board | PARHAM_MONTE_M_DA_0432_16_0254_I_1_REMAND_ORDER_1943781.pdf | 2022-07-20 | null | DA-0432-16-0254-I-1 | NP |
4,271 | https://www.mspb.gov/decisions/nonprecedential/NEAL_DAVID_L_DE_0845_14_0222_I_2_FINAL_ORDER_1943812.pdf | UNITED STATES OF AME RICA
MERIT SYSTEMS PROTEC TION BOARD
DAVID L. NEAL,
Appellant,
v.
OFFICE OF PERSONNEL
MANAGEMENT,
Agency.
DOCKET NUMBER
DE-0845 -14-0222 -I-2
DATE: July 20, 2022
THIS FINAL ORDER IS NONPRECEDENTIAL1
David J. Holdsworth , Esquire, Sandy, Utah, for the appellant.
Cynthia Reinhold , 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 decision of the Office of Personnel Management that the appellant
received an overpayment of disability retirement benefits. Generally, we grant
petitions such as this one only in the following circumstances: the initial decision
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or 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
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 ma terial evidence or legal argument is available
that, despite the petitioner’s due diligence, was not available when the record
closed. Title 5 of the Code of Federal Regulations, section 1201.115 ( 5 C.F.R.
§ 1201.115 ). After fully considering the filings in this appeal, we conclude that
the petitioner has not established any basis under section 1201.115 for granting
the petition for review. Therefore, we DENY the petition for review and
AFFIRM the initial decision, which is now the Board’s final decision. 5 C.F.R.
§ 1201.113 (b).2
NOTICE OF APPEAL 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
2 In his petition for review, the appellant does not challenge the administrative judge’s
findings in the appeal below , and we see no reason to disturb those findings. Petition
for Review File, Tab 1. Instead , the appellant contends that he is a prevailing party by
virtue of the agency’s decision to unilaterally waive the overpayment established in this
matter and posits that he should therefore receive attorney fees. Id. Motions for
attorney fees are governed by the regulations set forth in 5 C.F.R. part 1201, subpart H.
Because there is no motion for attorney fees pending in this matter and because there is
no final decision in this appeal, any discussion of attorney fees is premature. 5 C.F.R.
§ 1201.203 (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 ca nnot advise which option is most appropriate in any matter.
3
statement of how cou rts will rule regarding which cases fall within their
jurisdiction. If you wish to seek review of this final decision, you should
immediately review the law applicable to your claims and carefully follow all
filing time limits and requirements. Failure t o file within the applicable time
limit may result in the dismissal of your case by your chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703 (b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
containe d within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our 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 discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circui t), within 30 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
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
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
of appeals of competent jurisdiction.4 The court of appeals must receive your
4 The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circui t Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any othe r circuit court of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115 -195,
132 Stat. 1510.
6
petition for review within 60 days of the date of issuance of this decision.
5 U.S.C. § 7703 (b)(1)(B).
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Fede ral
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Boar d appellants before the 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 | NEAL_DAVID_L_DE_0845_14_0222_I_2_FINAL_ORDER_1943812.pdf | 2022-07-20 | null | DE-0845-14-0222-I-2 | NP |
4,272 | https://www.mspb.gov/decisions/nonprecedential/DONAHUE_SEAN_M_PH_3330_17_0167_I_1_FINAL_ORDER_1943822.pdf | UNITED STATES OF AME RICA
MERIT SYSTEMS PROTEC TION BOARD
SEAN M. DONAHUE,
Appellant,
v.
DEPARTMENT OF VETERA NS
AFFAIRS,
Agency.
DOCKET NUMBER
PH-3330 -17-0167 -I-1
DATE: July 20, 2022
THIS FINAL ORDER IS NONPRECEDENTIAL1
Sean M. Donahue , Hazleton, Pennsylvania, pro se.
Marcus S. Graham , Esquire, Pittsburgh, Pennsylvania, 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 revie w of the initial decision, which
granted his request for corrective action under the Veterans Employment
Opportunities Act of 1998 (VEOA) , but denied his request for legal fees and
found his request for damage s premature . Generally, we grant petitions such as
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
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
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 t he erroneous application of the law to
the facts of the case; the administrative judge’s rulings during either the course of
the appeal or the initial decision were not consistent with required procedures or
involved an abuse of discretion, and the resulti ng error affected the outcome of
the case; or new and material evidence or legal argument is available that, despite
the petitioner’s due diligence, was not available when the record closed. Title 5
of the Code of Federal Regulations, section 1201.115 ( 5 C.F.R. § 1201.115 ).
After fully considering the 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 .
¶2 As f urther detailed in the initial decision, the agency solicited applications
to fill a Budget Analyst position. Initial Appeal File (IAF), Tab 16, Initial
Decision (ID) at 1. The appellant applied but was not selected. ID at 1 -2. He
filed a complaint wit h the Department of Labor (DOL), alleging that the agency
violated his right to compete under VEOA. ID at 2. DOL indicated that while his
complaint had merit, it was unable to resolve the matter. Id. Thereafter, the
appellant filed the instant VEOA app eal with the Board . Id.
¶3 Before the administrative judge, the agency conceded that it violated the
appellant’s VEOA rights. Id. The agency further indicated that, as a result, it
had fully reconstructed the hiring process, added the appellant to the list of
candidates referred to the selecting official, and made a new selection. Id. As a
result of this reconstruction, the agency moved to dismiss the appellant’s appeal
as moot. Id.
¶4 The administrative judge issued an initial decision, denying the agency’ s
motion to dismiss and granting the appellant’s request for corrective action under
VEOA. ID at 4 -8. In short, the administrative judge found the appellant was not
3
given a bona fide opportunity to compete in the reconstructed hiring process
because, in effect, the agency refused to consider qualified external candidates
such as the appellant based on its internal policy of giving internal candidates
first consideration. ID at 6 -8 (citing Gingery v. Department of Veterans Affairs ,
114 M.S.P.R. 175 (2010)). The initial decision ordered the agency to reconstruct
the hiring process while affording the appellant his right to compete. ID at 8 -9.
¶5 Although the administrative judge granted corrective action, he denied the
appellant’s motion for legal fees because the appellant failed to show that he
incurred any. ID at 8. The administrative judge also dismissed the appellant’s
request for damages as premature. Id. The appellant has filed a petition for
review, reasserting his request for damages. Petition for Review (PFR) File,
Tab 1 at 3. The agency has filed a response , and the appellant has replied. PFR
File, Tabs 3 -4.2
¶6 Under V EOA, a prevailing party is entitle d to the following relief:
(1) agency compliance with the statute o r regulation relating to veterans’
preference that the agency violated; (2) compensation for lost wages o r benefits
that resulted from the violation; and (3) attorney fees, expert witness fees, and
litigation expenses. 5 U.S.C. § 3330c . Further, if the violation was willful and
the appellant is entitled to lost wages and benefits, he also is enti tled to receive
liquidated damages equal to lost wages and benefits. 5 U.S.C. § 3330c (a).
¶7 Based upon the above, the Board has recognized that if an agency violated
an appellant’s right to compet e, that appellant is not automatically entitled to the
position sought; rather, he is entitled to a selection process consistent with law.
Washburn v. Department of the Air Force , 119 M.S.P.R. 265 , ¶ 13 (2013). If an
appellant is selected during the reconstructed hiring process, the agency must pay
2 We note that the appellant attempted to file additional pleadings, but the Clerk of the
Board properly rejected them . PFR File, Tabs 5 -6; see 5 C.F.R. § 1201.114 (a)(5)
(permitting a petition for review, response, and reply, but no other pleading without
leave from the Clerk).
4
lost wages and benefits. See Weed v. Social Security Administration ,
124 M.S.P.R. 71 , ¶¶ 11 -21 (2016), aff’d , 711 F. App’x 624 (Fed. Cir. 2017) . If
the agency must pay lost wages and benefits, it also may be required to pay
liquidated damages. Id., ¶¶ 7-10.
¶8 Because the record does not show whether the appellant has been selected
for the Budget Analyst position as a result of a properly reconstructed hiring
process, we agree with the administrative judg e’s conclusion that the request for
damages is premature. ID at 8; see Dow v. General Services Administration ,
116 M.S.P.R. 369 , ¶ 14 (2011) (recognizing that an agency’s obligation to comply
with an appellant’s veterans’ preference rights is an ongoing obligation; damages
cannot be determined until after the issue of an individual’s entitlement to a
position has been decided). Therefor e, absent any other arguments from either
party, we affirm the initial decision.
ORDER
¶9 We ORDER the agency to properly reconstruct the hiring process for the
Budget Analyst position under vacancy announcement number 693 -16-CA-
1792891 -BU, and to afford the appellant his right to compete for this position
under 5 U.S.C. § 3304 (f)(1). See Kerr v. National Endowment for the Arts ,
726 F.2d 730 (Fed. Cir. 1984). The agency must complete this action no later
than 20 days after the date of this decision.
¶10 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).
¶11 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
5
should contain specific reasons why the appellant believes that the agency has not
fully carried out the Board ’s Order, and should include the dates and results of
any communications with the agency. 5 C.F.R. § 1201.182 (a).
NOTICE TO THE 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 attorn ey
fees and costs. To be paid, you must meet the requirements set forth at title 5 of
the United States Code (5 U.S.C.), section 3330c(b). The regulations may be
found at 5 C.F.R. §§ 1201.202 , 1201.203, and 1208.25. If you believe you meet
these requirements, you must file a motion for attorney fees WITHIN
60 CALENDAR DAYS OF THE DATE OF THIS DECISION. You must file
your motion for attorney fees and costs with the office that issued t he initial
decision on your appeal.
NOTICE TO THE APPELL ANT
REGARDING YOUR RIGHT TO REQUEST DAMAGES
You may be entitled to be compensated by the agency for any loss of wages
or benefits you suffered because of the violation of your veterans’ preference
rights. 5 U.S.C. § 3330c (a); 5 C.F.R § 1208.25 (a). If you are entitled to such
compensation, and the violation is found to be wi llful, the Board has the authority
to order the agency to pay an amount equal to back pay as liquidated damages.
5 U.S.C. § 3330c (a); 5 C.F.R § 1208.25 (a). You may file a petition seeking
compensation for lost wages and benefits or damages with the office that issued
the initial decision in your appeal WITHIN 60 CALENDAR DAYS OF THE
DATE OF THIS DECISION.
6
NOTICE OF APPEAL RIGH TS3
You may obtain review of this final decision. 5 U.S.C. § 7703 (a)(1) . By
statute, the nature of your claims determines the time 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:
3 Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise which option is most appropriate in any matter.
7
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 represe ntative receives this decision. If the action involves a claim of
discrimination 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 require ment of prepayment of fees, costs, or other security. See
42 U.S.C. § 2000e -5(f) and 29 U.S.C. § 794a .
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
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
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. 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 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.
4 The original statutory provision that provided for judicial review of certain
whistleblower claims by any cour t of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblow er reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115 -195,
132 Stat. 1510.
10
Contact information for the courts of appeals can be found at their
respective websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
FOR THE BOARD:
Washington, D.C. /s/ for
Jennifer Everling
Acting Clerk of the Board | DONAHUE_SEAN_M_PH_3330_17_0167_I_1_FINAL_ORDER_1943822.pdf | 2022-07-20 | null | PH-3330-17-0167-I-1 | NP |
4,273 | https://www.mspb.gov/decisions/nonprecedential/MILLER_CHARLES_K_CH_0845_16_0441_I_1_FINAL_ORDER_1943897.pdf | UNITED STATES OF AME RICA
MERIT SYSTEMS PROTEC TION BOARD
CHARLES K. MILLER,
Appellant,
v.
OFFICE OF PERSONNEL
MANAGEMENT,
Agency.
DOCKET NUMBER
CH-0845 -16-0441 -I-1
DATE: July 20, 2022
THIS FINAL ORDER IS NONPRECEDENTIAL1
Charles K. Miller , South Vienna, Ohio, 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 has petitioned for review of the April 8, 2016 initial decision
in this appeal. Petition for Review (PFR) File, Tab 1 ; Initial Appeal File,
1 A nonprecedential order is one that the Board has determined does not add
significantly to the 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
Tab 10, Initial Decision . For the reasons set forth below, we DISMISS the
petition for review as set tled.
¶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 28, 2019 , and by the agency on April 15, 2019. PFR File, Tab 7. The
document provides, among ot her things, for the dismissal of the petition for
review. Id. at 1.
¶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 Manage ment , 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 4 . 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 enforcement purposes.
3
¶6 This is the final decision of the Merit Systems Protection Board in this
appe al. 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 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.
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 to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703 (b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition 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
5
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:
6
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.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 for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the 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 | MILLER_CHARLES_K_CH_0845_16_0441_I_1_FINAL_ORDER_1943897.pdf | 2022-07-20 | null | CH-0845-16-0441-I-1 | NP |
4,274 | https://www.mspb.gov/decisions/nonprecedential/DONAHUE_SEAN_M_PH_3330_18_0099_I_1_REMAND_ORDER_1943340.pdf | UNITED STATES OF AME RICA
MERIT SYSTEMS PROTEC TION BOARD
SEAN M. DONAHUE,
Appellant,
v.
DEPARTMENT OF VETERA NS
AFFAIRS,
Agency.
DOCKET NUMBER
PH-3330 -18-0099 -I-1
DATE: July 19, 2022
THIS ORDER IS NONPRECEDENTIAL1
Sean M. Donahue , Hazleton, Pennsylvania, pro se.
Stacey Conroy , Esquire, Philadelphia, Pennsylvania, 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
denied his request for corrective action under the Veterans Employment
Opportunities Act of 1998 (VEOA) . For the reasons discussed below, we
GRANT the appellant’s petition for revie w, VACATE the initial decision , and
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
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
REMAND the case to the regional office for further adjudication in accordance
with this Remand Order.
BACKGROUND
¶2 The appellant applied to job vacancy announcement number 693 -17-CA-
2006872 -BU for a position as a Government Information Specialist. Initial
Appeal File (IAF), Tab 5 at 4 -7, Tab 6 at 16 . The vacancy announcement
indicated that it was open to status candidates, which specifically included “merit
promotion and VEOA eligibles.” IAF, Tab 5 at 6. The ag ency generated two
certificates, one for internal candidates domiciled at the employing facility and a
second for VEOA eligible s. IAF, Tab 6 at 5 -11. The appellant was placed on the
list of VEOA -eligible candidates only. Id. at 10. Both list s were refe rred to the
selecting official. Id. at 5-11, 13. The selecting official chose one of the two
candidates from the internal list and none of the candidates from the
VEOA -eligible list. Id. at 14 -15. The appellant was only list ed on the
VEOA -eligible list and was not selected. Id. at 14 -16. After exhausting his
administrative remedies with the Department of Labor (DOL), the appellant filed
an appeal claiming that the agency’s decision not to select him for the position
violated his veterans’ preference r ights. IAF, Tab 1 at 5, 15.
¶3 Without holding the appellant’s requested hearing, the administrative judge
issued an initial decision, finding that the Board had jurisdiction over the appeal
but den ying the appellant’s request for correcti ve action under VEOA. IAF,
Tab 10, Initial Decision (ID) at 3 -5.
¶4 The appellant filed a petition for review. Petition for Review (PFR) File,
Tab 1.2 The agency has not responded.
2 On review, the appellant argues for the first time that the agency failed to follow an
unspecified presidential policy to hire unemployed veterans before promoting internal
candidates. PFR File, Tab 1 at 3. In light of our decision to remand this appeal, we do
not address this argument. The administrative judge should provide the appellant with
an opportunity on remand to raise and adjudicate this issue, as appropriate.
3
DISCUSSION OF ARGUME NTS ON REVIEW
The Board has jurisdiction over the appellant’s claim t hat the agency denied his
right to compete under 5 U.S.C. § 3304 (f)(l).
¶5 In the initial decision, the administrative judge provided the following
information regarding the Board’s jurisdiction:
To establish jurisdiction over a VEOA claim, the appellant must
show that: (1) he is a preference -eligible veteran; (2) he has alleged
the agency has violated his rights under any statute or regulation
relating to veterans’ preference; and (3) he exhauste d his
administrative remedies with the Secretary of Labor and filed a
timely appeal to the Board. See 5 U.S.C.A. § 3330a .
ID at 2 -3. The administrative judge determined that the appellant satisfied this
jurisdictional burden. ID at 3.
¶6 Although this jurisdictional notice would have been correct in other
circumstances, it was not correct here. Because the agency advertised the
vacancy announcement under merit promotion procedures, the administrative
judge should have provided the appella nt with jurisdictional notice for a “right to
compete” claim. IAF, Tab 5 at 6; see Downs v. Department of Veterans Affairs ,
110 M.S.P.R. 139 , ¶ 13 (2008) ( explaining that , when an agency fills a vacancy
using merit promotion procedures, preference eligibles and qualified veterans are
guaranteed the right to compete but not to any point preferences ). To establish
Board jurisdiction o ver a “right to compete” VEOA claim under 5 U.S.C.
§ 3330a (a)(1)(B), the appellant must (1) show that he exhausted his remedy with
DOL and (2) make nonfrivolous allegations that (i) he is a vetera n within the
meaning of 5 U.S.C. § 3304 (f)(l), (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 under
merit promotion procedures for a vacant position for which the agency accepted
applications from individuals outside its own workforce in violation of 5 U.S.C.
§ 3304 (f)(l). Becker v. Department of Veterans Affairs , 115 M.S.P.R. 409 , ¶ 5
(2010).
4
¶7 The administrative judge’s adjudicatory error, however, is not prejudicial to
the appellant’s substantive rights and provides no basis for reversal of the initial
decision, Panter v. Department of the Air Force , 22 M.S.P.R. 281 , 282 (1984),
because the record is fully developed on this issue, and we conclude that the
appellant satisfied this alter native jurisdictional burden. As t he administrative
judge correctly observed in the initial decision , the appellant exhausted his
administrative remedies with DOL. ID at 3; IAF, Tab 1 at 15. The record
reflects that the appellant is an eligible veteran under the VEOA hiring authority,
the nonselection occurred after 2004 , and the appellant alleged that he was denied
the opportunity to compete for the position in quest ion. IAF, Tab 1 at 5, 7 -8,
Tab 6 at 17. Thus, we find that the appellant has satisfied his jurisdictional
burden under this alternative standard.
The appea l must be remanded because there are genuine issues of material fact
that cannot be resolved on the current record.
¶8 On review, the appellant alleges that, contrary to the administrative judge’s
finding, the agency did not seriously consider him for the po sition but rather the
selection process was a “ruse. ” PFR File, Tab 1 at 3. While the agency
acknowledged below that the appellant was entitled to a right to compete for the
vacancy under 5 U.S.C. § 3304 (f)(1) , it argued that his rights were not violated
because he applied and was referred for the position but was ultimately not
selected. IAF, Tab 7 at 6 -7. As discussed below, there remain genuine issues of
material fact that cannot be resolved on the current record . Therefore, we
disagree with the administrative judge’s decision to deny corrective action
without holding a hearing and remand the appeal for further development of the
record and a remand initial decision. ID at 3 -5; see Montgomer y v. Department of
Health & Human Services , 123 M.S.P.R. 216 , ¶ 13 (2016) (explaining that the
Board may decide the merits of a VEOA appeal without a hearing when there is
no genuine dispute of material fact and one party must prevail as a matter of law).
5
¶9 Agencies are permitted to fill vacancies by any authorized method.
Mont gomery , 123 M.S.P.R. 216 , ¶ 6 . The Board will review the method used by
an agency to fill a vacancy to determine if it is aut horized when the use of an
unauthorized method could have denied covered individuals the right to compete.
Id. We find that there is insufficient evidence in the record to determine if the
agency denied the appellant the right to compete in filling the v acancy at issue in
this appeal.
¶10 When an agency issues a vacancy announcement that is open to individuals
outside its workforce , it cannot treat VEOA eligible s in a manner that denies them
a bona fide opportunity to compete. See Montgomery , 123 M.S.P.R. 216 , ¶ 7
(explaining that the right to compete is triggered when an agency posts a vacancy
externally, regardless of whether the agency elects to use merit promotion
procedures); Gingery v. Department of Veterans Affairs , 114 M.S.P.R. 175 ,
¶¶ 8-11 (2010) (finding that, when the agency failed to include a veteran
applicant’s name on the merit promotion list of qualified candidates and
considered and hired from the merit promotion list , which included only the
names of internal candidates, the veteran was d enied a bona fide opportunity to
compete in violation of 5 U.S.C. § 3304 (f)(1)) . Such a denial may occur if, for
exampl e, an agency forwards candidate s entitled to “priority consideration” prior
to VEOA -eligible, external candidates and hires from the priority candidate list.
Shapley v. Department of Homeland Security , 110 M.S.P.R. 31 , ¶¶ 10, 12 , 16-17
(2008 ).
¶11 Here, the agency accepted applications from both internal and external
candidates . IAF, Tab 5 at 6 , Tab 6 at 6 -11. Yet, the agency created two separate
certificates —one for internal candidates domiciled at the empl oying facility and
one for VEOA eligibles. Compare IAF, Tab 6 at 5 -7, with IAF, Tab 6 at 8-11.
While the administrative judge found that the agency made its selection from a
certificate of eligibles that included the appellant’s name, the record does not
support this finding. ID at 4. Rather, t he record reflects that the agency made its
6
selection from the internal facility cer tificate, which did not include the
appellant’s name. IAF, Tab 6 at 14-15, 17. Whether the agency gave the
appellant a bona fide opportunity to compete by considering candidates on both
lists on an equal footing is a question we cannot resolve on the cur rent record.
The agency has not provided statements from anyone involved in the selection
process. Absent additional information, the two separate lists alone may be
enough to find the appellant’s right to compete was violated. Thus, we must
remand the case to the regional office for further development of the record and
adjudication of this issue. Montgomery , 123 M.S.P.R. 21 6, ¶ 13.
The parties must be given the opportunity to further develop the record.
¶12 The Board may decide the merits of an appeal alleging the violation of
rights under VEOA without holding a hearing where there is no genuine dispute
of material fact and on e party must prevail as a matter of law. Waters -Lindo v.
Department of Defense , 112 M.S.P.R. 1 , ¶ 5 (2009).3 As discussed above, based
on the current record, there remain genuine disputed issues of material fact.
Therefore, issuing a decision without a hearing, when the appellant requested one ,
was not appropriate in this case. IAF, Tab 1 at 2. Additionally, because the
administrative judge found that the Board had jurisdiction under VEOA, ID at 3,
and declined to hold a hearing as he indicated he would in the acknowledgment
order, IAF, Tab 2 at 1 -2, he was responsible for notifying the parties that there
would be no hearing, setting a date on wh ich the record would close, and
affording the parties the opportunity to submit evidence regarding the merits of
the appeal b efore the record closed. See Jarrard v. Department of Justice ,
113 M.S.P.R. 502 , ¶ 11 (2010). The administrative judge did not give the parties
3 A factual dispute is “material” if, in light of the governing law, its resolution could
affect the outco me. Waters -Lind o, 112 M.S.P.R. 1 , ¶ 5 . A factual dispute is “genuine”
when there is sufficient evidence favoring the party seeking an evidentiary hearing for
the administrative judge to rule in favor of that party should that party’s evidence be
credited. Id.
7
such notice. This error was prejudicial to the appellant because there remai n
genuine disputes of material facts that cannot be resolved on the current record.
Id. This appeal must be remanded for the record to be fully developed regarding
the material facts. See, e.g., Phillips v. Department of the Navy , 110 M.S.P.R.
184, ¶ 12 (2008) (remanding, in part, because the evidentiary record was not
sufficiently developed to determine whether a covered individ ual was given the
right to compete ).
ORDER
¶13 For the reasons discussed above, we vacate the initial decision and remand
this case to the regional office for further adjudication in accordance with this
Remand Order.
FOR THE BOARD:
Washington, D.C. /s/ for
Jennifer Everling
Acting Clerk of the Board | DONAHUE_SEAN_M_PH_3330_18_0099_I_1_REMAND_ORDER_1943340.pdf | 2022-07-19 | null | PH-3330-18-0099-I-1 | NP |
4,275 | https://www.mspb.gov/decisions/nonprecedential/MARTIN_SONGHUI_SF_0351_16_0620_I_1_FINAL_ORDER_1943351.pdf | UNITED STATES OF AME RICA
MERIT SYSTEMS PROTEC TION BOARD
SONGHUI MARTIN,
Appellant,
v.
DEPARTMENT OF DEFENS E,
Agency.
DOCKET NUMBER
SF-0351 -16-0620 -I-1
DATE: July 19, 2022
THIS FINAL ORDER IS NONPRECEDENTIAL1
Bradley R. Marshall , Charleston, South Carolina, for the appellant.
Douglas W. Frison , Esquire, APO, AP, 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. Generally, we grant petitions such
as this one only in the following circumstances: the initial decision contains
erroneous findin gs of material fact; the initial decision is based on an 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 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 c ontributing 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 appe al 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 . Except as expressly
MODIFIED to clarify the administrative judge’s jurisdictional analysis , we
AFFIRM the initial decision.
BACKGROUND
¶2 The appellant, a school nurse at Daegu High School (DHS) in the Korea
District of the agency’s Department of Defense Education Activity (DoDEA),
filed a board appeal alleg ing that the agen cy subjected her to a reduction -in-force
(RIF) action when it eliminated her half -time teaching position , reduc ing her to a
half-time school nurse . Initial Appeal File (IAF), Tabs 1, 9. In its response to
her appeal , the agency explained that the appellant occupied a mixed
teacher/specialist position at DHS and that, based on anticipated enrollment for
the following school year, its headquarters office eliminated the half -time English
as a Second Language (ESL) positi on at DHS that the appellant occupied the
previous school year . IAF, Tab 4 at 6 -7. C onsequen tly, the agency “excessed”
the appellant from that position in keeping with the procedures set forth in the
memorandum of understanding on that issue between DoDE A and the union . Id.
at 87-88, 104 -05.
¶3 The administrative judge issued an order explaining the elements and
burdens of establishing jurisdiction over a n appeal of a RIF action . IAF, Tab 8.
3
In her response, the appellant contended that the agency excessed her even though
it allowed less tenured and qualified teachers to remain in their full -time
positions. IAF, Tab 9 at 4. She also claimed th at the agency used the RIF as a
“disguised, proce durally defective adverse action ” intended to demote her to a
part-time position for personal reasons . Id. at 4-5. In reply, the agency argued ,
among other things, that the appellant failed to produce any evidence that it
conducted a RIF that affected her. IAF, Tab 11.
¶4 Without holding a hearing, the administrative judge dismissed the appeal
for lack of jurisdiction, finding that the appellant failed to show that any of the
conditions necessary to establish jurisdiction existed in this matter. IAF, Tab 14,
Initial Decision (ID). In her petition for review, the appellant reiterates the
arguments she made below, i.e., that the agency used a bogus RIF to demote her
for personal reasons. P etition for Review (PFR) File, Tab 3. The agency
responds in opposit ion. PFR File, Tab 5.
DISCUSSION OF ARGUME NTS ON REVIEW
¶5 To be entitled to a jurisdictional hearing over a RIF claim, the appellant
must make a nonfrivolous allegation that she was subjected to an appealable RIF
action in the form of a demotion, separation, or furl ough for more than 30 days .
See Harrell v. U.S. Postal Service , 112 M.S.P.R. 492 , ¶ 11 (2009 ); Wolf v.
Departme nt of Veterans Affairs , 87 M.S.P.R. 33 , ¶ 7 (2000); 5 C.F.R. § 351.901 .
Here, the appellant claims that she was subjected to an appealable RIF action
when the agency demoted her from a full -time to a part -time position. IAF,
Tabs 1, 9; PFR File, Tab 3 . For the following reasons, we agree with the
administrative judge’s decision to dismiss the appeal for lack of jurisdiction.
The appellant failed to make a nonfrivolous alleg ation that the agency subjected
her to an appealable RIF action in the form of a demotion .
¶6 A demotion is defined in pertinent part as a change of an employee, while
serving continuously within the same agency, to a lower grade or to a position
4
with a lower rate of pay. 5 C.F.R. § 210.102 (b)(4) . Although the appellant may
have lost half of her hours as a consequence of excessing the ESL teacher
position that she held , she has not alleged that the agency reduced her rate of pay
or assigned her to a lower -graded positi on. Therefore, she has failed to
nonfrivolously allege that she was demoted. See Wolf , 87 M.S.P.R. 33 , ¶¶ 8-10
(finding that a “staff adjustment” resulting in a reduction of hours but not in a
reduction of the rate of pay or grade was not a demotion). Accordingly, we find
that the appellant has failed to nonfrivolously allege that she was subjected to an
appealabl e RIF action. See i d., ¶ 11.2
¶7 In the initial decision, the administrative judge ultimately found that the
appellant had “not shown that any of the conditions necessary to establish
jurisdiction in such a case existed here.” ID at 5. However, the appella nt at this
stage was required only to make a nonfrivolous allegation of jurisdiction to
entitle her to a jurisd ictional hearing , at which time she then must establish
jurisdiction by preponderant evidence . See Garcia v. Department of Homeland
Security , 437 F.3d 1322 , 1344 (Fed. Cir. 2006) ( finding that an appellant who
makes a nonfrivolous allegation of Board jurisdiction is entitled to a hearing at
which she must prove jurisdiction by a preponderance of the evidence; if she fails
to prove jurisdiction, the case is dismissed for lack of jurisdiction). Therefore,
we modify the initial decision to dismiss the appeal based on the appellant’s
failure to nonfrivolously allege jurisdiction. E.g., Harrell , 112 M.S.P.R. 492 ,
¶ 11.
¶8 Finally, the appellant raised below and on review claims that the agency
demoted her based on discrimination and retaliation. IAF, Tabs 1, 9; PFR File,
Tab 3. Absent an otherwise appealable action, however, the Board lacks
2 To the extent that the appellant is arguing that the Board has jurisdiction because the
agency reassigned her, an empl oyee reassigned during a RIF may appeal to the Board
only if the reassignment was a RIF demotion, i.e., a reassignment to a position carrying
a lower grade or rate of pay. Myers v. Department of the Army , 87 M.S.P.R. 77 , ¶ 5
(2000).
5
jurisdiction over the appellant’s discrimination and retaliation claims. E.g.,
Wren v. Department of the Army , 2 M.S.P.R. 1 , 2 (1980) (observing that
prohibited personnel practices under 5 U.S.C. § 2302 (b) are not an independent
source of Board jurisdiction), aff’d , 681 F.2d 867 , 871 -73 (D.C. Cir. 1982).
¶9 Accordingly, we deny the appellant’s petition for review.
NOTICE OF APPEAL R IGHTS3
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 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 applie s to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . 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 rev iew rights included in final decisions. As indicated in the notice, the
Board cannot advise which option is most appropriate in any matter.
6
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703 (b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Feder al Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may vis it our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 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
7
representative in this case, and your representative receives this decision before
you do, then you must file with the district court no later than 30 calendar days
after your representative receives this decision. If the action involves a claim of
discrimination based on race, color, religion, sex, national origin, or a disabling
condition, you may be entitled to representation by a court -appointed lawyer and
to waiver of any requirement of prepayment of fees, costs, or other security. See
42 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:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must 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
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
section 2302(b) other than practices described in section 2302(b)(8), or
2302(b)(9)(A)(i), (B), (C), or (D),” then you may file a 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 judicia l review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information a bout the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practic e, and Forms 5, 6, 10, and 11.
4 The original statutory provision that provided for judicial review of certain
whistleblower claims by any court o f appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115 -195,
132 Stat. 1510.
9
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Prote ction Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
Contact information for the courts of appeals can be found at their
respective websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
FOR THE BOARD:
Washington, D.C. /s/ for
Jennifer Everling
Acting Clerk of the Board | MARTIN_SONGHUI_SF_0351_16_0620_I_1_FINAL_ORDER_1943351.pdf | 2022-07-19 | null | SF-0351-16-0620-I-1 | NP |
4,276 | https://www.mspb.gov/decisions/nonprecedential/DONAHUE_SEAN_M_PH_1221_17_0103_W_1_FINAL_ORDER_1943361.pdf | UNITED STATES OF AME RICA
MERIT SYSTEMS PROTEC TION BOARD
SEAN M. DONAHUE,
Appellant,
v.
DEPARTMENT OF LABOR,
Agency.
DOCKET NUMBER S
PH-1221 -17-0103 -W-1
PH-4324 -17-0169 -I-1
DATE: July 19, 2022
THIS FINAL ORDER IS NONPRECEDENTIAL1
Sean M. Donahue , Hazleton, Pennsylvania, pro se.
Richard T. Buchanan , Esquire, and Anthony D. DiBacco , Philadelphia,
Pennsylvania, for the agency.
BEFORE
Cathy A. Harris , Vice Chairman
Raymond A. Limon , Membe r
Tristan L. Leavitt , Member
FINAL ORDER
¶1 The appellant has filed petition s for review of two initial decision s, which
dismissed one of his appeals as withdrawn and dismissed another for lack of
jurisdiction. Generally, we grant petitions such as these only in the following
circumstances: the initial decision contains erroneous findings of material fact;
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
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 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 materi al
evidence or legal argument is available that, despite the petitioner’s due
diligence, was not available when the record 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 appeal s, we conclude 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 . We VACATE the initial decision
dismissing MSPB Docket No. PH-1221 -17-0103 -W-1 as withdrawn and DISMISS
that appeal for lack of jurisdiction. We AFFIRM the initial decision in MSPB
Docket No. PH-4324 -17-0169 -I-1.
¶2 This decision concerns two of the appel lant’s appeals. Donahue v.
Department of Labor , MSPB Docket No. PH-1221 -17-0103 -W-1 (0103 a ppeal),
Initial Appeal File (0103 IAF), Tab 23, Initial Decision (0103 ID); Donahue v.
Department of Labor , MSPB Docket No. PH -4324 -17-0169 -I-1 (0169 appeal),
Initial Appeal File (0169 IAF), Tab 22, Initial Decision (0169 ID). Though
adjudicated separately below, we JOIN them on review because the facts are
related and joinder will expedite processing without adversely affecting the
interests of the parties. See 5 C.F.R. § 1201.36 (b).
¶3 In October 2016, the appellant contacted the agency, alleging that it had
refused to provide him with veteran priority services, including referrals and
placement into a professional job. 0103 IAF, Tab 1 at 9 -13. The agency
responded, in part explaining that it could not assist him because he had been
banned from certain facilities due to hi s conviction for harassment of G overnment
officials. Id. at 7 -8, 14; see 0103 IAF, Tab 19 at 10 -12. In turn, the appellant
filed the 0103 appeal, asking that the Board force the agency to stop retaliation
3
against him by denying him services , in particular, services provided at Federally
funded American Jobs Centers. 0103 IAF, Tab 1 at 5 .
¶4 The administrative judge issued a jurisdictional order, indicating that the
0103 appeal appeared to be an individual right of action (IRA) appeal concerning
whistleblowing or other protected activity. 0103 IAF, Tab 3 at 1 -2. Accordingly,
he explained the applicable standards and instructed the appellant to meet his
jurisdictional burden. Id. at 2 -8. Over the next few days, the appellant submitted
a number of pleadings, some of which suggested that he wished to withdraw his
appeal. 0103 IAF, Tabs 4 -16. The agency filed a motion to dismiss the 0103 IRA
appeal for lack of jurisdiction because (1) the appellant is not an employee,
former employee, or applicant for employment, (2) he was not subjected to a
personnel action, and (3) he did not m ake a protected disclosure. 0103 IAF,
Tab 19 at 5 -9.
¶5 Rather than addressing jurisdiction, the administrative judge dismissed the
0103 appeal as withdrawn. 0103 ID. The appellant has filed a petition for
review. Donahue v. Department of Labor , MSPB Dock et No. PH-1221 -17-0103 -
W-1, Petition for Review (0103 PFR) File, Tab 1. The entirety of his petition
consists of the following statement: “In this case both [the Office of Special
Counsel (OSC)] and [the agency] are weaseling out of jurisdiction over a
complaint that the Administrative Law Judge sees as a ‘textbook whistleblower
case.’ For that reason, the [Board] should find some means of jurisdiction to
review the case.” Id. at 3. The agency has filed a response , and the appellant has
replied. 0103 PFR File, Tabs 3 -4.
¶6 Soon after filing his petition for review in the 0103 appeal, the appellant
filed the 0169 appeal, with allegations similar to those raised in th e 0103 appeal.
0169 IAF, Tab 1 at 3, 5. He described the 0169 appeal as a whistleblower
complain t, alleging that the agency retaliated against him for filing too many
Uniformed Services Employment and Reemployment Rights Act of 1994
(codified as amended at 38 U.S.C. §§ 4301 -4335) (U SERRA) complaints by
4
denying him services at American Job Centers, including priority job referrals.
Id. at 5.
¶7 The administrative judge construed the 0169 appeal as both an IRA appeal
and a USERRA claim, and issued an order explaining the jurisdictional burdens
for each. 0169 IAF, Tab 2 at 2, Tab 3 at 1, Tab 10 at 2 -3. The agency filed a
motion to dismiss for lack of jurisdiction. 0169 IAF, Tab 6. After both parties
responded, the administrative judge dismiss ed the 0169 appeal because the
appellant fa iled to meet his jurisdictional burden. 0169 ID. The appellant has
filed a petition for review. Donahue v. Department of Labor , MSPB Docket
No. PH-4324 -17-0169-I-1, Petition for Review (0169 PFR) File, Tab 1. In that
petition, the appellant does not present any arguments pertaining to jurisdiction.
Instead, he simply reasserts that the agency is improperly denying him services
and alleges that the Board “is bei ng lazy. ” Id. at 3. The agency has filed a
response. 0169 PFR File, Tab 3.
The administrative judge improperly dismissed the 0103 appeal as withdrawn.
¶8 An appellant’s withdrawal of an appeal is an act of finality. Page v.
Department of Transportation , 110 M.S.P.R. 492 , ¶ 5 (2009). Generally, the
Board will not reinstate a withdrawn appeal absent unusual circumstances , such
as misinf ormation or new and material evidence. Id. However, a voluntary
withdrawal must be clear, decisive, and unequivocal. Id.
¶9 Here, the appellant titled the pleading discussing withdrawal a “Temp
Withdrawal of Appeal: Going to OSC First.” 0103 IAF, Tab 13 at 1. In it, he
explained that he “expect[ed] to pick up the matter after hearing back from OSC.”
Id. at 3. Later that same day, the appellant submitted pleadings suggesting he had
just found prior OSC complain ts he filed in May and December 2016. 010 3 IAF,
Tab 14 at 3 -9, Tab 16 at 6 -18. He also submitted letters from OSC’s Disclosure
Unit correspo nding to those complaints, OSC Case N umbers DI -16-3690 and
DI-17-1100, each of which explained that OSC lacked jurisdiction over the
matters because the app ellant was not an employee, former employee, or
5
applicant for employment in the Federal G overnment. 0103 IAF, Tab 16 at 4 -5.
Days later, after the agency filed its motion to dismiss the 0103 appeal for lack of
jurisdiction, the appellant filed additional pleadings as if he was still pursuing the
appeal. 0103 IAF, Tabs 19 -22. All of this occurred before the administrative
judge dismissed the appeal as withdrawn.
¶10 Under these specific circumstances, we find that the appellant’s withdrawal
did not meet th e standard of being clear, decisive, and unequivocal. Therefore,
we vacate the initial decision which dismissed the 0103 appeal as withdrawn.
Nevertheless, as detailed below, we find that the appeal must be dismissed for
lack of jurisdiction.
The appellant failed to establish jurisdiction over the 0103 appeal.
¶11 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). Thus, it follows that the
Board does not have jurisdiction over all matters alleged to be unfair or incorrect.
Johnson v. U.S. Postal Se rvice , 67 M.S.P.R. 573 , 577 (1995) .
¶12 The statutory provisions that authorize the filing of IRA appeals such as
this, 5 U.S.C. §§ 1214 (a)(3), 1221(a), define those individuals entitled to file such
an appeal. Pasley v. Department of the Treasury , 109 M.S.P.R. 105 , ¶ 10 (2008);
Glover v. Department of the Army , 94 M.S.P.R. 534 , ¶ 9 (2003). Both provisions
limit IRA appeal rights to an employee, former employee, or applicant for
employment. Pasley , 109 M.S.P.R. 105 , ¶ 10 (discussing the limitation described
in 5 U.S.C. § 1214 (a)(3)); Glover , 94 M.S.P.R. 534 , ¶ 9 (discussing the limitation
described in 5 U.S.C. § 1221 (a)). Accordingly, the Board has hel d that Congress
clearly intended to provide IRA appeal rights only to employees, former
employees, and applicants for employment and that it authorized those
individuals to file such appeals only when they themselves were the subject of the
disputed action . Pasley , 109 M.S.P.R. 105 , ¶ 10 (finding that the Board lacked
jurisdiction over an individual’s IRA appeal concerning his termin ation from a
6
private sector employer); Glover , 94 M.S.P.R. 534 , ¶ 9 (finding that the Board
lacked jurisdiction over an individual’s I RA appeal brought on behalf of her late
husband).
¶13 Another limitation on the Board’s jurisdiction in the context of an IRA
appeal is the action itself. For purposes of an IRA appeal , “personnel actions” are
defined at 5 U.S.C. § 2302 (a)(2)(A). Pasley , 109 M.S.P.R. 105 , ¶ 10. The listed
“personnel actions” include the following: (1) an appointment; ( 2) a promotion;
(3) an action under 5 U.S.C. chapter 75 or other discip linary or corrective action;
(4) a detail, transfer, or reassignment; ( 5) a reinstatement; ( 6) a restorati on; ( 7) a
reemployment; ( 8) a performance evaluation under 5 U.S.C. chapter 43 or under
tile 38; (9 ) 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 a ppointment, promotion, performance evaluation, or other action
described in 5 U.S.C. § 2302 (a)(2)(A); ( 10) a decision to order psychia tric testing
or examination; (11 ) the implementation or enforce ment of any nondisclosure
policy, form, or agreement; and ( 12) any other significant change in duties,
responsibilities, or working conditions . 5 U.S.C. § 2302 (a)(2)(A); see, e.g.,
Weber v. Genera l Services Administration , 54 M.S.P.R. 444 , 446 (1992)
(dismissing an IRA appeal for lack of jurisdiction because the appellant’s arrest
by agency police was not a “personnel action”), aff’d , 989 F.2d 1203 (Fed. Cir.
1993) (Table).
¶14 Either of the aforementioned limitations preclude Board jurisdiction in the
0103 appeal. The appellant is a veteran alleging that he was denied employment
services, su ch as job referrals. 0103 IAF, Tab 1. He has not alleged that he is an
employee, former employee, or applicant for employment,2 and the action he
2 In several of his other Board appeals, the appellant presented allegations concerning
his nonselections for specific positions with Federal agencies. See, e.g ., Donahue v.
Department of Labor , MSPB Docket No. PH-3330 -16-0357 -I-1, Initial Appeal File,
Tab 1; Donahue v. Department of Veterans Affairs , MSPB Docket No. PH-3330 -16-
0342 -I-1, Initial Appeal File, Tab 1. Accordingly, we recognize that the appellant has,
7
disputes is not a “personnel action.” Therefore, the 0103 appeal must be
dismissed for lack of jurisdiction .3
¶15 Because the Board lacks jurisdiction over the 0103 appeal for the
aforementioned reason, we need not address the agency’s arguments that
jurisdiction is also lacking due to the absence of a protected disclosure. 0103
IAF, Tab 19 at 5. However, given o ur disposition in the 0169 appeal, we note
that the appellant also failed to prove exhaustion in the 0103 appeal, another
requirement for establishing jurisdiction in an IRA appeal . Compare 0103 IAF,
Tab 16 at 4 -5 (showing that it was OSC’s Disclosure Unit that addressed the
appellant’s May and December 2016 complaints, OSC Case N umbers DI -16-3690
and DI -17-1100), with Scoggins v. Department of the Army , 123 M.S.P.R. 592,
¶ 9 (2016); Mason v. Department of Homeland Security , 116 M.S.P.R. 135, ¶¶ 8,
16 (2011) (recognizing that disclosures to OSC’s Disclosure Unit do not satisfy
the exhaustion requirement of 5 U.S.C. § 1214 (a)(3)).
The appellant failed to establish jurisdiction over the 0169 appeal.
IRA Appeal
¶16 As we just alluded to, one jurisdictional limitation for an IRA appeal is the
requirement that an appellant prove that he exhausted his claim with OSC. Supra ,
at times, been an applicant fo r employment. However, the allegations underlying this
appeal do not involve him being an applicant for employment; they involve him being
denied employment services, such as job referrals. See, e.g ., 0103 IAF , Tab 1 at 5.
3 We recognize that the appel lant’s 0103 appeal repeatedly referenced USERRA and the
Veterans Employment Opportunities Act of 1998 (VEOA) . E.g., 0103 IAF , Tab 1 at 13.
However, the administrative judge construe d this case as an IRA appeal , and the
appellant did not object at any poi nt. 0103 IAF, Tab 3 at 2. In fact, his petition for
review only refers to this as a whistleblower case. 0103 PFR File, Tab 1 at 3. Had the
appellant intended this to be a USERRA or VEOA appeal, it appears that he could have
clearly explained as much, g iven the numerous USERRA and VEOA appeals he has
previously filed with the Board. See, e.g ., Donahue v. Central Intelligence Agency ,
MSPB Docket No. DC -3330 -12-0411 -I-2 (USERRA and VEOA appeal); Donahue v.
Federal Reserve System , MSPB Docket No. DC -3330 -12-0691 -I-1 (VEOA appeal);
Donahue v. Federal Reserve System , MSPB Docket No. DC -3330 -12-0692 -I-1
(USERRA appeal).
8
¶ 15; Mason , 116 M.S.P.R. 135 , ¶ 8. However, unlike OSC’s Complaints
Examining Unit, OSC’s Disclosure Unit does not review allegations of prohibite d
personnel practices. Mason , 116 M.S.P.R. 135 , ¶ 16. As a result, the Board has
held that disclosures to OSC’s Disclosure Unit do not satisfy the exhaustion
requirement in an IRA appeal. Id. Even though the administrative judge in the
0169 appeal warned of this and provided an opportunity to respond, the appellant
failed to show that OSC’s Complaints Examining Unit considered his a llegations;
instead, he provided a January 2017 letter pertaining to OSC Case N umber
DI-17-1230, showing only that OSC’s Disclosure Unit considered his allegations.
Compare 0169 IAF, Tab 1 at 16 -18, with 0169 IAF, Tab 10 at 2 -3. Therefore, to
the extent that the appellant intended to bring an IRA appeal in the 0169 appeal,
the administrative judge correctly found that the appellant failed to meet his
jurisdictional burden of proving exhaustion. 0169 ID at 3 -5.
¶17 Absent any argument or evidence to the con trary on review, we agree with
the admi nistrative judge’s conclusion —the appellant failed to prove exhaustion
for purposes of an IRA appeal in the 0169 appeal. Given our disposition in the
0103 appeal, we also note that the appellant does not meet the req uirements of
5 U.S.C. §§ 1214 (a)(3), 1221(a) in the 0169 appeal. See supra , ¶¶ 12-13. In the
context of the 0169 appeal, like the 0103 appeal, the appellant is a veteran
alleging that he was deni ed employment services, such as job referrals.
0169 IAF, Tab 1 at 5. He is not an employee, former employee, or applicant for
employment against whom a personnel action was taken or proposed to be taken.
See supra , ¶¶ 12-13.
USERRA
¶18 To the extent that the appellant sought to bring a USERRA claim in the
0169 appeal, the administrative judge also found that the appellant failed to
establish jurisdiction. Concerning USERRA’s anti -discrimination provision,
38 U.S.C. § 4311 (a), the administrative judge found that the appellant’s
allegations failed because he was not an agency employee or applicant for
9
employment, nor was he denied any benefit of employ ment. 0169 ID at 5 -7; see
Gossage v. Department of Labor , 118 M.S.P.R. 455 , ¶ 10 (2012) (recognizing that
an appellant establishes the Board’s jurisdiction over a USERRA discrimination
claim by nonfrivolously alleging that, inter alia, the agency denied him initial
employment, reemployment, retention, promotion, or any benefit of employment).
Concerning USERRA’s anti -retaliation pro vision, 38 U.S.C. § 4311 (b), he found
that the appellant’s allegations failed because they did not involve an adverse
employment action. 0169 ID at 7; see Kitlinski v. Merit Systems Protection
Board, 857 F.3d 1374 , 1381 (Fed. Cir. 2017) (recognizing that USERRA’s
anti-retaliation provision applies only to “acts of discrimination in emplo yment
and adverse employment actions . . . which [are] generally defined to include
actions adversely affecting [an] employee’s employment status, such as firing,
demotion, suspension, a loss of benefits, or a reduction in pay”).
¶19 The appellant has failed to present any basis for us to reach a conclusion
different from the administrative judge , even when construing his allegations
liberally. See Gossage , 118 M.S.P.R. 455 , ¶ 10 (recognizing that USERRA
claims should be broadly and liberally construed for purposes of determining
Board jurisdiction). As discussed throughout this decision, the appellant is a
veteran alleging that he was denied employment services, such as job referrals.
0169 IAF, Tab 1 at 5. He has not present ed allegations that involve employment
with the agency, application for employment with the agency, or any other agency
connection that falls within the Board’s j urisdiction.
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
4 Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review righ ts included in final decisions. As indicated in the notice, the
Board cannot advise which option is most appropriate in any matter.
10
review and the appropriate forum with which to file. 5 U.S.C. § 7703 (b).
Although we offer the following summary of available appeal rights, the Merit
Systems Protection Board does not provide le gal advice on which option is most
appropriate for your situation and the rights described below do not represent a
statement of how courts will rule regarding which cases fall within their
jurisdiction. If you wish to seek review of this final decision, you should
immediately review the law applicable to your claims and carefully follow all
filing time limits and requirements. Failure to file within the applicable time
limit may result in the dismissal of your case by your chosen forum.
Please read car efully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703 (b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit yo ur petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’ s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
11
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems 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, 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
12
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
other protected activities listed 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
5 The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeal s of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
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 “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.
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court 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 | DONAHUE_SEAN_M_PH_1221_17_0103_W_1_FINAL_ORDER_1943361.pdf | 2022-07-19 | null | S | NP |
4,277 | https://www.mspb.gov/decisions/nonprecedential/GOLDEN_CRAIG_DE_0752_21_0235_I_1_FINAL_ORDER_1943421.pdf | UNITED STATES OF AME RICA
MERIT SYSTEMS PROTEC TION BOARD
CRAIG GOLDEN,
Appellant,
v.
DEPARTMENT OF THE AI R FORCE,
Agency.
DOCKET NUMBER
DE-0752 -21-0235 -I-1
DATE: July 19, 2022
THIS FINAL ORDER IS NONPRECEDENTIAL1
Craig Golden , Ogden, Utah, pro se.
Darrin K. Johns , Hill A ir Force Base, Utah, 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 his constructive removal appeal for lack of jurisdiction.
Generally, we grant petitions such as this one only in the following
circumstances: the initial decision contains erroneous findings of material fact;
1 A nonprecedential order is one that the Board has determined does not add
significantly to the 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 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 procedu res or involved an abuse of discretion,
and the resulting error affected the outcome of the case; or new and material
evidence or legal argument is available that, despite the petitioner’s due
diligence, was not available when the record closed. Title 5 of the Code of
Federal Regulations, section 1201.115 ( 5 C.F.R. § 1201.115 ). After fully
considering the filings in this appeal, we conclude that the petitioner has not
established any ba sis 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 resigned from his position as a Deputy Fire Chief with the
Department of the Air Force , effective June 5, 2021 . Initial Appeal File (IAF),
Tab 1 at 1, 3, 9. He later filed a Board appeal alleging that his resignation was
involuntary and was compelled by the agency unilaterally changing his retirement
code and a “toxic and hostile working environment.” Id. at 5, 9. He requested
a hearing. Id. at 2.
¶3 The administrative judge issued an order instructing th e appellant how to
establish jurisdiction over his constructive adverse action appeal. IAF, Tab 3.
The appellant submitted various documents in response to the jurisdictional order,
including Standard Form 50s , leave and e arnings statements, and Standard Form
3107 s denoting his certified summary of Federal service . IA F, Tab 6. He did not
provide a narrative explanation as to how these forms related to his alleged
involuntary resignation. Id. After reviewing the record , the administrative judge
issued an initial decision dismissing the appeal for lack of jurisdiction without
holding a hearing , concluding that the appellant had failed to nonfrivolously
3
allege that he had been subjected to an appealable adverse action . IAF, Tab 8,
Initial Decision (ID). The appellant has filed a petition for review , and the
agency has filed a response. Petition for Review (PFR) File, Tabs 1, 3.
DISCUSSION OF ARGUME NTS ON REVIEW
¶4 An appellant’s voluntary action, such as a resignation, is not generally
appealable to the Bo ard. Axsom v. Department of Veterans Affairs , 110 M.S.P.R.
605, ¶ 9 (2009). However, an involuntary resignation is equivalent to
a constructive removal and is within the Board’s jurisdiction. Id. To establish
jurisdiction over a constructive adverse action claim, the appellant must show
(1) that he lacked a meaningful choice in the matter and (2) that it was the
agency’s wrongful actions that deprived him of that choice. See Bean v. U.S.
Postal Service , 120 M.S.P.R. 397 , ¶¶ 8, 11 (2013). If an employee cl aims that
his resignation was coerced by the agency creating intolerable working
conditions, the employee must show that a reasonable employee in his position
would have found the working conditions so difficult or unpleasant that they
would have felt comp elled to resign. Axsom , 110 M.S.P.R. 605 , ¶ 12. The Board
will consider allegations of discrimination and reprisal insofar as they relat e to
the issue of voluntariness and not whether they would establish discrimination or
reprisal as an affirmative defense. Vitale v. Department of Veterans Affairs ,
107 M.S.P.R. 501 , ¶ 20 (2007). If the appellant makes a nonfrivolous allegation
of fact establishing Board jurisdiction, he is entitled to a hearing at which he must
prove jurisdiction by preponderan t evidence. Garcia v. Department of Homeland
Security , 437 F.3d 1322 , 1344 (Fed. Cir. 2006) (en banc) .
¶5 In dismissing this appeal for lack of ju risdiction, the administrative judge
considered the appellant’s allegation that he disagreed with the agency’s change
in his retirement code and found that the appellant failed to make a nonfrivolous
allegation of agency misinformation, deception, or coerc ion that could render his
resignation involuntary . ID at 4 -5; see Vitale , 107 M.S.P.R. 501 , ¶ 19 (explaining
4
that one way to overcome the presumption of a voluntary resignation is to show
that (1) the resignation was the product of misinformation or deception by the
agency or (2) the resignation was the product of coercion by the agency) . As to
the allegation of a hostile work environment, the administrative judge found that
the appellant’s allegations were too vague to suggest working conditions that
would compel a reasonable person to resign. ID at 5. We agree with these
findings for the following reasons .
¶6 The appellant subm itted a retirement application in 2020 , and, after the
agency informed him that he was ineligible for retirement , he submitte d
a resignation letter on May 28, 2021. IAF, Tab 1 at 5, 8 -9. Although the
appellant stated that he disagreed with the agency’s d etermination regarding his
entitlement to special retirement eligibility for firefighters , he did not allege that
the agency provided him with misinformation or coerced his resignation . Id.
Rather , the appellant state d that, after the agency denied his r etirement
application, it offered him the opportunity to return to duty. Id. at 9.
The appellant has not alleged that he filed an appeal relating to his retirement
eligibility or that exhaustion of that process would have been futile.2 See
5 C.F.R. §§ 842.804 (c), 842.807 (setting forth appellate procedures for retirement
eligibility determination s for firefighters) . Although the appellant may have
preferred to retire rather than continue working , he has failed to nonfrivolously
allege that he had no choice but to resign from employment and that it was the
agency’s wrongful conduct that deprived him of that choice . See Brown v. U.S.
Postal Service , 115 M.S.P.R. 609, ¶ 15 (finding that the appellant failed to
nonfrivolously allege an involuntary retirement when the appellant had options
for contesting al legedly improper agency actions), aff’d , 469 F. App’x 852 (Fed.
2 Under 5 C.F.R. § 842.807 (a), the final decision of an “agency head” denying an
individual’s request for approval of a position as a rigorous, secondary, or air traffic
controller position made under § 842.804(c) may be appealed to the Board. Such a
request must be made “formally and in writing.” 5 C.F.R. § 842.804 (c). There does not
appear to be such a final decision in the record before us. See IAF, Tab 7 at 6 n.2.
5
Cir. 2011); see also Axsom , 110 M.S.P.R. 605 , ¶ 17 (finding that th e appellant’s
resignation was not involuntary, in part, because he failed to prov e that his
discrimination complaints were being handled inequitably or that exhaustion of
the equal employment opportunity process would have been futile).
¶7 We further agree with the administrative judge ’s finding that the appellant’s
allegations regarding an alleged hostile work environment are too vague to
support a claim of constructive discharge. ID at 5 . Before the administrative
judge, the appellant asserted very few details about the alleged hostile work
environment . IAF, Tab s 1, 6. The appellant stated that his leadership failed to
take action in respons e to disclosures that he made during an Inspector General
investigation and that he was not considered for promoti ons. IAF, Tab 1 at 5.
The appella nt, however, did not explain how the agency’s failure to take action in
response to his disclosures created a hostile work environment. Id. Regarding
the appellant’s claim that he was not selected for unspecified promot ions,
possibly dating back to 2016 , we find that this alleg ation is too vague to support
a nonfrivolous allegation that his resignation was coerced. Id. To the extent the
appellant claimed that the alleged nonselection was retaliatory based on allege d
whistleblower activity, he did not allege that he filed a whistleblower reprisal
complaint or that doing so would have been futile. See Brown , 115 M.S.P.R. 609 ,
¶ 15; Axsom , 110 M.S.P.R. 6 05, ¶ 17. To the extent that the appellant considered
the agency’s conduct to be retaliatory, he did not explain how the alleged
retaliation made his working conditions so intolerable that a reasonable person in
his position would have felt compelled to resign.
¶8 On review, the appellant alleges further details regarding the alleged hostile
work environment and suggests the possibility of a potential whistleblower
reprisal claim . PFR File, Tab 1 at 4 -7. He also attaches four letters from
coworkers , which he alleges support his claimed involuntary resignation.
Id. at 8-13. T he Board generally will not consider evidence or argument
submitted for the first time with a petition for review absent a showing that it was
6
unavailable before the record was closed before the administrative judge despite
the party’s due diligence. Clay v. Department of the Army , 123 M.S.P.R. 245, ¶ 6
(2016); Avansino v. U.S. Postal Service , 3 M.S.P.R. 211 , 213 -14 (1980) ; 5 C.F.R.
§ 1201.115 (d). The appella nt has not made such a showing. Regarding the
potential whistleblower reprisal claim, the administrative judge noted that the
appellant disavowed filing a complaint with the Office of Special Counsel (OSC) ,
which is a prerequisite to seeking correct ive action from the Board in
an individual right of action (IRA) appeal. ID at 4 n.5; see Mason v. Department
of Homeland Security , 116 M.S.P.R. 135 , ¶ 8 (2011). We agree . IAF, Ta b 1 at 4.
However, we note that n othing in this decision resolves whether the appellant
could establish jurisdiction over a later IRA appeal should the appellant exhaust
those claims with OSC . For the foregoing reasons, we deny the appellant’s
petition f or review and affirm the initial decision.
NOTICE OF APPEAL RIG HTS3
The initial decision 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 whic h to file. 5 U.S.C.
§ 7703 (b). Although we offer the following summary of available appeal rights,
the Merit Systems Protection Board does not provide legal advice on which
option is most appropr iate for your situation and the rights described below do
not represent a statement of how courts will rule regarding which cases fall
within their jurisdiction. If you wish to seek review of this final decision, you
should immediately review the law appl icable to your claims and carefully follow
3 Since the issuance of the initial decis ion in this matter, the Board may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise which option is most appropriate in any matter.
7
all filing time limits and requirements. Failure to file within the applicable time
limit may result in the dismissal of your case by your chosen forum.
Please read carefully each of the three main possible choic es of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703 (b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional 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 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.
8
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 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, co sts, or other security. See
42 U.S.C. § 2000e -5(f) and 29 U.S.C. § 794a .
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702 (b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702 (b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If yo u submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is:
9
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C . 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302 (b)(8) or
other protected activities listed in 5 U.S.C. § 2302 (b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
disposition of allegations of a prohibited personnel practice described in
section 2302(b) other than practices described in section 2302(b)(8), or
2302(b)(9)(A)(i), (B), (C), or (D),” then you may file a petition for judicial
review either with the U.S. Court of Appeals for the Federal Circuit or any court
of appeals of competent jurisdiction.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 fo r judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court 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
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation f or an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the 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 th e 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 | GOLDEN_CRAIG_DE_0752_21_0235_I_1_FINAL_ORDER_1943421.pdf | 2022-07-19 | null | DE-0752-21-0235-I-1 | NP |
4,278 | https://www.mspb.gov/decisions/nonprecedential/DONAHUE_SEAN_M_PH_3330_17_0031_I_1_FINAL_ORDER_1943511.pdf | UNITED STATES OF AME RICA
MERIT SYSTEMS PROTEC TION BOARD
SEAN M. DONAHUE,
Appellant,
v.
DEPARTMENT OF LABOR,
Agency.
DOCKET NUMBER
PH-3330 -17-0031 -I-1
DATE: July 19, 2022
THIS FINAL ORDER IS NONPRECEDENTIAL1
Sean M. Donahue , Hazleton, Pennsylvania, pro se.
Jennifer L. Bluer , Esquire, Richard T. Buchanan , Esquire, and Anthony D.
DiBacco , 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
denied his request for corrective action under the Veterans Employment
Opportunities Act of 1998 (VEOA) . 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 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 d ecision. 5 C.F.R. § 1201.113 .
DISCUSSION OF ARGUME NTS ON REVIEW
¶2 The follow ing facts, as further detailed in the initial decision, are not in
dispute. The appellant applied for a GS -11 Workforce Program Specialist
vacancy in the agency’s Employment and Training Administration. Initial Appeal
File (IAF), Tab 40, Initial Decision (ID) at 2. Among other things, his
application recognized the appellant’s entitlement to a 5 -point veterans ’
preference. Id.
¶3 The agency used the category rating method during its selection process.
ID at 5; see 5 U.S.C. § 3319 . Under that method, applicants completed a
competency based questionnaire (CBQ), which computer software scored. ID
at 5. Based on those scores, applicants were divided into three qualification
categories, A, B, and C. Id. Applicants with a 10 -point veterans’ preference
were automatically placed atop category A, regardless of their CBQ score. Id.
Applicants with a 5 -point veterans’ preference remained in the category assigned
by virtue of their CBQ score, but were pl aced atop of that category. Id.
3
¶4 Of the 156 applicants for the Workforce Program Specialist vacancy, 2 were
entitled to a 10 -point veterans’ preference and were, therefore, placed atop
category A. ID at 5 -6. The appellant’s CBQ score resulted in his pl acement
within category C, and his 5 -point veterans’ preference resulted in his placement
atop of that category. ID at 6. The agency ultimately selected one of the
candidates with the 10 -point veterans’ preference to fill its vacancy. Id.
¶5 The appellant filed a complaint with the agency, alleging that , by not
selecting him, it had violated VEOA. ID at 2. The agency’s Veterans’
Employment and Training Service investigated and found no such violation. ID
at 2-3. The appellant then filed the instant VEOA appeal. ID at 3.
¶6 After holding the requested hearing, the administrative judge issued an
initial decision denying the appellant’s request for corrective action. ID at 1.
First, he found no merit to the ap pellant’s claim that category rating is only
appropriate in the context of scientific vacancies. ID at 6 -7. Next, the
administrative judge concluded tha t the agency applied category rating properly.
ID at 7 -8. Finally, he found that the appellant’s remaining arguments, such as his
disagreement with how effective the CBQ was at measuring an applicant’s
preparedness for a vacancy, did not show a VEOA violation. ID at 8 -9. The
appellant has filed a petition for review. Petition for Review (PFR) File, Tab 1.
The agency has filed a response , and the appellant has replied. PFR File,
Tabs 3-4.
¶7 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. §§ 3330a (a)(1)(B), 3304(f)(1) (right -to-compete claims); see
generally Piiraine n v. Department of the Army , 122 M.S.P.R. 194 , ¶ 8 (2015)
(analyzing a VEOA claim to determine under which theory it belonged). Here,
the appellant has not alleged that he was denied the right to compete, nor is there
4
anything in the record to suggest that he was. Accordingly, the administrative
judge properly considered his as a veterans’ preference claim. ID at 6.
¶8 To prevail on the merits of a claim that the agency violated his veterans’
preference rights, the appellant must prove by preponderant evidence that (1) he
exhausted his remedy with the Department of Labor ; (2) he is a preference
eligible within the meaning of VEOA; (3) the action at issue took pl ace on or
after the October 30, 1998 enactment date of VEOA; and (4) the agency violated
his rights under a statute or regulation relating to veterans’ preference. See
Lazaro v. Department of Veterans Affairs , 666 F.3d 1316 , 1319 (Fed. Cir. 2012)
(setting forth these elements in terms of the appellant’s lesser jurisdictional
burden); Isabella v. Department of State , 106 M.S.P.R. 333 , ¶¶ 21-22 (2007)
(recognizing that, to prevail on the merits, the appellant must prove these
elements by prepon derant evidence) , aff’d on recons ., 109 M.S.P.R. 453 (2008) .
The administrative judge found that the appellant failed to prove t he final
requirement —that the agency violated his rights under a statute or regulation
relating to veterans’ preference. ID at 6 -9. We agree.
¶9 The appellant reasserts arguments he made before the administrative judge.
According to the appellant, the agen cy’s use of a CBQ to categorize applicants is
inadequate because its multiple choice questions limit an applicant’s ability to
explain his or her qualifications. PFR File, Tab 1 at 4 -5. He further argues that
the CBQ allows applicants to answer untruthfu lly. Id. at 5. However, he later
acknowledges that the agency reviews applicants that are placed in the highest
category, arguing that the agency should similarly review those that fall into other
categories to ensure they were rated properly. Id. The appellant also reasserts
that category ranking of applicants is only appropriate for scientific positions. Id.
Finally, the appellant generally argues that the Government has failed him, while
benefiting individuals such as the agency’s representative an d a testifying
witness, whom he characterizes as “non -white . . . politically liberal foreigners.”
Id. at 6.
5
¶10 Although we have considered the appellant’s arguments, we find them
unavailing. While the appellant has expressed disagreement with the agency’s
use of the CBQ and category ranking, based on concerns about its adequacy and
effectiveness, that disagreement does not establish a violation of his veterans’
preference rights. See Launer v. Department of the Air Force , 119 M.S.P.R. 252 ,
¶ 7 (2013) (explaining the category rating system of 5 U.S. C. § 3319 and
recognizing that it is now the primary method by which all agencies fill
competitive -service vacancies).
¶11 In addition, the appellant ’s suggestion that category ranking is only
appropriate for scientific positions is incorrect . See Jones v. Department of
Health and Human Services , 119 M.S.P.R. 355 , ¶¶ 2, 12 -16 (2013) (discussing an
agency’s use of category ranking to fill a Public Health Advisor position) , aff’d ,
544 F. App’x 976 (Fed. Cir. 2013) ; Launer , 119 M.S.P.R. 252 , ¶¶ 2, 7 -10
(discussing an agency’s use of category ranking to fill an Engineering Equipment
Operator position). The language of the statute reflects otherwise. 5 U.S.C.
§ 3319 (b) (requiring that “[f]or other than scie ntific and professional positions at
GS-9 of the General Schedule (equivalent or higher), qualified
preference -eligibles who have a compensable service -connected disability of 10
percent or more shall be listed in the highest quality category”).
¶12 Lastly, while the appellant is frustrated by his failure to secure the
employment he seeks, the Board’s role under VEOA is not to determine whether a
preference eligible is qualified for a particular position or whether he should have
been selected for the positio n in question. Miller v. Federal Deposit Insurance
Corporation , 121 M.S.P.R. 88 , ¶ 11 (2014), aff’d , 818 F.3d 1361 (Fed. Cir. 2016 ).
The Board instead focuses on the narrower question of whether the agency
violated the individual’s veterans’ preference rights. Id. In this case, the
appellant has failed to identify evidence of any such violation.
6
NOTICE OF APPEAL RIGHTS2
You may obtain review of this final decision. 5 U.S.C. § 7703 (a)(1). By
statute, the nature of your claims determines the time limit for seeking such
review and the appropriate forum with which to file. 5 U.S.C. § 7703 (b).
Although we offer the following summary of available app eal rights, the Merit
Systems Protection Board does not provide legal advice on which option is most
appropriate for your situation and the rights described below do not represent a
statement of how courts will rule regarding which cases fall within their
jurisdiction. If you wish to seek review of this final decision, you should
immediately review the law applicable to your claims and carefully follow all
filing time limits and requirements. Failure to file within the applicable time
limit may result in the dismissal of your case by your chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals f or the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703 (b)(1)(A).
If you submit a petition for 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.
7
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. 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.
(2) Judicial or EEOC review of cases involvi ng a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this d ecision. 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 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:
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
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 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.3 The court of appeals must receive your petition for
review within 60 days of the date of issuance of this decision. 5 U.S.C.
§ 7703 (b)(1)(B).
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov . Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U .S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses t he services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
3 The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit 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
Contact information for the courts of appeals can be 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 | DONAHUE_SEAN_M_PH_3330_17_0031_I_1_FINAL_ORDER_1943511.pdf | 2022-07-19 | null | PH-3330-17-0031-I-1 | NP |
4,279 | https://www.mspb.gov/decisions/nonprecedential/WATKINS_RONALD_KEITH_DC_0831_16_0353_I_1_FINAL_ORDER_1943534.pdf | UNITED STATES OF AME RICA
MERIT SYSTEMS PROTEC TION BOARD
RONALD KEITH WATKINS ,
Appellant,
v.
OFFICE OF PERSONNEL
MANAGEMENT,
Agency.
DOCKET NUMBER
DC-0831 -16-0353 -I-1
DATE: July 19, 2022
THIS FINAL ORDER IS NONPRECEDENTIAL1
Ronald Keith Watkins , Silver Spring, Maryland, pro se.
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 filed a petition for review of the initial decision, which
affirmed the decision of the Office of Personnel Management (OPM) that he was
ineligible for an immediate retirement annuity under the Civil Service Retirement
System (CSRS). 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 appl ication of the law to the facts of the case; the
administrative judge’s rulings during either the course of the appeal or the initial
decision were not consistent with required procedures or involved an abuse of
discretion, and the resulting error affected the outcome of the case; or new and
material evidence or legal argument is available that, despite the petitioner’s due
diligence, was not available when the record closed. Title 5 of the Code of
Federal Regulations, section 1201.115 ( 5 C.F.R. § 1201.115 ). After fully
considering the filings in this appeal, we conclude that the petitioner has not
established any basis under section 1201.115 for granting the petition for review.
Theref ore, 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).
BACKGROUND
¶2 In 2003, the appellant was removed from his position with the District of
Columbia (D.C.) Department of Corrections (DOC). Initial Appeal File (IAF),
Tab 18 at 31. He filed a complaint under the D.C. Whistleblower Protection Act
in D.C. Superior Court. Id. at 12 -13. A jury returned a verdict in his favor, and
the judge ordered 18 months of front pay, in lieu of reinstatement, among other
damages and costs. Id. at 13, 18 -20. The Court of Appeals for the District of
Columbia affirmed the judgment. Id. at 17 .
¶3 Beginning in 2013, the appellant requested immediate retirement from the
D.C. Government under the retirement system for D.C. employees. IAF, Tab 2
at 50. After his requests were unsuccessful, he filed a retirement appeal in
D.C. Superior Court, r equesting benefits under the D.C. Government’s retirement
system. Id. In an order granting D.C.’s motion to dismiss, the judge found that
the court lacked jurisdiction over his appeal because the appellant was an
employee as defined by CSRS, and directed him to file a retirement application
3
with OPM. Id. at 51. The D.C. Court of Appeals affirmed the decision in 2015.
Id. at 52.
¶4 In August 2015, the appellant applied to OPM for an immediate retirement
annuity under CSRS. IAF, Tab 18 at 27. In a Februar y 8, 2016 reconsideration
decision, OPM denied his retirement application because he had not attained the
requisite age for immediate or deferred retirement. Id. at 7-9. According to
OPM, he had separated from service with the D.C. Government on November 6,
2005, at the age of 48, with 21 years, 7 months, and 16 days of creditable service.
Id. at 7-8.
¶5 The appellant filed this appeal, essentially arguing that his front pay award
in the whistleblower case was tantamount to reinstatement, and thus, he was s till
employed by the DOC because the agency never removed him after his de facto
reinstatement. IAF, Tab 2 at 2. Furthermore, he alleged that his entitlement to
retirement benefits had been adjudicated previously by the D.C. courts and that
OPM’s denial of his application contravened those prior orders. IAF, Tab 1
at 5-6, Tab 2 at 2. Finally, he asserted that he was entitled to immediate
retirement given his service as a law enforcement officer (LEO) and that he was
now over 50 years old. IAF, Tab 10 a t 5-6.
¶6 After holding the requested hearing, the administrative judge affirmed
OPM’s denial of the appellant’s retirement application. IAF, Tab 1 at 3, Tab 38,
Initial Decision (ID) at 1, 7. He found that the prior D.C. court decisions directed
the appell ant to submit a CSRS retirement application to OPM, without
determining his entitlement to an immediate retirement annuity. ID at 4 -5. He
further found that OPM properly concluded that the appellant accrued no
creditable service after DOC terminated him on Nove mber 6, 2005, upon the
expiration of his front pay award. ID at 5 -7. He therefore found that the
appellant had not attained the requisite combination of age and creditable service
at the time of his separation to qualify for immediate retirement u nder 5 U.S.C.
§ 8336 (a), (b), or (c)(1). ID at 7.
4
¶7 The appellant has filed a timely petition for review.2 Petition for Review
(PFR) File, Tab 1. The agency has filed a response, to which the appe llant has
replied. PFR File, Tabs 4, 5.
DISCUSSION OF ARGUME NTS ON REVIEW
¶8 The appellant alleges that the administrative judge erred in finding him
ineligible for immediate retirement benefits under 5 U.S.C. § 8336 (a), (b), and
(c)(1). PFR File, Tab 1 at 5 -18, 23, Tab 5. As argued below, he contends that he
continues to accrue creditable service because the administrative judge in his
whistleblower reprisal case awarded him front pay, which he cla ims is tantamount
to reinstatement and any purported termination occurring after his de facto
reinstatement violates his right to due process. PFR File, Tab 1 at 6 -8, 18 -23. He
reiterates that the D.C. courts determined that he was entitled to receive
retirement benefits upon submitting an application to OPM because he was and
continues to be an employee. Id. at 5 -8. He alleges that these D.C. court
decisions are entitled to preclusive effect. Id. at 5-7, 17 -19. Upon consideration
of the appellant’s a rguments, we find no basis for disturbing the administrative
judge’s finding that he was ineligible for an immediate retirement annuity under
CSRS.
¶9 An individual first employed by the D.C. Government before October 1,
1987, is an employee covered by CSRS. 5 U.S.C. § 8331 (1)(G). A covered
employee is eligible for a basic immediate retirement annuity under CSRS, if at
the time of his separation from service , he is at least 55 years of age with 30 years
2 In June and July 2018, the appellant filed two requests to withdraw his petition for
review, but , in July 2018, filed three submissions rescinding his requests in response to
a Board order seeking to confirm his intent to withdraw. Petition for Review (PFR)
File, Tabs 10-15. In January 2019, the appellant filed two additional requests to
withdraw his petition for review, but subsequently filed a submission rescinding his
requests in respo nse to the Board’s additional order seeking confirmation of his intent
to withd raw. PFR File, Tabs 17 -20. As such, the Board will not rule on the appellant’s
request s to withdraw and instead issues this decision on the appellant’s petition for
review.
5
of creditable civilian service, or is at least 60 years of age with 20 years of
creditable civilian service . 5 U.S.C § 8336 (a)-(b). If a covered emp loyee has
20 years of LEO service, he is entitled to an immediate annuity at 50 years of age.
5 U.S.C. § 8336 (c)(1).
¶10 Although the appellant argues that the decisions by the D.C. courts
effectively deemed his employment as continuing beyond November 6, 2005, we
disagree. PFR File, Tab 1 at 5 -23. As properly discussed in the initial decision,
the appellant was a covered employee under 5 U.S.C. § 8331 (1)(G), until his
separation on November 6, 2005. ID at 5 -7. OPM credited the 18 -month front
pay period towards the appellant’s CSRS retirement eligibility. IAF, Tab 18
at 7-8. The D.C. court decisions expressly found that the appellant would have
been terminated at the end of the 18 -month period for reasons unrelated to his
whistleblowing. Id. at 13, 15, 17-20. DOC terminated him effective November 6,
2005, upon the expiration of the front pay period. Id. at 30. The appellant argues
that, under Pollard v. E.I. du Pont de Nemours & Co. , 532 U.S. 843 (2001), his
front pay was effectively the same as a reinstatement. PFR File, Tab 1 at 21 -23.
In Pollard , the Court observed that “ front pay awards . . . are made in lieu of
reinstatement,” and are permitted under Title VII. 532 U.S. at 846, 853 -54. The
Court did not address whether an agency could remove an employee at the end of
the front pay period when, as here, reinstatement was not a viable option. Id.
at 853-54; IAF, Tab 18 at 15. Thus, contrary to the appellant’s arguments,
Pollard does not require that he be considered an employee after
November 2005.3
3 Although the appellant was an employee for the purposes of the CSRS, he was not an
employee with Board appeal rights as defined by 5 U.S.C. § 7511 . Therefore, the Board
does not have jurisdiction to address the merits of his separation, including his due
process claims. 5 U.S.C. §§ 7511 , 7513; PFR File, Tab 1 at 18 -21. As the
administrati ve judge correctly noted, the D.C. Government established an alternate
system for adjudicating removal actions of D.C. Government employees and assigned
jurisdiction over those actions to the D.C. Office of Employee Appeals. D.C. Code
§ 1-606.0 3; ID at 7 n.1.
6
¶11 Furthermore, we find that although a D.C. Superior Court judge found that
the appellant was covered by CSRS, he made no determination concerning the
appellant’s separation date, length of service, or eligibility for immediate
retirement. IAF, Tab 2 at 49 -51. Rather, the judge directed him to file an
application with OPM because OPM had jurisdiction over his retirement appeal.
Id. at 51. Therefore, the appellant has shown no error in the administrative
judge’s finding that OPM established that DOC termin ated him from his covered
position on November 6, 2005, and that he performed no creditable service after
that date. ID at 6 -7.
¶12 The appellant’s status as a former CSRS -covered employee, alone, is
insufficient to establish entitlement to immediate retireme nt benefits —he must
also have had the requisite combination of age and creditable service at the time
of his separation. 5 U.S.C § 8336 (a)-(c). We find that , even if the appellant were
entitled t o LEO credit, he did not meet the age requirement to qualify for
immediate retirement because he separated from service in 2005, before he was
50 years old. 5 U.S.C. § 8336 (c)(1); IAF, Tab 18 at 8 , 30. He therefore is not
entitled to immediate retirement benefits under those provisions. Nonetheless, as
noted in OPM’s reconsideration letter, he may be eligible for deferred retirement
after reaching the age of 62. IAF, Tab 18 at 8, 11; see 5 U.S.C. § 8338 (a)
(establishing that an employee is eligible for deferred retirement under CSRS
beginning at age 62, if he has completed at least 5 years of creditable service).
¶13 Accordingly, we agree wit h the administrative judge that OPM correctly
denied the appellant’s application for an immediate CSRS retirement annuity, and
we affirm the initial decision.
7
NOTICE OF APPEAL RIGHTS4
You may obtain review of this final decision. 5 U.S.C. § 7703 (a)(1). By
statute, the nature of your claims determines the time limit for seeking such
review and the appropriate forum with which to file. 5 U.S.C . § 7703 (b).
Although we offer the following summary of available appeal rights, the Merit
Systems Protection Board does not provide legal advice on which option is most
appropriate for your situation and the rights described below do not represent a
statement of how courts will rule regarding which cases fall within their
jurisdiction. If you wish to seek review of this final decision, you should
immediately review the law applicable to your claims and carefully follow all
filing time limits and requi rements. Failure to file within the applicable time
limit may result in the dismissal of your case by your chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703 (b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
4 Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise which option is most appropriate in any matter.
8
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful 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
9
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 only, excluding
all other issues . 5 U.S.C. § 7702 (b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702 (b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC 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
10
disposition of allegations of a pro hibited 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 Cir cuit 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.
Washing ton, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probon o for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a g iven 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, 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
Contact information for the courts of appeals can be found at their
respective websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Loc ator/CourtWebsites.aspx .
FOR THE BOARD:
Washington, D.C. /s/ for
Jennifer Everling
Acting Clerk of the Board | WATKINS_RONALD_KEITH_DC_0831_16_0353_I_1_FINAL_ORDER_1943534.pdf | 2022-07-19 | null | DC-0831-16-0353-I-1 | NP |
4,280 | https://www.mspb.gov/decisions/nonprecedential/ELKIN_NEAL_E_SF_1221_20_0387_W_1_FINAL_ORDER_1942984.pdf | UNITED STATES OF AME RICA
MERIT SYSTEMS PROTEC TION BOARD
NEAL E. ELKIN,
Appellant,
v.
DEPARTMENT OF VETERA NS
AFFAIRS,
Agency.
DOCKET NUMBER
SF-1221 -20-0387 -W-1
DATE: July 18, 2022
THIS FINAL ORDER IS NONPRECEDENTIAL1
Neal E. Elkin , Ann Arbor, Michigan, pro se.
Coleen L. Welch , Martinez, 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 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 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
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 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 for review and AFFIRM the initial decision,
which is now the Board’s final decision. 5 C.F.R. § 1201.113 (b).
BACKGROUND
¶2 As further detailed throughout the record and initial decision, the appellant
began working as a primary care physician for the agency’s Ukiah Community
Based Outpatient Clinic (CBOC) in March 2016. Initial Appeal File (IAF),
Tab 62, Initial Decision (ID) at 2. He quickly and consistently found the
workload unmanageable, and he regularly clashed with nursing st aff and
managers alike. ID at 3 -10. In September 2016, just 6 months into his time with
the agency, the appellant first expressed his intent to resign. ID at 10. Although
he would later change his mind about resigning, repeatedly, he continued to have
difficulties with his workload , and his relationships with other employees
continued to deteriorate. ID at 10 -22. In January 2018, the appellant chose to
stop working at the clinic, and he went on extended leave until he resigned almost
2 years later. I D at 22 -24.
¶3 In the instant appeal, the appellant alleged that he was subject to
whistleblower reprisal. IAF, Tab 1. After developing the record and holding the
requested hearing, the administrative judge denied the appellant’s request for
3
corrective acti on. IAF, Tabs 49, 51, 53 (Hearing Recording, Days 1 -3
(HR1 -HR3 )); ID at 1. She addressed the following sets of disclosures, activities,2
and personnel actions:
Disclosure 1 – inaccurate blood pressure readings,
Disclosure 2 – lack of clinic supplies,
Disclosure 3 – prior lapses in patient care,
Disclosure 4 – inadequate or improper nursing support,
Disclosure 5 – violation of conduct rules by another physician,
Disclosure 6 – improper handling of a cancer patient’s complaint,
Disclosure 7 – lapse in bui lding security,
Disclosure 8 – improper appointment to an Administrative Investigative Board
(AIB), and
Disclosure 9 – improper workload.
Activity 1 – contact with the Office of Accountability and Whistleblower
Protection (OAWP),
Activity 2 – contact with the agency’s Office of Inspector General (OIG), and
Activity 3 – contact with an agency AIB.
Personnel Action 1 – a November 2017 admonishment,
Personnel Action 2 – a hostile work environment,
Personnel Action 3 – a December 2017 letter changing work c onditions, and
Personnel Action 4 – an involuntary resignation.
2 The administrative judge explained that the appellant never provided a concise list of
his alleged disclosures and activities. ID at 26. For that reason, they are described
differently throughout th e pleadings below and on review. For the sake of simplicity
and clarity, we are ordering the sets of disclosures, activities, and personnel actions in
the same way as the initial decision, while also numbering them and providing a more
succinct descriptio n of each.
We separately note that there is significant overlap amongst the disclosures and
activities the appellant identified. For example, the appellant engaged in extensive
communications about his workload, which the administrative judge analyzed und er
both the protected disclosure and protected activity provisions of the whistleblower
statute, depending on the recipient. ID at 43, 48. Further complicating matters, some
of the appellant’s communications involved multiple matters, such that the
admin istrative judge at times considered a single communication under more than one
category of disclosures. For example, the administrative judge found that one email
contained a protected disclosure about a prior lapse in patient care but additional
complain ts in the email about the appellant’s workload were not protected. ID at 35, 44
(discussing IAF, Tab 38 at 33 -34).
4
ID at 26-30. Of these, the administrative judge found that the appellant met his
burden of proving that at least a portion of Disclosures 3, 5, 7, and 8 were
protected, as were Activities 1, 2, and 3, but he failed to do the same with his
other disclosures. ID at 31 -48. The administrative judge also found that the
appellant met his burden of proving the existence and coverage of Personnel
Actions 1 and 3 under the whistleblower statute but not Personnel Actions 2
and 4. ID at 48-66.
¶4 The administrative judge next found that the appellant proved that
Disclosures 3, 5, 7, and 8 were a contributing factor in Personnel Actions 1 and 3,
but he failed to do the same for Activity 1, 2, or 3. ID at 66 -68. Finally, upon
shifting the burden for only those matters that remained, the administrative judge
found that the agency proved that it would have taken the same personnel actions
in the absence of the appellant’s protected disclosures. ID at 68 -77.
¶5 The appellant has filed a petition for review that primarily presents
arguments about the disclosures the administrative judge found not protected.
Petition for Review (PFR) File, Tab 5. The agency has filed a response , and the
appellant has replied. PFR File, Tabs 7, 12.3
¶6 After establishing jurisdiction in an IRA appeal, an appellant has the burden
of proving by preponderant evidence that : (1) he made a protected disclosure
described under 5 U.S.C. § 2302 (b)(8) or engaged in protected activity described
under 5 U.S.C. § 2302 (b)(9)(A)(i), (B), (C), or (D), and (2) the disclosure or
3 With his reply, the appellant attached hundreds of pages of unexplained evidence.
PFR File, Tab 12 at 31 -290. We have not considered thi s evidence because the
appellant presented no basis for us to conclude that it is both new and material. Russo
v. Veterans Administration , 3 M.S.P.R . 345 , 349 (1980) (recognizing that the Board will
not grant a petition for review based on new evidence absent a showing that it is of
sufficient weight to warrant an outcome different from that of the initial decision);
Avansino v. U.S. Postal Service , 3 M.S.P.R. 211 , 213 -14 (1980) (recognizing that,
pursuant to 5 C.F.R. § 1201.115 , the Board generally will not consider evidence
submitted for the first time with a petition for review absent a showing that it was
unavailable before the record was closed before the administrative judge despite the
party’s due diligence).
5
protected activity was a contributing factor in the agency’s decision to take or fail
to take a personnel action as defined by 5 U.S.C. § 2302 (a). Salerno v.
Department of the Interior , 123 M.S.P.R. 230 , ¶ 5 (2016). If the appellant meets
this burden, the agency is given an opportunity to prove, by clear and convinci ng
evidence, that it would have taken the same personnel action in the absence of the
protected disclosure or activity. Id.
The appellant failed to prove that Disclosures 1, 2, 4, 6, or 9 were protected under
section 2302(b)(8).
¶7 The vast majority of the appellant’s petition for review consists of
arguments that the sets of disclosures we identified as Disclosures 1, 2, 4, 6,
and 9 were protected, and the administrative judge erred by finding otherwise.4
PFR File, Tab 5 at 5. To address those arguments, we first note the proper
analytical framework for determining whether a disclosure is protected.
¶8 A protected disclosure is one that the appellant reasonably believed
evidenced gross mismanagement, a gross waste of funds, an abuse of authority, a
substanti al and specific danger to public health or safety, or any violation of a
law, rule, or regulation. 5 U.S.C. § 2302 (b)(8)(A). The disclosure must have
been specific and detailed, not a vague alleg ation of wrongdoing regarding broad
or imprecise matters. Rzucidlo v. Department of the Army , 101 M.S.P.R. 616 ,
¶ 13 (2006). T he proper test for determining whether an employee had a
reasonable belief that his disclosures revealed misconduct prohibited under the
whistleblower statute is the following : Could a disinterested observer with
knowledge of the essential facts known to and readily ascertainable by the
4 As allud ed to previously, the appellant’s description and numbering of these
disclosures is somewhat different than the description and numbering we will use in this
decision. For example, that which we have described as Disclosure 2 – lack of clinic
supplies, th e appellant describes as a disclosure that the agency was running out of
nebulizers for patients with difficulty breathing. PFR File, Tab 5 at 5. That which we
have described as Disclosure 6 – improper handling of a cancer patient’s complaint, the
appell ant describes as a disclosure of delayed care for the patient. Id.
6
employee reasonably conclude that the actions of the government evidence
wrongdoing as defined by the whistleblower statute? Id., ¶ 14.
¶9 The types of protected disclosures most relevant to the appellant’s
arguments on revie w are those concerning an abuse of authority or a substantial
and specific danger to public health or safety. Regarding the former, the Board
has explained that an abuse of authority is an arbitrary or capricious exercise of
power by a federal official or employee that adversely affects the rights of any
person or that results in personal gain or advantage to himself or to preferred ,
other persons. Linder v. Department of Justice , 122 M.S.P.R. 14 , ¶ 15 (2014).
Regarding the latter, the Board has explained that disclosures about a danger to
the public must be both substantial and specific to be protected. Schoenig v.
Department of Justice , 120 M.S.P.R. 318 , ¶ 10 (2013). Factors to be considered
in determining whether a disclosed danger is sufficiently su bstantial and specific
to be protected include the likelihood of harm, when the alleged harm may occur,
and the potential consequences of the harm. Id. Disclosure of an imminent event
is protected, but disclosure of a speculative danger is not. Id. To illustrate with a
relevant example, the Board once found that an employee’s disclosures were
protected where he reasonably believed he was disclosing systemic problems
regarding inadequate patient care with specific examples of misdiagnoses and
misdirectio n of patients. Parikh v. Department of Veterans Affairs ,
116 M.S.P.R. 197, ¶¶ 12, 15 -23 (2011). With that background in mind, we no w
turn to the sets of disclosures the appellant reasserts on review.
Disclosure 1 – inaccurate blood pressure readings
¶10 The appellant made disclosures about the accuracy of blood pressure
readings to the individual who served as Administrative Director and Nursing
Supervisor (CBOC Manager) on at least two occasions, in April and
September 2016. IAF, Tab 48 at 4. According to the appellant, his concern
began on his very first day working for the clinic and continued throughout the
7
time that followed becaus e he sometimes found that a patient’s blood pressure
was recorded as “lower and closer to normal” than he found when checking a
patient’s blood pressure himself. E.g., IAF, Tab 12 at 6 -7, Tab 38 at 15 -16. The
administrative judge concluded that the appel lant failed to meet his burden for
this set of disclosures. ID at 31 -32.
¶11 On review, the appellant argues that this set of disclosures was protected
because it revealed a substantial and specific threat to public health and safety.
PFR File, Tab 5 at 6 -10. To do so, he asserts that at least some of the blood
pressure inconsistencies he found were far more extreme and dangerous than
should be expected. Id. He directs us to a document dated September 15, 2016,
at 3:00 a.m. Id. at 6 (referencing IAF, Ta b 38 at 112 -14). This document states
that the appellant had seen a patient and measured his blood pressure as 200, even
though the patient’s medical record listed his blood pressure as 118. IAF, Tab 38
at 112-14. However, the document reads like a diar y entry, written when the
appellant was unable to sleep due to the stress of his job . Id. It is not addressed
to anyone, and it does not provide further information. Id. For example, the
document does not identify the patient, the source of the lower b lood pressure
reading, any suspected wrongdoing, or any indication that the appellant disclosed
this specific instance to someone with the agency. Id.
¶12 We found additional evidence from later that same day, where the appellant
did email the CBOC Manager about how he wanted nurses to measure blood
pressure , and he mentioned a “major error” fr om a couple of days earlier.
IAF, Tab 38 at 119-23. However, the “major error” was not further described.
When the CBOC Manager asked for the patient’s name, the ap pellant did not
provide that name; he simply stated that the patient was “doing fine and his BP is
under control.” Id. at 120. The appellant further stated that he does his own
recheck of blood pressures, “so [he is] not concerned that [he will] miss any thing
at this point,” but he did not know whether others did the same . Id. In a final
pair of follow -up emails, the CBOC Manager once again asked for the patient’s
8
name, but the appellant’s response provided neither the patient’s name nor the
attending n urse’s name. Id. at 119. The appellant indicated that he would rather
discuss the matter in person. Id.
¶13 Here, it is not apparent that the appellant reasonably believed that he was
disclosing anything other than changes in patients’ blood pressure. Alth ough the
appellant’s concerns about the clinic nursing staff’s blood pressure measurements
began on his very first day seeing patients, and his first disclosure about the same
occurred just a couple weeks later , id. at 15 , he did not identify any particula r
impropriety that caused the alleged differences in blood pressure readings, any
particular nurse associated with the readings, or any particular suspicion he may
have had about the issue. E.g., ID at 31; IAF, Tab 12 at 6 -7, Tab 38 at 15 -16.
¶14 As the administrative judge recognized, several agency witnesses described
how the measuring and recording of blood pressure was a routine task, for which
staff followed the agency’s standard operating procedures. ID at 31 -32. These
witnesses further testi fied that increases in blo od pressure readings between
an initial consult with a nurse and the eventual exam with the appellant would not
be surprising under the circumstances because patients routinely had to wait a
long time for the appellant. ID at 32.
¶15 The appellant’s petition remains devoid of any substantive and persuasive
explanation for why he would have believed that he was disclosing the kind of
wrongdoing covered by section 2302(b)(8) . PFR File, Tab 5 at 6 -10.
We recognize and appreciate the appellant’s suggestion that one specific set of
blood pressure readings that he alluded to, from 118 to 200, is both too big to be
accurate and potentially life threatening. PFR File, Tab 5 at 6 -10; IAF, Tab 38
at 112-14. But , the facts surrounding those alleged readings or any other “major
errors” remain unexplained by the appellant. Although it is certainly within the
realm of possibility that nursing staff was making dangerous error s regarding
blood pressure readings, the record does not show that the appellant reasonably
believed that to be the case.
9
Disclosure 2 – lack of clinic supplies
¶16 The administrative judge next considered a set of disclosures about the
clinic’s supplies, particularly its supply of nebulizers and peak flow meters.
E.g., ID at 33-34; IAF, Tab 48 at 4. On review, the appellant only presents
arguments about the nebulizers. He reasserts that he made a protected disclosure
by twice reporting to the CBOC Manager that the clinic had an inadequate
inventory of nebulizers in May and O ctober 2016. PFR File, Tab 5 at 11 -15.
According to the appellant, this set of disclosures is protected because it revealed
a substantial and specific threat to public health and safety. Id.
¶17 As alluded to in the initial decision, the clinic did have to adjust its on -hand
inventory of nebulizers, from two to five or more, to accommodate the appellant’s
treatment preferences. ID at 33; e.g., IAF, Tab 38 at 140. However, documentary
evidence and witness testimony indicated that the change was needed becau se the
appellant’s use of nebulizers was different than most; both before and after the
appellant’s time at the clinic, the clinic rarely dispensed nebulizers because all
the other clinicians preferred inhalers. ID at 33. Noting this, the administrative
judge concluded that the appellant failed to prove that he had a reasonable belief
of any substantial and specific threat regarding the supply of nebulizers because
the appellant could and did provide patients with an adequate alternative. Id.
¶18 On review, the appellant acknowledges that he oftentimes provided
nebulizers as a “back -up” treatment for patients that typically use an inhaler.
PFR File, Tab 5 at 11. However, he argues that nebulizers and inhalers may not
be interchangeable for some patients wit h extenuating circumstances.
Id. at 12-15.
¶19 We have considered the appellant’s arguments but do not find them
persuasive. Although the appellant spoke with the CBOC Manager at least twice
about the clinic’s supply of nebulizers to provide for in -home use, e.g., IAF,
Tab 48 at 4, the appellant has described only one patient that seems to have been
10
impacted by the clinic not maintaining a larger supply on hand, PFR File, Tab 5
at 12; IAF, Tab 38 at 23-24. But , that individual already had an inhaler ; he used
the clinic’s nebulizer during his encounter with the appellant ; and he received his
own nebulizer for home use within 10 days, via mail. IAF, Tab 38 at 23-25, 137.
The appellant has not presented any basis for us to conclude that this patient , or
any other , was in any specific and substantial danger from the clinic’s inventory
management.
¶20 We acknowledge the appellant’s argument that there may be times when
an inhaler and nebulizer are not interchangeable f or some patients. However,
the appellant has done little more than present conclusory assertions that are not
persuasive. The appellant has not directed us to anything in the record
documenting the prevalence of such patients or the surrounding circumstances.
Those details are particularly rel evant since the record before us suggests that the
clinic always had a nebulizer to use in the office, it typically had nebulizers to
provide for in -home use, and other facilities or providers were “close by” and
“available to help ,” if needed. E.g., id. at 23 , 139 -40. For that reason,
the appellant has not proven by preponderant evidence that he reasonably
believed his disclosures about the agency’s inv entory of nebulizers revealed
a substantial and specific threat to public health and safety or any othe r category
of wrongdoing protected under section 2302(b)(8).
Disclosure 4 – inadequate or improper nursing support
¶21 In the initial decision, the administrative judge described and considered
several instances of the appellant raising questions or concerns a bout nursing
support , but she found none protected. ID at 36 -39. On review, the appellant has
narrowed his arguments about this set of disclosures by referring only to his
11
communications about the availability of nurses from 12:00 -1:00 p.m. and after
4:30 p.m.5 PFR File, Tab 5 at 36 -37.
¶22 In one associated email, the appellant claimed that five nurses were at lunch
and the one that remained was with a patient, resulting in the appellant tending to
a homeless patient in the waiting room, looking unwell, possibly because his
diabetes was uncontrolled. IAF, Tab 39 at 42 -43. A few days later, the appellant
reiterated this concern when he needed and received lunchtime nursing support
but was told not to expect lunchtime nursing services to always be available.
Id. at 44. In another email, the appellant reported that he was told nursing
services may not always be available after 4 :30 p.m. either, but he found that
unacceptable because his patients were regularly scheduled to come in as late as
3:30 p.m. and the clinic accepted walk -ins until 4:00 p.m. Id. at 275.
¶23 While addressing these disclosures, the administrative judge conside red
testimony from the CBOC Manager, where she described how patients should not
ordinarily be in the clinic during the lunch hour or after 4:30 p.m. but a nurse
would be available if there was a critical need. ID at 37 -38. She found this
testimony credib le. Id. The administrative judge further found that the record
was filled with evidence of the appellant being behind schedule and therefore
working outside the clinic’s normal operating hours, but the appellant failed to
prove that a reasonable person w ould believe that his complaints about the
clinic’s schedule not matching his own were protected. ID at 38.
¶24 In his petition, the appellant argues that his disclosures about nurse
scheduling were protected because they revealed a substantial and specific t hreat
5 For additional communications about nursing support that were addressed below, but
not reasserted on review, we note that the administrative judge relied, in part, on the
testimony of th e appellant and other witnesses. ID at 38. Among other things, she
considered the appellant’s testimony to be self -serving. Id. Although it was error to
reject the appellant’s testimony as self -serving, the administrative judge’s credibility
determinat ion was otherwise, and on the whole, proper. See Doe v. U.S. Postal Service ,
95 M.S.P.R. 493 , ¶ 10 (2004) (sustaining credibility finding s under similar
circumstances).
12
to public health and safety. PFR File, Tab 5 at 36 -37. He further describes the
lunchtime encounter alluded to above, where a diabetic individual was in the
waiting room, not feeling well, and the only nurse in the office was occupied with
another patient. Id. at 36. The appellant characterizes this as an unsafe situation
because nurses were trained to use an “Accucheck” and treat hypoglycemia, if
needed, but he was not; the appellant could only sit with the patient and offer him
something to eat. Id.; IAF, Tab 39 at 43. The appellant also disputes the
administrative judge’s description of the clinic as “closed” during the lunch hour
because patients were oftentimes still being seen at that time or they were
arriving early for their 1:00 p.m. appointments. PFR File, Tab 5 at 37. Finally,
the appellant reiterates his belief that nurses should have been scheduled past
4:30 p.m. because the clinic was required to accept walk -in patients as late a s
4:00 p.m. and the receptionist could occasionally a ccept a patient even later than
that. Id.
¶25 We have considered these arguments but find no reason to disturb the
administrative judge’s conclusion. As made evident throughout the record, the
clinic was not an emergency room or hospital. It was a facility with designated
hours of operation where the appellant and others provided primary care services.
E.g., IAF, Tab 11 at 6 -7, 185 -87, Tab 39 at 555 -57. For emergency services, the
clinic referred patients to the hospital. E.g., IAF, Tab 38 at 112, Tab 39 at 147.
¶26 The agency’s expectation was for the appellant to work from 8:00 a.m. to
4:30 p.m. each day, with a lunch hour in between. E.g., IAF, Tab 11 at 185 -87.
The appellant oftentimes would work through lunch and stay after hours to try
and keep up wi th a workload that he found unmanageable. E.g., IAF, Tab 38
at 57-58, 110, Tab 39 at 196. But , we discern no basis for concluding that the
absence of consistent nursing coverage outside the clinic’s ordinary operating
hours was a substantial and specific threat to public health and safety.
¶27 We recognize and appreciate the appellant’s recounting of the one instance
in which a patient apparently arrived to the clinic’s waiting room during the lunch
13
hour looking unwell. But , by the appellant’s own description, a physician,
a nurse, and a receptionist were all occupying the clinic at that time, and another
nurse arrived within minutes. IAF, Tab 39 at 42 -43. Although it is apparent that
the appellant was frustrated by this incident, in part because he did not know how
to best treat the patient, himself, we are not persuaded that he reasonably believed
that his disclosure was protected. The record before us suggests that the clinic
was ordinarily staffed during the lunch hour and staff would stay aft er their tour
ended, if needed, to accommodate any emergency. E.g., IAF, Tab 11 at 194, 198,
Tab 39 at 44, 72. It also suggests that the appellant, himself, had sought help
from the nearby hospital for instances in which the clinic could not care for a
patient with emergency needs. IAF, Tab 38 at 112. For these reasons, we
determine that the appellant’s disclosures about nurses’ schedules at the clinic
reflect a policy disagreement, but do not also reveal any type of disclosure
covered under the whistle blower statute. See generally Hessami v. Merit Systems
Protection Board , 979 F.3d 1362 , 1371 (Fed. Cir. 2020) (recognizing that “policy
decisio ns and disclosable misconduct under the [whistleblower statutes] are not
mutually exclusive”).
Disclosure 6 – improper handling of a cancer patient’s complaint
¶28 The next set of disclosures the appellant reasserts on review concerned a
staff encounter with o ne of the appellant’s patients —an encounter the appellant
did not witness. ID at 15 -16, 39 -41; see, e.g ., IAF, Tab 39 at 145 -70, Tab 48
at 4-5. According to associated medical records, this patient had experienced
pain and other symptoms for over a year, but the appellant had attributed this to a
relatively minor ailment. IAF, Tab 60 at 13. However, when the patient’s
symptoms continued to worsen and he sought care elsewhere, clinicians
uncovered extensive cancer. Id. The patient brought this news to the clinic,
asking to speak with the appellant. IAF, Tab 61 at 8. Notes in the patient’s chart
describe the appellant as “not available” during this encounter and describe the
14
patient as “understandably upset and feel[ing] the care received [at the clini c] was
not aggressive enough to identify his ailment sooner giving him a greater chance
of survival.” Id.
¶29 As recounted in the initial decision, multiple staff members provided
testimony, further describing this patient encounter and the events that follow ed.
ID at 15-16, 39 -41. They indicated that the patient had come to confront the
appellant, not seek medical care from the appellant. ID at 15. When staff
indicated that the appellant was not available, the patient left the office abruptly,
informing t hem that he no longer intended to receive his care there and would
instead go to a different agency facility. Id. Staff took action to find out more
about the patient’s cancer diagnosis and to elevate the issue, in part , because they
interpreted the enco unter as both a malpractice complaint and potential threat of
violence. Id. However, they did not immediately inform the appellant about the
diagnosis or encounter. ID at 15 -16.
¶30 When the appellant did learn about the patient encounter, several days la ter,
he asked numerous individuals about what happened and then engaged in various
communications over many weeks about his conclusions. E.g., IAF, Ta b 39
at 145-70, 219 -20. Among other things, these communications alleged that staff
had lied about the appellant’s availability, they had deliberately kept him in the
dark, they had tarnished his reputation, and they had prevented the patient from
receiving promp t follow -up care. Id.
¶31 The administrative judge found that the appellant failed to prove that these
communications contained any disclosure protecte d under section 2302(b)(8).
ID at 40-41. Instead, she found that they contained conclusory and unreasona ble
assertions of maliciousness on the part of agency staff, both in terms of their
reporting that the appellant was unavailable at the time of the patient encounter
and in terms of their care for the patient. Id.
¶32 On review, the appellant has characteri zed his communications about this
patient as containing four distinct and protected disclosures. First, the appellant
15
argues that he disclosed a substantial and specific danger to public health and
safety by revealing that staff failed to address a patien t’s urgent need for medical
care. PFR File, Tab 5 at 21 -23. Second, the appellant argues that he disclosed a
substantial and specific danger to public health and safety, a violation of agency
rules, and an abuse of authority by revealing that staff delib erately withheld the
patient’s condition from him for several days. Id. at 23 -25. Third, the appellant
argues that he disclosed a violation of agency rules for handling urgent test
results. Id. at 25 -26. Fourth, the appellant argues that he disclosed a substantial
and specific danger to public health and safety, as well as a violation of agency
rules, by revealing that upper management failed to adequately investigate the
matter. Id. at 26 -27.
¶33 We have considered each of these arguments but do not find them
persuasive. By all indications, the patient in question understood the gravity of
his situation , and he visited the clinic to end his treating relationship there, not to
seek out advice or care from the appellant. Clinicians elsewhere had just
diagn osed him with cancer in his pancreas, lungs, liver, lymph nodes, and
bladder. IAF, Tab 60 at 13, Tab 61 at 9. When he came to the clinic, he did so
upset about his “chance of survival.” IAF, Tab 61 at 8. Witnesses described the
patient visit as one in which he was “firing” the clinic and expressing his intent to
go to elsewhere for further care. E.g., ID at 62; HR2 (testimony of Medical
Director at 28:00). A subsequent treatment note from a different agency medical
center shows that he did just that; the patient sought care elsewhere. IAF, Tab 60
at 13. While doing so, the patient seemed to fault the appellant for dismissing his
symptoms over the prior year. Id. The patient further described himself as
having “not done anything” in the week or so s ince his diagnosis, “due to the
shock ,” as well as “his anger that [it] was not diagnosed sooner.” Id.
¶34 Plus, by all indications, staff at the CBOC clinic had followed up regarding
this patient, despite the patient indicating that he wanted nothing more to do with
the clinic, albeit through channels that did not include the appellant. As the
16
appellant has himself acknowledged, staff elevated the issue to multiple people,
including the clinic’s Medical Director, within the 2 days that followed the
patient’s unexpected visit to the clinic. E.g., IAF, Tab 39 at 157; PFR File, Tab 5
at 16. Staff also attempted to contact the patient by at least the fourth day after
that visit, as documented in the patient’s chart. IAF, Tab 61 at 8. In addition,
although sta ff did not immediately seek out the appellant to notify him of the
encounter or diagnosis in person, multiple witnesses testified that the appellant
would have received a prompt alert with the patient’s test results. E.g., ID at 16;
HR2 (testimony of Medi cal Director).
¶35 It is undisputed that the appellant conducted his own informal investigation
about what happened before making his disclosures. E.g., ID at 16; IAF, Tab 39
at 138, 144, 152. For that reason, he would have been aware of the circumstances
described above. In what appears to be his first communication to management
about the issue, the appellant explicitly recognized that the patient had already
visited the agency’s Palo Alto facility for follow up regarding his new cancer
diagnosis. IAF, T ab 39 at 151.
¶36 We appreciate that the appellant would still have reason for concern about
the patient’s health, he may have disagreed with the patient’s decision to seek
care elsewhere, and he may have wanted an opportunity to speak with the patient
soone r. But , we do not find that the appellant reasonably believed that his
communications about this incident —communications that primarily accuse staff
of lying about his availability and purposefully keeping him out of the loop, while
accusing management of failing to adequately deal with the same —revealed a
substantial and specific danger to public health and safety. We are also
unpersuaded that the appellant reasonably believed he disclosed an abuse of
authority or violation of any established rule.
¶37 In large part, the appellant’s arguments on review seem to rely on the
appellant’s suspicions about the staff and colleagues that surrounded him at the
clinic. For example, the appellant asserts that he was in the clinic, all day, on the
17
day of this patient e ncounter, as proof that staff maliciously lied about his
availability. PFR File, Tab 5 at 16. But , it is apparent that the appellant’s
presence in the clinic does not equate to him being unoccupied and available to
attend to a brief and unscheduled meeti ng with a patient. The appellant also
suggests that , while there was testimony indicating that the patient was
“outraged” and “fired” the clinic during the encounter, it may have been a
manufactured excuse to cover up the agency’s response. Id. at 18 -20. But , the
appellant has identified no substantive evidence or testimony t o support his
suspicion , and, as previously mentioned, there is ample evidence to the contrary,
much of which he was aware of at the time of his disclosures. E.g., IAF, Ta b 60
at 13, Tab 61 at 8.
¶38 Once again, it was the appellant’s burden of proving that he reasonably
believed that he was disclosing the type of wrongdoing described in the
whistleblower statute. In this instance, he has not done so.
Disclosure 9 – improper w orkload
¶39 The final set of disclosures the administrative judge found not protected
under section 2302(b)(8) were ones about the appellant’s work backlog, work
schedule, or workload during the period he worked for the clinic, between
March 2016 and January 2018. ID at 43 -47. On review, the appellant describes
this set of disclosures as one about “work overload,” and he once again argues
that it revealed a substantial and specific danger to public health and safety.
PFR File, Tab 5 at 27 -35.
¶40 It is undisput ed that the appellant regularly found himself behind and
working longer hours than his normal work schedule , despite the agency
periodically adjust ing his schedule or provid ing other assistance to give the
appellant an opportunity to catch up. For example , by May 2016, just 2 months
into his time working at the clinic, the appellant had developed a backlog of
nearly 800 “view alerts” in the agency’s system for communicating matters such
18
as lab results, prescription refill requests, notes to be signed, and schedule
changes.6 IAF, Tab 38 at 30, Tab 39 at 50; ID at 4. Consequently, the Director
of Primary Care blocked off some of the appellant’s time for clearing that
backlog, while also offering to personally sit with the appellant to help him do so.
IAF, Tab 38 at 31, 35.
¶41 Over the next couple of months, the Director of Primary Care periodically
monitored and assisted the appellant with his view alerts, sometimes clearing
them out herself and sometimes granting him days of administrative time to catch
up in a separate location, where he would not be distracted by patients. E.g.,
id. at 41, 48, 57, 83, 86, 104 -05. The appellant saw zero to three patients per day,
at times, to allow for this extensive administrative time, and his backlog shrank.
Id. However, by July 2016, the Director of Primary Care warned the appellant
that his failure to timely handle matters , such as view alerts , jeopardized patients,
so she expected him to both catch up and then stay current on his workload,
which should includ e a schedule of 10 patient appointments or walk -ins per day.
Id. at 65, 89.
¶42 Despite the accommodations, warnings, and some progress, the appellant’s
backlog of view alerts began to climb again, reaching 1 ,500 by September 2016.
Id. at 110 -11, 124. The a ppellant indicated that he was seeing three to five
patients a day around that time, but he considered that overloaded and suggested
that it could result in harm to a patient. Id. at 124 -25.
6 It is apparent that the amount of time it took to review or complete a “view alert”
varied, depending on the nature of the alert. We found one instance of the appellant
estimating that it took him 2 minutes to clear each. IAF, Tab 38 at 39. Elsewhere,
he described clearing as many as three per minute. IAF, Tab 39 at 49. We also found
another instance of the Director of Primary Care reviewing his backlog of alerts and
finding that many were “already done” but remained in his backlog because the
appella nt simply failed to clear them from his queue. IAF, Tab 38 at 31. To provide
further context, the record contains extensive documentation showing how the
appellant’s backlog of unprocessed view alerts oftentimes grew by several hundred per
week. IAF, Ta b 11 at 17-61.
19
¶43 In December 2016, the Director of Primary Care met with the ap pellant to
review the agency’s expectations. IAF, Tab 39 at 72. Among other things, that
included attending to 10 patient slots per day; notifying patients of test results
within 7 days if they required action or 14 days if they required no action; and
completing notes with 48 hours. Id. The Director of Primary Care warned that
failure to meet these expectations may result in discipline. Id.
¶44 By March 2017, the appellant had a backlog of patient notification letters to
complete, as well as 2 ,000 view al erts to dispose of, and he insisted that the
agency’s expectations of him were unrealistic, despite having some days with no
scheduled patients. Id. at 48, 57, 61. The Director of Primary Care responded
with dismay that the appellant had once again gotte n behind, despite repeated
assistance and repeated explanations of the agency’s expectations.
Id. at 58, 61, 64, 68, 71. She denied the appellant’s request for additional
administrative time without seeing patients, as well as his request to see no new
patients ; she set concrete deadlines for prioritizing and catching up on his
backlog ; and she warned him that discipline could follow if he failed to do so. Id.
¶45 Nonetheless, i n May 2017, the agency provided the appellant with dedicated
administrative time to address his backlog of view alerts that had grown to 2 ,200.
Id. at 109 -14, 118, 120, 122, 124. Then, in June 2017, the agency issued the
appellant a counseling letter, describing how he had repeatedly failed to complete
test result notifications. IAF, Tab 11 at 137. Two months later, in August 2017,
the Director of Primary Care and others once again communicated back and forth
with the appellant about getting caught up and warned that his backlog of alerts
was a patient safety issue. IAF, Tab 39 at 185 -91. This led to the agency sending
the appellant a letter, inf orming the appellant that his backlog of alerts would be
handled by other providers and he was expected to stay current on new alerts. Id.
at 198-99, 203. This letter also implemented a more structured and set schedule
of 10 patient slots each day, with designated administrative time built in after
20
each. Id. at 198 -99. Of note, the agency described this schedule as consistent
with national standards and guidelines. Id. at 198, 201.
¶46 In November 2017, the appellant asked for some additional days with no
scheduled appointments so he could catch up on yet another backlog of
administrative tasks, but the Chief of Primary Care rejected the request,
indicating that he was expected to keep up to date without the cancellation of
appointments. IAF, Tab 11 at 181. Days later, the agency began the process of
admonishing the appellant for his delinquent view alerts. Id. at 173-80. The next
month, December 2017, he had a backlog of 1 ,500 view alerts. IAF, Tab 39
at 346. At that time, the agency reduc ed his sched ule of patients and ha d other
clinicians intervene to dispose of his view alerts. Id. at 337, 355 -57. At the end
of the month, when the appellant decided to allow his medical privileges to
expire, the agency gave him weeks of administrative time to compl ete outstanding
patient notes and view alerts before his extended leave that preceded his
resignation. Id. at 359 -60.
¶47 To the extent that the appellant engaged in communications about his work
backlog, work schedule, and workload, the administrative judge found that they
were not protected disclosures. Among other things, she determined that many
were not protected disclosures because they merely asked questions, sought
assistance, or requested changes to his schedule. ID at 44 (referencing, e.g.,
IAF, Tab 38 at 28, 33 -35, 56 -57, Tab 39 at 47, 75, 226, 306). She also found that
many others concerned staffing, retention, the agency’s standards for time spent
with patients, or the “dysfunction” at the clinic, but they were too vague and
conclusory to be pro tected. ID at 44 -45 (referencing, e.g., IAF, Tab 11 at 266,
Tab 38 at 29, 52, Tab 39 at 28 -32, 75 -79, 87). Finally, the administrative judge
recognized that , although agency officials were aware of the appellant’s backlog
and agreed that his backlog of work constituted a patient safety issue, the
appellant’s communications about the same were not to reveal wrongdoing that
21
implicated patient safety —they were to complain that he was unable or unwilling
to meet the agency’s expectations. ID at 45 -47.
¶48 On review, the appellant has alluded to a significant number of documents
in support of his assertion that his communications about being overloaded with
work, parti cularly when it came to his view alerts, were protected because they
concerned patient safety. PFR File, Tab 5 at 27 -35 (citing IAF, Tab 11
at 4, 7-131, 137, 181, Tab 38 at 28, 30, 33 -34, 39 -40, 111, 124 -25, 150 -52,
Tab 39 at 28-29, 48 -51, 60, 130, 185 -99, 336 -63). Although we have reviewed
each, we do not find that he met his burden of proving that any contained
additional disclosures of the types of government wrongdoing covered under
section 2302(b)(8).
¶49 Much of the evidence cited by the appellant consi sts of the agency’s
communications —rather than his own —about the appellant’s inability to keep up
with his workload and remedial actions the agency took to deal with the same.
E.g., IAF, Tab 11 at 4-131, 137, 181, Tab 38 at 28, 30, Tab 39 at 198-99, 338 -45,
349-54, 359 -60. Some other evidence consists of agency policy statements about
managing view alerts. IAF, Tab 38 at 150-52, Tab 39 at 50-51. More are notes
the appellant wrote to himself, not someone else, describing his difficulties with
the agency’ s expectations . IAF, Tab 39 at 48-49.
¶50 Other evidence the appellant cited consists of the communications in which
the appellant explained why he had difficulties with the agency’s expectations,
while insisting that he needed more time than the agency allot ted. E.g.,
IAF, Tab 38 at 33 -34, 39 -40, 124 -25, Tab 39 at 28 -29. To illustrate, in one email,
from 6 months into his time with the clinic, the appellant accused the Director of
Primary Care of being “out of touch with reality” and “pressuring [him] to do
more than [he] can responsibly do,” while surmising that this was a “tale of
substandard care” necessitated by “some bean cou nter.” IAF, Tab 38 at 125.
In another, the appellant criticized staffing levels and indicated that he had to
work extensive over time. IAF, Tab 39 at 28 -29. Another email from the
22
appellant indicates that , despite him previously informing the Director of Primary
Care that he understood and could meet the agency’s expectations, he had
determined that those expectations were unreali stic. Id. at 60.
¶51 Many others consist of the appellant’s communication with agency officials
about wrapping up his backlog and practice before separating from the clinic. For
example, some emails complain the agency was refusing his proposal to reduce
the number of patients he saw each day and was instead requiring a “dangerous
schedule ,” which would cause undue stress and overtime. Id. at 130-31, 355.
Several others show the appellant and managers trying to coordinate the reduction
or elimination of patient appointments for the appellant, as well as the reduction
or elimination of his backlog of view alerts and other administrative tasks, before
handing patients over to other providers. Id. at 185-97, 336 -37, 346, 348, 356 -58,
361-63. At times, those communications in his final days working for the clinic
contain broad allegations of improprieties, such as the appellant’s allegation that
manageme nt had “a vested personal interest in the dysfunctional status quo.” Id.
at 347.
¶52 The appellant’s arguments on review about this set of disclosures do
provide one instance of him describing how one , particular patient was reportedly
harmed by inadequate fo llow up from lab reports. PFR File, Tab 5 at 30 (citing
IAF, Tab 38 at 111). However, that instance involved a prior physician, not the
appellant or his own workload, and the administrative judge found that discrete
matter to be a protected disclosure ab out a prior lapse in care. ID at 36 (citing
IAF, Tab 38 at 111). That disclosure about a particular instance involving a
different clinician is markedly different from the appellant’s communications
about his own backlog of view alerts or other aspects o f his workload, which
constantly ebbed and flowed as the agency repeatedly warned the appellant about
keeping up and provided assistance with the same, either by giving the appellant
additional administrative time or by having another provider intervene.
23
¶53 In sum, we have considered all the documents the appellant cited on review
regarding this set of disclosures about his workload, as well as his arguments
about the same. The appellant makes a persuasive case about how view alerts or
other administrative ta sks that are altogether left to languish, unattended, could
eventually result in harm to a patient under the agency’s care. E.g., PFR File,
Tab 5 at 27-29. However, the appellant has failed to prove that he reasonably
believed that to be the situation he was disclosing. This is particularly so because
the appellant knew that numerous agency officials consistently monitored his
workload and intervened to prioritize, reduce, or altogether eliminate both his
backlog of administrative tasks and his schedule of patients when necessary.
Simply put, the communications identified on review regarding the appellant’s
workload demonstrate that he was consistently dissatisfied with the agency’s
expectations, and he oftentimes wished that the agency would intervene i n
different ways or at different times as he got behind in his workload, but they do
not show that he reasonably believed that he was disclosing the types of
wrongdoing covered under section 2302(b)(8) of the whistleblower statute.
The appellant failed to prove that Personnel Actions 2 and 4 were cognizable
personnel actions under the whistleblower statute.
¶54 To recall, the appellant alleged that he was subject to four retaliatory
personnel actions: (1) a November 2017 admonishment , (2) a hostile work
enviro nment, (3) a December 2017 letter that changed work conditions, and (4) an
involuntary resignation. Supra , ¶ 3. The administrative judge found that the
November 2017 admonishment (Personnel Action 1) was a cognizable personnel
action, ID at 48-49, as was the agency’s December 2017 letter changing his
working conditions (Personnel Action 3), ID at 62 -63. However, the
administrative judge reached the opposite conclusion for the alleged hostile work
environment (Personnel Action 2), ID at 49 -62, and involun tary resignation
(Personnel Action 4), ID at 63 -66.
24
¶55 On review, the appellant asserts that if we disagree with the administrative
judge regarding the existence of additional protected disclosures, we should
revisit the administrative judge’s findings with r espect to his allegations of a
hostile work environment and involuntary resignat ion. PFR File, Tab 5 at 5.
He goes on to present cursory arguments about both. Id. at 46.
¶56 As detailed above, we are not persuaded by the appellant’s arguments about
addition al protected disclosures. Nevertheless, we have reviewed the
administrative judge’s findings about the alleged hostile work environment and
involuntary resignation. ID at 49-62, 63 -66.
Personnel Action 2 – a hostile work environment
¶57 The whistleblower st atute’s definition of a personnel action includes, inter
alia, a “significant change in duties, responsibilities, or working conditions ,” and
the Board has recognized that this phrase must be interpreted broadly. 5 U.S.C.
§ 2302 (a)(2)(A)(xii); Savage v. Department of the Army , 122 M.S.P.R. 612 , ¶ 23
(2015). During the perio d that followed the administrative judge’s initial
decision, we issued a decision that further clarified the matter, particularly as it
relates to allegations of a hostile work environment. See Skarada v. Department
of Veterans Affairs , 2022 M.S.P. B. 17.
¶58 In Skarada , we explained that , although the term “hostile work
environment” has a particular meaning in some other contexts, allegations of a
hostile work environment may only establish a personnel action under the
whistleblower statute if they meet the statutory criteria, i.e. , a sign ificant change
in duties, responsibilities, or working conditions. Id., ¶ 16. And , while the
“significant change” personnel action should be interpreted broadly to include
harassment and discrimination that could have a chilling effect on whistleblowing
or otherwise undermine the merit system, only agency actions that, individually
or collectively, have practical and significant effects on the overall nature and
25
quality of an employee’s working conditions, duties, or responsibilities will be
found to cons titute a personnel action covered by section 2302(a)(2)(A)(xii). Id.
¶59 Although the administrative judge issued the initial decision before Skarada
and, therefore, lacked the explanation contained within, we find no basis for
disturbing her findings of fact about the alleged hostile work environment or her
conclusion that the appellant failed to prove that he was subjected to a n additional
personnel action cognizable under the whistleblower statute. In the initial
decision, the administrative judge provided a lengthy recitation of the appellant’s
allegations pertaining to a hostile work environment along with the associated
evidence. ID at 28 -29, 49 -60. For the most part, these allegations concerned
conversations and disagreements he had with colleagues. Id. The administrative
judge determined that the appellant subjectively felt hostility and much of the
clinic staff did not like working with the appellant, but this was simply the result
of the appellant’s unusual work methods and demands, as well as his own
objectionable behavior —the appellant did not prove that the agency subjected
him to a significant change in duties, responsibilit ies, or working conditions.
ID at 60-62.
¶60 The appellant’s petition for review contains no more than a cursory
argument to the contrary. PFR File, Tab 5 at 46. He suggests that the CBOC
clinic was no ordinary workplace, where occasional disagreements or mistakes
are expected, and the 3 -day hearing recording demonstrates why that is so. Id.
The appellant also poses a questi on, wondering why one witness was not
discussed within the administrative judge’s analysis, though the appellant fails to
provide further explanation of the associated testimony. Id. Without more
though, we will not pour over the voluminous , documentary evidence or hearing
recordings in search of a reason to disturb the administrative judge’s extensive
and well -reasoned findings of fact on this point. See Marques v. Department of
Health & Human Services , 22 M.S.P.R. 129 , 132 (1984) (recognizing that
an administrative judge’s failure to mention all of the evidence of record does not
26
mean that she did not consider it in reaching her decision ), aff’d , 776 F.2d 1062
(Fed. Cir. 1985); 5 C.F.R. § 1201.115 (a) (providing that a petitioner who alleges
that the judge made erroneous findings of material fact must explain why the
challenged factual determination is incorrect and identify specific evidence in the
record that demonstrates the error).
Personnel Action 4 – an invo luntary resignation
¶61 Regarding the appellant’s allegation that he was subjected to a retaliatory
involuntary resignation, the administrative judge determined that the appellant
did not prove the requisite involuntariness of his resignation. ID at 64 -66;
see generally Jenkins v. Merit Systems Protection Board , 911 F.3d 1370 , 1375 -77
(Fed. Cir. 2019) (discussing the presumption that a resignation or retirement is
voluntary and an appellant’s burden of proving otherwise). Among other things,
she noted that the appellant took extensive leave for nearly 2 years before
eventually resigning from the agency. ID at 22 -24, 65. She further noted that,
during that time, the appellant had virtually no contact with the CBOC clinic and
most of the officials he had routinely clashed with retired or otherwise left the
agency. Id. For these reasons and others, the administrative judge concluded that
a reasonab le person in the appellant’s position would not have felt compelled to
resign when the appellant did so. ID at 65 -66.
¶62 Again, the appellant presents little more than a cursory argument about his
alleged involuntary resignation. PFR File, Tab 5 at 46. Without any substantive
explanation, the appellant asserts that hearing testimony showed that his working
conditions were intolerable. Id. That assertion provides no basis for disturbing
the administrative judge’s findings to the contrary.
The agency proved that it would have taken Personnel Actions 1 and 3 in the
absence of the appellant’s protected disclosures.
¶63 Again, f or those matters where the administrative judge found that the
appellant met his burden of presenting a prima facie case of whistleblower
27
reprisal, she shifted the burden to the agency. Upon doing so, the administrative
judge found that the agency proved by clear and convincing evidence that it
would have taken the same personnel actions (Personnel Actions 1 and 3) in the
absence of the appellant’s protected disclosures (Disclosures 3, 5, 7, and 8).
¶64 In determining whether the agency has met its burden of p roving that it
would have taken the same personnel action in the absence of an appellant’s
protected disclosures or activities, the Board will consider the following factors:
(1) the strength of the agency’s evidence in support of its action; (2) the exis tence
and strength of any motive to retaliate on the part of the agency officials involved
in the decision; and (3) any evidence that the agency takes similar actions against
employees who are not whistleblowers, but who are otherwise similarly situated.
Carr v. Social Security Administration , 185 F.3d 1318 , 1323 (Fed. Cir. 1999).
The Board does not view these factors as discrete elements, each of which the
agency must prove by clear and convincing evidence, but rather, the Board will
weigh the factors together to determine whether the evidence is clear and
convincing as a whole. Phillips v. Department of Transportation ,
113 M.S.P.R. 73, ¶ 11 (2010). In addition, the Board is mindful that “[e]vidence
only clearly and convincingly supports a conclusion when it does so in the
aggregate considering all the pertinent evidence in the record, and despite the
evidence that fairly detracts from that conclusion.” Whitmore v. Department of
Labor , 680 F.3d 1353 , 1368 (Fed. Cir. 2012).
¶65 On review, the appellant does not present any particularized arguments
about Personnel Action 1, but he does regarding Personnel Action 3. PFR File,
Tab 5 at 38-45. Our analysis of the a gency’s burden will be similarly focused.
¶66 Personnel Action 3 consisted of the changed working conditions described
in an agency letter , dated December 26, 2017, from the Director of Primary Care
to the appellant. IAF, Tab 39 at 359 -60. Among other things , it described how
the appellant had decided to let his privileges with the agency’s healthcare system
expire, which prevented him from caring for patients and could lead to his
28
removal if he did not also resign. Id. at 359. The letter went on to indicat e that
the agency would provide the appellant with several weeks to catch up on view
alerts and other administrative tasks, but he would do so in a different wing of the
clinic, away from the primary care section where he typically worked. Id. The
agency also gave the appellant specific instructions about how to communicate
with nursing staff for that period. Id.
¶67 Regarding the Carr factors described above, the administrative judge first
found that the agency had strong evidence in support of its actions. ID at 72-74.
Inter alia, she explained that the agency had ample reason to believe that the
appellant was planning to resign, he had administrative tasks to wrap up before
doing so, and he had a lengthy history of being distracted from those
administrative tasks when attending to his regular duties in the clinic. Id.
Second, the administrative judge found that none of the relevan t officials had a
strong motive to retaliate against the appellant. ID at 74 -75. Third, she found
that, although there were some individuals who were not whistleblowers but were
somewhat similar to the appellant in terms of falling behind on administrati ve
tasks, the facts of each were distinguishable and did not support a finding of
retaliation in this appeal. ID at 75 -76.
¶68 In his petition for review, the appellant argues that the agency would not
have implemented Personnel Action 3 in the absence of his emails to agency
officials in the preceding days about his backlog of view alerts or other
administrative tasks once again increasing. PFR File, Tab 5 at 38 -45. But , in
doing so, the appellant seems to exclusively rely on his communications in
Disclosur e 9, which were not protected. See supra , ¶¶ 39-53. Such arguments
are unavailing because the agency’s burden was only to prove that it would have
taken the same personnel action in the absence of his protected disclosures.
Supra , ¶ 6. In other words, even if the agency did implement Personnel Action 3
because of the communications it had with the appellant about his backlog of
29
administrative tasks in the preceding days, that does not warrant corrective action
under the whistleblower statute.
¶69 The appell ant also asserts that Personnel Action 3 constituted discipline, for
which he should have been entitled to due process, and it violated his freedom of
speech. PFR File, Tab 5 at 39, 44 -45. Alternatively, he seems to argue that ,
although it may have been appropriate to eliminate his patient care duties for a
couple weeks, or reduce them for longer, eliminating them for a month was
excessive. Id. at 43-44. These brief arguments do not, however, persuade us that
the administrative judge erred regarding the limited issues before us in this
appeal.
¶70 To conclude, the appellant presented extensive arguments and allegations of
reprisal during the proceedings below. The administrative judge found that
he presented a prima facie case of reprisal regarding a limite d subset of the
alleged disclosures and personnel actions, but he was not entitled to corrective
action. On review, the appellant has further narrowed his arguments and
allegations. We considered each but find no reason find that he is entitled to
correc tive action.
NOTICE OF APPEAL RIG HTS7
You may obtain review of this final decision. 5 U.S.C. § 7703 (a)(1) . By
statute, the nature of your claims determines the time 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
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 mat ter.
30
jurisdiction. If you wish to seek review of this final decision, you should
immediately review the law applicable to your claims and carefully follow all
filing time limits and requirements. Failure to file within the applicable time
limit may result in the dismissal of your case by your chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703 (b)(1)(A).
If you submit a petition f or review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.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
31
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after yo u
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 represent ative receives this decision. If the action involves a claim of
discrimination based on race, color, religion, sex, national origin, or a disabling
condition, you may be entitled to representation by a court -appointed lawyer and
to waiver of any requirement of prepayment of fees, costs, or other security. See
42 U.S.C. § 2000e -5(f) and 29 U.S.C. § 794a .
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702 (b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you re ceive
this decision. 5 U.S.C. § 7702 (b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
32
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302 (b)(8) 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.8 The court of appeals must receive your petition for
8 The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
33
review within 60 days of the date of issuance of this deci sion. 5 U.S.C.
§ 7703 (b)(1)(B).
If you submit a petition for 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.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115 -195,
132 Stat. 1510.
34
Contact information for the courts of appeals can be 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 | ELKIN_NEAL_E_SF_1221_20_0387_W_1_FINAL_ORDER_1942984.pdf | 2022-07-18 | null | SF-1221-20-0387-W-1 | NP |
4,281 | https://www.mspb.gov/decisions/nonprecedential/MOHLER_TIMOTHY_CH_1221_18_0119_W_2_REMAND_ORDER_1943100.pdf | UNITED STATES OF AME RICA
MERIT SYSTEMS PROTEC TION BOARD
TIMOTHY MOHLER,
Appellant,
v.
DEPARTMENT OF HOMELA ND
SECURITY,
Agency.
DOCKET NUMBER
CH-1221 -18-0119 -W-2
DATE: July 18, 2022
THIS ORDER IS NONPRECEDENTIAL1
Richard R. Renner , Esquire, Washington, D.C., for the appellant.
Karen R. Hiyama and Patricia Boxold , Detroit, Michigan, for the agency.
Gregory Guaccio , Esquire, Washington, D .C., for amicus curiae , Office of
Special Counse l.
BEFORE
Cathy A. Harris , Vice Chairman
Raymond A. Limon , Member
Tristan L. Leavitt , Member
Member Leavitt recused himself and
did not participate in the adjudication of this appeal.
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 contra st, a
precedential decision issued as an Opinion and 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
REMAND ORDER
¶1 The appellant has filed a petition for review of the initi al decision, which
denied corrective action in this individual right of action (IRA) appeal. For the
reasons discussed below, we GRANT the appellant’s petition for review ,
MODIFY the initial decision to find that the appellant established a prima facie
case of whistleblower reprisal , MODIFY the basis for but still find that the
appellant did not engage in protected activity under 5 U.S.C. § 2302 (b)(9)(C) ,
VACATE the administrative judge’s finding that the agency proved by clear and
convincing evidence that it would have taken the same action in the absence of
the appellant’s disclosure, and REMAND the case t o the regional office for
further adjudication i n accordance with this Remand Order.
BACKGROUND
¶2 The appellant is employed as a GS -12 Field Technology Officer (FTO) with
the agency’s Customs and Border Protection (CBP), Office of Information
Technology (OIT). Mohler v. Department of Homeland Security , MSPB Docket
No. CH-1221 -18-0119 -W-1, Initial Appeal File (IAF), Tab 1 at 1; Mohler v.
Department of Homeland Security , MSPB Docket No. CH-1221 -18-0119 -W-2,
Refiled Appeal File (RAF), Tab 13 at 5, Tab 26 at 4. Prior to the events at issue
in this appeal, he was allowed to use office space at the U.S. Border Patrol
(USBP) Detroit Sector Headquarters on Selfridge Air National Guard Base
(ANGB) in Harrison Township, Michigan.2 RAF, Tab 26 at 4.
¶3 On August 11, 2015, a Maintenance Mechanic with CBP’s Facilit ies
Management and Engineering, who was also stationed at the USBP’s Detroit
Sector Headquarters, reported “constant harassment” by an unspecified employee,
who was subsequently determined to be the appellant. IAF, Tab 16 at 32-34. On
2 The agen cy explained that, although the OIT offices were located in Walled Lake,
Michigan, the appellant was allowed to use office space of USBP, a CBP component, to
avoid a 50 -mile commute from his home. IAF, Tab 16 at 9.
3
August 12, 2015, th e appellant’s supervisor reported the harassment allegation to
the Joint Intake Center (JIC), the agency’s clearinghouse for allegations of
misconduct, which opened an inquiry into the matter (case number 201509037).
Id. at 12, 32, 59. On August 13, 2015 , the appellant emailed the JIC and the
agency’s Computer Security Incident Response Center (CSIRC) alleging multiple
instances of misconduct by the Maintenance Mechanic, including that he left his
Government computer unattended and unlocked with his perso nal identity
verification (PIV) card still in the card reader, and attaching as evidence a number
of photos of the workstation and PIV card taken during 2014 and 2015.3 IAF,
Tab 16 at 186 -97; RAF, Tab 20 at 26, 32 -40. Shortly thereafter, his email to
CSIRC was forwarded to his supervisor. RAF, Tab 20 at 31.
¶4 On August 14, 2015, the Acting Deputy Executive Director for Field
Support for OIT (DxD) participated in the Assistant Commissioner’s daily
telephonic briefing regarding information technology matters . Hearing Transcript
(HT) at 115-20 (testimony of the DxD). After the telephonic briefing, he sent an
email to management officials stating he had heard that an FTO had reported that
another employee had taken photos of his unlocked and unattended comput er with
his PIV card in the card reader and, although he later acknowledged that he must
have misheard this detail, that the employee used the FTO’s email account to send
those photos. IAF, Tab 16 at 206; HT at 118 (testimony of the DxD). On
August 17, 2 015, the appellant’s supervisor reported to JIC that the appellant had
used the Maintenance Mechanic’s email account, and the JIC opened a new
inquiry into this allegation (case number 201509237). IAF, Tab 16 at 181, 184.
¶5 The agency referred both admini strative inquiries into the appellant’s
conduct (case numbers 201509037 and 201509237) to a factfinder for
investigation. IAF, Tab 16 at 200-02. Pending the completion of the
investigation, the agency temporarily relocated the appellant to the Walled Lak e
3 The JIC opened an administrative inq uiry (case number 201509102) into the
appellant’s allegations against the Maintenance Mechanic. RAF, Tab 20 at 23.
4
Field Support Office and suspended his administrative rights, which precluded
him from utilizing any administrative account to access any Government -owned
workstation or network. Id. at 87. On December 9, 2015, CBP Internal Affairs
completed an adminis trative inquiry report based on the factfinder’s
investigation, which was forwarded to the appellant’s second -level supervisor for
review on January 5, 2016. IAF, Tab 16 at 30-31, 43 -50. On February 22, 2016,
he informed the appellant that the allegations against him were found to be
unsubstantiated and that the case had been closed. Id. at 29. The agency then
restored his administrative access and returned him to the USBP Detroit S ector
Headquarters Selfridge ANGB.4 Id. at 25; RAF, 16 at 140, Tab 26 at 4.
¶6 In or around June 2017, the appellant filed a complaint with the Office of
Special Counsel (OSC) alleging that, in retaliation for his August 13, 2015
disclosure to CSIRC regard ing the Maintenance Mechanic’s computer security
violation —namely, leaving his Government computer unattended while unlocked
with his PIV card still in the card reader on multiple occasions —the agency
conducted an unwarranted investigation into his conduct , moved him to another
duty station, and suspended his administrative access, which precluded him from
performing his usual duties, deprived him of overtime opportunities, and caused
him to lose out on performance award and career advancement opportunities .5
RAF, Tab 16 at 139-40. In a letter dated October 10, 2017, OSC informed the
appellant that it had made a preliminary determination to close its inquiry into his
allegations without action. Id. at 139 -44. The appellant responded by email on
October 1 9 and 23, 2017, restating the allegations made in his initial complaint.
4 It appears that, although the appellant was allowed to return to Selfridge ANGB in
February 2016, his duty station was subsequently mo ved back to Walled Lake. IAF,
Tab 1 at 1; RAF, Tab 16 at 140, 143.
5 OSC docketed this complaint as OSC File. No. MA -17-3672. RAF, Tab 16 at 139.
OSC indicated in its preliminary determination letter that the appellant filed his OSC
complaint on May 22, 2017. RAF, Tab 16 at 139. In its closure letter, it indicated that
he filed it on June 8, 2017. Id. at 145. The appellant did not provide a copy of his OSC
complaint or any subsequent correspondence with OSC.
5
Id. at 145. By letters dated November 8, 2017, OSC informed him that it was
closing its investigation into his complaint without action and that he had the
right to request correcti ve action from the Board.6 Id. at 145-47.
¶7 The appellant timely filed the instant IRA appeal regarding the matters
raised in OSC File No. MA -17-3672, alleging that the agency retaliated against
him for reporting a computer security violation by suspendin g his computer
systems access, assigning him administrative duties, moving his duty station, and
conducting an unwarranted investigation into his conduct.7 IAF, Tab 1 at 5,
Tab 10 at 4 -5, Tab 11 at 4. The administrative judge found that the appellant
established jurisdiction over his IRA appeal and that he was entitled to the
hearing he requested. IAF, Tab 19 at 2. On April 20, 2018, the administrative
judge granted the appellant’s unopposed motion to dismiss the appeal without
prejudice to refiling. IAF, Tab 35, Initial Decision. After refiling, the
administrative judge held the requested hearing and issued an initial decision
denying the appellant’s request for corrective action. RAF, Tab 42, Refiled
Initial Decision (RID).
¶8 The appellant has file d a petition for review of the initial decision. Petition
for Review (PFR) File, Tab 1. The agency has responded to the petition for
review, and the appellant has filed a reply to the agency’s response.8 PFR File,
Tabs 3, 6. In addition, OSC has filed an amicus brief . PFR File, Tab 10.
6 In its closure letter, OSC clarified that its final determination applied only to OSC File
No. MA -17-3672 and that its investigation into the appellant’s other OSC complaint
(OSC File No. MA -18-0164), which he filed on October 11, 2017, regarding incident s
from 2016, was still open. RAF, Tab 16 at 145.
7 Although the appellant indicated on his initial appeal from that he was appealing an
involuntary resignation, he subsequently clarified that he was not challenging any
alleged involuntary resignation. IAF, Tab 1 at 3, Tab 11 at 4.
8 The appellant has also filed two motions to amend the petition, one alleging an
additional error in the initial decision, PFR File, Tab 8, and one requesting an
opportunity to brief Delgado v. Department of Justice , 966 F.3d 556 (7th Cir. 2020),
which was issued after the close of the record on review, PFR File, Tab 13. We grant
the appellant’s motion to amend for an additional allegation of error, but we deny his
6
ANALYSIS
¶9 Under the Whistleblower Protection Enhancement Act (WPEA) , the Board
has jurisdiction over an IRA appeal if the appellant has exhausted his
administrative remedies before OSC and makes nonfrivolous allegations of the
following: (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 protected disclosure or activity was a contributing factor
in the agency’s decision to take or fail to take a personnel action as defined by
5 U.S.C. § 2302 (a). Salerno v. Department of the Interior , 123 M.S.P.R. 230 , ¶ 5
(2016 ). Once he establishes jurisdiction over his IRA appeal, he is entitled to a
hearing on the merits of his claim at which he must prove his prima facie case,
i.e., that he made a protected disclosure or engaged in protected activity that was
a contributing factor in a personnel action taken again st him, by preponderant
evidence.9 5 U.S.C. § 1221 (e)(1); Lu v. Department of Homeland Se curity ,
122 M.S.P.R. 335 , ¶ 7 (2015). If the appellant makes out a prima facie case, the
agency is given an opportunity to demonstrate , by clear and convincing evidence,
that it would have taken the same personnel action in the abse nce of the protected
disclosure or activity .10 5 U.S.C. § 1221 (e)(1)-(2); Lu, 122 M.S.P.R. 335 , ¶ 7 .
¶10 Here, the administrative judge found, and we agree, that the appellant
established jurisdiction over this appeal. IAF, Tab 19 at 2; RID at 6 -7. On the
merits of his appeal, however, she found that he failed to establish a prima facie
case of whistleblowe r reprisal and that, in the alternative, the agency
motion to amend for additional argument on Delgado . The appellant will have an
opportunity to brief Delgado on remand to the extent that he deems it still relevant to
the issues at that stage of the proceedings.
9 Preponderant evidence is that 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 true than untrue. 5 C.F.R. § 1201.4 (q).
10 Clear and convincing evidence is that measure or degree of proof that produces in the
mind of the trier of fact a firm belief as to the allegations sought to be established.
5 C.F.R. § 1209.4 (e).
7
demonstrated by clear and convincing evidence that it would have temporarily
suspended the appellant’s computer systems access, resulting in his assignment to
administrative duties, in the absence of any whistleblowing. RID at 7 -18. The
appellant challenges many of these findings on review.11 PFR File, Tabs 1, 6, 8.
The appellant made a protected disclosure.
¶11 A protected disclosure is a disclosure that an appellant reasonably believes
evidences a viola tion of any law, rule, or regulation, gross mismanagement, a
gross waste of funds, an abuse of authority, or a substantial and specific danger to
public health or safety. 5 U.S.C. § 2302 (b)(8)(A); Chavez v. Department of
Veterans Affairs , 120 M.S.P.R. 285 , ¶ 18 (2013). A reasonable belief exists if a
disinterested observer wit h knowledge of the essential facts known to , or readily
ascertainable by , the appellant could reasonably conclude that the agency’s
actions evince one of the types of wrongdoing listed in section 2302(b)(8)(A).
Chavez , 120 M.S.P.R. 285 , ¶ 18. The appellant need not prove that the matter
disclosed actually established one of the listed types of wrongdoing but only that
a reasonable per son in his position would have believed that it did. Id.
¶12 As noted above, the exhausted disclosure at issue in this appeal involves the
appellant’s report to CSIRC on August 13, 2015, that the Maintenance Mechanic
consistently left his Government compute r unattended while unlocked with his
11 In addition, the appellant argues on review the administrative judge erred in denying
his request to compel discovery —namely, his request for “all emails, text messages and
other el ectronically stored information” directed to or received by 21 agency officials
from July 1, 2015, onwards that included “any of the following strings of characters
(not case s ensitive): violat, discrim, re taliat, repris, investigat, Tim, Mohler,
whistleb low, OSC” —on the ground that it was overbroad and burdensome when
compared to the three alleged personnel actions. PFR File, Tab 1 at 39; RAF, Tab 11
at 25, Tab 23 at 4 -5. An administrative judge has broad discretion in ruling on
discovery matters, and absent an abuse of discretion the Board will not find reversible
error in such rulings. Kingsley v. U.S. Postal Service , 123 M.S.P.R. 365 , ¶ 16 (2016).
We find no such abuse of discretion here, especially in light of the fact that, pursuant to
the administrative judge’s order, the agency provided declarations from 20 of the
officials identified in the appellant’s document request attesting that they did not
possess any relevant or material emails that had not already been produced by the
agency in the agency file or during discovery. RAF, Tab 23 at 4-5, Tab 37.
8
PIV card inserted in the card reader. RAF, Tab 16 at 139 -40, Tab 20 at 32 -40.
The appellant argued that this disclosure evidenced a violation of the agency’s
computer security policy and the Computer Security Act of 1 987, as well as a
substantial and specific danger to public health and safety. IAF, Tab 1 at 16;
RAF, Tab 41 at 14-16. The administrative judge found that, although the
appellant disclosed a violation of the agency’s computer security policy, his
disclos ure was not protected because he made the disclosure in furtherance of a
personal vendetta and not because he had a reasonable belief that the disclosure
evidenced a violation of law, rule, or regulation or an immediate likelihood of
harm. RID at 7-11. As the appellant points out on review, however, an
appellant’s motive in making a disclosure is not relevant to whether the
disclosure is protected. See Parikh v. Department of Veterans Affairs ,
116 M.S.P.R. 197 , ¶ 18 (2011) (finding that the appellant’s allegedly vindictive
motive for disclosing the misdiagnosis was immaterial to whether the disclosure
was protected); Williams v. Department of Defense , 46 M.S.P.R. 549 , 553 n.5
(1991) (recognizing that personal motivation for making a disclosure is irrelevant
to whether the disclosure is protected). Accordingly, the administrative judge
improperly relied on the appellant’s motive in finding that his disclosure was not
protected, and we modify the initial decisio n consistent with this section to apply
the correct analysis and to find, for the reasons discussed below, that the
appellant made a protected disclosure of a violation of law, rule, or regulation.
¶13 As noted above, t he appellant contends , among other thin gs, that his
disclosure evidenced a violation of the agency’s computer security policy. RAF,
Tab 41 at 14-16; PFR File, Tab 1 at 21 -24. Although the parties did not provide a
copy of the agency’s computer security policy, the record reflects that there i s
such a policy and that it requires employees to secure their equipment, ensure that
it was not left unattended, and to remove their PIV cards when they were not in
use. RAF, Tab 16 at 221; HT at 38 (testimony of the appellant’s supervisor);
91-92 (testi mony of the appellant’s third -level supervisor). We find that this
9
policy constitutes a rule within the meaning of section 2302(a)(2). See Rusin v.
Department of the Treasury , 92 M.S.P.R. 298 , ¶¶ 15-17 (2002) (finding that,
although the WPEA does not define “rule,” it includes established or authoritative
standards for conduct or behavior). Accordingly, we find that the appellant made
a protected disclosure of a rule as he had a reasonable belief that leaving a
workstation unattended while unsecured with the PIV card inserted violated the
agency’s computer security policy.12
The appellant has not shown that he engaged in protected activ ity.
¶14 The appellant also argued below that he engaged in protected activity when
he reported the computer security violation to CSIRC because
section 2302(b)(9)(C) protects cooperating with or disclosing information to the
Inspector General or “any other co mponent responsible for internal investigation
or review.” RAF, Tab 41 at 14. In the refiled initial decision, the administrative
judge found that the appellant’s report to CSIRC did not constitute protected
activity under section 2302(b)(9)(C) because C SIRC does not qualify as “any
other component responsible for internal investigation or review,” explaining that
CSIRC does not investigate the agency but only investigates internal complaints
and issues. RID at 17 -18. The appellant challenges this findi ng on review.
PFR File, Tab 1 at 25 -26. Although we agree with the administrative judge that
the appellant’s CSIRC report does not constitute protected activity under
section 2302(b)(9)(C), we modify the initial decision consistent with this section
to clarify the basis for this holding.
12 Because we find that the appellant’s disclosure evidenced a violation of a rule, we
need not determine whether he had a reasonable belief that it also evidenced a violation
of the Computer Security Act of 1987, which was repealed in 2002, or a substantial and
specific danger to public health and safety. See Kraushaar v. Department of
Agriculture , 87 M.S.P.R. 378 , ¶ 11 (2000) (fi nding that, in light of the Board’s finding
that the appellant’s disclosure evidenced a violation of an agency regulation, it was
unnecessary to determine whether the disclosure also evidenced an abuse of authority);
see also E-Government Act of 2002, Pub. L. No. 107-347, § 305(a), 116 Stat. 2899,
2960 (2002) (repealing the Computer Security Act).
10
¶15 Prior to December 12, 2017, the whistleblower protection statutes provided
that “ cooperating with or disclosing information to the Inspector General of an
agency, or the Special Counsel, in accordance with applicable prov isions of law ,”
is protected. 5 U.S.C. § 2302 (b)(9)(C); Edwards v. Department of Labor ,
2022 MSPB 9, ¶ 29. Effective December 12, 2017, the National Defense
Authorization Act of 2018 (NDAA) amended section 2302(b)(9)(C) to p rovide
that, in addition to the Inspector General of an agency or the Special Counsel, a
disclosure to “any other component responsible for internal investigation or
review” is also protected. Pub. L. No. 115 -91, § 1097(c)(1), 131 Stat. 1283, 1618
(2017) . The Board has held that the NDAA’s amendment to
section 2302(b)(9)(C) is not retroactive. Edwards , 2022 MSPB 9, ¶¶ 30-33.
¶16 As describ ed above, a ll of the events relevant to this appeal occurred prior
to the December 12, 2017 effective date of the NDAA . Accordingly, as it is not
retroactive, the amendment to section 2302(b)(9)(C) does not apply to this appeal,
and we need not determine whether the CSIRC constitutes a “component
responsible for internal investigation or review” so as to fall within the coverage
of the amended section 2302(b)(9)(C) .13 Id. Rather, to be covered under the
pre-NDAA section 2302(b)(9)(C), the appellant must s how that he cooperated
with or disclosed information to the Inspector General or OSC. Id., ¶ 29. He has
not alleged, and the record does not reflect, that he cooperated with or disclosed
information to the Inspector General. Although the appellant filed a complaint
with OSC in May or June 2017, he has not alleged that the agency’s actions at
issue in this appeal resulted from that complaint, nor did he exhaust such a claim.
Accordingly, we find that the appellant has not shown that he engaged in
protect ed activity under section 2302(b)(9)(C) for purposes of this appeal.
13 In its amicus brief, OSC argues that CSIRC falls within the meaning of the expanded
language of section 2302(b)(9)(C ), because it uses formalized investigation procedures.
PFR File, Tab 10 at 10 -11. We do not reach this issue in light of our determination that
the post -NDAA language does not apply here.
11
The agency subjected the appellant to covered personnel actions.
¶17 As noted above, the appellant must also prove by preponderant evidence
that the agency subjected him to a covered personn el action. See Scoggins v.
Department of the Army , 123 M.S.P.R. 592 , ¶ 2 1 (2016). A “personnel action” is
defined as an a ppointment; a promotion; an action under 5 U.S.C. chapter 75 or
other disciplinary or corrective action; a detail, transfer, or reassignment; a
reinstatement; a restoration; a reemployment; a performance evaluation under
5 U.S.C. chapter 43 or under title 38; a decision about pay, benefits, or awards
concerning education or training if the education or training reasonably may be
expected to lead to an appointment, promotion, performance evaluation, or other
action described in 5 U.S.C. § 2302 (a)(2)(A); a decision to order psychiatric
testing or examination; the implementation or enforcement of any nondisclosure
policy, form, or agreement ; and any other significant change in duties,
responsibilities, or working conditions. 5 U.S.C. § 2302 (a)(2)(A).
¶18 In the refiled initial decision, the administrative judge found that the
appellant established that the agency subjected him to a covered signifi cant
change in his duties, responsibilities, or working conditions when it temporarily
suspended his administrative access, which resulted in a temporary change in his
duties and responsibilities, and relocated him to the Walled Lake facility. RID
at 12-13. She found that the investigation, however, did not constitute a covered
personnel action. RID at 12. On review, the appellant argues that the
administrative judge failed to consider his allegation that the agency subjected
him to a hostile work envir onment. PFR File, Tab 1 at 28 -30.
¶19 We find no basis to disturb the administrative judge’s determination that the
appellant’s temporary relocation to a new duty station and temporary suspension
of his computer systems access, which resulted in his assignm ent from his FTO
duties to administrative duties , constitute significant change s in his duties,
responsibilities, or working conditions. RID at 12-13; see Skarada v. Department
of Veterans Affairs , 2022 MSPB 17, ¶ 16 (explaining that agency actions that,
12
individually or collectively, have practical and significant effects on the overall
nature and quality of an employee’s working conditions, duties, or
responsibilities will be found to constitute a personnel action covered by
subsection 2302(a)(2)(A) (xii)). In addition, we agree with the administrative
judge that the investigation does not constitute a personnel action. R ID at 12;
Johnson v. Department of Justice , 104 M.S.P.R. 624 , ¶ 7 (2007 ). Nonetheless, it
is proper to consider evidence regardi ng the investigation because it is so closely
related to the personnel action s that it could have been a pretext for gathering
information to retaliate for whistleblowing. See Johnson , 104 M.S.P.R. 624 , ¶ 7 .
¶20 We recognize that, as the appellant argues on review, the administrative
judge did not explicitly address his claim that, considering the investigations,
relocation, suspension of computer systems access, and assignment to
administrative duties together, the agency subjected him to a hostile work
environment. RAF, Tab 41 at 20 -21. However, any error in this regard did not
affect the outcome of the appeal. See Panter v. Depart ment of the Air Force ,
22 M.S.P.R. 281 , 282 (1984). Although the Board stated in Savage v. Department
of the Army , 122 M.S.P.R. 612 , ¶ 23 (2015), that a hostile work environment
itself may constitute a covered personnel action in an IRA appeal, the Board later
clarif ied that allegations of a hostile work environment may establish a personnel
action in an IRA appeal only if they meet the statutory criteria, i.e., constitute a
significant change in duties, responsibilities, or working conditions, Skarada ,
2022 MSPB 17, ¶ 16 (citing 5 U.S.C. § 2302 (a)(2)(A) ). Here, as discussed above,
the appellant’s temporary relocation to a new duty station, suspension of his
computer systems access, and assignment to administrative duties constitute
significant change s in his duties, responsibilities, and working conditions under
subsection 2302(a)(2 )(A)(xii). Therefore, it is unnecessary to determine whether
these actions also constitute a significant change in his duties, responsibilities, or
working conditions based on a hostile work environment. To the extent the
appellant argues that the invest igation was part of a hostile work environment
13
personnel action, we disagree because he not shown that the investigation,
individually or considered collectively with other agency actions, had any
practical and significant effect on the overall nature and quality of his working
conditions, duties, or responsibilities.14 See Skarada , 2022 MSPB 17, ¶ 16.
The appellant established contributing factor based on the knowledge/timing test.
¶21 As discussed above, the appellant made a protected disclosure on
August 13, 2015, when he emailed CSIRC regarding the Maintenance Mechanic’s
computer security violation, and the agency thereafter subj ected him to a covered
personnel action. To establish a prima facie case of whistleblower reprisal, he
must next prove by preponderant evidence that his disclosure was a contributing
factor in a covered personnel action. Scoggins , 123 M.S.P.R. 592 , ¶ 21. The
term “contributing factor” means any disclosure that affects an agency’s decision
to threaten, propose, take, or not take a personnel action regarding the individual
making the disclosure. Id. The most common way of proving the contributing
factor element is the “knowledge/timing test.” Id. Under that test, an appellant
can prove that his disclosure was a contributin g factor in a personnel action
through evidence that the official taking the personnel action knew of the
whistleblowing disclosure and took the personnel action within a period of time
such that a reasonable person could conclude that the disclosure was a
contributing factor in the personnel action. Id. Once an appellant has satisfied
the knowledge/timing test, he has demonstrated that a protected disclosure was a
contributing factor in a personnel action. Id.
¶22 In the refiled initial decision, the administrative judge found that the
appellant established that the August 13, 2015 disclosure contributed to his
14 The NDAA amended 5 U.S.C. § 1214 to allow OSC to petition the Board for
corrective action on behalf of an employee due to an agency’s investigation of the
employee if it was commenced, expanded, or extended in retaliation for protected
whistleblowing activity. 5 U.S.C. § 1214 (i). Regardless of any questions as to whether
this amendment applies retroactively, it does not apply to this appeal because OSC has
not petitioned the Board for such relief.
14
third -level supervisor’s decision to temporarily suspend his administrative access
based on the knowledge/ timing test. RID at 14. The parties have not challenged
this finding on review, and we discern no basis to disturb it. Because the
suspension of the appellant’s access to Government systems precluded him from
performing usual duties as a FTO, we further find that he established contributing
factor in connection with his temporary assignment to administrative duties.
¶23 Next, the administrative judge found that the appellant failed to establish
that his August 13, 2015 disclosure contributed to the agency’s decision to
temporarily relocate him to the Walled Lake facility . RID at 13 -14. In so
finding, she determined that the USBP Detroit Sector Headquarters Director
credibly testified that she decided to relocate the appellant on August 11 or 12,
2015, after the Maintenance Mechanic filed his most recent harassment complaint
against the appellant on August 11, 2015, but before he made his disclosure on
August 13, 2015. Id. She further found that the appellant’s second - and
third -level supervisors only made the decision regarding where to temporarily
relocate him after the Director decided that the Detroit Sector could no longer
accommodate his work location at the Selfridge ANGB. RID at 14. Accordingly,
she concluded that the appellant failed to show that his disclosure contributed to
the agency’s decision to temporarily change his work location. RID at 14. The
appellant challenges these findings on review. PFR File, Tab 6, at 20 -22, Tab 8
at 4-6. For the reasons that follow, we modify the initial decis ion to find that the
appellant established contributing factor in connection with his temporary
relocation.
¶24 While disclosures made after an action has been finalized, even if it is not
yet implemented, cannot be a contributing factor in the action, an act ion that was
only “contemplated and in preparation” prior to a disclosure can serve as the
predicate personnel action in an IRA appeal . See Fickie v. Department of the
Army , 86 M.S.P.R. 525 , ¶ 9 (2000) . Here, the record reflects that the Director of
USBP Detroit Sector Headquarters determined that it was no longer tolerable for
15
the appellant to use their facilities and that he needed to be relocated to another
facility at least 1 day prior to his August 13, 2015 disclosure. IAF, Tab 16
at 33-34; RAF, Tab 20 at 32 -40. However, there is no evidence that his
relocation was finalized until after he made the disclosure; rather, there is n o
evidence that his relocation was finalized until August 19, 2015, when the
appellant’s second -level supervisor issued him a letter stating that he would be
temporarily reassigned to the Walled Lake Field Support Office effective
immediately.15 IAF, Tab 16 at 87. Thus, the appellant may still establish
contributing factor in connection with his temporary relocation if he meets the
applicable criteria, notwithstanding the fact that the relocation was contemplated
and in preparation before he ma de his August 13, 2015 disclosure. See Fickie ,
86 M.S.P.R. 525 , ¶ 9.
¶25 The appellant’s email to CSIRC disclosing the computer securit y violation
was forwarded to his first -level supervisor several hours after he submitted it on
August 13, 2015. RAF, Tab 20 at 31. In addition, on August 14, 2015, the
appellant’s second -level supervisor forwarded to his third -level supervisor the
email from the DxD regarding his belief that someone had used an FTO’s account
to send emails, indicating that it pertained to the “Tim saga at sector.” IAF,
Tab 16 at 206. The appellant’s second -level s upervisor signed the August 19,
2015 letter reassigning t he appellant to Walled Lake and, at the hearing, his
third -levels supervisor testified that “[w]e made the decision as his management
chain to move him to [Walled] Lake.” IAF, Tab 16 at 87; HT at 94 (testimony of
the appellant’s third -level supervisor). Thus, because it is clear that the
appellant’s first -, second -, and third -level supervisors were aware of his
15 The record reflects that the appellant’s su pervisor met with the appellant on
August 17, 2015, and informed him that his administrative access was suspended until
further notice. IAF, Tab 16 at 181. There is no indication, however, that he also told
the appellant that he would be moved to Walled Lake at that time. Id.; HT at 53
(testimony of the appellant’s supervisor). In any event, even if the temporary relocation
was finalized by that meeting, it occurred after the appellant made his disclosure.
16
disclosure to CSIRC by no later than August 14, 2015, before they finalized his
reassignment to Walled Lake, we find that the appellant has establ ished
contributing factor based on knowledge/timing.
¶26 In light of the foregoing, we find that the appellant established a prima facie
case of whistleblower retaliation. Specifically, he proved by preponderant
evidence that he made a protected disclosure of a violation of a law, rule, or
regulation and that this disclosure contributed to the agency’s decision to
temporarily relocate him and temporarily suspend his administrative access,
which resulted in the change to his duties and responsibilities.
We va cate the administrative judge’s alternative finding that the agency met its
burden to show that it would have taken some of the same actions in the absence
of the appellant’s disclosure and remand for a new clear and convincing analysi s.
¶27 As noted above, w hen an appellant makes out a prima facie case of
whistleblower reprisal, 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 or activit y. 5 U.S.C. § 1221 (e)(1) -(2); Lu,
122 M.S.P.R. 335 , ¶ 7. Here, after finding that the appellant failed to establish a
prima facie case of whistleblower reprisal, the administrative judge determined in
the alternative that the agency proved by clear and convincing evidence that it
would have temporarily suspended the a ppellant’s computer systems access,
which resulted in a temporary change to his work duties, even in the absence of
his disclosure. RID at 15 -17. Under the WPEA, however, the Board may not
proceed to the clear and convincing test unless it has first made a finding that the
appellant established his prima facie case. 5 U.S.C. § 1221 (e)(2); Clarke v.
Department of Veterans Affairs , 121 M.S.P.R. 154 , ¶ 19 n.10 (2014), aff’d ,
623 F. App’x 1016 (Fed. Cir. 2015). Accordingly, b ecause the administrative
judge found that the appellant failed to establish a prima facie case of
whistleb lower reprisal , it was inappropriate for her to proceed to the clear and
convincing test. See Scoggins , 123 M.S.P.R. 592 , ¶ 28. Nonetheless, i n light of
17
our determination on review that the appellant has e stablished a prima facie case
of whistleblower reprisal, it is now necessary and appropriate to address whether
the agency has shown by clear and convincing evidence that i t would have taken
the same actions in the absence of his protected disclosure.
¶28 In determining whether an agency has met this burden, the Board will
consider the following factors: (1) the strength of the agency’s evidence in
support of its action; (2) the existence and strength of any motive to retaliate on
the part of the agency officials who were involved in the decision; and (3) any
evidence that the agency takes similar actions against employees who are not
whistleblowers but who are otherwise simil arly situated. Carr v. Social Security
Administration , 185 F.3d 1318 , 1323 (Fed. Cir. 1999). The Board does not view
these factors as discrete elements, each of which the agency must prove by clear
and convincing evidence. Lu, 122 M.S.P.R. 335 , ¶ 7. Rather, the Board will
weigh the factors together to determine whether the evidence is clear and
convincing as a whole. Id. A proper analysis of the clear and convincing
evidence issue requires t hat 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 v. Department of Labor , 680 F.3d 1353 , 1368 (Fed. Cir. 2012)).
¶29 In the refiled initial decision, the administrative judge did not address
whether the agency met is burden to prove that it would have temporarily
relocated the appellant in the absence of his disclosure but, as noted above, found
that the agency met its b urden with respect to the temporary suspension of his
computer systems access and assignment to ad ministrative duties. RID at 15-17.
In so finding, she determined that , as to the first Carr factor, the agency’s
decision to suspend the appellant’s comput er systems access pending an
investigation was supported by reasonably strong evidence . Id. As to the second
Carr factor, she found that the app ellant’s third -level supervisor, who was
responsible for the decision to suspend his computer systems access, had no
18
motive to retaliate against him for his protected disclosure because it concerned a
security violation by a person with whom she had no contact or supervisory
connection . RID at 17. As to the third Carr factor, she found that the agency did
not provide any evidence of nonwhistleblowers who had their computer systems
access suspended under similar circumstances . Id. The appellant challenges
these findings on review. PFR File, Tab 1 at 31 -37.
¶30 Although we discern no basis to disturb the administrative judge’s
credibility -based determination that the agency’s action was supported by
reasonably strong evidence, her analysis of the second and third Carr factors are
incomplete and inconsistent with Board and Federal Circuit ca se law. In
particular, she took an overly restrictive view of the second Carr factor by not
considering motive to retaliate on the part of the DxD, whose email influenced
the appellant’s third -level supervisor ’s decision to temporarily suspend his
compute r systems acces s pending an investigation into his alleged use of the
Maintenance Mechanic’s email account . See Phillips v. Department of
Transportation , 113 M.S.P.R. 73 , ¶ 21 (2010) (explaining that, when evaluating
the second Carr factor, the Board will consider any motive to retaliate on the part
of the agency official who ordered the action, as well as any motive to retaliat e on
the part of other agency officials who influenced the decision). She further took
an overly restrictive view of the second Carr factor by not addressing whether the
appellant’s disclosure reflected on the responsible officials in their capacities as
managers and employees, which is sufficient to establish a substantial retaliatory
motive even when the disclosure does not directly implicate or harm them . See
Chavez , 120 M.S.P.R. 285 , ¶ 33 (citing Whitmore , 680 F.3d at 1370 -71).
Moreover, the administrative judge appeared to find, without analysis, that the
third Carr factor was neutral because there was no comparator evidence. RID
at 17. However, the Federal Circuit has emphasized that it is the agency’s burden
to produce relevant comparator evidence and that its failure to do so “may be at
the agency’s peril,” and may imperil the agency’s overall case. See Whitmore ,
19
680 F.3d at 1374-75. Our reviewing court has also stated that, when the agency
fails to introduce relevant comparator evidence, the third Carr factor cannot
weigh in favor of the agency. Smith v. General Services Administration , 930 F.3d
1359 , 1367 (Fed. Cir. 2019); Siler v. Environmental Protection Agency , 908 F.3d
1291 , 1299 (Fed. Cir. 2018). Accordingly , we vacate the administrative judge’s
clear and convincing analysis.
¶31 Although the record is co mplete, we find that the administrative judge is in
the best position to conduct a new clear and convincing analysis because she
heard the live testimony and made credibility determination s. See Shibuya ,
119 M.S.P.R. 537 , ¶¶ 37‑38. Therefore, we find it appropriate to remand this
appeal f or a new clear and convincing analysis. See id. On remand, the
administrative judge must dete rmine whether the agency proved the following by
clear and convincing evi dence: (1) the agency would have temporarily relocated
the appellant to the Walled Lake facility in the absence of his protected
disclosure; and (2) the agency would have temporarily suspended the appellant’s
computer systems access (resulting in his assignment to administrative duties) in
the abse nce of his protected disclosure . In conducting her clear and convincing
evidence analysis, the administrative judge must c omply with the r equirements
set forth above and in the Federal Circuit’s decision in Whitmore , 680 F.3d
at 1368 -74, fully evaluate all of the pertinent evidence, and make credibility
determinations in order to resolve any contradictory testimony. See Shibuya ,
119 M.S.P.R. 537 , ¶ 37. In addition, t he administrative judge shall specifically
determine the weight to afford to each of the thre e Carr factors.
20
ORDER
¶32 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 | MOHLER_TIMOTHY_CH_1221_18_0119_W_2_REMAND_ORDER_1943100.pdf | 2022-07-18 | null | CH-1221-18-0119-W-2 | NP |
4,282 | https://www.mspb.gov/decisions/nonprecedential/BEAUDETTE_MAYA_SF_315H_17_0634_I_1_FINAL_ORDER_1942638.pdf | UNITED STATES OF AME RICA
MERIT SYSTEMS PROTEC TION BOARD
MAYA BEAUDETTE,
Appellant,
v.
DEPARTMENT OF HOMELA ND
SECURITY,
Agency.
DOCKET NUMBER
SF-315H -17-0634 -I-1
DATE: July 15, 2022
THIS FINAL ORDER IS NONPRECEDENTIAL1
Maya Beaudette , Las Vegas, Nevada, pro se.
Michael L. Gurnee , Esquire, Centennial, Colorado, 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 her probationary termination appeal for lack of jurisdiction . The
administrative judge also dismissed the appellant’s Veterans Employment
Opportunities Act of 1998 (VEOA) , Uniformed Services Employment 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
Reemployment Rights Act of 1994 (USERRA) (codified as amended at 38 U.S.C.
§§ 4301 -4335) , equal employment opportunity (EEO) reprisal, discrimination,
and other prohibited personnel practice claims for lack of jurisdiction.
¶2 On review, the appellant reargues that she is a career tenured employee with
Board appeal rights and submits argument and evidence challenging the merits of
her termination . Petition for Review (PFR) File, Tab 2 at 11 -14, 16-42. She
further claims that the Boa rd has jurisdiction over her VEO A appeal concerning
her non selection for positions because she exhausted her administrative remedies
with the Department of Labor (DOL) , as reflected in four DOL closure letter s,
which she submit s for the first time on review. PFR File, Tab 1 at 4 -5, Tab 4
at 4-11. She also allege s that she is a “whistle blower ,” discusses matters related
to her EEO complaint , and alleges that the agency “did not honor [the] union
agreement .”2 PFR File, Tab 1 at 5 , Tab 2 at 4 -5, 11.
¶3 Generally, we grant petitions such as this one only in the following
circumstances: the initial decision contains erroneous findings of material fact;
the initial decision is based on an 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
2 For the first time on review, t he appellant also alleges that the agency terminated her
for partisan political reasons . PFR File, Tab 2 at 12; see 5 C.F.R. § 315.806 (a)-(b)
(providing for limited Board jurisdiction over such claims) . However, her allegation
that her termination was due to her affiliation with a group that is “pro Muslim, Pro
immigrant anti Neo -Nazi ” [sic] is insu fficient to meet her jurisdictional burden .
PFR File, Tab 2 at 12. To show that the Board has jurisdiction because an agency
terminated an appointee for partisan political reasons , an appellant must provide
supporting facts to show that the allegation is not merely a pro forma pleading . Smirne
v. Department of Army , 115 M.S.P.R. 51 , ¶ 8 (2010). The appellan t has not alleged any
specific facts concerning her claim and thus has not met her jurisdictional burden.
3
Federal Regulations, section 1201.115 ( 5 C.F.R. § 1201.115 ). After fully
considering the filings in this appeal, we conclude that the petitioner has not
established any basis under section 1201.115 for granting the petition for review.
Therefore, we DENY the petition for review. Except as expressly MODIFIED to
address the appellant’s claim of Board jurisdiction over her VEOA and
whistleblower reprisal claims , we AFFIRM the i nitial decision.
¶4 As to the appellant’s VEOA claim concerning her nonselection for agency
vacancies , it is undisputed that she is a 10 -point preference eligible. Initial
Appeal File (IAF) , Tab 6 at 15, Tab 7 at 27 . The administrative judge dismissed
her claim for lack of jurisdiction because she failed to allege that she exhausted
her administrative remedies with DOL .3 IAF, Tab 10, Initial Decision (ID) at 8;
see Gingery v. Office of Personnel Management , 119 M.S.P.R. 43, ¶ 1 3 (2012)
(explaining that, t o establish Board jurisdiction over a VEOA appeal, the
appellant must show that he exhausted his remedy with DOL, among other
requ irements ). We find that the DOL closure letter s, which are dated after the
issuance of the initial decision, are new and material evidence under 5 C.F.R.
§ 1201.115 (d). By submitting DOL’s letter s stating the results of its investigation
into complaint s asserting the appellant’s veterans preference rights were violated ,
she has satisfied the exhaustion requirement . See Gingery , 119 M.S.P.R. 43,
¶ 15.
¶5 We nevertheless deny corrective action . DOL declined to investigate the
VEOA complaint s because they were not filed with DOL within the 60 -day filing
deadline. PFR File, Tab 4 at 4 -11; see 5 U.S.C. § 3330a (a)(2)(A) (explaining that
a VEOA complaint must be filed within the 60 days following the alleged
violation). The 60 -day filing deadline is subject t o equitable tolling, which, if
3 The appellant filed a separate VEOA claim concerning a different nonselection .
Beaudette v. Department of Homeland Security , MSPB Docket No. SF-3330 -18-0181 -
I-1, Initial Decision at 2 (Apr. 23, 2018) . The administrative judge issued an initial
decision in that appeal, granting corrective action. Id. at 1, 10.
4
applicable, may allow the Board to review the appeal. Gingery , 119 M.S.P.R. 43,
¶ 17. The appell ant argued equitable tolling should apply because she relied on
the agency’s determination that she was ineligible for the positions at issue . IAF,
Tab 6 at 10. This argument goes to the merits of the appellant’s VEOA claim and
does not explain why she d id not meet the filing deadline. Similarly, the
appellant’ s assertion that she was unaware of her right to file a VEOA complaint ,
PFR File, Tab 4 at 4, is not a sufficient reason to equitably toll the filing
deadline , Gingery , 119 M.S.P.R. 43, ¶¶ 17-18 (explaining that equitable tolling is
applied sparingly, such as when the appellant has actively pursued his remedies
by filing a defective pleading during the statutory period or been “induced or
tricked” by an agency representative into filing late (quoting Irwin v. Department
of Veterans Affairs , 498 U.S. 89 , 96 (1990)). When an appellant files an untimely
DOL complaint and equitable tolling does not apply, the request for corrective
action must be denied for failure to meet the 60 -day time limit. Gingery ,
119 M.S.P.R. 43 , ¶ 16 n.3. We therefore deny the appellant’s request for
corrective action under VEOA based on her failure to meet the time limit for
filing a complaint with DOL .
¶6 Regarding the appellant’s wh istleblower reprisal claim, PFR File Tab 1 at 5;
IAF, Tab 6 at 8, 17, she has not raised it in connection with an othe rwise
appealable action because the Board lack s jurisdiction over her probationary
termination for the reasons explained by the administrative judge in the initial
decision, which we have affirmed above . ID at 3-6. Thus , for the Board to
review that claim , the appellant must satisfy the jurisdiction al requirements of an
individual right of action (IRA) appeal . See Neice v. Department of Homeland
Security , 105 M.S.P.R. 211 , ¶¶ 13-14 (2007) (finding that, although the Board
lacked jurisdiction over the appellant’s resignation as an otherwise appealable
action, the Board would consider any whistleblo wer reprisal claims that satisfied
the jurisdictional requirements of an IRA appea l). To establish Board jurisdiction
over an IRA appeal, the appellant must have exhausted her administrative
5
remedies before the O ffice of Special Counsel and make nonfrivolou s allegations
of the following: (1) she made a protected disclosure described u nder 5 U.S.C.
§ 2302 (b)(8) or engaged in protected activity as specified in 5 U.S.C.
§ 2302 (b)(9)(A)(i), (B), (C), or (D); and (2) the dis closure or protected 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). 5 U.S.C. §§ 1214 (a)(3),
1221 (a); Salerno v. Department of the Interior , 123 M.S.P.R. 230 , ¶ 5 (2016).
The appellant has not made that necessary showing.
¶7 However, the administrative judge did not notify the appellant of the
jurisdictional requirements for an IRA appeal in any of his orders or the initial
decision; the agency’s response did not cure that def ect. The appellant must
receive explicit information on what is required to establish Board jurisdiction
before dismissing a claim for lack of jurisdiction.4 See Burgess v. Merit Systems
Protection Board , 758 F.2d 641 , 643 -44 (Fed. Cir. 1985). Accordingly, w e
FORWARD the appellant’ s whistleblowing allegation to the Board’s Western
Regional O ffice for docketing as an IRA appeal and further adjudication in
accordance with this Order.
¶8 The appellant has filed a union grievance over her termination ;
however, she asserted that the agency refused to arbitrate her claim . IAF, Tab 7
at 5, 13; PFR File, Tab 2 at 5 . The filing of that g rievance may affect her right to
pursue her whistleblower reprisal claim in another forum. See Savage v.
Department of the Army , 122 M.S.P.R. 612, ¶¶ 17-18 (2015) (explaining that , if
4 Even if the appellant establishes Board jurisdiction over her whistleblower reprisal
claims, under thes e circumstances, it would not provide a basis for reviewing her EEO
reprisal claims or allegations that the agency violated the applicable collective
bargaining agreement . See Benton -Flores v. Department of Defense , 121 M.S.P.R. 428 ,
¶ 6 n.1 (2014) (finding that the Board does not have jurisdiction over the appellant’ s
claims of harmful proc edural error and EEO retaliation in the context of an IRA
appeal ); Wren v. Department of the Army , 2 M.S.P.R. 1 , 2 (1980) (holding that
prohibited per sonnel practices under 5 U.S.C. § 2302 (b) are not an independent source
of Board jurisdiction), aff’d , 681 F.2d 867 , 871 -73 (D.C. Cir. 1982) .
6
made knowingly and voluntarily, a n appellant ’s election first to file, as applicable
here, either a grievance or an OSC complaint , potentially followed by an IRA
appeal, is a binding election of that remedy ), clarified on other grounds by
Gardner v. Department of Veterans Affairs , 123 M.S.P.R. 647 , ¶¶ 30-31 (2016) .
Accordingly, upon docketing of the IRA appeal , the administrative judge should
address this election of remedies issue.
NOTICE OF APPEAL RIG HTS5
The initial decision, as supplemented by this Final O rder, 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 o ffer the following
summary of available appeal rights, the Merit Systems Protection Board does not
provide legal advice on which option is most appropriate for your situation and
the rights described below do not represent a statement of how courts will ru le
regarding which cases fall within their jurisdiction. If you wish to seek review of
this final decision, you should immediately review the law applicable to your
claims and carefully follow all filing time limits and requirements. Failure to file
with in the applicable time limit may result in the dismissal of your case by your
chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to 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 wh ich option is most appropriate in any matter.
7
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703 (b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is 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 decision —including a disposition of your discrimination
claims —by filing a civil action 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 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
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:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
9
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
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.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 judicia l review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
6 The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit cour t of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115 -195,
132 Stat. 1510.
10
Additional information a bout the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practic e, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono repre sentation
for Merit Systems Protection Board appellants before the 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 c ourts of appeals can be 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 | BEAUDETTE_MAYA_SF_315H_17_0634_I_1_FINAL_ORDER_1942638.pdf | 2022-07-15 | null | SF-315H-17-0634-I-1 | NP |
4,283 | https://www.mspb.gov/decisions/nonprecedential/ROTELLI_CECILIA_SF_315H_17_0113_I_1_FINAL_ORDER_1942702.pdf | UNITED STATES OF AME RICA
MERIT SYSTEMS PROTEC TION BOARD
CECILIA ROTELLI,
Appellant,
v.
DEPARTMENT OF THE NA VY,
Agency.
DOCKET NUMBER
SF-315H -17-0113 -I-1
DATE: July 15, 2022
THIS FINAL ORDER IS NONPRECEDENTIAL1
Cecilia Rotelli , Auburn, Washington, pro se.
Leonard R. Rippey and Sandra J. Morris , Esquire, North Charleston, South
Carolina, 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 termination appeal as settled. For the reasons set forth below, the
appellant’s petition for review is DISMISSED as untimely filed with out good
1 A nonprecedential order is one that the Board has determined does not add
significantly to the 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
cause shown . 5 C.F.R. § 1201.114 (e), (g). We FORWARD the appellant’s claim
that the agency breached the settlement agreement to the Western Regional O ffice
for docketing of a petition for enforcement. 5 C.F.R. § 1201.182 (a).
BACKGROUND
¶2 On November 27, 2016, the appellant filed an initial appeal challenging her
November 2016 termination from an Adminis trative Specialist position with the
Space a nd Naval Warfare Center . Initial Appeal File (IAF), Tab 1. On
February 14, 2017, the appellant and the agency submitted an amended settlement
agreement to the Board. IAF, Tabs 25, 28 . Among other things, the settlement
called for the agency to rescind its termination of the appellant and replace the
existing Standard Form 50 in her Official Personnel File with one denoting that
she voluntarily resigned. IAF, Tab 28 at 1. The administrative judge determined
that the agreement was lawful on its face and voluntarily entered into and
understood by the parties. IAF, T ab 30, Initial Decision (ID) at 2-3. He issued
an initial decision entering the agreement into the record for enforcement
purposes, consistent with its terms, and dismissing the appeal as settled. Id.; IAF,
Tab 25 at 7. The initial decision informed the parties that it would become the
final decision of t he B oard on March 24, 2017, unless a petition for review was
filed by that date. ID at 4.
¶3 On October 31, 2017, over 7 months after the deadline to file, the appellant
filed a petition for review asking the Board “to review the settlement agreement
and the case itself, and the decision to approve.” Petition for Review (PFR) File,
Tab 2 at 4. T he Clerk of the Board informed the appellant that her submission
was untimely and that the Board would consider the merits of her petition only
upon estab lishment of good cause. PFR File, Tab 2 at 3, Tab 3 . The appellant
submitted a motion to waive the t ime limit, along with other supporting
documentation , asserting that she did not realize that she could file a petition for
review or that she had any other recourse and that she had fired her attorney just 4
3
days before the deadline to file . PFR File, Ta b 4. She further asserts that , at the
time of the settlement, she was in shock and dealing with the fallout of her loss of
employment , which included scrambling to move from one state to another ,
financial hardship , and searching for new employment . Id. at 4-7. She also
indicate s that she suffered from medical conditions but denie s that they affected
her ability to timely file her petition for review. Id. at 6. The appellant asserts
that, f rom the time of the settlement until her fil ing of the petition for review, she
has “completed over 150 job applications to no avail. ” PFR File, Tab 2 at 4,
Tab 4 at 6. The appellant additionally asserts that she did not learn the full effect
of the settlement on her ret irement benefits until August 2017 and appears to
allege that either the agency or the Office of Personnel Management (OPM) have
provided her with confusing or incorrect information as to her retirement and
benefits due to the agency’s alleged failure to comply with the provisions of the
settlement agreement that required it to substitute a resignation for its termination
action. PFR File, Tab 2 at 3-4, Tab 4 at 5-6, 18.
¶4 Alongside her attempt to show good cause for waiving the filing deadline,
the appellant additionally challenges the validity of the settlement itself as well as
the underlying probationary termination that prompted the settlement. PFR File,
Tab 2 at 4-5, Tab 4 at 4 -5. Among these arguments are that she was coerced into
the settlement by her attorney and that the settlement resulted from the agency’s
misinformation and thus it was involuntary or fraudulent , her termination was the
result of retaliation for whistleblowing, and her termination was contrary to her
understanding that her position was permanen t. Id.
DISCUSSION OF ARGUME NTS ON REVIEW
¶5 It is undisputed that the appellant’s petition for review is untimely. The
Board will waive the time limit to file a petition for review only upon a showing
of good cause for the delay in filing. 5 C.F.R. §§ 1201.12 , 1201.114(g ). To
establish good cause for waiving an untimely filing of an appeal, a party must
4
show that she exercised due diligence or ordinary prudence under the particular
circumstances of the case. Smith v. Office of Personnel Management ,
93 M.S.P.R. 394 , ¶ 4 (2003). To determine whether an individual has shown
good cause for an untimely filing, the Board will consider the length of the delay,
the reasonableness of the excuse and her showing of due diligence, whether she is
proceeding pro se, and whether she has presented evidence of the existence of
circumstances beyond her control that affected her ability to comply with the time
limits or of unavoidable casualty or misfortune that similarly shows a causal
relationship to her inability to timely file her petition. Moorman v. Department of
the Army , 68 M.S.P.R. 60 , 62-63 (1995), aff’d , 79 F.3d 1167 (Fed. Cir. 1996)
(Table).
¶6 Notwithstanding the appellant’s pro se status , her more than 7 -month delay
in filing is significant. See Mauldin v. U.S. Postal Service , 115 M.S.P.R. 513 ,
¶ 13 (2011) (finding a del ay of more than 7 months significant); Crook v. U.S.
Postal Service , 108 M.S.P.R. 553 , ¶ 6 (finding a 1 -month delay in filing
significant, despite the appellant’s pro se status), aff’d , 301 F. App’x 982 (Fed.
Cir. 2008) . Regardless of the situation between the appella nt and her attorney, it
is well established that the right of appeal is personal to the app ellant, whether or
not she is represented, and she remains responsible for the prosecution and
development of her appeal. Smith , 93 M .S.P.R. 394 , ¶ 5. When an initial
decision clearly informs an appellant of her ability to file a petition for review,
her failure to read or understand the document does not show the due diligence
necessary to constitute good cause for a waiver of the fil ing deadline. See Njoku
v. Department of Homeland Security , 111 M.S.P.R. 262 , ¶¶ 2, 5, 7 (2009) (finding
an appellant’s failure to follow the explicit filing instructions in the initial
decision, specifically regarding the right to request the Board’s review of a
settlement agreement within a designated time frame, does not constitute good
cause for a delay in filing). Thus, we decl ine to excuse the appellant’s untimely
5
filing based on her claimed ignorance of the filing deadline and poor
representation of her attorney.
¶7 Additionally, the appellant’s dissatisfaction with the terms of the settlement
agreement does not constitute good cause for a waiver of the filing deadline .
Eagleh eart v. U.S. Postal Service , 102 M.S.P.R. 672 , ¶ 13 (2006). Likewise, her
arguments on the merits of the underlying personnel action and the settlement that
ensued are not relevant to the timeliness issue. Gaines v. U.S. Postal Service ,
96 M.S.P.R. 504 , ¶ 7 (2004).
¶8 Moreover, an appellant’s general personal difficulties , including financial
hardship, do not constitute good cause for waiving the filing deadline .
Melville v. Department of the Air Force , 99 M.S.P.R. 233 , ¶ 7 (2005); Gaines ,
96 M.S.P.R. 504 , ¶ 7. On the contrary, a n appellant’s submission or filing of
alternative matters —here, the appellant’s over 150 job applications —undermines
her claim of good cause. See Pirkkala v. Department of Justice , 123 M.S.P.R.
288, ¶¶ 22-23 (2016) ( indicating that an appellant’s filing for disability retirement
durin g the relevant period suggested that he could have timely filed his Board
appeal during the same period ). While the appellant has alleged she suffered
from medical conditions during an unspecified period, she has denied these
contributed to her delay and has not submitted any corroborating evidence.
Melville , 99 M.S.P.R. 233, ¶ 7.
¶9 Accordingly, we dismiss the petition for review as untimely filed. This is
the final decision of the Merit Systems Protection Board regarding the timeliness
of the petition for review. The initial decision remains the final decision of the
Board regarding the dismissal of the appeal as settled.
¶10 Notwithstanding the foregoing, as noted above, the appellant claims that the
agency has not complied with the settlement agreement. Specifically, she alleges
that the agency has failed to update her personnel file to reflect her voluntary
resignation and instead maintains that she was terminated. PFR File, Tab 2 at 4,
6
Tab 4 at 6. A petition for enforcement of a settlement agreement must be filed in
the first instance with the Board’s regional or field office that issued the initial
decision. 5 C.F.R. § 1201.182 (a). Under the circumstances, the appropriate
course is to forward the appellant’ s claim to the regional office for docketing of a
petition for enforcement. See Gard v. Departm ent of Education , 97 M.S.P.R. 64 ,
¶¶ 7 -8 (2004) (dismissing as untimely filed with no good cause a petition for
review in which the appellant expressed dissatisfacti on with the settlement
process, but forwarding the appellant’s allegations of noncompliance to the
regional office for docketing of a petition for enforcement).
NOTICE OF APPEAL RIGHTS2
You may obtain review of this f inal decision. 5 U.S.C. § 7703 (a)(1). By
statute, the nature of your claims determines the time limit for seeking such
review and the appropriate forum with which to file. 5 U.S.C. § 7703 (b).
Although we offer the following summary of available appeal rights, the Merit
Systems Protection Board does not provide legal advice on which option is most
appropriate for you r situation and the rights described below do not represent a
statement of how courts will rule regarding which cases fall within their
jurisdiction. If you wish to seek review of this final decision, you should
immediately review the law applicable to yo ur claims and carefully follow all
filing time limits and requirements. Failure to file within the applicable time
limit may result in the dismissal of your case by your chosen forum.
Please read carefully each of the three main possible choices of revi ew
below to decide which one applies to your particular case. If you have questions
2 Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise w hich option is most appropriate in any matter.
7
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a ge neral rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this deci sion. 5 U.S.C.
§ 7703 (b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information 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
Board neither endorses the services provided b y any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action t hat is appealable to the Board and that such action
8
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an a ppropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 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:
9
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 prohibited personnel practice described in section
2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(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.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.
10
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov /probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
Contact information for the courts of appeals can be found at their
respective websites, which can be accessed through the link below:
http://www.uscourts.gov/Co urt_Locator/CourtWebsites.aspx .
FOR THE BOARD:
Washington, D.C. /s/ for
Jennifer Everling
Acting Clerk of the Board | ROTELLI_CECILIA_SF_315H_17_0113_I_1_FINAL_ORDER_1942702.pdf | 2022-07-15 | null | SF-315H-17-0113-I-1 | NP |
4,284 | https://www.mspb.gov/decisions/nonprecedential/HARMON_LARRY_L_CH_0752_17_0278_I_1_FINAL_ORDER_1942744.pdf | UNITED STATES OF AME RICA
MERIT SYSTEMS PROTEC TION BOARD
LARRY L. HARMON,
Appellant,
v.
UNITED STATES POSTAL SERVICE,
Agency.
DOCKET NUMBER
CH-0752 -17-0278 -I-1
DATE: July 15, 2022
THIS FINAL ORDER IS NONPRECEDENTIAL1
Hartley David Alley , Esquire, San Antonio, Texas, for the appellant.
Mark Kluge , Hartford, Wisconsin, for the appellant.
Kathleen D. Crawford , Esquire, and Maryl R. Rosen , Esquire, Chicago,
Illinois, for the agency.
BEF ORE
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 without prejudice his appeal of the agency’s removal action.
1 A nonprecedential order is one that the Board has determined does not add
significantly to the 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
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.
Therefore, we DENY the petition for review and AFFIRM the initial decision,
which is now the Board’s final decision. 5 C.F.R. § 1201.113 (b).
¶2 On November 1, 2017, the administrative judg e issued an initial decision
dismissing the appeal without prejudice and establishing an automatic refiling
date of December 7, 2017. Initial Appeal File , Tab 55, Initial Decision (ID) at 3.
The appellant has filed a petition for review arguing that the refiling period was
too short and did not provide sufficient time for the parties to resolve their
discovery disputes. Petition for Review (PFR) File, Tab 1 at 4. He also stated
that new and material evidence regarding his medical condition arose after t he
initial decision was issued, but he has not submitted that alleged evidence here.
Id.
¶3 The agency has filed a response , arguing that the appellant’ s petition only
addresses whether a new or longer dismissal period should be granted and does
not challeng e the dismissal itself. PFR File, Tab 2 at 13. It also argues that the
appellant’s actions following the issuance of the initial decision indicate that the
appellant “does not intend to participate in the processing of his appeal” and that
his actions on ly seek to further delay the appeal process. Id. at 11-14.
3
The agency requests that the Board impose sanctions and dismiss the appeal
with prejudice , awarding costs and fees, and that it deny the appellant’s
November 29, 2017 motion for a protective orde r.2 Id. at 14.
¶4 An administrative judge has wide discretion to control the proceedings
before him, and a dismissal without prejudice to refiling is a procedural option
left to his sound discretion. Desmond v. Department of Veterans Affairs ,
90 M.S.P.R. 301 , ¶ 4 (2001) . We have reviewed the record and have not found
any evidence that the administrative judge abused his d iscretion in dismissing the
appeal without prejudice. Rather, he exercised his discretion in the interests of
efficiency to allow the parties to resolve their discovery disputes and conflicting
schedules . ID at 2 -3. We find that this is a proper use of his discretion, and we
will not disturb the initial decision here.
¶5 Regarding the agency’s request that the Board deny the appellant’s
November 2 9, 2017 motion for a protective order, we note that the motion is not
currently in the record , and we abstain f rom ruling on it. Regarding the agency’s
request that the Board dismiss this appeal with prejudice, we decline to impose
that sanction here. See Lewis v. Department of the Air Force , 69 M.S.P.R. 40 , 44
(1995) (stating that if an appeal has been dismissed without prejudice in an initial
decision and the appellant then files a petition for review of that decision, the
Board will not consider arguments raised on review concerning discovery
disputes , the imposition of sanctions , or other matters that should be considered
by the administrative judge once the appeal has been refiled). Accordingly, the
agency’s motion for a dismi ssal with prejudice is DENIED.
¶6 Because the Board treats an appellant’s timely petition for review of an
initial decision dismissing without prejudice as a timely refiled appeal , Desmond ,
2 After the record closed on review, the appellant submitted a pleading indicating that
he had been separated from the agency and granted disability retirement. PFR File,
Tab 5. He also suggested t hat he was willing to withdraw or settle the appeal, id.;
however, the parties have not submitted any settlement agreement, and the appellant has
not withdrawn his appeal.
4
90 M.S.P.R. 301 , ¶ 6 , the appellant may present his assertions regarding
continuing discovery disputes, medical conditions , and any other clai ms to the
administrative judge, id.
¶7 Accordingly, we DENY the appellant’s petition for review of the initial
decision, and we FORWARD this case to the regional office for adjudication on
the merits. This is the final decision of the Merit Systems Protection Board
regarding the initial decisi on dismissing the appeal without prejudice to refiling.
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 o f how courts will rule regarding which cases fall within their
jurisdiction. If you wish to seek review of this final decision, you should
immediately review the law applicable to your claims and carefully follow all
filing time limits and requirements. Failure to file within the applicable time
limit may result in the dismissal of your case by your chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to 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.
3 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.
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 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 decision —including a disposi tion of your discrimination
claims —by filing a civil action 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 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
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is:
Office of 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:
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 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 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 petition for
review within 60 days of the date of issuance of this decision. 5 U.S.C.
§ 7703 (b)(1)(B).
If you submit a petition for judicial review to 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
4 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.
8
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 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.
Contact information for the courts of appeals can be 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 | HARMON_LARRY_L_CH_0752_17_0278_I_1_FINAL_ORDER_1942744.pdf | 2022-07-15 | null | CH-0752-17-0278-I-1 | NP |
4,285 | https://www.mspb.gov/decisions/nonprecedential/BEAUDETTE_MAYA_SF_1221_22_0493_W_1_FINAL_ORDER_1943860.pdf | UNITED STATES OF AME RICA
MERIT SYSTEMS PROTEC TION BOARD
MAYA BEAUDETTE,
Appellant,
v.
DEPARTMENT OF HOMELA ND
SECURITY,
Agency.
DOCKET NUMBER
SF-315H -17-0634 -I-1
DATE: July 15, 2022
THIS FINAL ORDER IS NONPRECEDENTIAL1
Maya Beaudette , Las Vegas, Nevada, pro se.
Michael L. Gurnee , Esquire, Centennial, Colorado, 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 her probationary termination appeal for lack of jurisdiction . The
administrative judge also dismissed the appellant’s Veterans Employment
Opportunities Act of 1998 (VEOA) , Uniformed Services Employment 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
Reemployment Rights Act of 1994 (USERRA) (codified as amended at 38 U.S.C.
§§ 4301 -4335) , equal employment opportunity (EEO) reprisal, discrimination,
and other prohibited personnel practice claims for lack of jurisdiction.
¶2 On review, the appellant reargues that she is a career tenured employee with
Board appeal rights and submits argument and evidence challenging the merits of
her termination . Petition for Review (PFR) File, Tab 2 at 11 -14, 16-42. She
further claims that the Boa rd has jurisdiction over her VEO A appeal concerning
her non selection for positions because she exhausted her administrative remedies
with the Department of Labor (DOL) , as reflected in four DOL closure letter s,
which she submit s for the first time on review. PFR File, Tab 1 at 4 -5, Tab 4
at 4-11. She also allege s that she is a “whistle blower ,” discusses matters related
to her EEO complaint , and alleges that the agency “did not honor [the] union
agreement .”2 PFR File, Tab 1 at 5 , Tab 2 at 4 -5, 11.
¶3 Generally, we grant petitions such as this one only in the following
circumstances: the initial decision contains erroneous findings of material fact;
the initial decision is based on an 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
2 For the first time on review, t he appellant also alleges that the agency terminated her
for partisan political reasons . PFR File, Tab 2 at 12; see 5 C.F.R. § 315.806 (a)-(b)
(providing for limited Board jurisdiction over such claims) . However, her allegation
that her termination was due to her affiliation with a group that is “pro Muslim, Pro
immigrant anti Neo -Nazi ” [sic] is insu fficient to meet her jurisdictional burden .
PFR File, Tab 2 at 12. To show that the Board has jurisdiction because an agency
terminated an appointee for partisan political reasons , an appellant must provide
supporting facts to show that the allegation is not merely a pro forma pleading . Smirne
v. Department of Army , 115 M.S.P.R. 51 , ¶ 8 (2010). The appellan t has not alleged any
specific facts concerning her claim and thus has not met her jurisdictional burden.
3
Federal Regulations, section 1201.115 ( 5 C.F.R. § 1201.115 ). After fully
considering the filings in this appeal, we conclude that the petitioner has not
established any basis under section 1201.115 for granting the petition for review.
Therefore, we DENY the petition for review. Except as expressly MODIFIED to
address the appellant’s claim of Board jurisdiction over her VEOA and
whistleblower reprisal claims , we AFFIRM the i nitial decision.
¶4 As to the appellant’s VEOA claim concerning her nonselection for agency
vacancies , it is undisputed that she is a 10 -point preference eligible. Initial
Appeal File (IAF) , Tab 6 at 15, Tab 7 at 27 . The administrative judge dismissed
her claim for lack of jurisdiction because she failed to allege that she exhausted
her administrative remedies with DOL .3 IAF, Tab 10, Initial Decision (ID) at 8;
see Gingery v. Office of Personnel Management , 119 M.S.P.R. 43, ¶ 1 3 (2012)
(explaining that, t o establish Board jurisdiction over a VEOA appeal, the
appellant must show that he exhausted his remedy with DOL, among other
requ irements ). We find that the DOL closure letter s, which are dated after the
issuance of the initial decision, are new and material evidence under 5 C.F.R.
§ 1201.115 (d). By submitting DOL’s letter s stating the results of its investigation
into complaint s asserting the appellant’s veterans preference rights were violated ,
she has satisfied the exhaustion requirement . See Gingery , 119 M.S.P.R. 43,
¶ 15.
¶5 We nevertheless deny corrective action . DOL declined to investigate the
VEOA complaint s because they were not filed with DOL within the 60 -day filing
deadline. PFR File, Tab 4 at 4 -11; see 5 U.S.C. § 3330a (a)(2)(A) (explaining that
a VEOA complaint must be filed within the 60 days following the alleged
violation). The 60 -day filing deadline is subject t o equitable tolling, which, if
3 The appellant filed a separate VEOA claim concerning a different nonselection .
Beaudette v. Department of Homeland Security , MSPB Docket No. SF-3330 -18-0181 -
I-1, Initial Decision at 2 (Apr. 23, 2018) . The administrative judge issued an initial
decision in that appeal, granting corrective action. Id. at 1, 10.
4
applicable, may allow the Board to review the appeal. Gingery , 119 M.S.P.R. 43,
¶ 17. The appell ant argued equitable tolling should apply because she relied on
the agency’s determination that she was ineligible for the positions at issue . IAF,
Tab 6 at 10. This argument goes to the merits of the appellant’s VEOA claim and
does not explain why she d id not meet the filing deadline. Similarly, the
appellant’ s assertion that she was unaware of her right to file a VEOA complaint ,
PFR File, Tab 4 at 4, is not a sufficient reason to equitably toll the filing
deadline , Gingery , 119 M.S.P.R. 43, ¶¶ 17-18 (explaining that equitable tolling is
applied sparingly, such as when the appellant has actively pursued his remedies
by filing a defective pleading during the statutory period or been “induced or
tricked” by an agency representative into filing late (quoting Irwin v. Department
of Veterans Affairs , 498 U.S. 89 , 96 (1990)). When an appellant files an untimely
DOL complaint and equitable tolling does not apply, the request for corrective
action must be denied for failure to meet the 60 -day time limit. Gingery ,
119 M.S.P.R. 43 , ¶ 16 n.3. We therefore deny the appellant’s request for
corrective action under VEOA based on her failure to meet the time limit for
filing a complaint with DOL .
¶6 Regarding the appellant’s wh istleblower reprisal claim, PFR File Tab 1 at 5;
IAF, Tab 6 at 8, 17, she has not raised it in connection with an othe rwise
appealable action because the Board lack s jurisdiction over her probationary
termination for the reasons explained by the administrative judge in the initial
decision, which we have affirmed above . ID at 3-6. Thus , for the Board to
review that claim , the appellant must satisfy the jurisdiction al requirements of an
individual right of action (IRA) appeal . See Neice v. Department of Homeland
Security , 105 M.S.P.R. 211 , ¶¶ 13-14 (2007) (finding that, although the Board
lacked jurisdiction over the appellant’s resignation as an otherwise appealable
action, the Board would consider any whistleblo wer reprisal claims that satisfied
the jurisdictional requirements of an IRA appea l). To establish Board jurisdiction
over an IRA appeal, the appellant must have exhausted her administrative
5
remedies before the O ffice of Special Counsel and make nonfrivolou s allegations
of the following: (1) she made a protected disclosure described u nder 5 U.S.C.
§ 2302 (b)(8) or engaged in protected activity as specified in 5 U.S.C.
§ 2302 (b)(9)(A)(i), (B), (C), or (D); and (2) the dis closure or protected 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). 5 U.S.C. §§ 1214 (a)(3),
1221 (a); Salerno v. Department of the Interior , 123 M.S.P.R. 230 , ¶ 5 (2016).
The appellant has not made that necessary showing.
¶7 However, the administrative judge did not notify the appellant of the
jurisdictional requirements for an IRA appeal in any of his orders or the initial
decision; the agency’s response did not cure that def ect. The appellant must
receive explicit information on what is required to establish Board jurisdiction
before dismissing a claim for lack of jurisdiction.4 See Burgess v. Merit Systems
Protection Board , 758 F.2d 641 , 643 -44 (Fed. Cir. 1985). Accordingly, w e
FORWARD the appellant’ s whistleblowing allegation to the Board’s Western
Regional O ffice for docketing as an IRA appeal and further adjudication in
accordance with this Order.
¶8 The appellant has filed a union grievance over her termination ;
however, she asserted that the agency refused to arbitrate her claim . IAF, Tab 7
at 5, 13; PFR File, Tab 2 at 5 . The filing of that g rievance may affect her right to
pursue her whistleblower reprisal claim in another forum. See Savage v.
Department of the Army , 122 M.S.P.R. 612, ¶¶ 17-18 (2015) (explaining that , if
4 Even if the appellant establishes Board jurisdiction over her whistleblower reprisal
claims, under thes e circumstances, it would not provide a basis for reviewing her EEO
reprisal claims or allegations that the agency violated the applicable collective
bargaining agreement . See Benton -Flores v. Department of Defense , 121 M.S.P.R. 428 ,
¶ 6 n.1 (2014) (finding that the Board does not have jurisdiction over the appellant’ s
claims of harmful proc edural error and EEO retaliation in the context of an IRA
appeal ); Wren v. Department of the Army , 2 M.S.P.R. 1 , 2 (1980) (holding that
prohibited per sonnel practices under 5 U.S.C. § 2302 (b) are not an independent source
of Board jurisdiction), aff’d , 681 F.2d 867 , 871 -73 (D.C. Cir. 1982) .
6
made knowingly and voluntarily, a n appellant ’s election first to file, as applicable
here, either a grievance or an OSC complaint , potentially followed by an IRA
appeal, is a binding election of that remedy ), clarified on other grounds by
Gardner v. Department of Veterans Affairs , 123 M.S.P.R. 647 , ¶¶ 30-31 (2016) .
Accordingly, upon docketing of the IRA appeal , the administrative judge should
address this election of remedies issue.
NOTICE OF APPEAL RIG HTS5
The initial decision, as supplemented by this Final O rder, 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 o ffer the following
summary of available appeal rights, the Merit Systems Protection Board does not
provide legal advice on which option is most appropriate for your situation and
the rights described below do not represent a statement of how courts will ru le
regarding which cases fall within their jurisdiction. If you wish to seek review of
this final decision, you should immediately review the law applicable to your
claims and carefully follow all filing time limits and requirements. Failure to file
with in the applicable time limit may result in the dismissal of your case by your
chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to 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 wh ich option is most appropriate in any matter.
7
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703 (b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is 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 decision —including a disposition of your discrimination
claims —by filing a civil action 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 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
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:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
9
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
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.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 judicia l review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
6 The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit cour t of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115 -195,
132 Stat. 1510.
10
Additional information a bout the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practic e, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono repre sentation
for Merit Systems Protection Board appellants before the 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 c ourts of appeals can be 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 | BEAUDETTE_MAYA_SF_1221_22_0493_W_1_FINAL_ORDER_1943860.pdf | 2022-07-15 | null | SF-315H-17-0634-I-1 | NP |
4,286 | https://www.mspb.gov/decisions/nonprecedential/ROTELLI_CECILIA_SF_315H_17_0113_C_1_FINAL_ORDER_SF_17_0113_I_1_1971120.pdf | UNITED STATES OF AME RICA
MERIT SYSTEMS PROTEC TION BOARD
CECILIA ROTELLI,
Appellant,
v.
DEPARTMENT OF THE NA VY,
Agency.
DOCKET NUMBER
SF-315H -17-0113 -I-1
DATE: July 15, 2022
THIS FINAL ORDER IS NONPRECEDENTIAL1
Cecilia Rotelli , Auburn, Washington, pro se.
Leonard R. Rippey and Sandra J. Morris , Esquire, North Charleston, South
Carolina, 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 termination appeal as settled. For the reasons set forth below, the
appellant’s petition for review is DISMISSED as untimely filed with out good
1 A nonprecedential order is one that the Board has determined does not add
significantly to the 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
cause shown . 5 C.F.R. § 1201.114 (e), (g). We FORWARD the appellant’s claim
that the agency breached the settlement agreement to the Western Regional O ffice
for docketing of a petition for enforcement. 5 C.F.R. § 1201.182 (a).
BACKGROUND
¶2 On November 27, 2016, the appellant filed an initial appeal challenging her
November 2016 termination from an Adminis trative Specialist position with the
Space a nd Naval Warfare Center . Initial Appeal File (IAF), Tab 1. On
February 14, 2017, the appellant and the agency submitted an amended settlement
agreement to the Board. IAF, Tabs 25, 28 . Among other things, the settlement
called for the agency to rescind its termination of the appellant and replace the
existing Standard Form 50 in her Official Personnel File with one denoting that
she voluntarily resigned. IAF, Tab 28 at 1. The administrative judge determined
that the agreement was lawful on its face and voluntarily entered into and
understood by the parties. IAF, T ab 30, Initial Decision (ID) at 2-3. He issued
an initial decision entering the agreement into the record for enforcement
purposes, consistent with its terms, and dismissing the appeal as settled. Id.; IAF,
Tab 25 at 7. The initial decision informed the parties that it would become the
final decision of t he B oard on March 24, 2017, unless a petition for review was
filed by that date. ID at 4.
¶3 On October 31, 2017, over 7 months after the deadline to file, the appellant
filed a petition for review asking the Board “to review the settlement agreement
and the case itself, and the decision to approve.” Petition for Review (PFR) File,
Tab 2 at 4. T he Clerk of the Board informed the appellant that her submission
was untimely and that the Board would consider the merits of her petition only
upon estab lishment of good cause. PFR File, Tab 2 at 3, Tab 3 . The appellant
submitted a motion to waive the t ime limit, along with other supporting
documentation , asserting that she did not realize that she could file a petition for
review or that she had any other recourse and that she had fired her attorney just 4
3
days before the deadline to file . PFR File, Ta b 4. She further asserts that , at the
time of the settlement, she was in shock and dealing with the fallout of her loss of
employment , which included scrambling to move from one state to another ,
financial hardship , and searching for new employment . Id. at 4-7. She also
indicate s that she suffered from medical conditions but denie s that they affected
her ability to timely file her petition for review. Id. at 6. The appellant asserts
that, f rom the time of the settlement until her fil ing of the petition for review, she
has “completed over 150 job applications to no avail. ” PFR File, Tab 2 at 4,
Tab 4 at 6. The appellant additionally asserts that she did not learn the full effect
of the settlement on her ret irement benefits until August 2017 and appears to
allege that either the agency or the Office of Personnel Management (OPM) have
provided her with confusing or incorrect information as to her retirement and
benefits due to the agency’s alleged failure to comply with the provisions of the
settlement agreement that required it to substitute a resignation for its termination
action. PFR File, Tab 2 at 3-4, Tab 4 at 5-6, 18.
¶4 Alongside her attempt to show good cause for waiving the filing deadline,
the appellant additionally challenges the validity of the settlement itself as well as
the underlying probationary termination that prompted the settlement. PFR File,
Tab 2 at 4-5, Tab 4 at 4 -5. Among these arguments are that she was coerced into
the settlement by her attorney and that the settlement resulted from the agency’s
misinformation and thus it was involuntary or fraudulent , her termination was the
result of retaliation for whistleblowing, and her termination was contrary to her
understanding that her position was permanen t. Id.
DISCUSSION OF ARGUME NTS ON REVIEW
¶5 It is undisputed that the appellant’s petition for review is untimely. The
Board will waive the time limit to file a petition for review only upon a showing
of good cause for the delay in filing. 5 C.F.R. §§ 1201.12 , 1201.114(g ). To
establish good cause for waiving an untimely filing of an appeal, a party must
4
show that she exercised due diligence or ordinary prudence under the particular
circumstances of the case. Smith v. Office of Personnel Management ,
93 M.S.P.R. 394 , ¶ 4 (2003). To determine whether an individual has shown
good cause for an untimely filing, the Board will consider the length of the delay,
the reasonableness of the excuse and her showing of due diligence, whether she is
proceeding pro se, and whether she has presented evidence of the existence of
circumstances beyond her control that affected her ability to comply with the time
limits or of unavoidable casualty or misfortune that similarly shows a causal
relationship to her inability to timely file her petition. Moorman v. Department of
the Army , 68 M.S.P.R. 60 , 62-63 (1995), aff’d , 79 F.3d 1167 (Fed. Cir. 1996)
(Table).
¶6 Notwithstanding the appellant’s pro se status , her more than 7 -month delay
in filing is significant. See Mauldin v. U.S. Postal Service , 115 M.S.P.R. 513 ,
¶ 13 (2011) (finding a del ay of more than 7 months significant); Crook v. U.S.
Postal Service , 108 M.S.P.R. 553 , ¶ 6 (finding a 1 -month delay in filing
significant, despite the appellant’s pro se status), aff’d , 301 F. App’x 982 (Fed.
Cir. 2008) . Regardless of the situation between the appella nt and her attorney, it
is well established that the right of appeal is personal to the app ellant, whether or
not she is represented, and she remains responsible for the prosecution and
development of her appeal. Smith , 93 M .S.P.R. 394 , ¶ 5. When an initial
decision clearly informs an appellant of her ability to file a petition for review,
her failure to read or understand the document does not show the due diligence
necessary to constitute good cause for a waiver of the fil ing deadline. See Njoku
v. Department of Homeland Security , 111 M.S.P.R. 262 , ¶¶ 2, 5, 7 (2009) (finding
an appellant’s failure to follow the explicit filing instructions in the initial
decision, specifically regarding the right to request the Board’s review of a
settlement agreement within a designated time frame, does not constitute good
cause for a delay in filing). Thus, we decl ine to excuse the appellant’s untimely
5
filing based on her claimed ignorance of the filing deadline and poor
representation of her attorney.
¶7 Additionally, the appellant’s dissatisfaction with the terms of the settlement
agreement does not constitute good cause for a waiver of the filing deadline .
Eagleh eart v. U.S. Postal Service , 102 M.S.P.R. 672 , ¶ 13 (2006). Likewise, her
arguments on the merits of the underlying personnel action and the settlement that
ensued are not relevant to the timeliness issue. Gaines v. U.S. Postal Service ,
96 M.S.P.R. 504 , ¶ 7 (2004).
¶8 Moreover, an appellant’s general personal difficulties , including financial
hardship, do not constitute good cause for waiving the filing deadline .
Melville v. Department of the Air Force , 99 M.S.P.R. 233 , ¶ 7 (2005); Gaines ,
96 M.S.P.R. 504 , ¶ 7. On the contrary, a n appellant’s submission or filing of
alternative matters —here, the appellant’s over 150 job applications —undermines
her claim of good cause. See Pirkkala v. Department of Justice , 123 M.S.P.R.
288, ¶¶ 22-23 (2016) ( indicating that an appellant’s filing for disability retirement
durin g the relevant period suggested that he could have timely filed his Board
appeal during the same period ). While the appellant has alleged she suffered
from medical conditions during an unspecified period, she has denied these
contributed to her delay and has not submitted any corroborating evidence.
Melville , 99 M.S.P.R. 233, ¶ 7.
¶9 Accordingly, we dismiss the petition for review as untimely filed. This is
the final decision of the Merit Systems Protection Board regarding the timeliness
of the petition for review. The initial decision remains the final decision of the
Board regarding the dismissal of the appeal as settled.
¶10 Notwithstanding the foregoing, as noted above, the appellant claims that the
agency has not complied with the settlement agreement. Specifically, she alleges
that the agency has failed to update her personnel file to reflect her voluntary
resignation and instead maintains that she was terminated. PFR File, Tab 2 at 4,
6
Tab 4 at 6. A petition for enforcement of a settlement agreement must be filed in
the first instance with the Board’s regional or field office that issued the initial
decision. 5 C.F.R. § 1201.182 (a). Under the circumstances, the appropriate
course is to forward the appellant’ s claim to the regional office for docketing of a
petition for enforcement. See Gard v. Departm ent of Education , 97 M.S.P.R. 64 ,
¶¶ 7 -8 (2004) (dismissing as untimely filed with no good cause a petition for
review in which the appellant expressed dissatisfacti on with the settlement
process, but forwarding the appellant’s allegations of noncompliance to the
regional office for docketing of a petition for enforcement).
NOTICE OF APPEAL RIGHTS2
You may obtain review of this f inal decision. 5 U.S.C. § 7703 (a)(1). By
statute, the nature of your claims determines the time limit for seeking such
review and the appropriate forum with which to file. 5 U.S.C. § 7703 (b).
Although we offer the following summary of available appeal rights, the Merit
Systems Protection Board does not provide legal advice on which option is most
appropriate for you r situation and the rights described below do not represent a
statement of how courts will rule regarding which cases fall within their
jurisdiction. If you wish to seek review of this final decision, you should
immediately review the law applicable to yo ur claims and carefully follow all
filing time limits and requirements. Failure to file within the applicable time
limit may result in the dismissal of your case by your chosen forum.
Please read carefully each of the three main possible choices of revi ew
below to decide which one applies to your particular case. If you have questions
2 Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise w hich option is most appropriate in any matter.
7
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a ge neral rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this deci sion. 5 U.S.C.
§ 7703 (b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information 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
Board neither endorses the services provided b y any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action t hat is appealable to the Board and that such action
8
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an a ppropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 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:
9
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 prohibited personnel practice described in section
2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(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.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.
10
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov /probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
Contact information for the courts of appeals can be found at their
respective websites, which can be accessed through the link below:
http://www.uscourts.gov/Co urt_Locator/CourtWebsites.aspx .
FOR THE BOARD:
Washington, D.C. /s/ for
Jennifer Everling
Acting Clerk of the Board | ROTELLI_CECILIA_SF_315H_17_0113_C_1_FINAL_ORDER_SF_17_0113_I_1_1971120.pdf | 2022-07-15 | null | SF-315H-17-0113-I-1 | NP |
4,287 | https://www.mspb.gov/decisions/nonprecedential/ADAMS_CORETTA_CH_0752_17_0027_I_1_FINAL_ORDER_1942063.pdf | UNITED STATES OF AME RICA
MERIT SYSTEMS PROTEC TION BOARD
CORETTA ADAMS,
Appellant,
v.
DEPARTMENT OF VETERA NS
AFFAIRS,
Agency.
DOCKET NUMBER
CH-0752 -17-0027 -I-1
DATE: July 14, 2022
THIS FINAL ORDER IS NONPRECEDENTIAL1
Coretta Adams , Oakwood Village, Ohio, pro se.
Amber Groghan , Esquire, 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 filed a petition for review of the initial decision, which
dismissed her appeal without prejudice to refiling . 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
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 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 ). For
the reasons discussed below, we DENY the appellant’s petition for review ,
AFFIRM the initial decision insofar as it found that the Board lacks jurisdiction
over a direct appea l of the appellant’s removal and that she prematurely filed her
individual right of action (IRA) appeal, and FORWARD her now-ripe IRA appeal
to the Board’s Central R egional Office for adjudication .
BACKGROUND
¶2 The appellant filed an appeal in which she challenged her removal from the
position of Registered Nurse with the Veterans Health Service (VHS) , effective
September 12, 2016. Initial Appeal File (IAF), Tab 1 , Tab 7 at 19 . She alleged,
inter alia, that the agency improperly removed her for filing a w histleblower
complaint with the Office of Special Counsel (OSC) on August 28, 2016 .
IAF, Tab 1 at 4 -5. The administrative judge issued a jurisdictional order
informing the appellant of what she needed to show to establish Board
jurisdiction over her IRA appeal , which included showing that she had sought
corrective action from OSC and either that OSC had terminated its investigation
or that 120 days had expired since she filed her OSC complaint . IAF, Tab 3 .
¶3 On November 8, 2016, the administrative judge issued an initial decision in
which she dismissed the appellant’s IRA appeal as premature. IAF, Tab 9,
Initial Decision (ID) at 3. The administrative judge found that the appellant
provided no evidence that she had received a letter from OSC terminating its
investigation and that 120 days ha d not yet elapsed since her OSC filing. ID at 3.
3
The administrative judge also found that VHS registered nurses such as the
appellant who are appointed generally under 38 U.S.C. § 7401 do not have appeal
rights to the Board and , thus, the Board has no authority to review the removal
decision as an otherwise appealable action . ID at 2.
¶4 The day after the administrative judge issued the initial decision, the
appellant filed a pleading intended to be a petition for review. Petition for
Review (PFR) File, Tab 1. The Board afforded the appellant the opportunity to
file a supplement, which she did. PFR File , Tab 3. The agency has filed a
response opposing the petition for review . PFR File , Tab 4.
DISCUSSION OF ARGUME NTS ON REVIEW2
The administrative judge properly dismissed the appellant’s IRA appeal as
premature .
¶5 The Board has jurisdiction over an IRA appeal if the appellant has
exhausted h er administrative remedies before OSC and makes nonfrivolous
allegations of the following: (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), or (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. Department of the Interior , 123 M.S.P.R. 230,
¶ 5 (201 6). An appellant filing an IRA appeal has not exhausted her OSC remedy
unless she has filed a complaint with OSC and either OSC has notified her that it
was terminating its investigation into her complaint or 120 calendar days have
passed sin ce she first sought corrective action. 5 U.S.C. § 1214 (a)(3);
Garrison v. Department of Defense , 101 M.S.P.R. 229 , ¶ 6 (2006).
¶6 On review, the appellant challenges the merits of the removal action , and
she asserts that her remova l was in retaliation for whistleblowing.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.
4
PFR File, Tabs 1, 3. However, the appellant has shown no error in the
administrative judge’s finding that the Board lacked jurisdiction over her appeal
when she first filed it because she had not received notice from OSC that it had
terminated its investigation into her complaint and 120 days had not yet expired
since she filed her complaint. See 5 U.S.C. § 1214 (a)(3); Jundt v . Department of
Veterans Affa irs, 113 M.S.P.R. 688, ¶ 6 (2010).
We forward the appellant’s now -ripe appeal to the regional office for
adjudication.
¶7 The Board’s practice is to adjudicate an appeal that was premature when it
was filed but becomes ripe while pending before the Board. See Jundt ,
113 M.S.P.R. 688, ¶ 7. The undisputed evidence shows that the appellant filed a
complaint with OSC on August 28, 2016. IAF, Tab 5 at 37 ; PFR File, Tab 3.
Because 120 days have passed since that date, we find that the appellant has
exhausted her administrative remedies before OSC and that her appeal is now ripe
for adjudication . We therefore forward the appeal to the regional office.
See Jundt , 113 M.S.P.R. 688, ¶ 7.
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
3 The appellant does not challenge the adm inistrative judg e’s determination that, as a
VHR registered nurse appointed under 38 U.S.C. § 7401 (1), the Board has no authority
to review the merits of the agency’s decision to remove her as an otherwise appealable
action. Therefore, we have not addressed it. Nevertheless, we have reviewed the
record , and we discern no basis upon which to disturb the administrative judge’s
determination in this regard.
4 Since the issuance of the initial dec ision in this matter, the Board may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise which option is most appropriate in any matter.
5
appropriate for your situation and the rights described below do not represent a
statement of how courts will rule regarding which cases fall within their
jurisdiction. If you wish to seek review of this final decision, you should
immediately review the law applicable to your claims and carefully follow all
filing time limits and requirements. Failure to file within the applicable time
limit may result in the dismissal of your case by your chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703 (b)(1)(A).
If you submit a petition f or review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.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
6
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after yo u
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 represent ative receives this decision. If the action involves a claim of
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to waiver of any requireme nt of prepayment of fees, costs, or other security. See
42 U.S.C. § 2000e -5(f) and 29 U.S.C. § 794a .
Contact information for U.S. district courts can be found at their respective
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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
7
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a 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
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If so, and your judicial petition for review “raises no challenge to the Board’s
disposition of allegations of a prohibited personnel practice described in section
2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i),
(B), (C), or (D),” then you may file a petition for judicial review either with the
U.S. Cour t of Appeals for the Federal Circuit or any court of appeals of
competent jurisdiction.5 The court of appeals must receive your petition for
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 petitio ns for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115 -195,
132 Stat. 1510.
8
review within 60 days of the date of issuance of this decision. 5 U.S.C.
§ 7703 (b)(1)(B).
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se 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 | ADAMS_CORETTA_CH_0752_17_0027_I_1_FINAL_ORDER_1942063.pdf | 2022-07-14 | null | CH-0752-17-0027-I-1 | NP |
4,288 | https://www.mspb.gov/decisions/nonprecedential/FINCH_ELENA_G_AT_0845_16_0722_I_1_FINAL_ORDER_1942161.pdf | UNITED STATES OF AME RICA
MERIT SYSTEMS PROTEC TION BOARD
ELENA G. FINCH,
Appellant,
v.
OFFICE OF PERSONNEL
MANAGEMENT,
Agency.
DOCKET NUMBER
AT-0845 -16-0722 -I-1
DATE: July 14, 2022
THIS FINAL ORDER IS NONPRECEDENTIAL1
Elena G. Finch , Lutz, Florida, pro se.
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 filed a petition for review of the initial decision, which
affirmed the reconsideration decision of the Office of Personnel Management
(OPM) , finding that she received an overpayment of disability retirement benefits
under the Federal Employees’ Retirement System (FERS) in the amount 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
$4,318.47 . For the reasons set forth below, we GRANT the petition for review
but still AFFIRM, as MODIFIED, the initial decision . Specifically, we MODIFY
the initial decision to reduce the amount of the overpayment to $3,304.07, which
accounts for the appellant’s out-of-pocket payment of Federal Employees Health
Benefits (FEHB) premiums d uring the overpayment period. W e further MODIFY
the initial decision to find that the set -aside rule does not apply to preclude
waive r based on financial hardship but still find that the appellant is not entitled
to waiver of the overpayment amount or to further adjustment of the repayment
schedule.
BACKGROUND
¶2 In January 2015, th e appellant applied for a disability retirement annuity
under FERS and entered leave without pay (LWOP) status pending a decision on
her application. Initial Appeal File (IAF), Tab 9 at 42 -44, 50 -51. OPM approved
her application and, b y notice dated October 14, 2015 , informed her that it had
placed her in an in terim payment status while it completed processing her
application . Id. at 39 , 60. OPM advised her that, if the total annuity due to her
was less than the interim payments, it would make adjustments to balance her
account and that , if she was overpaid , she would be “notified and offered the
opportunity to respond before [OPM began] to withhold the excess from future
annuity payments.” Id. at 39.
¶3 In a letter dated March 16, 201 6, OPM notified the appellant that her gross
interim payments had exceeded the actual earned annuity payable to her from the
date of her retirement and that she had received an overpayment of $ 4,318.47 . Id.
at 22-23. OPM further advised her that it would collect the overpayment through
month ly deductions of $119.95 from her FERS annuity payments . Id. The
appellant requested reconsideration of the existence and amount of the
overpayment and a waiver of the overpayment collection. Id. at 14. In a June 30,
2016 reconsideration decision, OPM affirmed its initial decision regarding the
3
existence and amount of the overpayment and denied the appellant’s request for a
waiver but agreed to lower the monthly installments to $50.00 , with a final
installment of $18.47. Id. at 7-10.
¶4 The a ppellant filed this appeal of OPM’ s reconsideration decision to the
Board, challenging the amount of the overpayment and requesting waiver of the
overpayment collection or, in the alternative, a compromise on the amount owed.
IAF, Tab 1 at 1 -3, 8 . In support of h er challenge to the amount of the
overpayment, the appellant argued that OPM should deduct from its overpayment
calculation her October 2015 payment of $1,014 to the National Finance Center
(NFC) for FEHB premiums not collected while she was in a nonpay st atus. Id.
at 1, 3, 24 -26. In an initial decision based on the written record, the
administrative judge found that OPM established the amount of the overpayment
by preponderant evidence, that the appellant did not establish that she was
eligible for a wai ver of the overpayment collection based on financial hardship or
unconscionability, and that she did not show that she was eligible for a further
adjustment of OPM’s repayment schedule on the basis of financial hardship. IAF,
Tab 17, Initial Decision (ID) . Regarding the FEHB premium payment , the
administrative judge deferred to OPM’s assertion that the appellant must obtain
reimbursement from NFC, not from OPM . ID at 3 -4.
¶5 The appellant has filed a petition for review of the initial decision
challenging these findings . Petition for Review (PFR) File, Tab 1 at 1-2.2
2 The appellant has attached a number of documents to her petition for review that are
already contained in the record. PFR File, Tab 1 at 6 -22. In addition, she has
submitted for the first time a November 16, 2016 letter informing her that her rent
would be increased by $24 per month , beginning on December 30, 2016. Id. at 23.
Because this letter was unavailable before the close of the record below, we will
consider it for the first time on revie w. See Avansino v. U.S. Postal Service , 3 M.S.P.R.
211, 214 (1980) (stating that the Board generally will not consider evidence submitted
for the first time with the petition for review absent a showing that it was unavailable
before the record was closed despite the party’s due diligence). The appellant also has
filed a motion for leave to file additional pleadings. PFR File, Tab 5. In this mot ion,
the appellant is seeking leave to submit additional evidence that, according to her, was
4
ANALYSIS
We modify the initial decision to find that OPM only proved that the appellant
was overpaid $3,304.07, which accounts for her out -of-pocket payment of
$1,014.40 in FEHB premiums.
¶6 OPM bears the burden of showing the existence and the amount of an
annuity overpayment by a preponderance of the evidence.3 Vojas v. Office of
Personnel Management , 115 M.S.P.R. 502 , ¶ 10 (2011); see 5 C.F.R.
§ 845.307 (a). In the initial decision, the administrative judge found that the
calculations provided by OPM supported its determination that the appellant
received an overpayment of $4,318.47 . ID at 3. In addition, as noted above, he
found that the appellant must seek reimbursement of her October 2015 FEHB
premium payment from NFC , not from OPM , and that OPM need not deduct the
payment from its overpayment calculation . ID at 3 -4. In so finding, he relied on
OPM’s statement that “ the appellant must request a letter from OPM for
reimbursement from NFC for health insurance premiums that have been collected
from her FERS [d]isability annuity. The recovery of payments from NFC is
between the appellant and NFC only.” ID at 4; IAF, Tab 9 at 5. Thus, he
concluded that OPM established the amount of the overpayment by the requisite
preponderant evidence. ID at 4.
¶7 On review, the appellant argues that she contacted NFC and was told that
“they do not reimburse.” PFR File, Tab 1 at 2. As such, she reiterates her
not readily available before the record closed and “adds proof to [her] pleadings.” Id.
Although the availability of the evidence she seeks to submit may postda te the close of
the record and therefore may be considered new, she has failed to explain how the
evidence is material and would warrant an outcome different from that of the initial
decision. Russo v. Veterans Administration , 3 M.S.P.R. 345, 349 (1980); Avansino ,
3 M.S.P.R. at 214. Accordingly, the appellant’s motion for leave to submit additional
evidence is denied.
3 A preponderance of the evidenc e is that 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
argument that her health insurance premium payment should be deducted from
her overpayment. Id.
¶8 In its reconsideration decision, OPM found that it paid the appellant
$16,475 in interim payments from January 11, 2015, through February 30, 2016,4
but that it only should have paid her $12,156.53 , resulting in an overpayment of
$4,318.47. IAF, Tab 9 at 8. In calculating the amount the appellant was
overpaid, OPM included $1,908.69 in FEHB premiums that it paid on the
appellant’s behalf . Id.
¶9 The record reflects , however, that the appellant paid FEHB premiums
out-of-pocket for part of that same time period. IAF, Tab 1 at 24-26.
Specifically, on October 19, 2015, she submitted a check in the amount of
$1,014.40 to NFC in response to its October 1, 2015 letter demanding payment of
past-due FEHB premiums , which were not collected while she was in a nonpay
status from pay period 2 through pay period 17, i.e., January through
August 2015 . Id. OPM does not dispute that the appellant paid her own FEHB
premiums for this period but simply avers , without citation to any authority, that
the appellant must seek reimbu rsement from NFC. IAF, Tab 9 at 5.
¶10 We disagree with OPM’s assertion, on which the administrative judge
relied , that the appellant must seek reimbursement of her out -of-pocket FEHB
premium payment from NFC and that her FEHB premium payment in
October 2015 is irrelevant to OPM’s overpayment calculation. To the contrary,
the Board previously has held that OPM must reduce the amount of the
overpayment to account for the employee’s out -of-pocket payment of FEHB
premiums d uring the overpayment period. Deutsch v. Office of Personnel
Management , 93 M.S.P.R. 261 , ¶¶ 4-7 (2003) . Therefore, we modify the initial
decision to find that OPM failed to establish by preponderant evidence that its
overpayment calculation is c orrect. We find instead that the appellant’s actual
4 OPM’s reference to “February 30, 2016” is inaccurate, as February does not have
30 days. February 29th was the last day of February in 2016.
6
overpayment is $3,304.07, which accounts for her out-of-pocket payment of
$1,014.40 in FEHB premiums during the overpay ment period .
We modify the initial decision to find that the set -aside rule does not apply to the
appellant but find that she has not proven her entitlement to a waiver based on
financial hardship .
¶11 An appellant seeking waiver of an overpayment bears the b urden of
establishing her entitlement to such a waiver by substantial evidence.5 5 C.F.R.
§ 845.307 (b). OPM may waive collection of an annuity overpayment when the
annuitant is without fault and recovery would be against equity and good
conscience. 5 U.S.C. § 8470 (b); Zucker v. Office of Personnel Management ,
114 M.S.P.R. 288 , ¶ 7 (2010) . Here, it is undisputed that the appellant was not at
fault in creating the overpayment. IAF, Tab 9 at 10 . The administrative judge
found , however, that the appellant was not entitled to waiver because she did not
show that recovery of the overpayment would be against equity and good
conscience . ID at 4 -7.
¶12 Generally, recovery of an overpayment is against equity a nd good
conscience when any of the following conditions are met: (a) recovery would
cause the annuitant financial hardship ; (b) the annuitant can show that, due to the
notice that such payment would be made or because of the incorrect payment , she
either has relinquished a valuable right or has changed positions for the worse ; or
(c) recovery would be unconscionable under the circumstances. 5 C.F.R.
§ 845.303 ; see Zucker , 114 M.S.P.R. 288 , ¶ 7. When an annuitant knew or
suspected that she was receiving an overpayment, however, OPM’s set-aside rule
appli es, and the annuitant is expected to set aside the overpaid money pending
recovery by OPM. See Boyd v. Office of Personnel Management , 851 F.3d 1309 ,
1313 (Fed. Cir. 2017) (quoting OPM’s Policy Guidelines on the Disposition of
5 Substantial evidence is the degree of relevant evidence that a reasonable person,
considering the record as a whole, might accept as adequate to support a conclusion,
even though other reasonable persons might disagree. 5 C.F.R. § 1201.4 (p).
7
Overpayments under the Civil Service Retirement System and the Federal
Employees’ Retirement System (Policy Guidelines ) § I.C.4 (1995 )). In such a
case, recovery of the overpayment will not be waived absent “ exceptional
circumstances .” Id. Financial hardship is not an “exceptional circumstance ”
under the set -aside rule . Id.
¶13 The administrative judge found that the set -aside rule applied to the
appellan t because OPM informed her that the interim payments were an estimate
and that she would have to repay the difference to OPM if she received more in
interim payments than her actual annuity. ID at 6. Thus, he did not consider
whether the appellant is ent itled to waiver based on financial hardship. Id. On
review, the appellant argues that OPM never told her that she needed to set aside
any money for overpayment and, to the contrary, informed her that her interim
payments would be less than her actual ann uity to ensure that she would not be
overpaid . PFR File, Tab 1 at 2.
¶14 While w e agree with the administrative judge’s finding that OPM’s
October 14, 2015 interim pay letter placed the appellant on notice of the fact that
her interim payments were only an estimate and that adjustment would be
necessary in the event of an overpayment or underpayment , IAF, Tab 9 at 39, we
find no basis to conclude that the appellant knew or suspected that she was
receiving an overpayment so as to implicate OPM’s set -aside rul e, see Policy
Guidelines § I.C.4. The U.S. Court of Appeals for the Federal Circuit has
emphasized that “[t] he set -aside rule does not apply to individuals who do not
know or suspect they are being overpaid . Those individuals do not know that the
money d oes not belong to them, and may act in good faith when they fail to set
aside the overpayments .” Boyd , 851 F.3d at 1315; see Okonski v. Office of
Personnel Managemen t, 63 M.S.P.R. 446 , 453 (1994) ( finding that the appellant
could not reasonably have been expected to set aside money if he did not have a
reason to know that it was an overpayment). As such, “[t] o place unknowing
individuals in the same position as knowing individuals is an unreasonable
8
interpretation of the guidelines, as it renders the language requiring knowledge
superfluous. ” Boyd , 851 F.3d at 1315; see Policy Guidelines § I.C.4 ( stating that
“[i]ndividuals who are aware th at they are receiving overpayments are obligated
by the principles of equity and good conscience to set aside the amount overpaid
pending recoupment by OPM ” and that “ an individual who accepted a payment
which he/she suspected or knew to be erroneous . . . is obliged to set the overpaid
money aside”) .
¶15 Here, OPM’s interim payment notice specifically advised the appellant that,
although any overpayment would be deducted from future annuity payments, her
interim payments “should be less than her actual earned annuity” in order to
avoid an overpayment. IAF, Tab 9 at 39 . Moreover, there is no indication that
the appellant knew or suspect ed that she was receiving an overpayment at any
time prior to March 16, 2016, when OPM notified her of the overpayment and
provided her the calculations relevant to her annuity. Id. at 22 . In addition,
according to OPM’s reconsideration decision, the appellant received over $1,200
gross each month in interim payments for the first year while she was entitled to
only $1,058 each month before her health benefits and life insurance premiums
were taken out. Id. at 9. We find that a difference of $142 per month is not so
substantial that the appellant may be assumed to have known or suspected that her
interim payment s were erroneou s. See Policy Guidelines § I.C.4. Thus, we find
that the appellant reasonably assumed that she would not receive an overpayment.
IAF, Tab 1 at 1.
¶16 We further note that OPM did not argue below that the set -aside rule should
be applied in the instant case. IAF, Tab 9 at 4 -6. Rather, OPM discussed the
set-aside rule only in connection with the appellant’s application for Social
Security benefits , stating that it had notified the appellant that, if she received an
award of Social Security benefits , she must set aside any payment s in anticipation
of a request for recovery of the FERS overpayment. Id. at 4 -5. It is undisputed ,
however, that the Social Security Ad ministration denied the appellant’s
9
application for Social Security benefits and that the overpayment at issue did not
result from a payment of such benefit. Id. at 5, 28, 38. In addition, in its
reconsideration decision, OPM denied the appellant’s reque st for waiver based on
financial hardship because she did not prove that she was unable to repay the
overpayment, not because of the set -aside rule. Id. at 10.
¶17 In light of the foregoing , we find that the appellant did not know or suspect
that she was rec eiving an overpayment during the overpayment period and that
the set -aside rule does not apply in this case. Therefore, financial hardship can
serve as a basis for finding that recovery is against equity and good conscience.
See Boyd , 851 F.3d at 1315 ; 5 C.F.R. § 831.1403 (a)(1) .
¶18 To show financial hardship, the annuitant must show that she “needs
substantially all of [her] current income and liquid assets to meet current ordinary
and ne cessary living expenses and liabilities.” 5 C.F.R. § 845.304 ; Policy
Guidelines § I.D.1 . According to OPM’s Policy Guidelines , “[a] debtor shall
generally be deemed to need ‘substantial ly’ all of [her] current income to meet
current ordinary and necessary expenses if [her] monthly income does not exceed
monthly expenses by more than approximately $50 after including repayment of
the overpayment as an expense.” Policy Guidelines § I.D.9. Therefore , to
determine an annuitant’s total monthly expenses, $50 of “emergency expenses”
must be added to the annuitant’s ordinary and necessary monthly expenses . Id.;
see Davis v. Office of Personnel Management , 109 M.S.P.R. 48 , ¶ 12 (2008). The
total monthly expense figure is then subtracted from total monthly income to
ascertain the annuita nt’s income/expense margin. Davis , 109 M.S.P.R. 48 , ¶ 12.
Even when an annuitant has a zero or negative monthly income/expense ma rgin, a
financial hardship finding may not be warranted depending on the amount of
available liquid assets.6 Policy Guidelines § I.D.9.
6 A liquid asset is defined as cash or an asset that is readily convertible to cash with
little or no loss of value, such as a checking or savings account. Policy Guidelines
§ I.D.6.
10
¶19 Here, t he appellant submitted a Financial Resources Questionnaire (FRQ) ,
dated October 31, 2016, reflecting a monthly income of $2,071.42 and monthly
expenses in the amount of $1,931. IAF, Tab 15 at 4 -6. As noted above, she has
submitted a November 16, 2016 notice informing her that her rent would increase
from $784 per month to $808 per month , effective December 30, 2 016. PFR File,
Tab 1 at 23. Therefore, her total monthly expenses now amount to $1,955.
Allowing for $50 in emergency expense s per OPM guidelines , the reported
figures yield an income/expense margin of $66.42 per month , providing the
appellant a surplus of $16.42 after paying the $50 monthly installment towards
her overpayment.
¶20 The appellant also reported on her FRQ that she has $63,000 in a checking
account. IAF, Tab 15 at 5. She argues on review, however, that this amount is
from past due child support for her two children, who are now adults, and that it
is all she has towards her retirement. PFR File, Tab 1 at 3. Thus, she appears to
contend that this liquid asset should not be considered in determining whether
recovery o f the overpayment would cause her financial hardship. Id. As a
general rule, nonliquid assets and the first $5,000 in liquid assets should be
considered unavailable for recovery of an overpayment. Davis , 109 M.S.P.R. 48 ,
¶ 12; Policy Guidelines § I.D.8. The Policy Guidelines allow that it may be
appropriate to exclude more than $5,000 of liquid assets from consideration for
debt r epayment if the annuitant’s expenses exceed her income or if she has
significant current liabilities that are n ot reflected in the expenses. Policy
Guidelines § I.D.8. Here, the appellant’s expenses do not exceed her income , and
she has not alleged that she has current significant liabilities that are not reflected
in her expenses . Therefore , we conclude that $58,000 of the appellant’s checking
accoun t (i.e., $63,000 minus $5,000 ) constitutes available liquid assets that may
properly be considered in det ermining her total financial condition. See Maples
v. Office of Personnel Management , 48 M.S.P.R. 572 , 577 (1991) .
11
¶21 Under these circumstances , we find that the appellant has not demonstrated
that recovery of the $3,304.07 overpayment will cause her financial hardship and,
therefore, find that she is not entitled to waiver of the overpayment collection
based on financial hardship . See 5 C.F.R. § 845.304 ; cf. Hudson v. Office of
Personnel Management , 87 M.S.P.R. 385 , ¶ 12 (2000) ( finding that an annuitant
showed that recovery of annuity overpayment would be a financial hardship, and
thus against equity and good conscience, whe n he had no liquid assets , and his
monthly living expenses exceeded his monthly income by approximately $290);
Tatum v. Office of Personnel Management , 82 M.S.P.R. 96 , ¶ 21 (1999) ( stating
that an annui tant was entitled to waiver of recovery of annuity overpayment based
on financial hardship whe n her monthly living expenses exceeded her monthly
income by approximately $443).
The administrative judge correctly determined that the appellant is not entitled to
waiver based on unconscionability.
¶22 As noted above, an annuitant also may be entitled to waiver if she shows
that she detrimentally relied on the overpayment or that recovery of the
overpayment would be unconscionable under the circumstances. 5 C.F.R.
§ 845.303 ; see Zucker , 114 M.S.P.R. 288 , ¶ 7. The app ellant has not alleged that
she detrimentally relied on the overpayment but has argued that recovery would
be unconscionable under the circumstances because OPM cau sed the overpayment
and failed to remedy the situation in a timely manner. IAF, Tab 1 at 2, Tab 4
at 2. The administrative judge found that the appellant failed to prove that she
was entitled to waiver based on unconscionability because OPM’s delay of less
than 8 months in finalizing her annuity computation and delay of 3 months in
adjudicating her reconsideration request were not unreasonable. ID at 7. The
administrative judge also noted that the appellant did not raise her age or physical
or mental condition in asserting unconscionability. Id. On review, the appellant
argues that OPM’s del ay was actually 16 months and that she did raise her age
(61 years old) and a physical disability. PFR File, Tab 1 at 2.
12
¶23 The standard for unconscionability is a high one and is granted only under
exceptional circumstances. Taylor v. Office of Personnel Management ,
87 M.S.P.R. 214 , ¶ 18 (2000). In assessing unconscionability, the Board
considers all relevant factors under a total ity-of-the-circumstances approach.
Vojas , 115 M.S.P.R. 502 , ¶ 22. Such circumstances may include, but are not
limited to, cases in which : (1) OPM delayed an exceptionally long time to adjust
an annuity; (2) OPM failed to respond within a reasonable length of time to an
annuitant ’s inquiries regarding an overpayment; (3) OPM failed to act
expeditiously to adjust an annuity in the f ace of the specific notice; or (4) OPM
was otherwise grossly negligent in handling the case. Id. The Board also will
consider an annuitant’s personal limitations, such as lack of education, physical
or ment al disability, or other factors that would make the collection of an
overpayment manifestly unfair. Aguon v. Office of Personnel Management ,
42 M.S.P.R. 540 , 550 (1989) . In addition, in determining whether recovery of a
debt would be unconscionable under the circumstances, the Board may consider
whether collection of the overpayment would have a negative impact on an
annuitant because of her medical conditions or whether those medical conditions
require expenditure of a portion of the installment amount. Boone v. Office of
Personnel Management , 119 M.S.P.R. 53 , ¶ 9 (2012).
¶24 Here, the appellant applied for disability retirement under FERS in
January 2015, and OPM notified her that it had approved her application on
August 5, 2015. IAF, Tab 9 at 42 -44, 60. On October 14, 2015, OPM advised the
appellant that she had been pla ced in an interim payment status while it finished
processi ng her application. Id. at 39. On March 16, 2016, OPM notified the
appellant that she had received an overpayment in the amount of $4 ,318.47 and
provided her a repayment schedule. Id. at 22 -23. The appellant requested
reconsideration on April 2, 2016, and OPM issued a reconsideration decision on
June 30, 2016. Thus, the entire process took approximately 18 months. The
Board has held that substantially longer delays, without more, do n ot render
13
recovery unconscionable. See, e.g. , Spinella v. Office of Personnel Management ,
109 M.S.P.R. 185 , ¶¶ 7 -10 (2008) (findi ng that OPM’s delay of 79 months to
adjust the appellant’s annuity did not render recovery of the overpayment
unconscionable); Newcomb v. Office of Personnel Management , 42 M.S.P.R. 552 ,
558‑59 (1989) (determining that OPM’s delay of 3 years and 10 months to render
a decision on an annuitant’s request for waiver did not render recovery of the
overpayment unconscionable ).
¶25 In addition, the appellant is approximately 61 years old and has a left
shoulder impingement. IAF, Tab 4 at 2, 4. She has not shown, however, that
repayment of the monthly installment of $ 50 would have any negative impact on
her because of her age or medical condition an d has not shown that her medical
condition requires expenditure of any of the installment amount. See Boone ,
119 M.S.P.R. 53 , ¶ 9; Dixon v. Office of Personnel Management , 63 M.S.P.R.
607, 610-11 (1994) (finding that recovery of an $8,994 overpayment was not
unconscionable because, among other things, the annuitant failed to show that
repayment in monthly installments of $149.90 would have any negative impact on
him because of his advanced age of 85 years, numerous medical conditions, or
low education level).
¶26 In light of th e foregoing, we find that there has been no excessive delay or
other egregious conduct on OPM’s part and that the appellant’s age and left
shoulder impingement do not warrant waiver of the overpayment based on
unconscionability. Therefore, we do not distu rb the administrative judge’s
determination that the appellant is not entitled to waiver of the overpayment
based on unconscionability.
The administrative judge correctly determined that the appellant is not entitled to
further adjustment of the repayment schedule.
¶27 An annuitant who is ineligible for a waiver may nonetheless be entitled to
an adjustment in the recovery schedule if she shows that it would cause her
financial hardship to make payment at the rate scheduled. Maseuli v. Office of
14
Personnel Mana gement , 111 M.S.P.R. 439 , ¶ 10 (2009); 5 C.F.R. § 845.301 . As
discussed above, a financial hardship exists, for the purpose of determining
whether waiver is warranted, when the debtor needs substantially all of her
current income and liquid assets to meet current ordinary and necessary living
expenses. 5 C.F.R. § 845.304 ; Policy Guidelines § I.D.1. In determining whether
an individual is entitled to an adjustment of the repayment schedule based on
financial hardship , the standard is ordinaril y not applied as strictly as it is in
determining entitlement to waiver. Wagner v. Office of Personnel Management ,
83 M.S.P.R. 355 , ¶ 6 (1999).
¶28 In its reconsideration decision, OPM agreed to reduce the appellant’s
monthly installment from $119.95 to $50. IAF, Tab 9 at 10. T he administrative
judge found that the appellant was not eligible for further adjustment of OPM’s
repayment sch edule because a monthly installment of $50 did not exceed her
demonstrated monthly income/expense margin. ID at 9. As discussed above , the
appellant has since experienced a rent increase, but her reported monthly
expenses , including the monthly installme nt of $50, still do not exceed her
monthly income , and she has $58,000 in a checking account that is considered
available for repayment of the debt. PFR File, Tab 1 at 23. Therefore, we find no
basis to disturb the administrative judge’s determination that the appellant is not
entitled to further adjustment of the repayment schedule based on financial
hardship .7
7Our decision in this matter does not preclude the appellant from exercising any right
that she may have to make a mid -collection request to OPM for modification of the
repayment schedule, compromise, suspension, or write -off, as provided for under any
applicable law, r ule, regulation, or OPM guideline. See 5 C.F.R. § 845.301 ; see also
Hundley v. Office of Personnel Management , 83 M.S.P.R. 632 , ¶ 16 (1999) (finding that
any effects of a future medical emergency could be addressed by a mid -collection
request to OPM for lower payments, compromise, suspension, or write -off).
15
ORDER
¶29 We ORDER OPM to modify the amount of the appellant’s assessed
overpayment to $3,304.07.8 OPM must complete this action no later than 20 days
after the date of this decision.
¶30 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 prov ide 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).
¶31 No l ater than 30 days after OPM 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
OPM did not fu lly carry out the Board’s Order. The petition should contain
specific reasons why the appellant believes that OPM has not fully carried out the
Board ’s Order, and should include the dates and results of any communications
with OPM . 5 C.F.R. § 1201.182 (a).
NOTICE TO THE APPELL ANT REGARDING
YOUR RIGHT TO REQUES T
ATTORNEY FEES AND CO STS
¶32 You may be entitled to be paid by OPM 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
8OPM has advised the Board that it may seek recovery of any debt remaining upon an
appellant’s death from the appellant’s estate or other responsible party. A party
responsible for any debt remaining upon the appellant’s death may include an heir
(spouse, child , or other) who is deriving a benefit from the appellant’s Federal benefits,
an heir or other person acting as the representative of the estate if, for example, the
representative fails to pay the United States before paying the claims of other creditors
in accordance with 31 U.S.C. § 3713 (b), or transferees or distributers of the appellant’s
estate. Pierotti v. Office of Personnel Management , 124 M.S.P.R. 103 , ¶ 13 (2016).
16
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 initi al decision on your appeal.
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 appropriate
forum with whi ch 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 l aw applicable to your
claims and carefully follow all filing time limits and requirements. Failure to file
within the applicable time limit may result in the dismissal of your case by your
chosen forum.
Please read carefully each of the three main possi ble choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review i n general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
9Since 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.
17
within 60 calendar days of the date of is suance of this decision. 5 U.S.C.
§ 7703 (b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affe cted by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civ il action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 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 represen tative receives this decision before
18
you do, then you must file with the district court no later than 30 calendar days
after your representative receives this decision. If the action involves a claim of
discrimination based on race, color, religion, sex, national origin, or a disabling
condition, you may be entitled to representation by a court ‑appointed lawyer and
to waiver of any requirement of prepayment of fees, costs, or other security. See
42 U.S.C. § 2000e -5(f) and 29 U.S.C. § 794a .
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702 (b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702 (b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then 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:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
19
(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.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 “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
10The original statutory provision that provided for judicial review of certain
whistleblower claims by an y court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whist leblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court 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 are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the 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 | FINCH_ELENA_G_AT_0845_16_0722_I_1_FINAL_ORDER_1942161.pdf | 2022-07-14 | null | AT-0845-16-0722-I-1 | NP |
4,289 | https://www.mspb.gov/decisions/nonprecedential/HAMBRICK_CASANOVA_DC_3443_17_0481_I_1_FINAL_ORDER_1942204.pdf | UNITED STATES OF AME RICA
MERIT SYSTEMS PROTEC TION BOARD
CASANOVA HAMBRICK,
Appellant,
v.
UNITED STATES POSTAL SERVICE,
Agency.
DOCKET NUMBER
DC-3443 -17-0481 -I-1
DATE: July 14, 2022
THIS FINAL ORDER IS NONPRECEDENTIAL1
Silas Burgess, III , New York, New York, for the appellant.
Greg Allan Ribreau , Esquire, Charlotte, North Carolina, for the agency.
BEFORE
Cathy A. Harris , Vice Chairman
Raymond A. Limon , Member
Tristan L. Leavitt , Memb er
FINAL ORDER
¶1 The appellant has filed a petition for review of the initial decision, which
dismissed his appeal for lack of jurisdiction. For the reasons set forth below, we
GRANT the petition , VAC ATE the initial decision, and FORWARD 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
appellant ’s allegations of agency noncompliance with a settlement agreement to
the Washington Regional Office for docketing as a petition for enforcement .
BACKGROUND AND ANALYSIS
¶2 On February 14, 2014, the appellant filed a Board appeal of the agency ’s
February 11, 2014 decision to remove him for alleged misconduct. Hambrick v.
U.S. Postal Service , MSPB Docket No. DC -0752 -14-0454 -I-1, Initial Appeal File
(0454 IAF), Tab 1. On November 6, 2014, the parties entered into a settle ment
agreement that resolved that appe al. 0454 IAF, Tab 24. The following day, the
administrative judge issued an initial decision that dismissed the appeal as settled
and informed the parties that the settlement agreement had been entered into the
record for enforcement purposes. 0454 IAF, Tab 25, Initial Decision . The initial
decision became final when neither party filed a petition for review.
¶3 On September 17, 2015, the appellant filed a petition for enforcement of the
settlement agreement. Hambrick v. U.S. Postal Servic e, MSPB Docket
No. DC-0752 -14-0454 -C-1, Compliance File (0454 C-1 CF) , Tab 1. On October
21, 2015, the administrative judge issued a compliance initial decision , finding
the agency in compliance and denying the petition for enforcement. 0454 C-1
CF, Tab 6, Compliance Initial Decision . The appellant filed a petition for review,
in which he made additional allegations of noncompliance, and on March 8, 2016,
the full Board issued a final order denying the appellant ’s petition for review and
forwarding to the regional office the appellant’s new allegations of
noncompliance , contending that, among other things, the agency had failed to pay
him $156 and failed to restore all of the annual leave to which he was entitled .
Hambrick v. U.S. Postal Service , MS PB Docket No. DC -0752 -14-0454 -C-1, Final
Order (Mar. 8, 2016) . The U.S. Court of Appeals for the Federal Circuit affirmed
the Board ’s decision on appeal. Hambrick v. U.S. Postal Service , 662 F. App’x
938 (Fed. Cir. 2016).
3
¶4 After docketing the forwarded co mpliance matter and affording the parties
an opportunity to submit evidence and argument, t he administrative judge issued
an initial decision , denying the appellant ’s second petition for enforcement on
June 8, 2016 . Hambrick v. U.S. Postal Service , MSPB D ocket No. DC -0752 -14-
0454 -C-2, Compliance File, Tab 6, Compliance Initial Decision . The appellant
petitioned for review. Hambrick v. U.S. Postal Service , MSPB Docket
No. DC-0752 -14-0454 -C-2, Petition for Review File, Tab 1. The Board denied
the petition, finding that the agency was in compliance regarding the payment of
$156 and the restoration of annual leave. Hambrick v. U.S. Postal Service , MSPB
Docket No. DC-0752 -14-0454 -C-2, Final Order, ¶ 5 (Jan . 6, 2017). Re garding
the appellant’s conte ntion that he was entitled to compensatory damages because
of the agency’s delay in complying, the Board found that it lacked the authority to
award damages for the breach of a settlement agreement. Id., ¶ 6. The Board
found further that, to the extent t he appellant was contend ing that the agency
miscalculated his back pay, that matter was decided on the merits in his first
petition for enforcement, and the appellant was precluded from relitigating the
issue. Id.
¶5 On May 1, 2017, the appellant filed a new submission with the regional
office , alleging that the agency had breached the settlement agreement by
improperly reporting his income for 2014 to the Internal Revenue Service,
causing him to suffer penalties that he learned of by notice dated April 10, 2017 ,
and caused his medical and life insurance policies to be ca ncelled. Hambrick v.
U.S. Postal Service , MSPB Docket No. D C-3443 -17-0481 -I-1, Initial Appeal File
(0481 IAF), Tabs 1-2, 5. The regional office did not docket the filing as a
petition for enforcement, however. 0481 IAF , Tab 3. The administrative judge
dismissed the appeal for lack of jurisdiction , noting that t he appeal was not
docketed a s a petition for enforcement in light of the Board ’s prior compliance
decisions . 0481 IAF , Tab 15 , Initial Decision (0481 ID) at 1 n.1.
4
¶6 The appellant has petitioned for review , rearguing the issues that he raised
below regard ing his tax liability an d asserting that the agency is in violation of
the settlement agreement because it did not contribute matching funds to his
Thrift Savings Plan account or deposit breakage , the difference between the value
of shares of the applicabl e investment fund that would have been purchased had
the contribution been made on the “as of ” date and the value of the shares of the
same investment fund on the date the contribution was posted to the account.
Hambrick v. U.S. Postal Service , MSPB Docke t No DC-3443 -17-0481 -I-1,
Petition for Review File (0481 PFR File) , Tab 1 at 4 -5; see 5 C.F.R. § 1605.1 (b);
see also 5 C.F.R. § 1605.13 . The agency has responded in opposition to the
petition. 0481 PFR File, Tab 3.
¶7 The appellant ’s submissions below and on petition for review are clearly
related to alleged noncompliance by the agency with the settlement agreement
that the parties entered into in 2014. 0481 IAF, Tabs 1 -2, 5; 0481 PFR File,
Tab 1. Thus, the administrative judge should have processed the matter as
another petition for enforcement of the settlement agreement . Moreover, the
issues that the appellant raise s in his filing do not appear to be identical to those
adjudicated by the Board in his prior petitions for enforcement .2 It is premature
to make any finding s on the appellant ’s allegation of non compliance with the
settlement agreement because the parties have not been afforded the opportunity
to submit evidence and argument on the compliance issue s raised .
2 The administrative judge’s footnote attempting to explain his reasons for not
adjudicating the appeal as a petition for enforcement merely sets forth the case history
and does not justify his appro ach to the case. 0481 ID at 1 n.1. To the extent that
issues raised by the appellant have been adjudicated in prior petitions for enforcement,
the Board has found that such a situation is properly addressed under the doctrine of res
judicata. See Senysz yn v. Department of the Treasury , 113 M.S.P.R. 453 , ¶¶ 9, 12
(2010).
5
ORDER
¶8 Accordingly, w e vacate the initial decision ’s dismissal of the appeal for
lack of jurisdiction and forward the matter to the W ashington Regional Office for
docketing as a petition for enforcement of the settlement agreement in Hambrick
v. U.S. Postal Service , MSPB Docket No. DC -0752 -14-0454 -I-1, and for further
adjudicatio n in accordance with this Order.
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 tim e limit for seeking such
review and the appropriate forum with which to file. 5 U.S.C. § 7703 (b).
Although we offer the following summary of available appeal rights, the Merit
Systems Protection Board does not provide legal advice on which option is most
appropriate for your situation and the rights described below do not represent a
statement of how courts will rule regarding which cases fall within their
jurisdiction. If you wish to seek review of this final decision, you should
immediately review the law applicable to your claims and carefully follow all
filing time limits and requirements. Failure to file within the applicable time
limit may result in the dismissal of your case by your chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contac t that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
3 Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise which option is most appropriate in any matter.
6
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703 (b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circui t is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are intereste d in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellan ts before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This op tion applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision —includ ing a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 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
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 information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702 (b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702 (b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then 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:
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
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.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 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
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.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.
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.
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 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 | HAMBRICK_CASANOVA_DC_3443_17_0481_I_1_FINAL_ORDER_1942204.pdf | 2022-07-14 | null | DC-3443-17-0481-I-1 | NP |
4,290 | https://www.mspb.gov/decisions/nonprecedential/ADAMS_CORETTA_CH_0752_17_0027_I_2_REFILED_APPEAL__1942987.pdf | UNITED STATES OF AME RICA
MERIT SYSTEMS PROTEC TION BOARD
CORETTA ADAMS,
Appellant,
v.
DEPARTMENT OF VETERA NS
AFFAIRS,
Agency.
DOCKET NUMBER
CH-0752 -17-0027 -I-1
DATE: July 14, 2022
THIS FINAL ORDER IS NONPRECEDENTIAL1
Coretta Adams , Oakwood Village, Ohio, pro se.
Amber Groghan , Esquire, 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 filed a petition for review of the initial decision, which
dismissed her appeal without prejudice to refiling . 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
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 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 ). For
the reasons discussed below, we DENY the appellant’s petition for review ,
AFFIRM the initial decision insofar as it found that the Board lacks jurisdiction
over a direct appea l of the appellant’s removal and that she prematurely filed her
individual right of action (IRA) appeal, and FORWARD her now-ripe IRA appeal
to the Board’s Central R egional Office for adjudication .
BACKGROUND
¶2 The appellant filed an appeal in which she challenged her removal from the
position of Registered Nurse with the Veterans Health Service (VHS) , effective
September 12, 2016. Initial Appeal File (IAF), Tab 1 , Tab 7 at 19 . She alleged,
inter alia, that the agency improperly removed her for filing a w histleblower
complaint with the Office of Special Counsel (OSC) on August 28, 2016 .
IAF, Tab 1 at 4 -5. The administrative judge issued a jurisdictional order
informing the appellant of what she needed to show to establish Board
jurisdiction over her IRA appeal , which included showing that she had sought
corrective action from OSC and either that OSC had terminated its investigation
or that 120 days had expired since she filed her OSC complaint . IAF, Tab 3 .
¶3 On November 8, 2016, the administrative judge issued an initial decision in
which she dismissed the appellant’s IRA appeal as premature. IAF, Tab 9,
Initial Decision (ID) at 3. The administrative judge found that the appellant
provided no evidence that she had received a letter from OSC terminating its
investigation and that 120 days ha d not yet elapsed since her OSC filing. ID at 3.
3
The administrative judge also found that VHS registered nurses such as the
appellant who are appointed generally under 38 U.S.C. § 7401 do not have appeal
rights to the Board and , thus, the Board has no authority to review the removal
decision as an otherwise appealable action . ID at 2.
¶4 The day after the administrative judge issued the initial decision, the
appellant filed a pleading intended to be a petition for review. Petition for
Review (PFR) File, Tab 1. The Board afforded the appellant the opportunity to
file a supplement, which she did. PFR File , Tab 3. The agency has filed a
response opposing the petition for review . PFR File , Tab 4.
DISCUSSION OF ARGUME NTS ON REVIEW2
The administrative judge properly dismissed the appellant’s IRA appeal as
premature .
¶5 The Board has jurisdiction over an IRA appeal if the appellant has
exhausted h er administrative remedies before OSC and makes nonfrivolous
allegations of the following: (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), or (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. Department of the Interior , 123 M.S.P.R. 230,
¶ 5 (201 6). An appellant filing an IRA appeal has not exhausted her OSC remedy
unless she has filed a complaint with OSC and either OSC has notified her that it
was terminating its investigation into her complaint or 120 calendar days have
passed sin ce she first sought corrective action. 5 U.S.C. § 1214 (a)(3);
Garrison v. Department of Defense , 101 M.S.P.R. 229 , ¶ 6 (2006).
¶6 On review, the appellant challenges the merits of the removal action , and
she asserts that her remova l was in retaliation for whistleblowing.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.
4
PFR File, Tabs 1, 3. However, the appellant has shown no error in the
administrative judge’s finding that the Board lacked jurisdiction over her appeal
when she first filed it because she had not received notice from OSC that it had
terminated its investigation into her complaint and 120 days had not yet expired
since she filed her complaint. See 5 U.S.C. § 1214 (a)(3); Jundt v . Department of
Veterans Affa irs, 113 M.S.P.R. 688, ¶ 6 (2010).
We forward the appellant’s now -ripe appeal to the regional office for
adjudication.
¶7 The Board’s practice is to adjudicate an appeal that was premature when it
was filed but becomes ripe while pending before the Board. See Jundt ,
113 M.S.P.R. 688, ¶ 7. The undisputed evidence shows that the appellant filed a
complaint with OSC on August 28, 2016. IAF, Tab 5 at 37 ; PFR File, Tab 3.
Because 120 days have passed since that date, we find that the appellant has
exhausted her administrative remedies before OSC and that her appeal is now ripe
for adjudication . We therefore forward the appeal to the regional office.
See Jundt , 113 M.S.P.R. 688, ¶ 7.
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
3 The appellant does not challenge the adm inistrative judg e’s determination that, as a
VHR registered nurse appointed under 38 U.S.C. § 7401 (1), the Board has no authority
to review the merits of the agency’s decision to remove her as an otherwise appealable
action. Therefore, we have not addressed it. Nevertheless, we have reviewed the
record , and we discern no basis upon which to disturb the administrative judge’s
determination in this regard.
4 Since the issuance of the initial dec ision in this matter, the Board may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise which option is most appropriate in any matter.
5
appropriate for your situation and the rights described below do not represent a
statement of how courts will rule regarding which cases fall within their
jurisdiction. If you wish to seek review of this final decision, you should
immediately review the law applicable to your claims and carefully follow all
filing time limits and requirements. Failure to file within the applicable time
limit may result in the dismissal of your case by your chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703 (b)(1)(A).
If you submit a petition f or review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.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
6
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after yo u
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 represent ative receives this decision. If the action involves a claim of
discrimination based on race, color, religion, sex, national origin, or a disabling
condition, you may be entitled to representation by a court -appointed lawyer and
to waiver of any requireme nt of prepayment of fees, costs, or other security. See
42 U.S.C. § 2000e -5(f) and 29 U.S.C. § 794a .
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
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
7
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 2 0507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302 (b)(8) or
other protected activities listed in 5 U.S.C. § 2302 (b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
disposition of allegations of a prohibited personnel practice described in section
2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i),
(B), (C), or (D),” then you may file a petition for judicial review either with the
U.S. Cour t of Appeals for the Federal Circuit or any court of appeals of
competent jurisdiction.5 The court of appeals must receive your petition for
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 petitio ns for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115 -195,
132 Stat. 1510.
8
review within 60 days of the date of issuance of this decision. 5 U.S.C.
§ 7703 (b)(1)(B).
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se 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 | ADAMS_CORETTA_CH_0752_17_0027_I_2_REFILED_APPEAL__1942987.pdf | 2022-07-14 | null | CH-0752-17-0027-I-1 | NP |
4,291 | https://www.mspb.gov/decisions/nonprecedential/IRVING_ROSEMARY_R_DE_0843_16_0327_I_1_FINAL_ORDER_1941729.pdf | UNITED STATES OF AME RICA
MERIT SYSTEMS PROTEC TION BOARD
ROSEMARY R. IRVING,
Appellant,
v.
OFFICE OF PERSONNEL
MANAGEMENT,
Agency.
DOCKET NUMBER
DE-0843 -16-0327 -I-1
DATE: July 13, 2022
THIS FINAL ORDER IS NONPRECEDENTIAL1
Rosemary R. Irving , Phoenix, Arizona, pro se.
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 filed a petition for review of the initial decision, which
affirmed the decision of the Office of Personnel Management (OPM) denying her
survivor benefits as a former spouse. Generally, we grant petitions such as this
one only in the following circum stances: 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 application of the law to
the facts of the case; the administrative judge’s rulings during either the course of
the appeal or the initial decision were not consistent with required procedures or
involved an abuse of discretion, and the resulting error affected the outcome of
the case; or new and material evidence or legal argument is available that, despite
the petitioner’s due diligence, was not available when the record closed. Title 5
of the Code 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 failed to establish any basis under section 1201.115 for granting the petition
for review. Therefore, we DENY the petition for review . Except as expressly
MODIFIED by this Final Order to clarify the basis for finding that the appellant
is not entitled to survivor benefits, we AFFIRM the initial decision.
BACKGROUND
¶2 On October 11, 2012, the appellant and her husband , a Federal employee,
divorced after 26 years of marriage . Initial Appeal File (IAF), Tab 6 at 78-93.
He remained a Federal employee until h e died on April 3, 2015, at age 57 , with
28 years of service. Id. at 50 -56. On May 20 , 2015, the appellant filed an
application for death b enef its under the Fed eral Employees ’ Retirement System
(FERS) based on her former husband’s service , id. at 24 -28, and their divorce
decree , id. at 19.
¶3 In an initial decision, OPM notified the appellant that, although she was not
eligible for a monthly apportionment of her former husband’s annuity, she was
approved for a survivor annuity in the amount of $1 per month. Id. at 21. She
request ed reconsideration, argu ing that she was under stress at the time of the
divorce and that the provision entitling her to $1 per month in survivor annuity
benefits was included in the decree and the court order incident to the decree so
that she would be able to maintain her health benefits. Id. at 9 -10. She
3
contended that OPM should not have accepted the decree as an acce ptable court
order because it i s ambiguous and cont ains confusing language , id. at 10 , and
leads to an unfair and inequitable result , id. at 14. In its reconsideration decision
affirm ing its initial decision, OPM found that the appellant was not en titled to an
apportionment of her former husband’s annuity because he died while in service
and had not yet applied for a retirement annuity , but that s he was entitled to a
survivor annuity in the amount of $1 per month, as provided for in the “Court
Order Acceptable for Processing Retirement Benefits (Federal Employees
Retirement System… .),” signed by the parties and submitted by the appellant to
OPM in 2012. Id. at 5-7.
¶4 On appeal, the appellant renewed her claim that the court order was not
acceptable fo r processing when it was submitted because of confusing and
ambiguous language between the divorce decree and the court order incident to
the decree , IAF, Tab 1 at 7 -12, and s he sought her former husband’s “full
survivor annuity” based on what s he contende d was his intention, id. at 12. She
subsequently requested a hearing , IAF, Tab 8, but later withdrew her request ,
IAF, Tab 12. The administrative judge afforded the parties a final opportunity to
submit evidence and argument on the relevant issues , IAF, Tab 13, and the
appellant did so, IAF, Tab 14.
¶5 Thereafter , the administrative judge issued an initial decision affirming
OPM’s reconsideration decision. IAF, Tab 15, Initial Decision (ID) at 1, 4.
Citing 5 C.F.R. § 838.222 , the administrative judge found that the appellant is not
entitled to any retirement benefit because her former husband was not receiving
an annuity at the time of his death . The administrative judge further found that
“the issue of [the appellant’s] divorce decree, and whether it should have been
rejected, is immaterial.” ID at 3-4.
¶6 The appellant has filed a petition for review, Petition for Review (PFR)
File, Tab 1, to which the agen cy has responded in opposition , PFR File, Tab 4.
4
ANALYSIS
¶7 To the extent t he appellant challenge s on review the administrative judge’s
finding that she is not entitled to an apportionment of her former husband’s
annuity , ID at 3, we discern no basis upon which to disturb that finding .
Regardless of the fact that the 2012 court order purport ed to assign the appellant
an interest in her former husband’s annuity, IAF, Tab 6 at 67, the annuity “was
not in pay status ,” at the time of his death because he had n ot yet retired .
5 C.F.R. § 838.222 (c);2 ID at 3 . Therefore, there was no annuity to be
apportioned.
¶8 The appellant ’s main argument on review , however, is that the
administrative judge re fused to consider her challenge to the court order that
OPM found acceptable for proce ssing, particularly as it relates to her entitlement
to a survivor annuity. PFR File, Tab 1. We agree with the appellant that the
court order is not “immaterial.” ID at 4.
¶9 The appellant’s r ight to a survivor annuity as a f ormer spouse is governed
by the portion of the FERS statute codified at 5 U.S.C. § 8445 . That section of
the FERS statute provides that a former spouse of a deceas ed employee is entitled
to a survivor annuity “if and to the extent expressly provided for” in either :
(1) an election under § 8417(b) of the FERS statute ;3 or (2) the terms of any
decree of divorce or annulment or any court order or court -approved proper ty
settlement agre ement incident to such decree. See 5 U.S.C. § 8445 (a). Although
the “expressly provided for” provision of § 8445(a) does not require the use of
“magic words,” the intent to prov ide a survivor annuity must be clear, definite,
explicit, plain, direct, and unmistakable, not dubious or ambiguous. See Holzman
2 Pursuant to 5 C.F.R. § 838.22 , “[i]f OPM receives a court order acceptable for
processing that is directed at an employee annuity that is not in pay status, OPM will
inform . . . the former spouse . . . that benefits cannot begin to accrue until the
employee retires, or enters phased retirement status.”
3 The appellant ’s former husband made no such election because he died prior to
retiring.
5
v. Office of Personnel Management , 62 M.S.P.R. 254, 257 (199 4) (interpreting
identical language found in 5 U.S.C. § 8341 (h)(1)), aff’d , 48 F.3d 1237 (Fed. Cir.
1995) (Table). Under 5 C.F.R. § 838.804 (b), in order to expressly award a former
spouse survivor annuity or expressly direct an employee or annuitant to provide a
former spouse survivor annuity, the court ord er must expressly state that the
former spouse is entitled to a survivor annuity using terms similar to those
described by § 838.912. See 5 C.F.R. § 838.804 (b)(2). For example, the cour t
order must contain language such as “survivor annuity,” “death benefits,” or
“former spouse survivor annuity.” 5 C.F.R. § 838.912 (a).
¶10 Here, the parties, both represented by counsel, signed a “Court Order
Acceptable for Processing Retirement Benefits (Federal Employees’ Retirement
System; United States Office of Personnel Management) ” that was filed in the
Superior Court for the State of Arizona in and for the County of Maricopa on
October 22, 2012 , incident to the divorce decree filed the same date . IAF, Tab 6
at 65 -70. The order provide d in pertinent part that:
Husband will, by this Order, be deemed to have elected the survivor
annuity benefit, FERS will record Husband as having elected the
survivor annuity benefit, and Former Spouse shall be designated as
the survivor beneficiary in the amount of $1 per month (the cost of
which shall be charged to the Former Spouse’s share) until she is
eligible for coverage under Medicare, which for the purposes of this
Order shall be October 1, 2024.
Id. at 67 -68. The appellant submitted the o rder to OPM seeking approval of the
benefits it provided. Id. at 63. Consistent with 5 C.F.R. § 838. 222(c), OPM
notified the parties and the appellant’s attorney on August 8, 2013, that it had
approved the appellant’s application for benefits as set forth in the order, id.
at 60-62, that her former spou sal retirement benefits would begin when her
former husband retired, and that it intended to honor her survivor annuity award
in the amount of $1 per month . It also enclosed references to applicable
regulations that must be followed in awarding court orde red benefits . Id.
6
¶11 On review, the appellant challenges on several grounds OPM’s decision to
accept the order for processing. She claims that the “Medicare language” in the
divorce decree is ambiguous because it does not specify a date on which she will
be eligible for Medicare and that therefore extrinsic evidence as to the parties’
intentions should be considered . PFR File, Tab 1 at 3 -7. However, the decree
provides that the award of the appellant’s share of her former husband’s FERS
benefit (and his Thrift Savings Plan benefit ) shall be accomplished by court
orders directed to the plan’s administrators . IAF, Tab 6 at 82 . A s noted, the
separate order concerning retirement benefits that was incident to the decree and
that the appellant submitted to OP M for enforcement , and that OPM found
acceptable for processing , specifically state d that the appellant w ould receive a
monthly survivor benefit of $1 per month until she would become eligible for
Medicare “which for the purposes of this Order shall be Oct ober 1, 2024.” Id.
at 68. Therefore , there is no ambiguity as to what the appellant’s survivor benefit
is or for how long she will receive it .4 Fox v. Office of Personnel Management ,
100 F.3d 141 , 146 n.3 (1996) ( explaining that, when the plain meaning of the
operative term grants an annuity, the annuity must be awarded, regardless of
extrinsic evidence). There is thus no basis for the appellant’s argument that OPM
should have returned the order to her former husband, “giving him the
opportunity to review the wording again .” PFR File, Tab 1 at 4.
¶12 The appellant further claims on review that she was not in her best mental
state when she signed the divorce papers. Id. She was , however, represented by
counsel during the divorce proceedings and when she signed the court order at
4 We have considered the cases the appellant has cited in support of her positon and
find them inapposite. For example, Newman v. Teigeler , 898 F.2d 1574 (Fed. Cir.
1990) , concerned an issue of statutory construction involving a provision of the
amendments to the Civil Service Retirement Spouse Equity Act of 1984 . In Davenport
v. Office of Personnel Management , 62 F.3d 1384 , 1387 (Fed. Cir. 1995) , the court
found that OPM could consult a divorce decree when it clarified the meaning of the
Qualified Domestic Relations Order at issue. Here, we have found that the order was
not ambiguous and therefore it needed no clarification.
7
issue here , including the provision she now challenges, which, she acknowledges,
assure d that she would continu e to have neede d health benefits following the
divorce . To the extent t he appellant now seeks to substitute terms in the order
that would be more favorable to her, any such modification is precluded because
of her former husband’s death. 5 C.F.R. § 838.806 (b)(1). In any event, the
appellant is responsible for the errors of h er chosen representative . Sofio v.
Internal Revenue Service , 7 M.S.P.R. 667 , 670 (1981).
¶13 Finally, the appellant argues on review that the o rder, as enforced by OPM,
is patently unfair and inequitable.5 PFR Fil e, Tab 1 at 8. While we are
sympathetic, the U.S. Supreme Court has held that the G overnment cannot be
estopped from denying benefits not otherwise permitted by law . Office of
Personnel Management v. Richmond , 496 U.S. 414 , 416, 434 (1990).
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 of this final decision. 5 U.S.C. § 7703 (a)(1). By statute, the nature of
your claims determines t he time limit for seeking such review and 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
5 On review, the app ellant renews her claim that, even though her former husband had
28 years of Federal service, none of their children will r eceive benefits. PFR File,
Tab 1 at 8. That is not a matter that we can consider in this appeal in which the
appellant contests the denial of her own benefits . However, if she believes that any of
the minor children have not received benefits to which , based on their father’s Federal
service, they are entitled, she must file a claim on their behalf with OPM. If OPM
issues unfavorabl e decision s initially and on reconsideration, she then may pursue an
appeal with the Board on behalf of her minor children .
6 Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review rights included in fina l decisions. As indicated in the notice, the
Board cannot advise which option is most appropriate in any matter.
8
the rights described below do not represent a statement of how courts will rule
regarding which cases fall within their jurisdiction. If yo u wish to seek review of
this final decision, you should immediately review the law applicable to your
claims and carefully follow all filing time limits and requirements. Failure to file
within the applicable time limit may result in the dismissal of you r case by your
chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circu it, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703 (b)(1)(A).
If you submit a petition for review to the U.S. Court of Appea ls for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
9
for Merit Systems Protect ion Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discri mination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of th is decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 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
10
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302 (b)(8) or
other protected activities listed in 5 U.S.C. § 2302 (b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
disposition of allegat ions of a prohibited personnel practice described in section
2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i),
(B), (C), or (D),” then you may file a petition for judicial review either with the
U.S. Court of Appeals for th e 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 juri sdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S . Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115 -195,
132 Stat. 1510.
11
review within 60 days of the date of issuance of this decision. 5 U.S.C.
§ 7703 (b)(1)(B).
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Plac e, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellant s,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www .mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept repre sentation in a given case.
Contact information for the courts of appeals can be found at their
respective websites, which can be accessed through the link below:
http://www.uscour ts.gov/Court_Locator/CourtWebsites.aspx .
FOR THE BOARD:
Washington, D.C. /s/ for
Jennifer Everling
Acting Clerk of the Board | IRVING_ROSEMARY_R_DE_0843_16_0327_I_1_FINAL_ORDER_1941729.pdf | 2022-07-13 | null | DE-0843-16-0327-I-1 | NP |
4,292 | https://www.mspb.gov/decisions/nonprecedential/GHANNOUM_GHASSAN_J_SF_1221_18_0723_W_2_FINAL_ORDER_1941212.pdf | UNITED STATES OF AME RICA
MERIT SYSTEMS PROTEC TION BOARD
GHASSAN J. GHANNOUM,
Appellant,
v.
DEPARTMENT OF VETERA NS
AFFAIRS,
Agency.
DOCKET NUMBERS
SF-1221 -18-0723 -W-2
SF-0714 -19-0310 -I-1
DATE: July 12, 2022
THIS FINAL ORDER IS NONPRECEDENTIAL1
Ghassan Ghannoum , Corona, California, pro se.
Andrew Quinio , Esquire, Los Angeles, California, for the agency.
BEFORE
Cathy A. Harris, Vice Chairman
Raymond A. Limon, Member
Tristan L. Leavitt, M ember
FINAL ORDER
¶1 The appellant has petitioned for review of the July 8, 2019 initial decision
in his removal and individual right of action appeals, which were joined 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
processing. Ghannoum v. Department of Veterans Affairs , MSPB Docket No.
SF-1221 -18-0723 -W-2, Initial Appeal File, Tab 27, Initial Decision; Ghannoum
v. Department of Veterans Affairs , MSPB Docket No. SF -1221 -18-0723 -W-2,
Petition for Review (PFR) File, Tab 3. For the reasons set forth below, we
DISMISS the joined appeals as settled.
¶2 On September 11, 2019, the appellant petitioned for review of the initial
decision resolving the joined appeals. PFR File, Tab 3. While the petition for
review was still pending before the Board, on May 11, 2021, the agency
submitted a document entitled “ SETTLEMENT AGREEMENT,” which was
signed and dated by the agency on May 4, 2021, and by the appellant on May 8,
2021.2 PFR File, Tab 7. The document provides, among other things, that the
appellant agreed to withdraw the above -captioned appeals in exchang e for the
promises made by the agency. 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
2 On December 27, 2021, the agency filed a signed statement from the appellant
confirming his intent to voluntarily withdraw his petition for review with prejudice and
indicated that the agency did n ot object to the appellant’s request. PFR File, Tabs 9 -10.
On January 3, 2022, the Board notified the parties that, although the Clerk of the Board
has delegated authority to grant an unopposed request to withdraw a petition for review
when there are no issues of apparent untimeliness, the agency’s May 11, 2021
submission reflected that the parties intended the Board to enter the settlement
agreement into the record for enforcement. PFR File, Tab 11. The Board ordered the
parties to confirm their intent regarding enforcement. Id. In response, the appellant
requested that the settlement agreement be entered into the record for enforcement, and
the agency stated that the agreement was enforceable by the Equal Employment
Opportunity Commission, not by the Board, and that its prior request was in error. PFR
File, Tabs 14-15. As the appellant has indicated his intent that the settlement
agreement be entered into the record for enforcement by the Board, his petition for
review may not be dismissed pursuant to the Clerk of the Board’s delegated authority.
3
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 Manage ment , 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 and
understand its terms. PFR File, Tab 7. We further find that the parties do not
intend to enter the settlement agreement into the record for enforcement by the
Board, as the agreement itself provides for enforcement through the equal
employment opportunity procedures set forth at 29 C.F.R. § 1614.504 . 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 ). Although the appellant
indicated that he wishes the Board to enforce the settlement agreement, PFR File,
Tab 14 at 3, the words of the agreement itself are of paramount importance in
determining the intent of the parties at the time they contracted. Greco v.
Department of the Army , 852 F.2d 558 , 560 (Fed. Cir. 1988). Accordingly,
pursuant to the terms of the settlement agreement , we find that it is enforceable
by the Equal Employment Opportunity Commission , not by the Board, and we do
not enter it into the record for enforcement.
¶5 In light of the foregoing , we find that dismissing the appeals “with
prejudice to refiling” (i.e., the parties normally may not refile th ese appeal s) is
appropriate under these circumstances. This is the final decision of the Merit
Systems Protection Board in th ese appeal s. Title 5 of the Code of Federal
Regulations, section 1201.113 ( 5 C.F.R. § 1201.113 ).
4
NOTICE OF APPEAL RIGHTS3
You may obtain review of this final decision. 5 U.S.C. § 7703 (a)(1) . By
statute, the nature of your claims determines the time limit for seeking such
review and the appropriate forum with which to file. 5 U.S.C. § 7703 (b).
Although we offer the following 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:
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 op tion 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 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 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
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/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 regular U.S. mail, the
address of the EEOC is:
Office 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
7
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 jurisdiction4. The court of appeals must 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 wi thin the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for inf ormation regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
4 The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of a ppeals of competent jurisdiction.
The All Circuit Review Act is re troactive 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/Cour tWebsites.aspx .
FOR THE BOARD:
Washington, D.C. /s/ for
Jennifer Everling
Acting Clerk of the Board | GHANNOUM_GHASSAN_J_SF_1221_18_0723_W_2_FINAL_ORDER_1941212.pdf | 2022-07-12 | null | SF-1221-18-0723-W-2; SF-0714-19-0310-I-1 | NP |
4,293 | https://www.mspb.gov/decisions/nonprecedential/SWANSON_CHARLES_E_SF_3443_17_0015_I_1_REMAND_ORDER_1941299.pdf | UNITED STATES OF AME RICA
MERIT SYSTEMS PROTEC TION BOARD
CHARLES E. SWANSON,
Appellant,
v.
UNITED STATES POSTAL SERVICE,
Agency.
DOCKET NUMBER
SF-3443 -17-0015 -I-1
DATE: July 12, 2022
THIS ORDER IS NONPRECEDENTIAL1
Charles E. Swanson , Whittier, California, pro se.
Catherine V. Meek , Long Beach, California, for the agency.
BEFORE
Cathy A. Harris , Vice Chairman
Raymond A. Limon , Member
Tristan L. Leavitt , Member
REMAND ORDER
¶1 The appell ant has filed a petition for review of the initial decision, which
dismissed his appeal for lack of jurisdiction. For the reasons discussed below, we
GRANT the appellant’s petition for review . We AFFIRM the administrative
judge’s finding that the Board l acks jurisdiction over the appellant’s claim that
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
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 agency failed to assist him in filing a claim with the Office of Workers’
Compensation Programs (OWCP) and her conclusion that the appellant did not
show that he first sought corrective action with the Office of Special Counsel
(OSC) . We REMAND the appeal to the Board’s Western R egional Office for the
administrative judge to provide the appellant with proper jurisdictional notice in
accordance with this Remand Order.
BACKGROUND
¶2 The appellant worked for the agency as a Customer Care Agent. Initial
Appeal File (IAF), Tab 6 at 13. The appellant filed a Board appeal in which he
made the following allegations : (1) he is a veteran; (2) he sustained an injury
while performing his duties as a Tractor Trailer Operator in or around
September 2014; ( 3) an injury compensation manager directed an injury
compensation representative not to help him file any paperwork with OWCP ;
(4) the injury compensation manager threatened him with removal if he did not
accept the Customer Care Agent position; (5) he was forced to use approximately
1,800 hours of sick and annual leave to recuperate from his injury before
returning to work in August 2016, while he was still in pain; and ( 6) the agency
took actions against him because he filed reports of retaliation and abuse of
authority against the injury compensation manager . IAF, Tab 1 at 2-7.
¶3 The administrative judge issued an order acknowledging that the appellant
was challenging a denial of assistance in filing for compensation, but noting that
it did not appear that the matter he was appealing was an “otherwise appealable
action” or that he first sought corrective action with OSC . IAF, Tab 2 at 2. The
administrative judge informed the appellant that the Board must dismiss the
appeal unless the matter he is appealing is an “otherwise appealable action” or
that he first sou ght corrective action from OSC. Id. The appellant responded to
the acknowledgment order, in which he stated, among other things, that he “[did]
3
not know if this issue was an appealable action” and he “[did] not know who the
Special Counsel is.” IAF, Tab 4 at 1.
¶4 The administrative judge issued an initial decision that dismissed the appeal
for lack of jurisdiction without holding a hearing . IAF, Tab 8, Initial Decision
(ID) at 1 -3. In pertinent part, the administrative judge found that the appellant’s
claim regarding the agency’s failure to assist him in filing an OWCP claim is not
an action over which the Board has jurisdiction. ID at 2 -3. She further
determined that the appellant did not show that he sought corrective action from
OSC. ID at 3. Because the administrative judge dismissed the appeal for lack of
jurisdiction, she did not discuss the timeliness issue. ID at 1 n.1.
¶5 The appellant has filed a petition for review. Petition for Review (PFR)
File, Tab 1. The agency has not filed a response .
DISCUSSION OF ARGUME NTS ON REVIEW
¶6 The Board’s jurisdiction is limited to those matters over which it has been
given jurisdiction by law, rule, or regulation. Wilson v. Department of Homeland
Security , 122 M.S.P.R. 262 , ¶ 2 (2015). The appellant does not appear to
challenge the administrative judge’s conclusion that he failed to make a
nonfrivolous allegation of Board jurisdiction concerning his claim that the agency
failed to assist him with his OWCP claim or that he did not show that he sought
corrective action from OSC . ID at 2-3. We affirm her findings herein.2
¶7 However, the appellant stated below that he “was forced to use [his] entire
sum of sick leave (over 1800 hours) and all of [his] accumulated vacation leave[,]
[a]pproximately 800 hours or more ,” while he was recuperating from his injury
and a subsequent operation. IAF, Tab 1 at 3. Although not entirely clear, it is
possible that he intended to raise a claim that he was suspended or constructively
suspended . An appellant must be afforded explicit information concerning what
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.
4
is required to establish jurisdiction over his appeal. Burgess v. Merit Systems
Protection Bo ard, 758 F.2d 641 , 643 -44 (Fed. Cir. 1985). Neither the
administrative judge nor the agency provided the appellant with such notice.
Accordingl y, we remand the appeal to the regional o ffice for the administrative
judge to provide the appellant with jurisdictional notice regarding such claims ,
consistent with the Board’s decisions in Romero v. U.S. Postal Service ,
121 M.S.P.R. 606 (2014) , Abbott v. U.S. Postal Service , 121 M.S.P.R. 294
(2014), and Bean v. U.S. Postal Service , 120 M.S.P.R. 397 (2013).
¶8 Finally, the agency filed a motion to compel that the administrative judge
denied because of her disposition of the jurisdictional issue . IAF, Tab 7; ID at 2
n.2. The agency ma y renew its motion on remand.3
3 Although the administrative judge noted in the initial decision that she was not
addressing the timeliness issue because she dismissed the appeal for lack of
jurisdiction , the administrative judge may need to resolve this issue on remand . See,
e.g., Rosario -Fabregas v. Department of the Army , 122 M.S.P.R. 468 , ¶ 22 (2015)
(finding that issues of timeliness and jurisdiction generally are considered to be
inextricab ly intertwined in a constructive suspension appeal) , aff’d , 833 F. 3d 1342
(Fed. Cir. 2016).
5
ORDER
¶9 For the reasons discussed above, we remand this case to the Western
Regional O ffice for jurisdictional notice and further adjudication in accordance
with this Remand Order.4
FOR THE BOARD:
Washington, D.C. /s/ for
Jennifer Everling
Acting Clerk of the Board
4 The remand initial decision will incorporate the f indings from this Order and include a
notice of appeal rights for all cl aims raised by the appellant . | SWANSON_CHARLES_E_SF_3443_17_0015_I_1_REMAND_ORDER_1941299.pdf | 2022-07-12 | null | SF-3443-17-0015-I-1 | NP |
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