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4,294 | https://www.mspb.gov/decisions/nonprecedential/CHIOVITTI_MARIO_PH_0752_21_0212_I_1_REMAND_ORDER_1941407.pdf | UNITED STATES OF AME RICA
MERIT SYSTEMS PROTEC TION BOARD
MARIO CHIOVITTI,
Appellant,
v.
DEPARTMENT OF THE AI R FORCE,
Agency.
DOCKET NUMBER
PH-0752 -21-0212 -I-1
DATE: July 12, 2022
THIS ORDER IS NONPRECEDENTIAL1
Matthew Floyd Gunn , Esquire, Toledo, Ohio, for the appellant.
Keshat Lemberg , Vienna, Ohio, 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
dismissed his removal appeal as untimely filed . For the reasons discussed below,
we GRANT the appellant’s petition for review, VACATE the initial decision, and
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or 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
REMAND this appeal to the regio nal office for further adjudication in accordance
with this Remand Order.
BACKGROUND
¶2 Effective March 10, 2020, the agency removed the appellant from his
position as a GS -6 Police Officer based on the charge of conduct unbecoming a
Federal employee. Initial Appeal File (IAF), Tab 1 at 15 -19, Tab 10 at 91. The
agency decision notice inform ed the appellant that he could contest the agency
action either by filing a grievance under the negotiated grievance procedure or by
filing an appeal with the Board, but not both. IAF, Tab 1 at 17 -18. The decision
also informed the appellant that a griev ance had to be fi led no later than
14 calendar days after the date he received the letter and that a Board appeal had
to be filed no later than 30 days after the effective date of his removal or his
receipt of the decision, whichever was later. Id. at 17. The decision further
informed the appellant that, if a Board appeal was not submitted within 30 days,
it could be dismissed as untimely filed unless a good reason for the delay was
shown. Id. at 17-18.
¶3 On March 27, 2020, the appellant’s union filed a gr ievance of his removal
on his behalf. IAF, Tab 5 at 25. The agency issued an April 15, 2020 decision
denying the grievance on procedural grounds , and the union invoked arbitration
on April 30, 2020. Id. at 27-28, 31.
¶4 Approximately a year after the uni on invoked arbitration, at the end of April
2021, the parties, through their attorneys, discussed whether the appellant could
contest the removal under the negotiate d grievance procedure because of his
purported status as a probationary employee and the fa ct that actions against
employees serving in a probationary period are not subject to arbitration.2 IAF,
2 At the time of the appellant’s appointment to the Department of Defense, a covered
employee, as defined in 10 U.S.C. § 1599e , was required to serve a 2 -year probationary
period. 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.
3
Tab 5 at 39 -43; see Yates v. Department of the Air Force , 115 F. App’x 57, 59
(Fed. Cir. 2004) (explaining that “Congress has explicitly forbidden the
arbitration process from addressing issues concerning employee actions taken
during probationary periods”). The representative s then agreed that the agency
would not contest Board jurisdiction over an appeal of the appellant’s removal if
the union withdr ew the grievance from arbitration. IAF, Tab 5 at 37. On May 1,
2021, the appellant’s representative informed the arbitrator that the union was
withdrawing the grievance; and the arbitrator confirmed, without comment, that
he would cancel the hearing. Id. at 37, 48. That same day, the appellant filed the
instant Board appeal. IAF, Tab 1.
¶5 Two weeks later, on May 14, 2021, the agency representative learned of the
existence of a 2018 agreement between the Transportation Security
Administration (TSA) and th e Office of Personnel Management (OPM) governing
the movement of employees between the TSA, where the appellant previously
worked, and positions in the competitive service, such as the appellant’s Police
Officer position. IAF, Tab 8 at 13 -14, Tab 10 at 76 -77. Paragraph 6 of that
agreement states that an employee appointed under the agreement who has
previously completed a probationary or trial period will not be required to serve a
new probationary or trial period. IAF, Tab 10 at 77.
¶6 After the appellant filed a Board appeal of his removal , the administrative
judge issued an order informing the appellant that his appeal appeared to be
untimely filed and providing him an opportunity to submit evidence and argument
showing that the appeal was timely filed o r that good cause existed for the delay
1541. The 2022 NDAA repealed the 2 -year probationary period for DOD app ointments
made on or after December 31, 2022. Pub. L. No. 117 -81, § 1106, 135 Stat. 1541,
1950. That change does not affect the outcome of this appeal. Because the appellant
had more than 2 years of current continuous service, when his prior Government service
was tacked to his service as a Police Officer, the agency explained that the appellant
had Board appeal rights even though he was serving in a probationary period with the
agency. IAF, Tab 5 at 41; see McCormick v. Department of the Air Force , 307 F.3d
1339 , 1341 -43 (Fed. Cir. 20 02).
4
in filing. IAF, Tab 3. The appellant responded that good cause existed for his
untimely filed appeal because the agency provided him with incorrect appeal
rights in its removal decision when it stated that he could contest the action
through the negotiated grievance procedure, he detrimentally relied on that
misinformation when he filed a grievance concerning his removal, and he
diligently pursued his right to appeal to the Board once he obtained the correct
informa tion. IAF, Tab 5 at 5. The appellant also argued that his election to
contest the removal through the negotiated grievance procedure was not valid
because of the agency’s misinformation. Id.
¶7 On August 26, 2021, the administrative judge issued an initial decision
finding the Board appeal 387 days late and dismissing it as untimely filed without
good cause shown. IAF, Tab 13, Initial Decision at 1, 3 -4. The administrative
judge did not address the appellant’s misinformation argument. The appellant has
filed a petition for review , the agency has filed a response, and the appellant has
replied to that response . Petition for Review (PFR) File, Tab s 1, 3-4.
ANALYSIS
The appeal was untimely filed.
¶8 An appellant bears the burden of proving by preponderant evidence that his
appeal has been timely filed. 5 C.F.R. § 1201.56 (b)(2)(i)(B). With exceptions
not applicable here, an appeal m ust be filed with the Board no later than 30 days
after the effective date of the action being appealed, or 30 days after the date of
the appellant’s receipt of the agency’s decision, whichever is later. 5 C.F.R.
§ 1201.22 (b)(1).
¶9 Here, the appellant was removed from hi s position, effective
March 10, 2020. IAF, Tab 10 at 91. The appellant indicated that he received the
removal decision on March 9, 2020. IAF, Tab 1 at 4. Thus, his appea l was due
on April 9, 2020. 5 C.F.R. § 1201.22 (b)(1). However, the appellant did not file
his appeal until May 1, 2021, over a year past the deadline. IAF, Tab 1.
5
Remand is required to determine whether the agency provided misinformation to
the appellant that constitutes good cause for the filing delay.
¶10 The Board will excuse an untimely filing if a party shows that he exercised
due diligence or ordinary prudence under the particular cir cumstances of the
case.3 Pirkkala v. Department of Justice , 123 M.S.P.R. 288 , ¶ 13 (2016);
Alonzo v. Department of the Air Forc e, 4 M.S.P.R. 180 , 184 (1980). The issue
presented by this appeal is whether good cause exists for the appellant’s untimely
filed appeal based on the purportedly incorrect information in the agency decision
notice regarding the avenues available to the appellant to challenge the removal.4
The Board has held that agency misinformation about appealing an adverse action
may constitute good cause for a n untimely filing. See Foley v. Department of
Health & Human Services , 84 M.S.P.R. 402, ¶ 11 (1999) (finding good cause for
an untime ly filed appeal based on the agency providing “materially erroneous
notice of appeal rights”); Floyd v. U.S. Postal Service , 44 M.S.P.R. 37 , 40 (1990)
(remanding an appeal to determine whether an agency official misinformed the
appellant’s representative regarding the commencement of the filing period);
McClure v. Federal Emergency Management Agency , 32 M.S.P.R. 672 , 677
3 The appellant argues that the age ncy agreed not to challenge that good cause existed
or that the Board h ad jurisdiction over the appeal. PFR File, Tab 1 at 5 -6; IAF, Tab 5
at 37, Tab 8 at 6 . Although an agency can stipulate to matters of fact, legal
conclusions, such as Board jurisdiction or the existence of good cause, are not subject
to stipulation. See King v. Department of Veterans Affairs , 105 M.S.P.R. 21, ¶ 16 n.2
(2007) (stating that, while the parties can stipulate to facts, the question of Board
jurisdiction is a legal question not subject to stipulation) ; Ludlum v. Department of
Justice , 87 M.S.P.R. 56 , ¶ 27 (2000) (stating that the Board is not bound by stipulations
of mixed questions of fact and law), aff’d , 278 F.3d 1280 (Fed. Cir. 20 02).
4 We recognize that this appeal also may present an elect ion o f remedies issue. When,
as here, an appellant elects to file a grievance before filing his Board appeal, it does not
constitute good cause for an untimely filing. McNeil v. U.S. Postal Service ,
98 M.S.P.R. 18 , ¶ 10 (2004). If the appellant received misinformation about his options
to challenge the removal , the election is not binding. Agoranos v. Department of
Justice, 119 M.S.P.R. 498 , ¶ 15 (2013). The resolution of whether the appellant
received misinformation in this appeal will be decided by resolving the good cause
issue.
6
(1987) (finding an appeal timely filed when the agency failed to properly inform
an employee of his Board appeal rights).
¶11 As explained above, the agency inform ed the appellant in the decision
notice that he could contest the removal through the negotiated grievance
procedure or by filing a Board appeal. IAF, Tab 1 at 17 -18. The appellant
elected to contest the action through the negotiated grievance procedure , and,
approximately a year later, just prior to the hearing before the arbitrator, the
parties’ representatives discussed whether the appellant’s removal was arbitrable
because of the appellant’s purported status as a probationary employee and the
fact tha t actions against probationary employees may not be contested through the
arbitration process.5 IAF, Tab 5 at 39 -43; see Yates , 115 F. App’x at 59 . Based
on those discussions, the appellant ’s union then withdrew the arbitration request ,
and he promptly filed a Board appeal. IAF, Tab 1 , Tab 5 at 37 .
¶12 The fact pattern set forth above has the initial appearance of a n
agency -provided misinformation scenario, but, as noted, under an agreement
between TSA and OPM, the appellant’s prior service with TSA may mea n that the
appellant was not a probationary empl oyee at the time of his removal by the
agency. Such a finding would mean that the appellant’s removal was subject to
arbitration and the information in the decision notice regarding the appellant’s
ability t o challenge the removal through the negotiated grievance procedures was
correct. Resolution of whether the appellant was serving in a probationary period
5 The appellant argues that the agency’s assertions in April 2020 regarding the
arbitrability of the appellant ’s removal constitute misinformation establishing good
cause for the unti mely filing of the B oard appeal. PFR File, Tab 4 at 7 -8. The
appellant cites no legal authority to support this assertion. An agency’s position during
litigation, even if incorrect, is not equivalent to misinforming an appellant of his appeal
rights in the agency decision notice , particularly when, as here, the appellant was
represented by counsel . If , after appropriate due diligence , the appellant’s counsel
disagreed with the agency regarding the arbitrability of the appellant’s removal, he
could have presented that issue to the arbitrator for decision. The arbitrator had already
issued a December 2020 decision addressing one agency argument and finding that the
grievance was procedurally arbitrable. IAF, Tab 5 at 30, 35.
7
is thus central to the timeliness determination in this appeal and is dependent on,
among other thing s, the appellant’s employment at TSA.
¶13 The record reflects that the appellant previously worked at TSA pri or to
transferring to the agency, but the exact time period and circumstances of that
prior service is unclear. For example, t he appellant’s attorney asserted that the
appellant was employed by TSA from 2014 to October 27, 2018, and a coworker
provided a letter stating that the appellant worked at TSA for 4 years. IAF, Tab 5
at 6, Tab 9 at 47. In addition to the inconsistency in these statements, neit her is
entitled to significant evidentiary weight.6 The statements of a representative in a
pleading are not evidence , Marcantel v. Department of Energy , 121 M.S.P.R. 330 ,
¶ 6 n.1 (2014) , and the statement of the coworker is not sworn or made under
penalty of perjury thus reducing its probative value, Adamsen v. Department of
Agriculture , 116 M.S.P.R. 331 , ¶ 17 (2011) (finding an unsworn unsupported
statement not to be probative of the matter asserted). Moreover, the a greement
between TSA and OPM contains specific conditions that must be met for the
agreement to apply . IAF, Tab 10 at 76 -77. B ased on the current record, it is not
possible to determine whether those conditions have been met such that the
agreement cover s the appellant’s transfer from TSA to the agency . Thus, remand
is necessary.
¶14 On remand, the administrative judge shall afford the parties the opportunity
to present evidence and argument regarding whether the appellant was serving in
a probationary statu s at the time of his removal, including whether the agreement
between TSA and OPM applies such that the appellant was not required to serve a
new prob ationary period at the agency.7 The administrative judge shall then
6 The record contains the S tandard Form 50 docu menting the appellant’s transfer from
TSA to the agency. IAF, Tab 8 at 20 -21. It does not address the appellant’s
probationary status nor reference the agreement between TSA and OPM. Id.
7 On review, t he appellant object s to the administrative judge ha ving telephoned the
agency’s representative to inquire after her health, after she filed a motion to stay
deadlines/responses citing health issues as the basis for the motion . PFR File, Tab 1
8
determine whether the agency provided misinformation regarding the appellant’s
ability to challenge his removal through the negotiated grievance process and,
if so, whether that misinformation constitutes good cause for the untimely filed
Board appeal. If the administrative judge finds that good cause exists, he shall
adjudicate the appellant’s appeal. If the administrative judge finds that good
cause does not exist, he may dismiss the appeal as untimely filed without good
cause shown.8
ORDER
¶15 For the reasons discussed above, we remand this c ase to the Northeast ern
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
at 6 n.1, 9. The appellant requests that, if the appeal is rem anded, that it be assigned to
a new administrative judge. Id. at 9. The agency representative confirms that the call
she received from the administrative judge did not concern the merits of the app eal or
the Board’s jurisdiction and was br ief and focused on her health. PFR File, Tab 3
at 10-11. Administrative judges are not prohibited from engaging in ex parte
conversations regarding procedural matters, such as extensions of time. See Vidal v.
Department of Justice , 113 M.S.P.R. 254 , ¶ 6 (2010) (finding that ex parte
communications regarding procedural matters are not prohibited); 5 C.F.R. § 1201.102
(prohibiting ex parte communications regarding the merits, as opposed to procedural
aspects, of matters before the Board). The administrative judge’s conversation with the
agency’s representative does no t violate the prohibi tion on ex parte communications ,
and the appellant’s argument provides no basis to assign this appeal to a new
administrative judge on remand.
8 If the appellant’s Board appeal is untimely filed without good cause shown, t o the
exten t that the appellant’s union withdrew the request for arbitration based on a
misunderstanding that the appellant’s removal was not arbitable, any remedy for such a
misunderstanding rests in the arbitration process. | CHIOVITTI_MARIO_PH_0752_21_0212_I_1_REMAND_ORDER_1941407.pdf | 2022-07-12 | null | PH-0752-21-0212-I-1 | NP |
4,295 | https://www.mspb.gov/decisions/nonprecedential/GOODWIN_KIWANNA_A_DC_315I_22_0138_I_1_FINAL_ORDER_1940885.pdf | UNITED STATES OF AME RICA
MERIT SYSTEMS PROTEC TION BOARD
KIWANNA A. GOODWIN,
Appellant,
v.
PENSION BENEFIT GUAR ANTY
CORPORATION,
Agency.
DOCKET NUMBER
DC-315I -22-0138 -I-1
DATE: July 11, 2022
THIS FINAL ORDER IS NONPRECEDENTIAL1
Kiwanna A. Goodwin , Brandywine, Maryland, pro se.
John Scott Hagood and Sara Robinson , Washington, D.C., 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 appeal of an agency action returning her from a GS-15 Supervisory
IT Specialist to her former GS -14 IT Specialist position during her supervisory
prob ationary period based on a finding that she failed to raise a nonfrivolous
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case 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
allegation of marital status discrimination. Generally, we grant petitions such as
this one only in the following circumstances: the initial decision contains
erroneous findings o f 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 initia l decision were not consistent with required procedures or
involved an abuse of discretion, and the resulting error affected the outcome of
the case; or new and material evidence or legal argument is available that, despite
the petitioner’s due diligence, was not available when the record closed. Title 5
of the Code of Federal Regulations, section 1201.115 ( 5 C.F.R. § 1201.115 ).
After fully considering the filings in this appeal, we conclude that the petitioner
has not established any basis under section 1201.115 for granting the petition for
review. Therefore, we DENY the petition for review and AFFIRM the initial
decision, which is now the Board’s final decision. 5 C.F.R. § 1201.113 (b).
¶2 On review, the appellant repeats her argument that she was treated
differently as a “single (never married), [B]lack” new supervisor and that all of
the married managers in her division had successfully completed their supervisory
probationary period “despite any issues they had.” Petition for Review (PFR)
File, Tab 1 at 4; Initial Appeal File ( IAF), Tab 4 at 9. She re submits her
self-made chart setting forth the marital status and race of new managers, as well
as the marital status and race of the O ffice of Information Technology senior
leadership team . PFR File, Tab 1 at 5; IAF, Tab 4 at 9. For the first time on
review, she identifies a specific comparator who purportedly received preferential
treatment from the agency through personnel moves, a “married [A]sian male new
manager.” PFR File, Tab 1 at 4 -5. The appellant submits evidence and argument
challenging the m erits of her termination from her sup ervisory position and
raising various issues unrelated to jurisdiction, including purported actions that
the agency has taken against her since the issuance of the initial decision and a
Freedom of Information Act reque st she filed for documents related to the
3
agency’s investigation of her harassment complaint. PFR File, Tab 1 at 4 -18,
Tab 3 at 4 -45.
¶3 Under 5 C.F.R. § 1201.115 , the Board generally will not consider evidence
submitted for the first time with a petition for review absent a showing that it was
unavailable before the close of the record below despite the party’s due diligence.
Pirkkala v. Department of Justice , 123 M.S.P.R. 288 , ¶ 5 (2016); see Clay v.
Department of the Army , 123 M.S.P.R. 245, ¶ 6 (2016) (stating that the Board
generally will not consider a new argument raised for the first time on review
absent a showing that it is based on new and m aterial evidence). However,
we have considered the appellant’s new evidence and argument to the extent it
concerns the issue of the Board’s jurisdiction because the Board’s jurisdiction can
be raised at any time including on review. See Pirkkala , 123 M.S.P.R. 288 , ¶ 5
(considering evidence submitted for the first time on review because it was
relevant to the Board’s jurisdiction).
¶4 Even considerin g the appellant’s new arguments and evidence, she has
presented no basis for disturbing the administrative judge’s finding that her
allegations are “conclusory and speculative” and do not rise to the level of a
nonfrivolous allegation of marital status dis crimination . IAF, Tab 7, Initial
Decision ( ID) at 8 (citing Smirne v. Department of the Army, 115 M.S.P.R. 51 ,
¶ 8 (2010) ). We agree with the agency’s argument the appellant fails to provide
any supporting evidence that the newly identified comparator ’s marital status
played any role in his successful completion of his supervisory probationary
period . PFR File, Tab 4 at 6 -10. The appellant submits purported sections from
her harassment and discrimination complaints to the agency that include mention
of probing personal questions from a subordinate and allegations of pregnancy
discrimination at least 5 years prior to her sele ction for the supervisory position.
PFR File, Tab 5 at 4, 9. She also claims on review that the agency’s E qual
Employment Opportunity (EEO) office had told her that it would be hard for her
to prove that she was harassed based on her “race and sex” becau se both her and
4
her alleged harasser were “black females ,” that she could not file an age
discrimination complaint because she was under 40 years old, and that District of
Columbia law did not apply to her as a Federal employee. Id. at 5-6. These
argumen ts undercut her allegation of marital status discrimination and suggest
that she raised them only after first claiming discrimination and retaliation on
other grounds.
¶5 Therefore, we find that the appellant has not raised any specific allegations
on review that are “more than mere conjecture ” and would support a finding of
marital status discrimination . See Ellis v. Department of the Treasury ,
81 M.S.P.R. 6 , ¶ 13 (1999); see also Stokes v. Federal Aviation Administration ,
761 F.2d 682 , 686 (Fed. Cir. 1985) (stating that an app ellant must provide
supporting facts and that merely conclusory pleadings are insufficient ).
The administrative judge also correctly found that the appellant’s claims of
retaliation for EEO activity and discrimination on the basis of race do not provide
an independent basis for finding Board jurisdiction in the absence of an otherwise
appealable action. ID at 7; 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) ; see also Penna v. U.S.
Postal Service , 118 M.S.P.R. 355 , ¶ 13 (2012).
¶6 Accordingly, we affirm the initial decision.
NOTICE OF APPEAL RIG HTS2
You may obtain review of this final decision. 5 U.S.C. § 7703 (a)(1). By
statute, the nature of your claims determin es the time limit for seeking such
review and the appropriate forum with which to file. 5 U.S.C. § 7703 (b).
Although we offer the following summary of available appeal rights, the Merit
Systems P rotection Board does not provide legal advice on which option is most
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
appropriate for your situation and the rights described below do not represent a
statement of how courts will rule regarding which cases fall within their
jurisdiction. If you wish to s eek review of this final decision, you should
immediately review the law applicable to your claims and carefully follow all
filing time limits and requirements. Failure to file within the applicable time
limit may result in the dismissal of your case by y our chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703 (b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional 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
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 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 .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702 (b)(1). You must file any such request with the
EEOC’s 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
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 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
of appeals of competent jurisdiction.3 The co urt 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 | GOODWIN_KIWANNA_A_DC_315I_22_0138_I_1_FINAL_ORDER_1940885.pdf | 2022-07-11 | null | DC-315I-22-0138-I-1 | NP |
4,296 | https://www.mspb.gov/decisions/nonprecedential/BOYD_SHARNICE_J_CH_315H_17_0219_I_1_FINAL_ORDER_1940334.pdf | UNITED STATES OF AME RICA
MERIT SYSTEMS PROTEC TION BOARD
SHARNICE J. BOYD,
Appellant,
v.
DEPARTMENT OF VETERA NS
AFFAIRS,
Agency.
DOCKET NUMBER
CH-315H -17-0219 -I-1
DATE: July 8, 2022
THIS FINAL ORDER IS NONPRECEDENTIAL1
Sharnice J. Boyd , St. Louis, Missouri, pro se .
Erin E. Milligan , Esq uire, St. Louis, Missouri, 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 of her probationary termination for lack of jurisdiction . On
petition for review , the appellant describes her duties from her previous positions ,
and she appears to argu e that, because she completed more than 2 years in those
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case 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
positions, she met the current continuous service requirement for the Board to
have jurisdiction over the appeal .2 The appellant also appears to argue that her
union represen tative failed to provide her adequate representation and that the
agency failed to comply with a collective bargaining agreement with her union.
Petition for Review (PFR) File, Tabs 1, 4.3
¶2 Generally, we grant petitions such as this one only in the followi ng
circumstances: the initial decision contains erroneous findings of material fact;
the initial decision is based on an erroneous interpretation of statute or regulation
or the erroneous application of the law to the facts of the case; the administrative
judge’s rulings during either the course of the appeal or the initial decision
were not consistent with required procedures or involved an abuse of discretion,
and the resulting error affected the outcome of the case; or new and material
evidence or legal argument is available that, despite the petitioner’s due
diligence, was not available when the record closed. Title 5 of the Code of
Federal Regulations, section 1201.115 ( 5 C.F.R. § 1201 .115 ). After fully
considering the filings in this appeal, we conclude that the petitioner has not
established any basis under section 1201.115 for granting the petition for review.
Therefore, we DENY the petition for review and AFFIRM the initial dec ision,
which is now the Board’s final d ecision. 5 C.F.R. § 1201.113 (b).
2 “Current continuous service” for purposes of establishing jurisdiction means service
immediately prior to the action at issue without a break in service between the former
service and the position at issue . McCrary v. Department of the Army , 103 M.S.P.R.
266, ¶ 8 (2006).
3 After the close of the record on review, the appellant filed a request to provide
additional information. PFR File, Tab 5. In a letter acknowledging the appellant’s
request, the Clerk of the Board advised her that the Board’s regulations do not provide
for such addition al pleadings and that, for the Board to consider the proffered
submission, she must describe the nature and need for it and also must show that the
evidence was not readily available before the record closed. PFR File, Tab 6; see
5 C.F.R. § 1201.114 (a)(5), (k). The appellant has made no such showing in her
submission. Therefore, we deny the appellant’s request.
3
NOTICE OF APPEAL RIGHTS4
You may obtain review of this final decision. 5 U.S.C. § 7703 (a)(1). By
statute, the nature of your claims determines the time limit for seeking such
review and the appropriate forum with which to file. 5 U.S.C. § 7703 (b).
Although we offer the following summary of available appeal rights, the Merit
Systems Protection Board does not provide legal advice on which option is most
appropriate for your situation and the rights described below do not represent a
statement of how courts will rule regarding which cases fall within their
jurisdiction. If you wish to seek review of this final decision, you should
immediately review the law applicable to your claims and carefully follow all
filing time limits and requirements. 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 questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order mu st file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703 (b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
4 Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise which option is most appropriate in any matter.
4
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which i s
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals 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
5
to waiver of any requirement of prepayment of fees, costs, o r other security. See
42 U.S.C. § 2000e -5(f) and 29 U.S.C. § 794a .
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed thr ough the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702 (b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receiv e
this decision. 5 U.S.C. § 7702 (b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Wash ington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5S W12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302 (b)(8) or
other protected activities listed 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
6
disposition of allegations of a prohibited personnel practice described in
section 2302(b) other than practices described in section 2302(b)(8), or
2302(b)(9)(A)(i), (B), (C), or (D),” then you may file a petition for judicial
review either with the U.S. 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
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.
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 | BOYD_SHARNICE_J_CH_315H_17_0219_I_1_FINAL_ORDER_1940334.pdf | 2022-07-08 | null | CH-315H-17-0219-I-1 | NP |
4,297 | https://www.mspb.gov/decisions/nonprecedential/KOWALSKI_TIFFANY_L_CH_315H_18_0016_I_1_FINAL_ORDER_1940360.pdf | UNITED STATES OF AME RICA
MERIT SYSTEMS PROTEC TION BOARD
TIFFANY L. KOWALSKI,
Appellant,
v.
DEPARTMENT OF VETERA NS
AFFAIRS,
Agency.
DOCKET NUMBER
CH-315H -18-0016 -I-1
DATE: July 8, 2022
THIS FINAL ORDER IS NONPRECEDENTIAL1
Edward L. D’ Felio , Wyoming, Michigan, for the appellant.
Stephen T. Ball , 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
dismissed her termination appeal for lack of jurisdiction . Generally, we grant
petitions such as this one only in the following circumstances: the initial decision
contains erron eous findings of material fact; the initial decision is based on an
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
require d to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117 (c).
2
erroneous interpretation of statute or regulation or the erroneous application of
the law to the facts of the case; the administrative judge’s rulings during either
the course of the appea l or the initial decision were not consistent with required
procedures or involved an abuse of discretion, and the resulting error affected the
outcome of the case; or new and material evidence or legal argument is available
that, despite the petitioner’s due diligence, was not available when the record
closed. Title 5 of the Code of Federal Regulations, section 1201.115 ( 5 C.F.R.
§ 1201.115 ). After fully considering the filings in this appeal, we conclude that
the petitioner has not established any basis under section 1201.115 for granting
the petition for review. Therefore, we DENY the petition for review and
AFFIRM the initial decision, which is now the Board’s final deci sion. 5 C.F.R.
§ 1201.113 (b). However, we FORWARD the appellant’s Uniformed Services
Employment and Reemployment Rights Act of 1994 (USERRA) (codified as
amended at 38 U.S.C. §§ 4301 -4335) claim to the regional office for docketing as
a new appeal .
BACKGROUND
¶2 Effective April 30, 2017, the agency appointed the appellant to an
excepted -service position as a Pha rmacy Technician. Initial Appeal File (IAF),
Tab 8 at 48. Her appointment was subject to the successful completion of a
1-year probationary period. Id. The agency terminated her effective June 30,
2017, for failure to qualify during her probationary pe riod due to lack of candor
on an Optional Form 306. Id. at 26, 28 -29.
¶3 The appellant appealed her termination to the Board, arguing that the
agency violated 5 C.F.R. §§ 315.805 -.806 and discriminated against her on the
basis of her service -connected disabilities. IAF, Tab 1. Without holding the
appellant’s request ed hearing, the administrative judge issued an initial decision
finding that the appellant was a preference -eligible employe e in the excep ted
service with less than 1 year of current continuous service and therefore did not
3
meet the statutory definition of an “employee” with adverse action appeal rights
under 5 U.S.C. § 7511. IAF, T ab 11, Initial Decision (ID) at 4-5. He further
found that the appellant’s reliance on 5 C.F.R. §§ 315.805 -.806 was misplaced
because those regulations only apply to indivi duals in the competitive service. ID
at 5. The administrative judge lastly found that he could not address the
appellant’s allegation of discrimination absent an othe rwise appealable action. ID
at 6. Thus, he dismissed the appeal for lack of jurisdiction. ID at 6.
¶4 The appellant has filed a petition for review of the initial decision, and the
agency has responded in opposition. Petition for Review (PFR) File, Tabs 1, 3.
DISCUSSION OF ARGUME NTS ON REVIEW
The administrative judge correctly found that the Board lacks jurisdiction over
the appellant’s termination appeal.
¶5 To be considered an “employee” for the purposes of Board jurisdiction, a
preference -eligible individual in the excepte d service must have completed 1 year
of current continuous service in the same or similar positions.2 5 U.S.C.
§ 7511 (a)(1)(B); see Maibaum v. Department of Veterans Affairs , 116 M.S.P.R.
234, ¶ 9 (2011) . Here, it is undisputed that the appellant completed only
2 months of her excepted -service appointment, and she has not allege d that there
was any other servi ce that could be counted toward completion of 1 year of
current continuous service in a similar position. IAF, Tabs 1, 6 -7; PFR File,
Tab 1. Therefore, as the administrative judge correctly found, the appellant did
2 An appellant must receive explicit information on what is required to establish an
appealable jurisdictional issue. Burgess v. Merit Systems Protection Board , 758 F.2d
641, 643 -44 (Fed. Cir. 1985) . Although the appellant was an excepted -service
appointee, the administrative judge notified her of the requirements for proving
jurisdiction over an appeal by an individual in the competitive service. IAF, Tab 3. We
find, however, that the administrat ive judge cured the defective notice by properly
setting forth the applicable law in the initial decision, thereby affording the appellant an
opportunity to meet her jurisdictional burden on review. ID at 4; see Easterling v. U.S.
Postal Service , 110 M.S.P.R. 41 , ¶ 11 (2008 ).
4
not meet the definition of an employee with a statutory right to appeal her
termination to the Board . ID at 5.
¶6 On review, the appellant reiterates her contention that the agency failed to
provide her notice of the proposed termination and an opportunity to resp ond
pursuant to 5 C.F.R. § 315.805 . PFR File, Tab 1. Because the appellant was an
excepted -service appointee, however, she was not entitled to the proce dural
protections of 5 C.F.R. § 315.805 or to appeal her termination for preappoi ntment
reasons under 5 C.F.R. § 315.806 . See Barrand v. D epartment of Veterans
Affairs , 112 M.S.P.R. 210 , ¶ 13 (2009) (explaining that 5 C.F.R. § 315.806
applies only to individuals in the competitive service) . Thus, the administrative
judge correctly found that the appellant could not rely on these regulations for
purposes of establishing Board jurisdiction. ID at 5.
¶7 Because the appellant had no statutory or regulatory right to appeal her
termination to the Board , we find that the administrative judge correctly
dismissed her appeal for lack of jurisdiction.
The appellant’s USERRA claim is forwarded for docketing as a new appeal .
¶8 As noted above, the appellant alleged in her initial appeal that the agency
discriminated against her on the basis of her service -connected disability. IAF,
Tab 1 at 6. The administrative judge correctly found that the Board lacks
jurisdiction, absent an otherwise appealable action, to consider this disability
discrimination claim. See Noble v. U.S. Postal Service , 93 M.S.P.R. 693, ¶ 14
(2003). On review, the appellant has expanded upon this claim, arguing that the
agency discriminated against her on the basis of her status as a di sabled veteran .
PFR File, Tab 1 at 3, 5, 19. She appears to allege that the agency conducted an
inadequate and a procedurally defective fact -finding investigation, detailed her,
and terminated her for false reasons because of her usage of disabled vetera n
5
leave for medical appointments related to her service -connected disability.3 Id.
at 3, 5, 9 -10, 19, 24. She further alleges that her supervisor singled her out and
treat ed her differently than her non -veteran coworkers in the pharmacy
department. Id. at 8-9.
¶9 Allegations of discrimination based on one’s status as a disabled veteran are
cognizable under USERRA. Kirkendall v. Department of the Army , 94 M.S.P.R.
70, ¶ 6 (2003). In addition, the Board has found that an appellant may establish
Board jurisdiction over a USERRA claim by nonf rivolously alleging that the
agency discriminated against him for using leave to which he was entitled only
due to his status as a disabled veteran. Davison v. Department of Veterans
Affairs , 115 M.S.P.R. 640 , ¶¶ 12-15 (2011). Therefore, we find that the appellant
has raised a cognizable USERRA claim and forward it to the regional office for
docketing as a new appeal.4
NOTICE OF A PPEAL 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 foru m with which to file. 5 U.S.C. § 7703 (b).
3 Under the Wounded Warriors Federal Leave Act of 2015, a n employee hired on or
after November 5, 2016, who is a veteran with a service -connected disability rating of
30% or more is entitled to up to 104 hours of disabled veteran leave for the purposes of
undergoing medical treatment for such disability. Pub. L. No. 114-75, 129 Stat. 640
(codified at 5 U.S.C. § 6329 ).
4 USERRA claims are broadly and liberally construed, are not subject to a statute of
limitations, and may be raised in the first instance in a petition for review. Henson v.
U.S. Posta l Service , 110 M.S.P.R. 624 , ¶ 10 n.6 (2009); 5 C.F.R. § 1208.12 . An
appellant need not invoke the USERRA statute itself. Henson , 110 M.S.P.R. 624 , ¶ 10
n.6. In addition, individuals who have not complete d 1 year of current continuous
service in the same or similar positions qualify as “persons” under USERRA, and thus
are not excluded from filing appeals under the provisions of that statute. Slentz v. U.S.
Postal Service , 92 M.S.P.R. 144 , ¶ 7 (2002) .
5 Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review rights includ ed in final decisions. As indicated in the notice, the
Board cannot advise which option is most appropriate in any matter.
6
Although we offer the following summary of available appeal rights, the Merit
Systems Protection Board does not provide legal advice on which option is most
appropriate for your situation and the rights described below do not represent a
statement of how c ourts will rule regarding which cases fall within their
jurisdiction. If you wish to seek review of this final decision, you should
immediately review the law applicable to your claims and carefully follow all
filing time limits and requirements. Failure to file within the applicable time
limit may result in the dismissal of your case by your chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have quest ions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must fil e a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703 (b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must 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.
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 gi ven case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in pa rt, on unlawful discrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Ci rcuit), within 30 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 repres entative receives this decision. If the action involves a claim of
discrimination based on race, color, religion, sex, national origin, or a disabling
condition, you may be entitled to representation by a court -appointed lawyer and
to waiver of any requir ement of prepayment of fees, costs, or other security. See
42 U.S.C. § 2000e -5(f) and 29 U.S.C. § 794a .
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702 (b)(1). You must file any such request with the
8
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702 (b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representativ e 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 r equest for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or
other protected activities listed in 5 U.S.C. § 2302 (b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
disposition of a llegations of a prohibited personne l practice described in
section 2302(b) other than practices described in section 2302(b)(8), or
2302(b)(9)(A)(i), (B), (C), or (D),” then you may file a petition for judicial
review either with the U.S. Court of Appeals for the Federal Circuit or any court
of appeals of competent jurisdiction.6 The court of appeals must receive your
6 The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of comp etent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
9
petition for review within 60 days of the date of issuance of this decision.
5 U.S. C. § 7703 (b)(1)(B).
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se 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.
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases wi th the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115 -195,
132 Stat. 1510.
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 | KOWALSKI_TIFFANY_L_CH_315H_18_0016_I_1_FINAL_ORDER_1940360.pdf | 2022-07-08 | null | CH-315H-18-0016-I-1 | NP |
4,298 | https://www.mspb.gov/decisions/nonprecedential/AMAYA_ORTEGA_MARTHA_IRENE_DC_315H_22_0151_I_1_FINAL_ORDER_1940368.pdf | UNITED STATES OF AME RICA
MERIT SYSTEMS PROTEC TION BOARD
MARTHA IRENE AMAYA O RTEGA,
Appellant,
v.
DEPARTMENT OF THE AR MY,
Agency.
DOCKET NUMBER
DC-315H -22-0151 -I-1
DATE: July 8, 2022
THIS FINAL ORDER IS NONPRECEDENTIAL1
Martha Irene Amaya Ortega , Silver Spring, Maryland, pro se.
Jennifer L. Giambastiani , Falls Church, Virginia, for the agency.
Min-Yen Jung , Nellis Air Force Base, Nevada, 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.2 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 adminis trative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and 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, the appellant argues, among other things, the meri ts of her
termination and asserts that she was terminated in retaliation for filing an equal
employment opportunity complaint. Generally, we grant petitions such as this
one only in the following circumstances: the initial decision contains erroneous
findings of material fact; the initial decision is based on an erroneous
interpretation of statute or regulation or the erroneous application of the law to
the facts of the case; the administrative judge’s rulings during either the course of
the appeal or the initial decision were not consistent with required procedures or
involved an abuse of discretion, and the resulting error affected the outcome of
the case; or new and material evidence or legal argument is available that, despite
the petitioner’s due diligence, was not available when the record closed. Title 5
of the Code of Federal Regulations, section 1201.115 ( 5 C.F.R. § 1201.115 ).
After fully considering the filings in this appeal, we conclude that the petitioner
has not established any basis under section 1201.115 for granting the petition for
review. Therefore, we DENY the petition for review and AFFIRM the initial
decision, which is now the Board’s final decision.3 5 C.F.R. § 1201.113 (b).
2 At the time of the appellant’s appointment to her position, individuals appointed to a
permanent competitive -service position at 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). As found by
the administrative judge, the appellant had not completed 1 year of service at the time
of her termination. On December 27, 2021, Pr esident Biden signed into law the
National Defense Authorization Act for Fiscal Year 2022 (2022 NDAA), Pub. L.
No. 117-81, 135 Stat. 1541. The 2022 NDAA repealed the 2 -year probationary period
for DOD appointments made on or after December 31, 2022 , and r eplaced it with a
1-year probationary period . Pub. L. No. 117 -81, § 1106, 135 Stat. 1541, 1950. That
change would not affect the outcome of this appeal.
3 Because the Board does not have jurisdiction over this appeal, it cannot address the
underlying mer its of the appeal. Burton v. Department of the Air Force , 118 M.S.P.R.
210, ¶ 16 (2012). Furthermore, absent an otherwise appeala ble action, the Board lacks
jurisdiction over the appellant’s claims of discrimination or retaliation.
Rosario -Fabregas v. Department of the Army , 122 M.S.P.R. 468 , ¶ 20 (2015).
Accordingly, the Board cannot address the appellant’s arguments on review regarding
the merits of her probationary termination or her claim of retaliation .
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 not represent a
statement of how courts will rule regarding which cases fall within their
jurisdiction. If you w ish to seek review of this final decision, you should
immediately review the law applicable to your claims and carefully follow all
filing time limits and requirements. Failure to file within the applicable time
limit may result in the dismissal of your c ase by your chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, w hich must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703 (b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals fo r the
Federal Circuit, you must submit your petition to the court at the
following address:
4 Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise which option is most appropriate in any matter.
4
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the F ederal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection B oard appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discriminat ion. This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this de cision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 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
5
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:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C . 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302 (b)(8) or
other protected activities listed in 5 U.S.C. § 2302 (b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
6
disposition of allegations of a prohibited personnel practice described in
section 2302(b) other than practices described in section 2302(b)(8), or
2302(b)(9)(A)(i), (B), (C), or (D),” then you may file a petition for judicial
review either with the U.S. 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 “G uide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit , you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor war rants that
any attorney will accept representation in a given case.
5 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
Contact information for the courts of appeals can be 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 | AMAYA_ORTEGA_MARTHA_IRENE_DC_315H_22_0151_I_1_FINAL_ORDER_1940368.pdf | 2022-07-08 | null | DC-315H-22-0151-I-1 | NP |
4,299 | https://www.mspb.gov/decisions/nonprecedential/JONES_KATHY_ANN_DC_0351_16_0049_I_1_FINAL_ORDER_1940446.pdf | UNITED STATES OF AME RICA
MERIT SYSTEMS PROTEC TION BOARD
KATHY ANN JONES,
Appellant,
v.
DEPARTMENT OF THE AR MY,
Agency.
DOCKET NUMBER
DC-0351 -16-0049 -I-1
DATE: July 8, 2022
THIS FINAL ORDER IS NONPRECEDENTIAL1
Kevin Smith , Columbia, Maryland, for the appellant.
Michael A. Egan , Fort McNair, Virginia, for the agency.
Rebecca Bedford , 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 the appeal of her alleged involuntary resignation for lack of
jurisdiction . Generally, we grant petitions such as this one only when: 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 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 c ase; 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 peti tion 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 held an Assistant Inspector General positio n at the agency’s
Office of Inspector General . Initial Appeal File (IAF), Tab 14 at 17. Her
assigned duty station was Fort Meade, Maryland. Id. On July 21, 2015, the
agency identified the position she held for abolishment through a
reduction -in-force ( RIF) action . Id. at 28. However, d uring the RIF proceedings ,
the agency deemed the appellant to have a higher standing within her competitive
level than that of an Assistant Inspector General assigned to Fort Belvoir,
Virginia. Id. at 25. As a result, on August 3, 2015, the agency directed the
appellant’s reassignment to the Fort Belvoir position , thereby displacing the
employee who held that position pursuant to RIF procedures . Id. In its letter
informing the appellant of the directed reassignment , the agency advised her that,
if she refused the reassignment, it would separate her from Federal service. Id.
The agency also advised her that refusal to accept the reassignment would make
her ineligible for severance pay and that she would not be permit ted to register
3
for the Priority Placement Program. Id. The appellant declined the directed
reassignment and resigned , effective October 3, 2015. Id. at 22. Consequently ,
the agency informed the employee who was holding the Assistant Inspector
General position at Fort Belvoir that she could remain in the position. Id. at 19.
¶3 The appellant appealed her resignation to the Board, primarily arguing that
the agency forced her to resign because the reassigned position at Fort Belvoir
was outside her local c ommuting area. IAF, Tab 1 at 6. The administrative judge
advised the appellant of her jurisdictional burden, IAF, Tab 12, held a
jurisdictional hearing, IAF, Tab 29, and issued an initial decision dismissing the
appeal for lack of jurisdiction, IAF, Tab 31, Initial Decision (ID). The
administrative judge found that the appellant failed to show that her r esignation
was the product of coercion, duress, or misrepresenta tion on the part of the
agency, or that her working conditions were so intolerable that a reasonable
person in her position would have felt compelled to re sign. ID at 8 -11. As to her
argument that Fort Belvoir was outside the local commuting area, the
administrative judge found that, even if correct, this factor alone would not be
enough to show that the appellant had no choice but to resign. ID at 10 -11. He
additionally found that the Board lacked jurisdiction over the appellant’s
independent claims concerning her lateral reassignment, the agency’s decision to
deny her prior ity placement and severance pay, and disability discrimination.
ID at 8, 11. The appellant has file d a petition for review, and the agency has
replied in opposition. Petition for Review (PFR) File, Tabs 1, 3.
DISCUSSION OF ARGUME NTS ON REVIEW
¶4 An employee -initiated action, such as a resignation or retirement, is
presumed to be volunt ary, and thus outs ide the Board’ s jurisdiction, unless the
employee presents sufficient evidence to establish that the action was obtained
through duress or coercion , or shows that a reasonable person would have been
misled by the agency. Green v. Department of Veterans Af fairs , 112 M.S.P.R. 59 ,
4
¶ 8 (2009). In cases such as this one, whe n the employee alleges that the agency
took actions that made worki ng conditions so intolerable that the employee was
driven to an involuntary resignation, the Board will find an action involuntary
only if the employee demonstrates that the employer engaged in a course of
action that made working conditions so difficult o r unpleasant that a reasonable
person in that employee ’s position would have felt compelled to resign. Vitale v.
Department of Veterans Affairs , 107 M.S.P.R. 501 , ¶ 20 (2007). The Board
addresses allegations of discrimination and reprisal in connection with an alleged
involuntary resignation only insofar as those allegations relate to the issue of
voluntariness. Id.
¶5 In her petition for review, the appellant reasserts her contention that her
resignation was involuntary because the Fort Belvoir position was outside her
local commuting area.2 PFR File, Tab 1 at 1. First, we agree with t he
administrative judge’s expla nation that, for purposes of the RIF, the agency did
not attempt to reassign the appellant to a location outside of the local commuting
area. ID at 10. Specifically, the administrative judge found, and we agree, based
on the totality of the evidence presented below, that the distance between Fort
Meade and Fort Belvoir was not so great as to be beyond what employees could
“reasonably be expected to travel back and forth daily to their usual
employment. ” Id. (quoting 5 C.F.R. § 351.203 ). Second, and significantly, we
agree with the administrative judge’s conclusion that, even if the Fort Belvoir
position was outside the local commuting area as the appellant contends , she did
not present eviden ce to show that she had no choice but to resign rather than
accept the reassignment. ID at 10 -11. The record reflects that the administrative
judge considered the appellant’s arguments concerning the extended daily
2 The appellant has not challenged the administrative judge’s findings that the Board
lacked jurisdiction over her lateral reassignment, priority placement , severance pay, and
disability discriminati on claims , ID at 8, 11 , and we discern no reason to disturb these
findings on review .
5
commute, including her alleged nighttim e vision problems, and properly
concluded that “the mere fact that the appellant was faced with unpleasant
choices, i.e., that of accepting a position 53 miles away or resigning, does not, by
itself, render her decision to resign involuntary.” ID at 6-11; see, e.g., Christie v.
United States , 518 F.2d 584 , 587 -88 (Ct. Cl. 1975); Baldwin v. Department of
Veterans Affairs , 109 M.S.P.R. 392 , ¶¶ 19-20 (2008) (explaining that allegations
of being assigned to onerous tasks, being unjustifiably threatened wit h discipline,
and being subjected to unnecessary investigations did not suffice to prove an
allegation of involuntary resignation) . For example, we note that, instead of
resigning, the appellant could have chosen to refuse to accept the directed
reassignm ent and challenged any possible disciplinary action the agency may
have taken as a result of that refusal. Accordingly, we affirm the 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. § 77 03(b).
Although we offer the following summary of available appeal rights, the Merit
Systems Protection 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.
3 Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise which option is most appropriate in any matter.
6
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that f orum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703 (b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit , you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is ava ilable at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in sec uring pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants befor e the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option app lies to you only if you have claimed that you
7
were affected by an action that is appealable to the Board and that 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
discrimination based on race, colo r, religion, sex, national origin, or a disabling
condition, you may be entitled to representation by a court -appointed lawyer and
to waiver of any requirement of prepayment of fees, costs, or other security. See
42 U.S.C. § 2000e -5(f) and 29 U.S.C. § 794a .
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWeb sites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702 (b)(1) . You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702 (b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, th e
address of the EEOC is:
8
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302 (b)(8) or
other protected activities listed in 5 U.S.C. § 2302 (b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
disposition of allegations of a prohibited personnel practice described in
section 2302(b) other than practices des cribed in section 2302(b)(8), or
2302(b)(9)(A)(i), (B), (C), or (D),” then you may file a petition for judicial
review either with the U.S. Court of Appeals for the Federal Circuit or any court
of appeals of competent jurisdiction.4 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).
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, 2 017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115 -195,
132 Stat. 1510.
9
If you submit a petition for judicial review to the U.S. Court of Appeals f or
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
Contact information for the courts of appeals can be found at their
respective websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
FOR THE BOARD:
Washington, D.C. /s/ for
Jennifer Everling
Acting Clerk of the Board | JONES_KATHY_ANN_DC_0351_16_0049_I_1_FINAL_ORDER_1940446.pdf | 2022-07-08 | null | DC-0351-16-0049-I-1 | NP |
4,300 | https://www.mspb.gov/decisions/nonprecedential/COBB_ANTHONY_WN_AT_0752_21_0258_I_1_FINAL_ORDER_1939824.pdf | UNITED STATES OF AME RICA
MERIT SYSTEMS PROTEC TION BOARD
ANTHONY W.N . COBB,
Appellant,
v.
DEPARTMENT OF THE AR MY,
Agency.
DOCKET NUMBER
AT-0752 -21-0258 -I-1
DATE: July 7, 2022
THIS FINAL ORDER IS NONPRECEDENTIAL1
Stephan B. Caldwell , Esquire, Riverdale, Georgia, for the appellant.
Mary Rae Dudley , Fort Gordon, Georgia, for the agency.
BEFORE
Cathy A. Harris, Vice Chairman
Raymond A. Limon, Member
Tristan L. Leavitt, Member
FINAL ORD ER
¶1 The agency has filed a petition for review , and the appellant has filed a
cross petition for review of the initial decision, which reversed the agency action
removing the appellant from the Federal service . On petition for review, the
agency argues that the administrative judge erred in not sustaining the charges
1 A non precedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to f ollow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and 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
against the appellant because he did not consider relevant facts and because he
misapplied the law . Petition for Review (PFR) File, Tab 1 at 15-26. In the
appellant’s cross petition for review, he argues that the administrative judge erred
in finding that he failed to prove his affirmative defense of whistleblower
reprisal.2 PFR File, Tab 5 at 7 -12. Generally, we grant petitions such as these
only in the following circumstances: the in itial 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 e ither the course of
the appeal or the initial decision were not consistent with required procedures or
2 The appellant has also filed a motion to dismiss the agency’s petition for review for
failure to provide interim relief. PFR File, Tab 4. Therein, he argues that, although the
administrative judge orde red the agency to appoint him to his prior position of police
officer, the agency issued a memorandum stating that he remained decertified from the
Individual Reliability Program (IRP) and that he was detailed to the position of
emergency management specia list. Id. at 7-9, 13 -16. The U.S. Court of Appeals for the
Federal Circuit has stated that, in providing interim relief, an agency may reassign an
employee to a new position if it determines that returning the employee to his original
position would unduly disrupt the work environment and pays the employee all the pay
and benefits of the original position. Nadolski v. Merit Systems Protection Board ,
105 F.3d 642 , 644 -45 (Fed. Cir. 1997). Here, although the agency did not explicitly
state that it was making an undue disruption determination, the Board will infer such a
determination if the agency can show that it had a strong overriding interest or
compell ing reason for assigning duties other than those assigned prior to the appellant’s
separation. See Lednar v. Social Security Administration , 82 M.S.P.R. 364 , ¶ 9 ( 1999 );
see also Haebe v. Department of Justice , 81 M.S.P.R. 167 , ¶ 14 (1999), rev’d on other
grounds , 288 F.3d 1288 (Fed. Cir. 2002). Here, the agency’s reason for reassigning the
appellant is his subsequent decertification from the IRP —a condition of employment
required for police officers. PFR File, Tab 4 at 13 -16. Although the appellant takes
issue wi th this IRP decertification, PFR File, Tab 4 at 8, the Board lacks the authority
to review whether the agency’s decision to reassign the appellant on that basis was
made in good faith, King v. Jerome , 42 F.3d 1371 , 1374 -75 (Fed. Cir. 1994). Rather,
the Board’s authority is restricted to deciding whether an undue disruption
determination was made when required, and whether the appellant is receivin g the
appropriate pay and benefits. Id. The record establishes that the agency made an
implicit undue disruption determination, and the appellant has not alleged that he is not
receiving all the pay and benefits of his original position. Accordingly, we find that the
agency complied with the administrative judge’s interim relief order, and we deny his
motion to dismiss the agency’s petition for review.
3
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 th at, 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 co nsidering the filings in this appeal, we conclude that neither party
has established any basis under section 1201.115 for granting the petition or cross
petition for review. Therefore, we DENY the petition for review and the cross
petition for review and AFFIRM the initial decision, which is now the Board’s
final decision.3 5 C.F.R. § 1201.113 (b).
ORDER
¶2 We ORDER the agency to cancel the removal and to restore the appellant
effective February 10, 2021 . See Kerr v. National Endowment for the Arts ,
3 While not argued by the appellant, we observe that the administrative judge’s findings
regarding th e appellant’s disclosures about (1) the agency’s hiring of an officer who
had been accused of theft , and (2) its alleged manipulation of the classification of the
appellant’s pre -detail position to facilitate the selection of a specific individual appear
to impose an affirmative duty on the appellant to seek explanation from agency
management when considering whether certain facts are “readily ascertainable” by the
appellant for purposes of determining whether the appellant’s belief that the agency
engaged in wrongdoing under the whistleblower protection statutes is reasonable.
Initial Appeal File (IAF), Tab 57, Initial Decision (ID) at 13 -16. To the extent it was
error to impose such a requirement, we find that the appellant’s disclosures are not
protecte d for other reasons. Regarding his disclosure that the agency hired an officer
who had been accused of theft, although the appellant need not accurately label the sort
of wrongdoing at issue, a disclosure must still be specific and detailed, and not a vag ue
allegation of wrongdoing. Linder v. Department of Justice , 122 M.S.P.R. 14 , ¶ 14
(2014). Here, the appellant did not state that the hiring constituted any sort of
wrongdoing or identify a law, rule, or regulation that was purportedly violated, nor did
he provide any details of the alleged theft incident, such as when it occurred or what or
how much was stolen. IAF, Tab 22 at 49. Regarding his disclosure concerning the
alleged manipulation of the classification of the position, we agree with the
administrative judge that it was the appellant’s “own supposition” that it was his
position that was converted and not a position from another division. ID at 13. Further,
there was no way for the appellant to know or reasonably conclude that the only
applicant qualified for the position as advertised was the officer selected. Thus, we
find that th e appellant failed to show that he had a reasonable belief that this disclosure
evidenced any of the types of wrongdoing set forth in 5 U.S.C. § 2302 (b)(8).
4
726 F.2d 730 (Fed. Cir. 1984). The agency must complete this action no later
than 20 days after the date of this decision.
¶3 We also ORDER the agency to pay the appellant the correct amount of back
pay, interest on back pay, and other benefits under the Office of Personnel
Management’s regulations, no later than 60 calendar days after the date of this
decision. We ORDER the appellant to cooperate in good faith in the agency’s
efforts to calculate the amount of back pay, interest, and benefits due, and to
provide all necessary information the agency requests to help it carry out the
Board’s Order. If there is a dispute about the amount of back pay, interest due,
and/or other benefits, we ORDER the agency to pay the appellant the undisputed
amount no later than 60 calendar days after the date of this decision.
¶4 We further ORDER the agen cy 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).
¶5 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 t he Board ’s Order, and should include the dates and results of
any communications with the agency. 5 C.F.R. § 1201.182 (a).
¶6 For agencies whose payroll is administered by either the Nation al 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 a gency is ORDERED to timely provide DFAS or NFC with all
documentation necessary to process payments and adjustments resulting from the
5
Board’s decision in accordance with the attached lists so that payment can be
made within the 60 -day period set forth abo ve.
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, y ou must file a motion for attorney fees
and costs WITHIN 60 CALENDAR DAYS OF THE DATE OF THIS DECISION.
You must file your motion for attorney fees and costs with the office that issued
the initial decision on your appeal.
NOTICE OF APPEAL RIG HTS4
You may obtain review of this final decision. 5 U.S.C. § 7703 (a)(1) . By
statute, the nature of your claims determines the time limit for seeking such
review and the appropriate forum with which to file. 5 U.S.C. § 7703 (b).
Although we offer the following summar y of available appeal rights, the Merit
Systems Protection Board does not provide legal advice on which option is most
appropriate for your situation and the rights described below do not represent a
statement of how courts will rule regarding which cases fall within their
jurisdiction. If you wish to seek review of this final decision, you should
immediately review the law applicable to your claims and carefully follow all
filing time limits and requirements. Failure to file within the applicable time
limit may result in the dismissal of your case by your chosen forum.
4 Since the issuance of the initial de cision in this matter, the Board may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise which option is most appropriate in any matter.
6
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703 (b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of 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
7
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 request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702 (b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is:
8
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302 (b)(8) or
other protected activities listed in 5 U.S.C. § 2302 (b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
disposition of 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.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, 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
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N .W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro 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.g ov/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 i s complete. Missing documentation may
substantially delay the processing of a back pay award. More information may be found at:
https://wss.apan.org/public/DFASPayroll/Back%20Pay%20Process/Forms/AllItems.aspx.
NOTE: Attorneys’ fees or other non -wage payments (such as damages) are paid by
vendor pay, not DFAS Civilian Pay.
☐ 1) Submit a “SETTLEMENT INQUIRY - Submission” Remedy Ticket. Please identify the
specific dates of the back pay period within the ticket comments.
Attach the following documen tation to the Remedy Ticket, or provide a statement in the ticket
comments as to why the documentation is not applicable:
☐ 2) Settlement agreement, administrative determination, arbitrator award, or order.
☐ 3) Signed and completed “Employee Statement Relative to Back Pay”.
☐ 4) All required SF50s (new, corrected, or canceled). ***Do not process online SF50s
until notified to do so by DFAS Civilian Pay.***
☐ 5) Certified timecards/corrected timecards. ***Do not process online timecards until
notified to do so by DFAS Civilian Pay.***
☐ 6) All relevant benefit election forms (e.g. TSP, FEHB, etc.).
☐ 7) Outside earnings documentation. Include record of all amounts earned by the employee
in a job under taken during the back pay period to replace federal employment.
Documentation includes W -2 or 1099 statements, payroll documents/records, etc. Also,
include record of any unemployment earning statements, workers’ compensation,
CSRS/FERS retirement annuit y payments, refunds of CSRS/FERS employee premiums,
or severance pay received by the employee upon separation.
Lump Sum Leave Payment Debts: When a separation is later reversed, there is no authority
under 5 U.S.C. § 5551 for the reinstated employee to keep the lump sum annual leave payment
they may have received. The payroll office must collect the debt from the back pay award. The
annual leave will be restored to the employee. Annual leave that exceeds the annual leave
ceiling will be restored to a separate leave account pursuant to 5 CFR § 550.805(g).
NATIONAL FINANCE CEN TER CHECKLIST FOR BA CK PAY CASES
Below is the information/documentation required by National Finance Center to process
payments/adjustments agreed on in Back Pay Cases (settlement s, 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 mail ing 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 Overti me, 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 stat ement from agency.
4. If employee received retirement annuity or unemployment, provide amount and address to
return monies.
5. Provide forms for FEGLI, FEHBA, or TSP deductions. (if applicable)
6. If employee was unable to work during any or part of the period involved, certification of the
type of leave to be charged and number of hours.
7. If employee retires at end of Restoration Period, provide hours of Lump Sum Annual Leave
to be paid.
NOTE: If prior to conversion, agency must attach Computation Worksheet by Pay Period and
required data in 1 -7 above.
The following information must be included on AD -343 for Settlement Cases: (Lump Sum
Payment, Correction to Promotion, Wage Grade Increase, FLSA, etc.)
a. Must provide same data as in 2, a -g above.
b. Prior to conversion computation must be provided.
c. Lump Sum amount of Settlement, and if taxable or non -taxable.
If you have any questions or require clarification on the above, please contact NFC’s
Payroll/Personnel Operations at 504 -255-4630. | COBB_ANTHONY_WN_AT_0752_21_0258_I_1_FINAL_ORDER_1939824.pdf | 2022-07-07 | null | AT-0752-21-0258-I-1 | NP |
4,301 | https://www.mspb.gov/decisions/nonprecedential/GEORGE_MICHAEL_R_NY_0845_16_0293_I_1_FINAL_ORDER_1939881.pdf | UNITED STATES OF AME RICA
MERIT SYSTEMS PROTEC TION BOARD
MICHAEL R. GEORGE,
Appellant,
v.
OFFICE OF PERSONNEL
MANAGEMENT,
Agency.
DOCKET NUMBER
NY-0845 -16-0293 -I-1
DATE: July 7, 2022
THIS FINAL ORDER IS NONPRECEDENTIAL1
Michael R. George , Elmira, New York, 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 his appeal of a reconsideration decision of the Office of Personnel
Management (OPM) for lack of jurisdiction. Generally, we grant petitions such
as this one only in the following circum stances: the initial decision contains
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
require d to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117 (c).
2
erroneous findings of material fact; the initial decision is based on an erroneous
interpretation of statute or regulation or the erroneous application of the law to
the facts of the case; the administrative judge’s rulings during either the course of
the appeal or the initial decision were not consistent with required procedures or
involved an abuse of discretion, and the resulting error affected the outcome of
the case; or new and material evidence or legal argument is available that, despite
the petitioner’s due diligence, was not available when the record closed. Title 5
of the Code of Federal Regulations, section 1201.115 ( 5 C.F.R. § 1201.115 ).
After fully considering the filings in this appeal, we conclude that the petitioner
has not established any basis under section 1201.115 for granting the petition for
review. Therefore, we DENY the petition for review and AFFIRM the initial
decision, which is now the Board’s final decision. 5 C.F.R. § 1201.113 (b).
¶2 OPM approved the appellant’s disability retirement application under the
Federal Employees’ Retirement System (FERS), effective October 2000. Initial
Appeal File (IAF), Tab 1 at 12. Years later, OPM determined that his annuity
should have been reduced due to an award of Social Security disability benefits.
Id. As a result, OPM also determined that the appellant was o verpaid $61,289
between April 2001 , and November 2014. Id. The appellant requested
reconsideration of OPM’s decision in December 2014. Id. In a July 2016
reconsideration decision, OPM affirmed its initial decision. Id. at 12 -13, 16 -17.
¶3 The appellant filed the instant appeal, challenging OPM’s reconsideration
decision. Id. at 1-8. In September 2016, OPM filed a motion to dismiss on the
basis that it had rescinded that decision. IAF, Tab 7 at 4. OPM explained that it
would issue a new reconsideratio n decision after the instant appeal was dismissed
and final. Id. After holding a status conference with the appellant, the
administrative judge issued an initial decision, dismissing the appeal for lack of
jurisdiction. IAF, Tab 9, Initial Decision (ID) . The appellant has filed a petition
for review. Petition for Review (PFR) File, Tab 1. OPM has filed a response.
PFR File, Tab 5.
3
¶4 If OPM completely rescinds its final decision, the Board no longer has
jurisdiction over the appeal in which that decisio n is at issue. Campbell v. Office
of Personnel Management , 123 M.S.P.R. 240 , ¶ 7 (2016). A complete rescission
requires OPM to r eturn the individual to the status quo ante. Id. Thus, to rescind
a final overpayment decision such as the one at issue in the instant appeal, OPM
must refund any money that it already collected from the appellant to recoup the
alleged overpayment. Id., ¶ 8.
¶5 On review, the appellant suggests that OPM did not return money
previously withheld, which calls into question whether OPM completely
rescinded its reconsideration decision and divested the Board of jurisdiction over
this appeal. PFR File, Tab 1 at 1. Because the record did not contain any
evidence on this matter , we issued an order directing OPM to present argument
and evidence of any payments withheld and returned to the appellant pursuant to
its prior reconsideration decision. PFR File, Tab 6. OPM responded, showing
that it withheld a total of $300 between October 2016 , and January 2017, but
returned the same amount in February 2017. PFR File, Tab 7 at 4, 6. We note
those dates because it is now apparent that OPM sought and received a dismissa l
of the instant appeal on the basis of complete rescission, then began withholding
money from the appellant as if rescission did not occur, then returned that money
while the appellant’s petition for review was pending.
¶6 Although OPM has not explained what appear to be untimely or otherwise
improper withholdings, the record suggests that OPM has now returned the
appellant to the status quo ante. We provided the appellant an opportunity to
present argument or evidence to the contrary, but he has not done so . PFR File,
Tab 6 at 3. Accordingly, we find that the Board lacks jurisdiction over this
appeal because OPM has completely rescinded its July 2016 reconsideration
4
decision.2 Campbell , 123 M.S.P.R. 240 , ¶¶ 7 -8. Once OPM issues a new
reconsideration decision concerning his FERS disability annuity, the appellant
may file a new appeal with the Board if he is still dissatisfied. See 5 U.S.C.
§ 8461 (e)(1); 5 C.F.R. § 841.308 .
NOTICE OF APPEAL R IGHTS3
You may obtain review of this final decision. 5 U.S.C. § 7703 (a)(1). By
statute, the nature of your claims determines the time limit for seeking such
review and the appropriate forum with which to file. 5 U.S.C. § 7703 (b).
Although we offer the following summary of available appeal rights, the Merit
Systems Protection Board does not provide legal advice on which option is most
appropriate for your situation and the rights described below do not represent a
statement of how courts will rule regarding which cases fall within their
jurisdiction. If you wish to seek review of this final decision, you should
immediately review the law applicable to your claims and carefully follow all
filing 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 In his petition, the appellant suggests that he did not agree to dismissal of his appeal,
despite the administrative judge’s representations to the contrary. PFR File, Tab 1 at 1;
ID at 2. Howeve r, the prehearing conference recording demonstrates that the appellant
expressed no objection to OPM’s motion to dismiss. IAF, Tab 8, Prehearing
Conference Compact Disc. More importantly, the Board’s jurisdictional limitations are
controlling, even if th e appellant preferred that his appeal not be dismissed. See
Schmittling v. Department of the Army , 219 F.3d 1332 , 1337 ( Fed. Cir. 2000)
(recogn izing that, without jurisdiction, the Board lacks the authority to decide the
merits of a case); see also Martin v. Office of Personnel Management , 119 M.S.P.R.
188, ¶ 8 (2013) (recognizing that an agency’ s unilateral modification of its action after
an appeal has been filed cannot divest the Board of jurisdiction unless the appellant
consents to such divestiture or unless the agency completely rescinds the action being
appealed ).
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 whi ch option is most appropriate in any matter.
5
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in 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).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
follow ing address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
6
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful 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 receiv es this decision. If the action involves a claim of
discrimination based on race, color, religion, sex, national origin, or a disabling
condition, you may be entitled to representation by a court -appointed lawyer and
to waiver of any requirement of prepay ment of fees, costs, or other security. See
42 U.S.C. § 2000e -5(f) and 29 U.S.C. § 794a .
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702 (b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702 (b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is:
7
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302 (b)(8) o r
other protected activities listed in 5 U.S.C. § 2302 (b)(9)(A)(i), (B), (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 Feder al 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, s igned into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court 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/Cou rt_Locator/CourtWebsites.aspx .
FOR THE BOARD:
Washington, D.C. /s/ for
Jennifer Everling
Acting Clerk of the Board | GEORGE_MICHAEL_R_NY_0845_16_0293_I_1_FINAL_ORDER_1939881.pdf | 2022-07-07 | null | NY-0845-16-0293-I-1 | NP |
4,302 | https://www.mspb.gov/decisions/nonprecedential/OBOT_GODWIN_CH_0752_20_0601_I_1_FINAL_ORDER_1939953.pdf | UNITED STATES OF AME RICA
MERIT SYSTEMS PROTEC TION BOARD
GODWIN OBOT,
Appellant,
v.
DEPARTMENT OF DEFENS E,
Agency.
DOCKET NUMBER
CH-0752 -20-0601 -I-1
DATE: July 7, 2022
THIS FINAL ORDER IS NONPRECEDENTIAL1
Godwin Obot , Cleveland, Ohio, pro se.
C. Nicole Cooper and Mickey J. Lee , Indianapolis, Indiana, for the agency.
BEFORE
Cathy A. Harris, Vice Chairman
Raymond A. Limon , Member
Tristan L. Leavitt , Member
FINAL ORDER
¶1 The appellant has filed a petition for review of the initial decision, which
affirmed his removal from the Federal service for three specifications of
contemptuous behavior toward his supervisor . Generally, we grant petitions such
as this one only in the following circumstances: the initial decision contains
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential order s,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and 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 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, w as not available when the record closed. After
fully considering the filings in this appeal, we c onclude that the petitioner has not
established any basis under section 1201.115 for granting the petition for review.
Title 5 of the Code of Federal Regulations, section 1201.115 ( 5 C.F.R.
§ 1201. 115). 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 petition f or review, the appellant challenges the administrative judge’s
weighing of evidence regarding the charges and affirmative defenses , and he
asserts that the admi nistrative judge erred in excluding witness testimony. The
Board generally will not disturb an administrative judge’s conclusions whe n, as
here, the initial decision reflects that the administrative judge considered the
evidence as a whole, drew appropria te references, and made reasoned conclus ions
on issues of credibility. See Crosby v. U.S. Postal Service , 74 M.S.P.R. 98 ,
106 (199 7); Broughton v. Department of Health & Human Services , 33 M.S.P.R.
357, 359 (1987). Mere disagreement with the administrative judg e’s reasoned
and supported findings and credibility determinations, like those raised in the
appellant’s petition for review, will not warrant disturbing the initial decision,
and we find no basis to do so here .2 We also find no merit to the appellant’s
2 The administrative judge correctly determined that the appellant’s allegation that his
misconduct w as provoked by the agency is not a defense to the charge. See Beaudoin v.
Department of Veterans Affairs , 99 M.S.P.R. 489 , ¶ 14 (2005). Provocation is a
consideration in the penalty determination. Id. The initial decision reflects that the
administrative judge concluded that the alleged provocation did not excuse the
appellant’s conduct. ID at 18 (considering the appellant’ s “visceral reaction” to his
3
argument that the admini strative judge excluded witness testimony . Petition for
Review File, Tab 1 at 6. The appellant withdrew his request for a hearing and the
administrative judge considered each of the three witness statements submitted by
the appellant with his close of record submission . Initial Appeal Fil e, Tab 30,
Tab 35, Initial Decision at 7, 12, 20 . Accordingly, we deny the petition for
review and affirm the 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 do not represent a
statement of how courts will rule regarding which cases fall within their
jurisdiction. If you wish to seek review of this final decision, you should
immediately review the law applicable to your claims and carefully fo llow all
filing time limits and requirements. Failure to file within the applicable time
limit may result in the dismissal of your case by your chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
supervisor), 20 (finding that supervisory inquiries into his work progress and other
events did not evince a hostile work environment). Further, we have fully considered
the appellant’s allegations and evidence in this regard and find that the penalty was
reasonable despite any alleged provocation. See Beaudoin , 99 M.S.P.R. 489 , ¶ 22.
3 Since the issua nce of the initial decision in this matter, the Board may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise which option is most appropriate in any matter.
4
(1) Judicial review in general . As a general rule, an appellant see king
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703 (b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for th e Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide f or Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Boa rd and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
5
receive this decision. 5 U.S.C. § 7703 (b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. ____ , 137 S. Ct. 1975 (2017). If you have a
representative in this case, and your representative receives this decision before
you do, then you must file with the district court no later than 30 calendar days
after your representative receives this decision. If the action involves a claim of
discrimination based on race, color, religion, sex, national origin, or a disabling
condition, you may be entitled to representation by a court -appointed lawyer and
to waiver of any requirement of prepayment of fees, costs, or other security. See
42 U.S.C. § 2000e -5(f) and 29 U.S.C. § 794a .
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702 (b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702 (b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If 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 St reet, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302 (b)(8) or
other protected activities listed in 5 U.S.C. § 2302 (b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for r eview “raises no challenge to the Board’s
disposition of allegations of a prohibited personne l practice described in
section 2302(b) other than practices described in section 2302(b)(8), or
2302(b)(9)(A)(i), (B), (C), or (D),” then you may file a petition for judicial
review either with the U.S. Court of Appeals for the Federal Circuit or any court
of appeals of competent jurisdiction.4 The court of appeals must receive your
petition for review within 60 days of the date of issuance of this decision.
5 U.S.C. § 7703 (b)(1)(B).
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
4 The original statutory pr ovision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appe llants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
The All Circuit Review Act is re troactive to November 26, 2017. Pub. L. No. 115 -195,
132 Stat. 1510.
7
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
Contact information for the courts of appeals can be found at their
respective websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
FOR THE BOARD:
Washington, D.C. /s/ for
Jennifer Everling
Acting Clerk of the Board | OBOT_GODWIN_CH_0752_20_0601_I_1_FINAL_ORDER_1939953.pdf | 2022-07-07 | null | CH-0752-20-0601-I-1 | NP |
4,303 | https://www.mspb.gov/decisions/nonprecedential/DAVIS_DEBORA_A_AT_844E_21_0191_I_1_FINAL_ORDER_1939987.pdf | UNITED STATES OF AME RICA
MERIT SYSTEMS PROTEC TION BOARD
DEBORA A. DAVIS,
Appellant,
v.
OFFICE OF PERSONNEL
MANAGEMENT,
Agency.
DOCKET NUMBER
AT-844E -21-0191 -I-1
DATE: July 7, 2022
THIS FINAL ORDER IS NONPRECEDENTIAL1
Debora A. Davis , Archer, Florida, pro se.
Jo Bell , 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 filed a petition for review of the initial decision, which
reversed the agency’s reconsideration decision finding that the appellant was not
entitled to disability retirement benefits under the Federal Employees’ Retirement
System (FERS) . 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 circum stances: the initial decision contains erroneous findings of
material fact; the initial decision is based on an erroneous interpretation of statute
or regulation or the erroneous application of the law to the facts of the case; the
administrative judge’s rulings during either the course of the appeal or the initial
decision were not consistent with required procedures or involved an abuse of
discretion, and the resulting error affected the outcome of the case; or new and
material evidence or legal argument is available that, despite the petitioner’s due
diligence, was not available when the record closed. Title 5 of the Code of
Federal Regulations, section 1201.115 ( 5 C.F.R. § 1201.115 ). After fully
considering the filings in this appeal, we conclude that the petitioner has not
established any basis under section 1201.115 for granting the petition for review.
Therefore, we DENY the petition for review and AFFIRM the initial decision,
which is now the Board’s final decision. 5 C.F.R. § 1201.113 (b).
¶2 An appellant bears the burden of proving her entitlement to retirement
benefits by a preponderance of the evidence. 5 C.F.R. § 1201.56 (b)(2)(ii). To be
eligible for disability retirement benefits under FERS, an applicant must show the
following: (1) sh e completed at least 18 months of c reditable civi lian service;
(2) while employed in a position subject to FERS, she became disabled because
of a medical condition, resulting in a deficiency in performance, conduct or
attendance, or, if there is no such deficiency, the disabling medical condition is
inco mpatible with either useful and efficient service or retention in the position;
(3) the disabling medical condition is expected to continue for at least 1 year from
the date that the application for disability retirement benefi ts was filed;
(4) accommodati on of the disabling medical condition in the position held
must be unreasonable; and (5) she did not decline a reasonable offer of
reassignment to a vacant position. 5 U.S.C. § 8451 (a); 5 C.F.R. § 844.103 (a); see
Thorne v. Office of Personnel Management , 105 M.S.P.R. 171 , ¶ 5 (2007) .
¶3 Here, the agency challenges the administrative judge’s conclusion that the
appellant satisfied the second criterion. Petition for Review (PFR) File, Tab 1
3
at 6-7. To this end, the agency seemingly contends that the administrat ive judge
erred in finding that the appellant had a disabling medical condition that wa s
incompatible with either useful and efficient service or retention in her position
because she failed to show that her pain levels could not be controlled. Id.
Speci fically, the agency asserts that one of the appellant’s physicians “testified
that there are options available to the appellant that ha[ve] not been utilized,” to
include botox injections for her migraines and “other procedures that are
available to the appellant if her pain and discomfort ” continue . Id. at 7. We find
these contentions unavailing.
¶4 An applicant for disability retirement benefits must establish the extent to
which her disability c an or cannot be controlled . Smedley v. Office of Personnel
Management , 108 M.S.P.R. 31 , ¶ 23 (2008). The Board has repeatedly hel d that
the voluntary refusal to accept facially reasonable treatment, standing alone, will
bar entitlement to disability retirement benefits. Id.; see Shanoff v. Office of
Personnel Management , 103 M.S.P.R. 549 , ¶ 9 (2006) (explaining that, when an
employee is unable to render useful and efficient service because the employee
fails or refuses to follow or accept normal treatment, t he employee’s disability
flows not fr om the disease or injury itse lf but from the refusal to take the
available corrective or ameliorative action ).
¶5 Here, although one of the appellant’s treating physician s testified generally
as to botox “potentially” b eing a treatment option down the line for the
appellant’s migraines, he never indicated that he had recommended that she
undergo such injections. Initial Appeal File ( IAF), Tab 26, Hearing Recording,
part 2 (testimony of the appellant’s physician ). In fact, he explained that he did
not know whether they would be an effective me thod of treating her migraines .
Id. Moreover, he explained that botox injections would not address the
appellant’s neck and back pain. Id. Similarly , although the physician testified as
to the possibility of the appellant undergoing other procedures down the line, to
include additional surgical joint fusion(s), he did not indicate that he had of yet
4
recommended such procedures ; indeed, he acknowledged that such procedures
may o r may not be an effective means of reducing her pain levels . Id. In short,
the record was devoid of any indication that the appellant had refused any
recommended medical treatment . To the contrary , as set forth in the initial
decision, the record showed that she “sought reasonable treatment,” but, despite
her efforts , her conditions progre ssed to a point that treatment became ineffective
in relieving the pain that she experiences as a result of performing her job duties .
IAF, Tab 27, Initial Decision (ID) at 9. Indeed , the administrative judge found
that the medical evidence in the record supported the appellant’s testimony that
she ha s undergone “various treatments over the years to address her conditions,
including surg eries, traction, [transcutaneous electrical nerve stimulation], and
multiple accommodations and medications”; nonetheless, her pain has persisted
and i s exacerbated by her job functions. ID at 8-9 & n. 3; see Haebe v.
Department of Justice , 288 F.3d 1288 , 1301 (Fed. Cir. 2002) (holding that the
Board must give deference to an administrative judge’s credibility determinations
when they are based, e xplicitly or implicitly, on the observation of the demeanor
of witnesses testifying at a hearing). Thus, the agency’s contention does not
provide a basis to disturb the administrative judge’s conclusion that the appellant
satisfied the second criterion . ID at 9.
¶6 The agency also challenges the administrative judge’s conclusion that the
appellant satisfied the third criterion, i.e., that her disabling medical condition is
expected to continue for at least 1 year from the date on which she filed her
applica tion for disability retirement . PFR File, Tab 1 at 6 -7. The agency,
however, does not provide any specific argument in this regard. Here, the
administrative judge found credible the testifying physician , a pain management
specialist, who explained that “there was no current cure for the appellant’s
conditions ,” which are ongoing and progressively worsening. ID at 9; see Haebe ,
288 F.3d at 1301 . We discern no basis to disturb this finding; indeed, m edical
documentation in the record substantiated the physician’s testimony . E.g., IAF,
5
Tab 14 at 41 -44. Thus, we agree with the administrative judge’s conclusion that
the appellant satisfied the third criterion.
¶7 Accordingly, we affirm the initial decision.
NOTICE OF APPEAL RIG HTS2
You may obt ain review of this final decision. 5 U.S.C. § 7703 (a)(1). By
statute, the nature of your claims determines the time limit for seeking such
review and the appropriate forum with which to file. 5 U.S.C. § 7703 (b).
Although we offer the following summary of available appeal rights, the Merit
Systems Protection Board does not provide legal advice on which option is most
appropriate for your situation and the rights described below do not represent a
statement of how courts will rule regarding which cases fall within their
jurisdiction. If you wish to seek review of this final decision, you should
immediately review the law applicable to your claims and carefully follow all
filing time limits and requirements. Failure to file within the applicable time
limit may result in the dismissal of your case by your chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a genera l rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision . 5 U.S.C.
§ 7703 (b)(1)(A).
2 Since the issuance of the initial decision in this matter, the Board may have updated
the 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.
6
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703 (b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. ____ , 137 S. Ct. 1975 (2017). If you have a
representative in this case, and your representative receives this decision before
you do, then you m ust file with the district court no later than 30 calendar days
after your representative receives this decision. If the action involves a claim of
7
discrimination based on race, color, religion, sex, national origin, or a disabling
condition, you may be e ntitled to representation by a court -appointed lawyer and
to waiver of any requirement of prepayment of fees, costs, or other security. See
42 U.S.C. § 2000e -5(f) and 29 U.S.C. § 794a .
Contact information for U.S. district courts can be found at their respe ctive
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702 (b)(1). You must file an y such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702 (b)(1). If you have a representative in this case,
and your rep resentative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EE OC is:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302 (b)(8) or
8
other protected activities listed in 5 U.S.C . § 2302 (b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
disposition of allegations of a prohibited personne l practice described in
section 2302(b) other than practices described in section 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
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 a ny court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whis tleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115 -195,
132 Stat. 1510.
9
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
Contact information for the courts of appeals can be found at their
respective websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/C ourtWebsites.aspx .
FOR THE BOARD:
Washington, D.C. /s/ for
Jennifer Everling
Acting Clerk of the Board | DAVIS_DEBORA_A_AT_844E_21_0191_I_1_FINAL_ORDER_1939987.pdf | 2022-07-07 | null | AT-844E-21-0191-I-1 | NP |
4,304 | https://www.mspb.gov/decisions/nonprecedential/AQUINO_ANGEL_A_SF_315H_17_0254_I_1_FINAL_ORDER_1939525.pdf | UNITED STATES OF AME RICA
MERIT SYSTEMS PROTEC TION BOARD
ANGEL A. AQUINO, III ,
Appellant,
v.
DEPARTMENT OF THE NA VY,
Agency.
DOCKET NUMBER
SF-315H -17-0254 -I-1
DATE: July 6, 2022
THIS FINAL ORDER IS NONPRECEDENTIAL1
Angel A. Aquino, III , Ridgecrest, California, pro se.
Richard D. Ruppe , Esquire, San Diego, California, for the agency.
BEFORE
Cathy A. Harris , Vice Chairman
Raymond A. Limon , Member
Tristan L. Leavitt , Member
FINAL ORDER
¶1 The appellant has filed a petition for review of the initial decision, which
dismissed his probationary termination appeal for lack of jurisdiction . For the
reasons set forth below, the appellant’s petition for review is DISMISSED as
untimely filed with out good cause shown. 5 C.F.R. § 1201.114 (e), (g).
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
require d to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117 (c).
2
¶2 The petition for review was filed on October 19, 2017, more than 5 months
after the deadline to file. Petition f or Review (PFR) File, Tab 1 ; Initial Appeal
File, Tab 1, Initial Decision at 5. Although the appellant claims he was not
informed of his right to file a petition for review “until recently,” he is an e -filer
and acknowledges receiving the initial decision. PFR File, Tab 1 at 3;
see 5 C.F.R. § 1201.14 (m)(2). When an initial decision clearly informs an
appellant of when to file a petition for review, his failure to read and follow these
instructions does not show the due diligence necessary to constitute good cause
for a waiver of the filing deadline. See Williams v. Office of Personnel
Management , 59 M.S.P.R. 399 , 401 (1993) (finding that when explicit and correct
filing instructions are given in an initial decision , a party’s hastiness in reading
the Board’s notice is not sufficient to evidence the due diligence necessary to
establi sh good cause for an untimely filing). As such, the appellant has not
shown that he exercised due diligence or ordinary prudence under the particular
circumstances of the case, and thus has not shown good cause for the delay in
filing.
¶3 Accordingly, we dismiss the petition for review as untimely filed. This is
the final decision of the Merit Systems Protection Board regarding the timeliness
of the petition for review. The initial decision remains the final decision of the
Board regarding the probationa ry termination appeal.
NOTICE OF APPEAL RIG HTS2
You may obtain review of this final decision. 5 U.S.C. § 7703 (a)(1) . By
statute, the nature of your claims determines the time limit for seeking such
review and the appropriate forum with which to file. 5 U.S.C. § 7703 (b).
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
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:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.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.
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 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
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 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.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702 (b)(1). You must file any such request 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 receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative r eceives
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 requ est for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judici al review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302 (b)(8) or
other protected activities listed in 5 U.S.C. § 2302 (b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
disposition of alleg ations of a prohibited personnel practice described in
section 2302(b) other than practices described in section 2302(b)(8), or
2302(b)(9)(A)(i), (B), (C), or (D),” then you may file a petition for judicial
review either with the U.S. Court of Appeals for the Federal Circuit or any court
6
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 Pl ace, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appella nts,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://w ww.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept rep resentation in a given case.
3 The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 201 8, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
The Al l Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115 -195,
132 Stat. 1510.
7
Contact information for the courts of appeals can be 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 | AQUINO_ANGEL_A_SF_315H_17_0254_I_1_FINAL_ORDER_1939525.pdf | 2022-07-06 | null | SF-315H-17-0254-I-1 | NP |
4,305 | https://www.mspb.gov/decisions/nonprecedential/BETILEZ_CONSTANTINO_H_SF_0831_16_0493_I_1_FINAL_ORDER_1939573.pdf | UNITED STATES OF AME RICA
MERIT SYSTEMS PROTEC TION BOARD
CONSTANTINO H. BETIL EZ,
Appellant,
v.
OFFICE OF PERSONNEL
MANAGEMENT,
Agency.
DOCKET NUMBER
SF-0831 -16-0493 -I-1
DATE: July 6, 2022
THIS FINAL ORDER IS NONPRECEDENTIAL1
Rufus F. Nobles, I , Zambales, Philippines, 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
FINAL ORD ER
¶1 The appellant has filed a petition for review of the initial decision, which
affirmed the reconsideration decision of the Office of Personnel Management
(OPM), denying his request for a Civil Service Retirement System (CSRS)
annuity. Generally, we gran t petitions such as this one only in the following
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117 (c).
2
circumstances: the initial decision contains erroneous findings of material fact;
the initial decision is based on an erroneous interpretation of statute or regulation
or the erroneous application of the law to the facts of the case; the administrative
judge’s rulings during either the course of the appeal or the initial decision were
not consistent with required procedures or involved an abuse of discretion, and
the resulting error affected the outcome of the case; or new and material evidence
or legal argument is available that, despite the petitioner’s due diligence, was not
available when the record closed. Title 5 of the Code of Federal Regulations,
section 1201.115 ( 5 C.F.R. § 1201.115 ). After fully considering the filings in this
appeal, we conclude that the petitioner has not established any basis under
section 1201.115 for granting the petition for review. Therefore, we DENY the
petition for review and AFFIRM the initial decision, which is now the Board’s
final decision. 5 C.F.R. § 1201.113 .
¶2 The a dministrative judge, in an initial decision, found that the appellant
failed to meet his burden of proving that he was entitled to a CSRS annuity.
Initial Appeal File (IAF), Tab 8, Initial Decision (ID). He correctly concluded
that the appellant’s servic e between August 1970 and August 1971 was a
temporary appointment limited to 1 year or less, excluded from Civil Service
Retirement Act (CSRA) coverage. ID at 5; IAF, Tab 4 at 25, 30 -31; see 5 C.F.R.
§ 831.201 (a)(1) (excluding from retirement coverage “[e]mployees serving under
appointments limited to one year or less, except annuitants appointed by the
President to fill unexpired terms of office on or after January 1, 1976 . . . ”); see
also Encarnado v. Office of Personnel Management , 116 M.S.P.R. 301 , ¶ 8
(2011) (recognizing that temporary, intermittent, term, and excepted indefinite
appointments have been excluded from CSRS coverage). The administrative
judge also correctly concluded that the appellant’s subsequent service in an
indefinite , excepted -service position from August 1971 to February 1991 was
simil arly excluded from CSRA coverage. ID at 5; IAF, Tab 4 at 24 -25, 30; see
3
5 C.F.R. § 831.201 (a)(13) (excluding indefinite employees from CSRS coverage);
see also Encarnado , 116 M.S.P.R. 301 , ¶ 8.
¶3 On review, the appellant reasserts that he is covered by the CSRS for a
portion of his service, between 1971 and 1982, regardless of the nature of his
appointments and despite his failure to contribute to the Civil Service Retirement
and Disability Fund (the Fund) . Petition for Review (PFR) File, Tab 1 at 6. He
argues that 5 C.F.R. § 831.303 (a) retroactively implemented automatic coverage
under the CSRS for all Federal employees who rendered service between July
1920 and September 1982. Id. at 1-7. As the administrative judge correctly
found, the appellant’s reliance on section 831.303(a) is misplaced.2 ID at 8 -10.
Two types of Fed eral service are pertinent to determin ing whether an individual is
entitled to a CSRS retirement annuity, “creditable service ” and “covered service.”
Encarnado , 116 M.S.P.R. 301 , ¶ 7. Almost all Federal civilian service is
creditable service, but cov ered service is more limited in scope, referring to the
status of Federal employees who are subject to the CSRS and are thus required to
deposit part of their basic pay into the Fund. Id. Completion of 5 years of
creditable civilian service, ending with at least 1 out of the last 2 years in a
position covered by the CSRS, is a prerequisite for a civil service retirement
annuity. Id. The regulation the appellant relies on, 5 C.F.R. § 831.3 03(a),
addresses whether service is creditable. It does not convert noncovered service ,
such as the appellant’s , into covered service nor does it otherwise render him
eligible for a CSRS annuity.
2 To the extent that the appellant suggests, in the alternative, that he should be
permitted to make a deposit under 5 C.F.R. § 831.112 (a) for his past service to receive a
CSRS annuity, PFR File, Tab 1 at 8 -9, the administrative judge correctly noted that he
does not meet the requirements to do so, ID at 6 n.5. T he appellant does not satisfy the
definition of “employee” in 5 C.F.R. § 831.112 , which sets forth those eligible to make
a deposit to the Fund under 5 U.S.C. § 8334 . See Dela Rosa v. Office of Personnel
Management , 583 F.3d 762 , 764 -65 (Fed. Cir. 2009); Muyco v. Office of Personnel
Management , 114 M.S .P.R. 694 , ¶ 13 (2010) .
4
¶4 After fully considering the filings in this appeal, we conclude that the
petitioner has not established any basis under section 1201.115 for granting the
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 .
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
filing time limits and requirements. Failure to file within the applicable time
limit may result in the dismissal of your case by your chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order 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.
5
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703 (b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful 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
6
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/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
7
(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 Feder al
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
4 The original statutory provision that provid ed for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file peti tions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to Novemb er 26, 2017. Pub. L. No. 115 -195,
132 Stat. 1510.
8
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
Contact information for the courts of appeals can be found at their
respe ctive 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 | BETILEZ_CONSTANTINO_H_SF_0831_16_0493_I_1_FINAL_ORDER_1939573.pdf | 2022-07-06 | null | SF-0831-16-0493-I-1 | NP |
4,306 | https://www.mspb.gov/decisions/nonprecedential/LAMINACK_DANNA_DA_0432_20_0177_I_1_REMAND_ORDER_1939576.pdf | UNITED STATES OF AME RICA
MERIT SYSTEMS PROTEC TION BOARD
D’ANNA LAMINACK,
Appellant,
v.
DEPARTMENT OF THE IN TERIOR,
Agency.
DOCKET NUMBER
DA-0432 -20-0177 -I-1
DATE: July 6, 2022
THIS ORDER IS NONPRECEDENTIAL1
Richard R. Renner , Esquire and Sara h Martin , Esquire, Washington , D.C.,
for the appellant.
Nanette Gonzales , Lakewood, Colorado, for the agency.
Okwede Okoh , 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.
REMAN D 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 reversed the agency’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 contributing to the Board’s case law. See 5 C.F.R. § 1201.117 (c).
2
action. For the reasons discussed below, we GRANT the petition for review,
VACATE the initial decision, DENY the cross petition for review, and REMAND
the case to the Dallas 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 agency removed the appellant from her position of Environmental
Education Specialist , under the authority of 5 U.S.C. chapter 43, based on her
failure to demonstrate acceptable performance in two critical elements of her
Employee Performance Appraisal Plan (EPAP) . Initial Appeal File (IAF), Tab 1
at 8-9, Tab 24 at 26-29, 65-70, Tab 56 at 4 . The appellant’s EPAP set forth,
within each of the five critical elements, the following four rating levels :
Unacceptable ; Fully Successful; Exceeds Expectations ; and Outstandi ng. IAF,
Tab 2 4 at 140-60.
¶3 On appeal to the Board, the appellant asserted, among other things, that the
agency’s performance appraisal system was not approved by the Office of
Personnel Management (OPM) . IAF, Tab 50 at 7 -8, Tab 54 at 2 . She also
claimed that the action was based on reprisal for equal employment opportunity
(EEO) activity, disability discrimination , and reprisal for whistleblowing activity ,
and that the agency violated her due process rights . IAF, Tab 1 at 4 , Tab 13
at 5-19, Tab 18 at 2 , Tab 50 at 16 . During the processing of this case, the
administrative judge issued an order notifying the parties of a question as to
“whether the appellant’s FY [Fiscal Year] 2019 EPAP complies with the
performance appraisal system that OPM approved, and , if not, the impact of this
issue on the agency’s performance -based action.” IAF, Tab 62 at 2. The
administrative judge afforded the parties an opportunity to submit written briefs
on the issue. Id. Both parties filed respon ses to the order. IAF, Tabs 63-65.
3
¶4 After a hearing, the administrative judge reversed the removal action. IAF,
Tab 66, Initial Decision (ID) at 1, 36. She found that the agency did not prove by
substantial evidence that OPM approved its performance appraisal system . ID
at 12-15. In this regard, the administrative judge found that the OPM Form 1631,
Performance Appraisal System Description, completed by the agency and
approved by OPM, indicated that the agency had marked , or selected , all
summary level patterns for possible u se. ID at 13. A summary level pattern is an
ordered category of performance level s, from Level 1 to Level 5, with 1 being the
lowest and 5 being the highest. IAF, Tab 57 at 5. Each pattern identifies the
number and category of summary levels used by an appraisal program. Id. Here,
the agency marked or selected Patterns A (which includes only two summary
levels) through H (which includes five summary levels). Id. The administrative
judge found that the appellant’s FY 2019 EPAP was consistent with the system in
that the EPAP specified four levels for the summary rating (Outstanding, Exceeds
Expectations, Fully Successful, and Unacceptable), and thus appeared to use
Pattern E, one of the selected patterns. ID at 13.
¶5 Nevertheless, t he administrative j udge also noted that the agency was
required to specify both the minimum and maximum number of element appraisal
levels that it would use to appraise an employee’s performance under each
element. ID at 13. Here, the OPM Form 1631 indicated that there wou ld be a
minimum of five appraisal levels and a maximum of five appraisal levels . IAF,
Tab 57 at 5. The administrative judge therefore found that “the appellant’s
FY 2019 EPAP fails to comply with the performance appraisal system that OPM
approved in that it does not include the required minimum number of appraisal
levels.” ID at 13. The administrative judge acknowledged the agency’s argument
and evidence indicating that it made a clerical error on the form regarding the
minimum number of appraisal levels, and that the clerical error did not reflect its
intent in seeking OPM approval for the change . ID at 14. Nevertheless, she held
that there was no record evidence showing that the agency meant “4” when it
4
entered “5” as the minimum number of appraisal levels, or that OPM approved
the agency to implement four element appraisal levels. ID at 14. The
administrative judge found that , even if the agency made an uninten tional error
on the form, “this does not obviate the fact that the appellant’s 2019 EPAP fails
to comply with the performance appraisal system approved by OPM.” ID at 14.
Thus, she found that the agency failed to establish by substantial evidence that,
with regard to the appellant’s EPAP, it had an OPM -approved performance
appraisal system and that OPM approved the change from a five -tier to a four -tier
system. ID at 15. Finally, t he administrative judge found that the appellant did
not prove her claims of a denial of due process, reprisal for EEO activity,
disability discrimination, and reprisal for whistleblowing. ID at 10-11, 16-36.
¶6 The agency has petition ed for review of the initial decision, the appellant
has respon ded to the petition, and the agen cy has repl ied to the appellant’s
response. Petition for Review (PFR) File, Tabs 1, 11 , 13. The appellant has
cross petition ed for review , to which the agency respon ded.2 PFR File , Tabs 11,
17.
ANALYSIS
¶7 In a performance -based action taken under 5 U.S.C. chapter 43, the agency
bears the burden o f prov ing the following by substantial evidence :3 (1) OPM
2 The appellant’s cross petition for review , which we have denied, primarily addresses
issues relating to her affirmative defenses. PFR File, Tab 11 at 22-48. As set forth
below, because we vacate the initial decision, including the administrative judge’s
findings on the appellant’s affirmative defenses, the administrative judge may consid er
the appellant’s arguments in this regard , as well as the agency’s contentions in its
response to the cross petition for review, on remand.
The appellant also has filed a motion for leave to file a written transcript of the hearing
in this case prepare d by a private, independent, professional court reporter. PFR File,
Tab 9. The audio recording of the hearing is the official hearing record. 5 C.F.R.
§ 1201.53 (a). Under the circumst ances of this case, we deny the appellant’s motion.
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 conclusion,
even though other reasonable perso ns might disagree.” 5 C.F.R. § 1201.4 (p).
5
approved its performance appraisal system and any significant changes thereto;
(2) the agency communicated to the appellant the performance standards and
critical elements of her position; (3) her performance standards are valid; (4) the
agency informed her of the inadequacies of her performance and gave her a
reasonable opportunity to demonstrate acceptable perfo rmance; and (5) her
performance on one or more of the critical elements of her position remained
unacceptable at the end of the improvement period. Lee v. Environmental
Protection Agency , 115 M.S.P.R. 533 , ¶ 5 (2010).
¶8 Congress provided for agency performance appraisal systems and their
approval by OPM in the Civil Service Reform Act of 1978, Pub. L. No. 95 -454,
92 Stat. 1111. Adamsen v. D epartment of Agriculture , 563 F.3d 1326 , 1330 (Fed.
Cir.), modified on other grounds on rehearing , 571 F.3d 1363 (Fed. Cir. 2009).
Federal agen cies are required to develop performance appraisal systems that
provide for periodic appraisals of job performance of employees and permit
removing employees who continue to have unacceptable performance , but only
after an opportunity to demonstrate accept able performance. Id. OPM “shall
review each performance appraisal system developed by an agency . . . and
determine whether the performance appraisal system meets the requirements of
this subchapter.” 5 U.S.C. § 4304 (b)(1). If OPM “determines that a system does
not meet the requirements of this subchapter . . . [ it] shall direct the agency to
implement an appropriate system or to correct operatio ns under the system, and
any such agency shall take any action so required.” 5 U.S.C. § 4304 (b)(3).
¶9 OPM’s implementing regulations provide further guidance regarding agency
performance appraisal systems. An agency appraisal system shall establish
agencywide policies and parameters for the application and operation of
performance appraisal s within the agency for employees covered by the system.
5 C.F.R. § 430.204 (b). At a minimum, an agency system shall, among other
things, “[s]pecify the flexibilities an agency program established under the system
has for setting . . . [t]he number(s) of performance levels at which critical and
6
non-critical elements may be appraised ,” and “[t]he pattern of summary levels
that may be assigned in a rating of record.” 5 C.F.R. § 430.204 (b)(3)(iii) -(iv).
Agency performance apprai sal systems may include between two and five
summary rating levels. Jackson -Francis v. Office of Government Ethics ,
103 M.S.P.R. 183, ¶ 6 (2006); 5 C.F.R. § 430.208 (d). Agencies shall submit to
OPM for its approval a description of its appraisal system, 5 C.F.R. § 430.209 (a),
which OPM shall review and approve, 5 C.F.R. § 430.210 (a).
¶10 An agency must implement performance appraisal plans that conform to
requirements set forth in OPM’s approval of its performance appraisal system .
See Salmon v. Social Security Administration, 663 F.3d 1378 , 138 4-85 (Fed. Cir.
2011) ( finding that the employee’s performance plan was consistent with the
framework approved by OPM) ; 5 C.F.R. § 430.205 (a) (requiring each agency to
establish at least one appraisal program “of specific procedures and requirements
to be implemented in accordance with the applicable agency appraisal system ”).
¶11 An agency policy statement , like the agency’s completed OPM Form 1631
here, that is neither published in the Federal Register nor binding on the public,
only binds the agency if it so intended. Farrell v. Department of the Interior ,
314 F.3d 584 , 590 (Fed. Cir. 2002). The primary consideration in determining
the agency’s intent is whether the text of the statement indicates that it was
designed to be binding on the agency. Id. at 591. We find that the provisions set
forth in the OPM Form 1631 , which do not relate to members of the public, are
binding on the agency because the agency so intended and the form directly
implement s and interpret s statutory and regulatory provis ions, nam ely, certain
provisions relating to 5 U.S.C. § 4304 (b)(1) and 5 C.F.R. part 430, subpart B .
¶12 Further , because the form is “an agency statement of general or particular
applicability and future effect designed to implement, interpret, or prescribe law
or policy or describing the . . . procedure . . . or prac tice requirements of an
agency,” we treat the form as a “rule,” and apply the standards for in terpreting
such rules developed under the Board’s case law. 5 U.S.C. § 551(4) ( defining the
7
term “rule” under the Administrative Procedures Act (APA) as set forth here ); see
Leiser v. Department of Justice , 64 M.S.P.R. 543 , 547-48 (1994) (treating a
provisi on of the U.S. Attorneys’ Manual as an interpretive rule because it
comported with and interpreted statutory authority given to the Attorney
General) , aff’d , 64 F.3d 678 (Fed. Cir. 1995) (Table), and overruled on other
grounds by Hamlett v. Department of Just ice, 90 M.S.P.R. 674 , ¶ 14 (2002);
Brooks v. Office of Personnel Management , 59 M.S.P.R. 207, 210 n.4 ( 1993 )
(treating as rules certain F ederal Personnel Manual provisions relating to military
service that is creditable towards civilian service ), superseded by statute on other
grounds as recognized in Johnson v. Office of Personnel Management ,
93 M.S.P.R. 265, ¶ 5 n.5 (2003).4 Agencies must comply with the proce dures
they set forth in their own rules or regulations. Ulep v. Department of the Army ,
120 M.S.P.R. 579 , ¶ 4 (2014).
¶13 The appellant asserted below that the agency presented no evidence from
anyone at OPM establishing what OPM understood the agency’s performance
appraisal system to be when OPM approved it. PFR File, Tab 65 at 4 -5. She also
asserted that the long -standing rule of contracts is that ambiguities are construed
against the drafter, and that here, the agency drafted the OPM Form 1631; thus,
the appellant claimed that an y ambiguity regarding the minimum number of
performance levels should be construed against the agency. Id. at 5-6.
¶14 These arguments by the appellant presume that the OPM Form 1631 is a
contract. See, e.g. , Harris v. Department of Veterans Affairs , 142 F.3d 1463 ,
4 In Hamlet v. United States , 63 F.3d 1097 , 1105 (Fed. Cir. 199 5), the court held that a
statement in a Federal personnel manual or handbook, regardless of whether it was
published under the standards set out in the APA, is a regulation entitled to the force
and effect of law if the following requirements are met: (1) the promulgating agency
was vested with the authority to create such a regulation; (2) the promulgating agency
conformed to all procedural requirements, if any, in promulgating the regulation; (3) the
promulgating agency intended the provision to establis h a binding rule; and (4) the
provision does not contravene a statute. To the extent that the court may require these
more extensive elements , we find that they are met in this case.
8
1467 (Fed. Cir. 1998) (examining the parties’ understanding in interpreting the
words of a settlement agreement) ; Weber v. Department of Agriculture ,
86 M.S.P.R. 25, ¶ 12 (2000) ( considering the respective meanings given to the
words by the parties in interpreting a settlement agreement ). Although
representatives from the agency and OPM signed the form, their signatures do not
reflect the making of a contract. To have an enforceable contract, there must be
consideration, i.e., a performance or a return promise that must be bargained for
and does not involve the performance of a preexisting duty. Black v . Department
of Transportation , 116 M.S.P.R. 87 , ¶ 17 (2011); see Beasley v. Office of
Personnel Management , 45 M.S.P.R. 333 , 335 -36 (1990) (holding that the
formation of a binding contract requires a bargain in which there is a
manifestation of mutual assent to an exc hange and a consideration). Here, the
appellant has identified no such consideration, nor is there a manifestation of
mutual assent to an ex change between the agency and OPM. Instead, the
agency’s submission of the form to OPM and OPM’s approval of the f orm merely
carry out the requirements of the applicable statutes and regulations for the
establishment of an agency performance appraisal system. Here, t he agency head
or designee “certif[ied]” with a signature that the appraisal system set forth in the
form, all its related appraisal programs, and the use of the appraisal results
conformed or would conform to applicable law and regulation and represented a
“request” that OPM approve the appraisal system. IAF, Tab 57 at 6. The
signature of OPM’s “[a]ppro ving [o]fficial” merely reflects that “[t]his
performance appraisal system has been reviewed in accordance with 5 U.S.C.
§ 4304 (b)(1) and conforms to the requirements specified in 5 CFR part 430,
subpart B.” Id. Thus, we do not apply contract principles in ascertaining the
meaning of the form in question.
¶15 Having found that the OPM Form 1631 functions as a “rule” for purposes of
this appeal, we note that the rules of statutory construction apply wh en the Board
interprets an agency rule or regulation. Foret v. Department of the Army ,
9
105 M.S.P.R. 437 , ¶¶ 3, 7, 9 (2007) (applying the rules of statutory construction
to an agency’s drug testing procedures); Wilburn v. Office of Personnel
Management , 60 M.S.P.R. 19 , 23 (1993) (applying a rule of statutory construction
in interpreting OPM’s guidance in the Federal Personnel Manual) ; see Roberto v.
Department of the Navy , 440 F.3d 1341 , 1350 (Fed. Cir. 2006); Spigner v.
Department of the Air Force , 96 M.S.P.R. 275, ¶ 14 (2004), aff’d , 143 F. App’x
336 (Fed. Cir. 2005) ; cf. Special Counsel v. Campbell , 58 M.S.P.R . 170 , 180
(1993) (using the rules of statutory construction to interpret the meaning of
regulations) , aff’d , 27 F.3d 1560 (Fed. Cir. 1994 ); Harris v. Department of State ,
24 M.S.P.R. 514 , 517 (1984) (finding that general rules of statutory interpretation
may be used in determining the meaning of regulations) , aff’d , 785 F.2d 320 (Fed.
Cir. 1985) (Table) .
¶16 The starting p oint for interpreting the OPM Form 1631 , therefore, is the
language of the document itself to determine its plain meaning. Roberto ,
440 F.3d at 1350. If the language is clear and unambiguous, the inquiry ends
with the plain meaning. Id. A statute, rule, or regulation should be construed to
give effect to every provision and must be construed in harmony , if possible.
Ochoa v. Department of the Navy , 65 M.S.P.R. 39 , 44 (1994). A section of a
statute should not be read in isolation from the context of the whole act, and a
court, in interpreting legislation, must not be guided by a single sentence or part
of a sentence, but should look to the provisions of the whole law, and to it s object
and policy. Joyce v. Department of the Air Force , 83 M.S.P.R. 666, ¶ 14 (1999) ,
abrogated on other grounds by Cole v. Depart ment of Justice , 90 M.S.P.R. 627
(2001) . If, however, the rule is silent or ambiguous, deference is given to the
agency’s own interpretation , particularly when it is reasonable and does not
conflict with the governing statute, even if other interpretation s are possible .
Roberto , 440 F.3d at 1350 ; see Winns v. U.S. Postal Service , 124 M.S.P.R. 113 ,
¶ 13 (2017) , aff’d sub nom. Williams v. Merit Systems Protection Board , 892 F.3d
1156 (Fed. Cir. 2018 ); Sturdy v. Department of the Army , 88 M.S.P.R. 502,
10
¶¶ 18-19 (2001) ( giving deference to OPM’s statement in an advisory opinion
when the governing statute was silent and the implementing regulations were
ambiguous on the issue to be resolved ); Phillips v Department of the Interior ,
95 M.S.P.R. 21, ¶ 9 (2003), aff’d , 131 F. App’x 709 (Fed. Cir. 2005). A
regulation is ambiguous when it is susceptible to more than one plausible reading.
American Airlines, Inc. v. United States , 551 F.3d 1294 , 1300 (Fed. Cir. 2008) ;
see Pastor v. Department of Veterans Af fairs , 87 M.S.P.R. 609, ¶ 18 (2001) (A
statute is ambiguous if it is susce ptible of differing, reasonable interpretations .).
¶17 Here, section 3 of the OPM Form 1631, Summary Levels, provides that
“[e]ach appraisal program under this system will use one, but only one, of the
following patterns for assigning summary level s (mark all that apply).” IAF,
Tab 57 at 5. The agency checked all of the patterns, including Pattern E, which
corresponds to the four summary levels used by the agency in this case. Id. In
response to the section 3 prompt, “[o]ther restrictions or requirements for using
patterns or deri ving summary levels,” the agency marked “ none. ” Id. Section 4
of the form, Element Appraisal, provides as follows: “[w]ithin the following
parameters, each appraisal program will provide for establishing employee
performance plans that include at least one critical element and, where applicable,
non-critical element(s).” Id. It, too, indicates that there are no “[r]estrictions or
requirements,” yet it indicates that the minimum number of appraisal levels will
be “5,” while the maximum number of apprais al levels is “5.” Id. We find tha t
the OPM Form 1631 is internally inconsistent and ambiguous , as it appears in one
section that OPM approved the agency to use all of the available patterns,
including Pattern E, while another section seem s to indicate ap proval of only
Pattern H, which is the sole pattern that includes five summary levels. It is
therefore susceptible of differing, reasonable interpretations.
¶18 When aid to the construction of the meaning of statutory words is available,
there is no law that forbids its use. Special Counsel v. Campbell , 58 M.S.P.R.
at 180. When the language of a statute is ambiguous, for example, it is
11
appropriate to consult the legislative history to determine Congressional intent.
Williams v. Department of the Army , 83 M.S.P.R. 109 , ¶ 11 (1999). Similarly, the
Board may rely on the history of a regulation as an aid to its interpretation.
Klamm v. Department of Defense , 97 M.S.P.R. 276 , ¶ 8 (2004). In addition to the
language of a statute, the Board may examine the s tatements of members of
Congress interpreting the statute, and it is the Board’s task to interpret the words
of a statute in light of the purpose Congress sought to serve. Swentek v. Office of
Personnel Management , 76 M.S.P.R. 605 , 611 (1997) ; Senior Executives
Association v. Office of Personnel Management , 67 M.S.P.R. 643 , 651 (1995) .
¶19 Here, the history of the approval process for the OPM Form 1631 , as well as
the statements of those involved in seeking such approval , provide a useful aid to
our interpretation of this ambiguous document. In this regard, we recognize that
the Board has suggested that a “lack of clarity” regarding OPM’s approval of an
agency’s a ppraisal system may be resolved by “examination of the OPM
Form 1631 ,” along with an affidavit or declaration from a credible witness with
actual knowledge of the approval. Adamsen v. Department of Agriculture ,
116 M.S.P.R. 331 , ¶¶ 13-14 (2011). Indeed, probative hearsay evidence in this
regard may meet the substantial evidence standard. Id., ¶ 14. Under appropriate
circumstances, an unrebutted declaration under penalty of perjury may prove the
facts it asserts. Id., ¶ 15.
¶20 The record reflects that on June 29, 2018, the same date on which the
agency head or designee signed the OPM Form 1631, the agency’s Acting Deputy
Assistant Sec retary for Human Capital and Diversity wrote a letter to the Director
of OPM requesting approval of the agency’s “new performance appraisal system,”
which was reflected in the “enclosed OPM Form 1631.” IAF, Tab 64 at 9. The
letter indicates that the form “amends [the agency’s] current appraisal system,”
which had previously been approved by OPM in 2005, and “affords [the agency]
the greatest flexibility for designing an effective performance management
program.” Id. The letter fur ther states that the agency sought only two changes,
12
one of which was to “the rating patterns (selecting all patterns for maximum
flexibility ).”5 Id. It emphasizes that “the change in rating pattern is the
motivating factor behind our seeking approval fo r a new system, as the prior
approval was for a Pattern H system only and the agency is intending to move to
Pattern E.” Id. Pattern H has five performance levels, while P attern E has four .
Id. at 10. The letter concludes by informing OPM that the agen cy intends to
implement the new system and program at the start of the next performance year
in October 2018, pending approval. Id. at 9.
¶21 OPM approved the performance appraisal system by signature on the OPM
Form 1631 on August 14, 2018, and submitted a l etter on the same day to the
agency indicating that it was granting the agency’s request “by letter dated
June 29, 2018” for approval of its performance appraisal system . IAF, Tab 57
at 4. We find that this reference to the agency’s June 29, 2018 cover l etter
indicates that OPM was aware that the agency’s request was intended to move
from Pattern H to Pattern E. The record also includes a n unrebutted declaration
from the Director of the agency’s Division of Workforce Relations within the
Office of Human Capital . IAF, Tab 64 at 13 -14. She avers that , in the summer of
2018, she worked with colleagues to develop the new appraisal system and helped
update the OPM Form 1631 for submission and approval by OPM . Id. at 13. The
Director indicated that “[t]he updated OPM form 1631 would depart from the
previously submitted form by expanding the selection of the rating patterns,” and
that the agency “proposed selection of all rating patterns instead of the previous
selection of only rating pattern H.” Id. She further explained that t he reason for
the selection of all rating plans was to allow the agency maximum flexibility for
developing performance plans, with the intention that the agency would apply
only rating Pattern E for fiscal year 2019. Id. Finally, the Director wrote that,
5 The other change the agency sought was to remove references to Board o f Contract
Appeals judges from its system. IAF, Tab 64 at 9. That requested change is not at
issue in the instant appeal ; therefore, we will not discuss it further.
13
when the form was edited by the agency, the only change made , as relevant here,
was the selection of all rating patterns in section 3. Id. at 14. “No other changes
were made to the document as our primary intention was to address the rating
pattern at that time.” Id.
¶22 Based upon our revie w of the above evidence and the circumstances behind
the approval process for the agency’s performance appraisal system , we interpret
the OPM Form 1631 as approving the agency’s use of Patt ern E , which was the
pattern used in this case . We therefore find that the agency has proven by
substantial evidence that OPM approved the performance appraisal system under
which the agency took the performance -based action in this case .6 In any event,
courts may permit the substitution of one word for another when, among other
things, a word is the obvious result of a clerical error. 2A Shambie Singer &
Norman Singer, Sutherland Statutory Construction § 47:36 (7th ed. 2021). Here,
it is clear that the number “5” in section 4 of the OPM Form 1631, in the space
for the minimum number of appraisal levels, is a clerical error that should have
been a number “2” to provide maximum flexibility.
¶23 Having found that OPM approved the agency’s appraisal system, we remand
this appeal for consideration by the administrative judge of whether the agency
met its burden on the other elements required to prove its case.
Remand is also necessary to afford the parties an opportunity to submit evidence
and argument regarding whether the appellant’s placement on a Performance
Improvement Plan (PIP) was proper.
¶24 During the pendency of the petition for review in this case, the U.S. Court
of Appeals for the Federal Circuit held in Santos , 990 F.3d at 1360 -61, that in
addition to th e 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
6 Put another way, t here would therefore be no basis for finding on remand that the
appel lant’s performance standards were invalid under the third element of the Lee test
set forth above on the ground that they did not comply with the performance appraisal
system approved by OPM.
14
evidence that the employee’s performance was unacceptable prior to the PIP. The
Federal Circuit’s decis ion in Santos applies to all pending cases, including this
one, regardless of when the events took place. Lee v. Department of Veterans
Affairs , 2022 MSPB 11, ¶ 16. Although the record in this appeal may already
contain evidence concerning the appellant’s performance leading up to the PIP,
we remand the appeal to give the parties the opportunity to present argument and
additional evidence on whether the appellant’s performance during the period
leading up to the PIP was unacceptable in one or more critical elements. See id. ,
¶¶ 15-17. On remand, the administrative judge shall accept argument and
evidence on this issue and hold a supplemen tal hearing if appropriate. Id., ¶ 17.
¶25 The administrative judge shall then issue a new initial decision consistent
with this Remand Order and 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 shall make additional findings on the remaining
elements of the agency’s case, and may incorporate her prior findings on the
appellant’s affirmative defenses in the remand initial decision , as supplemented to
address any new arguments raised by the appellant on review . See id . Regardless
of whether the agency meets its burden, if the argument or evidence on remand
regardin g the appellant’s pre -PIP performance affects the administrative judge’s
analysis of the appellant’s affirmative defenses, she 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, re solve 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).
15
ORDER
¶26 For the reasons discussed above, we remand this case to the Dallas 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 | LAMINACK_DANNA_DA_0432_20_0177_I_1_REMAND_ORDER_1939576.pdf | 2022-07-06 | null | DA-0432-20-0177-I-1 | NP |
4,307 | https://www.mspb.gov/decisions/nonprecedential/SMITH_DUWANE_SF_315H_16_0544_I_1_FINAL_ORDER_1939586.pdf | UNITED STATES OF AME RICA
MERIT SYSTEMS PROTEC TION BOARD
DUWANE SMITH,
Appellant,
v.
SOCIAL SECURITY
ADMINISTRATION,
Agency.
DOCKET NUMBER
SF-315H -16-0544 -I-1
DATE: July 6, 2022
THIS FINAL ORDER IS NONPRECEDENTIAL1
Duwane Smith , Pacific, Washington, pro se.
Martha A. Boden , Esquire , Seattle, Washington, 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 hi s Board appeal of his probationary termination f or 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 appe al 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 esta blished any basis under
section 1201.115 for granting the petition for review. The refore, we DENY the
petition for review and AFFIRM the initial decision, which is now the Board’s
final decision. 5 C.F.R. § 1201.113 (b).
BACKGROUND
¶2 On July 26, 2015, the Social Securi ty Administration ( the agency )
appointed the appellant to the competitive -service Legal Assistant position .
Initial Appeal File (IAF) , Tab 6 at 29. The appellant’s prior Federal service
included a 4-year, competitive -service appointment to the Medical Support
Assistant (MSA) position with the Department of the Army . IAF, Tab 4 at 16;
Petition for Review (PFR) File, Tab 1 at 20, 23. That appointment was followed ,
without a break in service , by an excepted -service tempora ry appointment, n ot to
exceed 1 -year, as a Student Trainee with the Department of Homeland Security,
Immigrati on and Customs Enforcement (ICE) . IAF, Tab 4 at 16; PFR File , Tab 1
at 24. Pursuant to a settlement agreement , the appellant voluntarily resigned from
the Student Trainee appointment in lieu of termination, effective July 13, 2015 ,
and ICE purged his personnel file of the termination record . PFR File, Tab 1
at 25, 30 .
¶3 Unaware of the circumstances of the appellant’s resignation, t he agency
appointed him to the Legal Assistant position , subject to a 1-year probation ary
3
period , 13 days after his separation from ICE . PFR File, Tab 1 at 25-26, Tab 3
at 20; IAF, Tab 6 at 29. Ten months into the appellant’s probationary period , the
agency separated him upon determi ning that he fraudulent ly recei ved
unemployment benefits after becoming employed by the agency . IAF, Tab 1 at 7 ,
Tab 4 at 22 . The appellant filed a timely Board appeal , challenging his
termination on the merits and procedural grounds . IAF, Tab 1 at 2.
¶4 The administrative judge informed the appellant of his jurisdictional
burden . IAF, Tab 2 at 2-5. In response, the appellant argued that , because he had
already served a probationary period during his MSA appointment, the Board had
jurisdiction o ver his appeal . IAF, Tab 4 at 7. In the alternative, the appellant
alleged that the Board had jurisdiction over his appeal because his Legal
Assistant and Student Trainee appointment s jointly yielded 1 year of “current
continuous service ” under 5 U.S.C. § 7511 (a)(1)(A)(ii) , or because he performed
the same duties at ICE and the agency , his service as a Student Trainee could be
tacked onto his service as a Legal Assistant under 5 C.F.R. § 315.802 (b). IAF,
Tab 4 at 5, Tab 8 at 9 . As alternative bases for Board jurisdiction , the appellant
allege d that he was a preference eligib le who met the definition of “employee ”
under 5 U.S.C. § 7511 (a)(1)(C)2 and that his termination was based on marital
status or preappointment reason s. IAF, Tab 4 at 5-11, Tab 8 at 5, 12 .
¶5 In an initial decision, t he administrative judge found that the appellant was
not an “employee” with chapter 75 appeal rights. IAF, Tab 10, Initial Decision
(ID) at 4 -7. She then found that he was a probationer who failed to make a
nonfrivolous allegation that his termination wa s based on marital status or
preappointment reason s and dismissed his appeal for lack of jurisdiction without
holding his requested hearing. ID at 1, 8-9; IAF, Tab 1 at 1.
2 This section applies to “an individual in the excepted service (other than a preference
eligible).” 5 U.S.C. § 7511 (a)(1)(C).
4
¶6 The appellant petitioned f or review , rearguing the merits of his claim and
offeri ng additional evidence and arguments . PFR File, Tab 1 at 5-16, 20-22, 24,
29-34. The agency responded by disputing the appellant’s claims and arguing
that his additional evidence and arguments are not new under 5 C.F.R.
§ 1201.115 (d) because the information was available to him before the
issuance of the initial decision and could have been raised with the
administrative judge below . PFR File, Tab 3 at 8 -16.
DISCUSSION OF ARGUME NTS ON REVIEW
¶7 The agency is correct that the Board generally will not consider an
argument raised for the first time in a petition for review absent a showing that
it is based on new and material evidence not previousl y available despite the
party’s due diligence. Banks v. Department of the Air Force , 4 M.S.P.R. 268 ,
271 (1980). However, we have considered the new evidence and arguments to
the extent that they are relevant to the issue of Board jurisdiction , a matter that
can be raised at any tim e during the Board ’s proceeding s. Pirkkala v.
Department of Justice , 123 M.S.P.R. 288 , ¶ 5 (2016).
¶8 An “employee ,” as defined under 5 U.S.C. § 7511 (a), may appeal his
removal from employment to the Board under 5 U.S.C. chapter 75 . 5 U.S.C.
§§ 7701 (a), 7512(1) , 7513(d) ; McCormick v. Department of the Air Force ,
307 F.3d 1339 , 13 40-41 (Fed. Cir. 2002 ). For purposes of the competitive
service , an “employee” i ncludes an individual “who has completed 1 year of
current continuous service under other than a temporary appointment limited to
1 year or less .” 5 U.S.C. § 7511 (a)(1)(A)(ii) . “Current continuous service”
means a period of Federal civilian employment , either in the competitive or
excepted service, which immediately preced es the adverse action at issue without
a break in service of a workday . Maibaum v. Department of Veterans Affairs ,
116 M.S.P.R. 234 , ¶ 14 (2011); see Williams v. Merit Systems Protection Board ,
892 F.3d 1156 , 1160 n.1 (Fed. Cir. 2018) (holding that the Office of Personnel
5
Management’s regulation defining current continuous employment at 5 C.F.R.
§ 752.402 is entitled to Chevron deference , along with recognizing that while the
statute uses the term “service” and the regulation uses the term “employment,”
the court has tre ated the regulation as interpreting “current continuous service” );
5 C.F.R. § 752.402 . While “current continuous service ” need not be in the same
or similar position for an individual in the competitive service to qualify as an
employee under 5 U.S.C. § 7511 (a)(1)(A)(ii) , a period of employment that
contains an inter vening temporary appointment cannot qualify as “continuous
service ” under the statute. Ellefson v. Department of the Army , 98 M.S.P.R. 191 ,
¶¶ 10, 14 (2005) ; Williams v. Department of Defe nse, 96 M.S.P.R. 335 , ¶¶ 12-13
(2004) .
¶9 In contrast, f or purposes of regulatory tacking on to prior service to
complete a probationary period, a prior temporary appointment and a sing le break
in service that does not exceed 30 calendar days are permissible , provided that the
prior service was with the same agency and in the same line of work . Sosa v.
Department of Defense , 102 M.S.P.R. 252 , ¶ 9 (2006) ; 5 C.F.R . § 315.802 (b); see
McCrary v. Department of the Army , 103 M.S.P.R. 266 , ¶¶ 10-12 (2006) (finding
that competitive -service tacking rules apply to excepted -service appointments) ,
called into question on other grounds by Francis v. Department of the Air Force ,
120 M.S.P.R. 138 , ¶¶ 17-18 (2013) .
¶10 Here, t he appellant’s 1-year period immediately preceding his termination
contain ed: (1) the last 2 months of his 4-month tempora ry appointment to the
Student Trainee position, which qualified as a break in service for purposes of the
“current continuous service” analysis ; and (2) an actual 13-day break in service
between the Student Trainee and Legal Assistant appointments .3 Williams ,
3 The appe llant’s reliance on the agency’s confusion about the circumstances of his
resignation from ICE is misplaced. PFR File, Tab 1 at 11 -12, 26, Tab 3 at 20; see
Winns v. U.S. Postal Service , 124 M.S.P.R. 113 , ¶ 17 (2017) (observing that the parties
cannot confer jurisdiction on the Board if none otherwise exists), aff’d sub nom .
Williams v. Merit Systems Protection Board , 892 F.3d 1156 (Fed. Cir. 2018).
6
96 M.S.P.R. 335 , ¶¶ 12-13; IAF, Tab 4 at 16, Tab 6 at 18, 29; PFR File, Tab 1
at 24-25, 28. Therefore, we agree with the administrative judge that the appellant
did not have 1 year of current , continuous service and was not an “employee”
under section 7511(a)(1)(A)(ii).4 ID at 6-7; see Maibaum , 116 M.S.P.R. 234 ,
¶ 14; Williams , 96 M.S.P.R. 335 , ¶¶ 12-13.
¶11 Analogously, the appellant cannot rely on 5 C.F.R. § 315.802 (b) to tack his
Student Trainee appointment onto his Legal Assistant appointment . Regardless of
the appellant ’s claim that he performed the same duties at ICE and at the agency ,
IAF, Tab 6 at 29 ; PFR File, Tab 1 at 11, 24, he cannot meet the regulatory
requirement because these two appointments were with different agencies .
Ellefson , 98 M.S.P.R. 191 , ¶ 16 . Therefore , we agree with the administrative
judge that the Board lacks chapter 75 jurisdiction over the appellant’s removal .
ID at 5.
¶12 An individual terminated during a probationary period has the right to
appeal to the Board if the termination was taken for a pre appointment reason or
was based on marital status or partisan political reasons . 5 C.F.R. §§ 315.805 ,
315.806( a)-(c). For claims asserting termination on the basis of marital status,
the Board has indicated that an appellant must provide supporting facts show ing
that the allegations are not merely pro forma. Clark v. U.S. Postal Service ,
123 M.S.P.R. 466 , ¶ 7 ( 2016 ), aff’d , 679 F. App’x 1006 (Fed. Cir. 2017) . If an
appellant’s claim is limited to conjecture about animus toward him as an
unmarried male , such a claim does not amount to a nonfrivolous allegation of
jurisdiction . Bedynek -Stumm v. Department of Agriculture , 57 M.S.P.R. 176 , 179
4 The appellant’s status as a preference eligible does not alter this analysis. While
subsections 7511(a)(1)(B) and (C), which govern the excepted service, have different
requirements concerning preference eligible and nonpreference eligible appointees,
Martinez v. Department of Homeland Security , 118 M.S.P.R. 154 , ¶ 5 (2012); Maibaum ,
116 M.S.P.R. 234 , ¶ 9 , the provisions governing the competitive service do not
differentiate between appointees on the basis of their preference eligib ility, 5 U.S.C.
§ 7511 (a)(1)(A)(i) -(ii).
7
(1993) . Here, the appellant asserted below that his supervisor “played
favoritism” with a married coworker . IAF, Tab 8 at 12; PFR File, Tab 1 at 15.
Because such a pro forma allegation is insufficient, we agree with the
administrative judge that the appellant failed to nonfrivolous ly alleg e
jurisdiction .5 ID at 9.
¶13 The appellant also argues that h e was terminat ed for a pre appointment
reason because the unemployment benefits he received after becom ing employed
by the agency resulted from an application he filed prior to his agency
appointment . PFR File, Tab 1 at 14-15. We disagree. The agency terminated the
appellant after receiving notice from the Washington State Employment Security
Department (ESD) that appellant failed to report his earnings from the agency to
the ESD and had, after his hire, fraudulently received $2,338.00 in unemployment
benefits. IAF, Tab 1 at 7, Tab 6 at 21 -22. Therefore , we find that the
administrative judge correctly found that the appellant’ s termination was not
based on a preappointment reason . ID at 8.
¶14 Because the appellant has not alleged that his termination was based on
partisan political reasons , and given that his residual c laims of due process
violation , harmful procedural error , and discrimination do not provide an
independent source of Board jurisdiction, we discern no reason to disturb the
initial decision . Penna v. U.S. Postal Service , 118 M.S.P.R. 355 , ¶ 13 (2012)
(finding that, in the absence of 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 as to a due process claim ).
5 The appellant’s allega tion on review that “ the married men on [his supervisor’s] team
left the agency ,” detracts from, rather than supports, his claim that his supervisor
favored married , male employees over single, male employees. PFR File, Tab 1 at 15.
8
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 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 representative receives this decision. If t he action involves a claim of
discrimination 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 requirement of prepayment of fees, costs, or other security. See
42 U.S.C. § 2000e -5(f) and 29 U.S.C. § 794a .
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your disc rimination claims only, excluding
all other issues . 5 U.S.C. § 7702 (b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702 (b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative 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
Washingt on, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302 (b)(8) 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
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.7 The court of appeals must receive your petition for
review within 60 days of the date of issuance of this decision. 5 U.S.C.
§ 7703 (b)(1)(B).
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov . Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U .S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses t he services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
7 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 | SMITH_DUWANE_SF_315H_16_0544_I_1_FINAL_ORDER_1939586.pdf | 2022-07-06 | null | SF-315H-16-0544-I-1 | NP |
4,308 | https://www.mspb.gov/decisions/nonprecedential/AULL_TYRONE_NY_752S_17_0223_I_1_FINAL_ORDER_1939641.pdf | UNITED STATES OF AME RICA
MERIT SYSTEMS PROTEC TION BOARD
TYRONE AULL,
Appellant,
v.
DEPARTMENT OF VETERA NS
AFFAIRS,
Agency.
DOCKET NUMBER
NY-752S -17-0223 -I-1
DATE: July 6, 2022
THIS FINAL ORDER IS NONPRECEDENTIAL1
Tyrone Aull , Queens, New York, pro se.
Timothy M. O’Boyle , Esquire, Hampton , Virginia , for the agency.
BEFORE
Cathy A. Harris , Vice Chairman
Raymond A. Limon , Member
Tristan L. Leavitt , Member
FINAL ORDER
¶1 The appellant has filed a petition for review of the initial decision, which
dismissed his appeal challenging a 3-day suspension and a letter of reprimand for
lack of jurisdiction . Generally, we grant petitions such as this one only in the
following circumstances: the initial decision contains erroneous findings of
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
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
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 Boar d’s final decision. 5 C.F.R. § 1201.113 (b). However, we
FORWARD the appellant ’s Uniformed Services Employment and Reemployment
Rights Act of 1994 (USERRA) (codified as amended at 38 U.S.C. §§ 4301 -4335)
claim to the New York Field O ffice for docketing as a new appeal.
BACKGROUND
¶2 The appellant is employed as a GS -13 Supervisory General Engineer with
the agency . Initial Appeal File (IAF), Tab 4 at 3. He was issued a letter of
reprimand for one charge of failure to properly perform supervisory duties/failure
to follow instructions on March 2, 2016, and a 3-day suspension for disrespectful
conduct towards a supervisor, failure to follow proper leave procedures, and
deliberate refusal to carry out an order on December 14, 2016 . IAF, Tab 1
at 10-14. The appellant subsequently filed the instant appeal challenging both
actions on September 11, 2017. Id. at 3, 5.
¶3 The administrative judge issued a show cause order instructing the appellant
to submit evidence or argument demonstrating that he suffered an appealable
adverse action under 5 U.S.C. § 7512 within 10 days, after which time the record
on the issue of jurisdiction would close . IAF, Ta b 3. In response, the appellant
3
only submitted two copies of a St andard Form 50 documen ting his 3 -day
suspension. IAF, Tab 4. Subsequently, the administrative j udge issued an initial
decision without holding the appellant ’s requested hearing, dismissing the appeal
for l ack of Board jurisdiction . IAF, Tab 6, Initial Decision (ID) at 2.2
¶4 The appellant has filed a petition for review of the initial decision . Peti tion
for Review (PFR) File, Tab 1. The agency has not filed a response.
DISCUSSION OF ARGUME NTS ON REVIEW
The administrative judge correctly found that the Board lacks jurisdict ion over
the appellant ’s challenge to his letter of reprimand and 3-day suspension .
¶5 The Board ’s jurisdiction is limited to those matters over which it has been
given jurisdiction by statute or regulation. Maddox v. Merit Systems Protection
Board , 759 F.2d 9 , 10 (Fed. Cir. 1985); see 5 U.S.C. §§ 7512 -7513; 5 C.F.R.
§ 1201.3 . The appellant bears the burden of proving jurisdiction by preponderant
evidence. 5 C.F.R. § 1201.56 (b)(2)(i )(A). If the appellant m akes a nonfrivolous
allegation that the matter is within the Board ’s jurisdiction, he is entitled to a
hearing at which he must prove jurisdiction. Garcia v. Department of Homeland
Security , 437 F.3d 1322 , 1344 (Fe d. Cir. 2006) . An employee may appeal an
adverse action under 5 U.S.C. § 7512 to the B oard under 5 U.S.C. § 7513 (d).
Section 751 2 defi nes an adverse action as: (1) a removal; (2) a suspension for
more than 14 days; (3) a reduction in grade; (4) a reduction in pay; or (5) a
furlough of 30 days or less.
¶6 On review , the appellant argues that he has been unfairly targeted and
discriminated a gainst by his supervisor but does not otherwise address the
administrative judge ’s determination that he did not allege that he suffered an
appealable adverse action . PFR File, Tab 1 at 12-14. The appellant also submits
2 Because the administrative judge dismissed the appeal for lack of jurisdiction , he did
not make a finding regarding the timeliness of the appeal. ID at 3 n.2. Because we
ultimately agree with the administrative ju dge’s determination , we also make no
findings regarding the timeliness of the appeal.
4
what appears to be a copy of a com plaint he filed with the agency ’s Equal
Employment Opportunity (EEO) office. Id. at 9-11, 15 -217. As the
administrative judge correctly noted, because the appellant had no statutory or
regulatory right to appeal the letter of reprimand or the 3 -day suspension to the
Board, we find that the administrative judge correctly dismissed the appeal for
lack of jurisdiction without addressing the appellant ’s discrimination allegations .3
See 5 U.S.C. § 7512 ; 5 C.F.R. § 1201.3 (a)(1 ).
The appellant ’s USERRA claim is forwarded for docketing as a new appeal.
¶7 In the narrative portion of his petition for review, the appellant claims that
he was harassed and denied military leave. PFR File, Tab 1 at 14. Additionally,
he submit s a document that appears to be his written response to the proposed
3-day suspension at issue in this appeal . Id. at 5-8. In the section of the response
addressing the charge of failure to follow proper leave procedures, the appellant
states his belief that he was singled out for requesting military leave and states
his belief that the denial of his military leave request constituted a violation of
USERRA. Id. at 6.
¶8 An employer is considered to have violated USERRA if a person ’s
“obligation for se rvice in the uniformed services is a motivating factor in t he
employer ’s action, unless the employer can prove that the action would have been
taken in the absence of such membership . . . or obligation for service. ” Johnson
3 Regarding the appellant ’s February 2016 EEO complaint, submitted for the first time
on review, the Board generally will not consider evidence submitted for the first time
on review absent a showing that: (1) the documents and the information contained in
the documents were unavailable before the record closed despite due diligence; and
(2) the evidence is of sufficient weight to warrant an outcome different from that of the
initial decision. Carson v. Department of Energy , 109 M.S.P.R. 213 , ¶ 21 (2008), aff’d,
357 F. App ’x 293 (Fed. Cir. 2009); Avansino v. U.S. Postal Service , 3 M.S.P.R. 211 ,
214 (1980); 5 C.F.R. § 1201.11 5(d); see PFR File, Tab 1 at 9-217. All of the submitted
documents predate the appell ant’s September 11, 2017 appeal and thus are not new.
See Avansino , 3 M.S.P.R. at 214. The appellant also has not explained how the
submitted documents are material. See Russo v. Veterans Administration , 3 M.S.P.R.
345, 349 (1980).
5
v. U.S. Postal Service , 85 M.S.P.R. 1 , ¶ 9 (1999) ; see 38 U.S.C. § 4311 (c)(1) .
Additionally, t he Board has held that USERRA claims are broadly and liberally
construed, are not subject to a statute of limitations, and may be raised in the first
instance in a petition fo r review. See Henson v. U.S. Postal Service ,
110 M.S.P.R. 624 , ¶ 10 n.6 (2009) ; 5 C.F.R. § 1208.12 . Therefore, we find that
the appellant has r aised a cognizable USERRA claim and forward the claim to the
field office for docketing as a new appeal.
NOTICE OF APPEAL RIGHTS4
You may obtain review of this final decision. 5 U.S.C. § 7703 (a)(1). By
statute, the nature of your claims determines the time l imit for seeking such
review and the appropriate forum with which to file. 5 U.S.C. § 7703 (b).
Although we offer the following summary of available appeal rights, the Merit
Systems Protection Board does not provide legal advice on which option is most
appropriate for your situation and the rights described below do not represent a
statement of how courts will rule regarding which cases fall within their
jurisdiction. If you wish to seek review of this final decision, you should
immediately review the law applicable to your claims and carefully follow all
filing time limits and requirements. Failu re to file within the applicable time
limit may result in the dismissal of your case by your chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have que stions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must f ile a petition for review with the U.S.
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
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703 (b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washin gton, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probo no for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
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 -appoi nted lawyer and
to waiver of any requirement of prepayment of fees, costs, or other security. See
42 U.S.C. § 2000e -5(f) and 29 U.S.C. § 794a .
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed thro ugh the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your d iscrimination claims only, excluding
all other issues . 5 U.S.C. § 7702 (b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702 (b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washi ngton, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW 12G
Washington, D.C. 20507
8
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302 (b)(8) or
other protected activities listed in 5 U.S.C. § 2302 (b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no chal lenge to the Board’s
disposition of allegations of a prohibited personnel practice described in section
2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i),
(B), (C), or (D),” then you may file a petition for judicial review e ither with the
U.S. Court of Appeals for the Federal Circuit or any court of appeals of
competent jurisdiction.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 orig inal statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, perman ently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115 -195,
132 Stat. 1510.
9
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “ Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circui t, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor wa rrants 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 | AULL_TYRONE_NY_752S_17_0223_I_1_FINAL_ORDER_1939641.pdf | 2022-07-06 | null | NY-752S-17-0223-I-1 | NP |
4,309 | https://www.mspb.gov/decisions/nonprecedential/GRIGEL_CARL_DE_0351_16_0401_I_1_FINAL_ORDER_1939020.pdf | UNITED STATES OF AME RICA
MERIT SYSTEMS PROTEC TION BOARD
CARL GRIGEL,
Appellant,
v.
UNITED STATES POSTAL SERVICE,
Agency.
DOCKET NUMBER
DE-0351 -16-0401 -I-1
DATE: July 5, 2022
THIS FINAL ORDER IS NONPRECEDENTIAL1
Carl Grigel , Vail, Arizona, pro se.
Michael R. Tita , Esquire, Sandy, Utah, 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 alleged involuntary retirement appeal for lack of jurisdiction .
Generally, we grant petitions such as this one only in the following
circumstances: the initial decision contains erroneous findings of material fact;
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117 (c).
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 invo lved an abuse of discretion,
and the resulting error affected the outcome of the case; or new and material
evidence or legal argument is available that, despite the petitioner’s due
diligence, was not available when the record closed. Title 5 of the Code of
Federal Regulations, section 1201.115 ( 5 C.F.R. § 1201.115 ). After fully
considering the filings in this appeal, we conclude that the petitioner has not
established any basis under s ection 1201.115 for granting the petition for review.
Therefore, we DENY the petition for review and AFFIRM the initial decision,
which is now the Board’s final d ecision. 5 C.F.R. § 1201.113 .
BACKGROUND
¶2 The appellant was an EAS -26 Postmaster with the agency . The agency
issued him an initial notice (General Notice) that it was contemplating a reduction
in force (RIF) in his competitive area, effective October 16, 2015 . Initial App eal
File (IAF), Tab 11 at 5 -6. The agency issued a subsequent notice ( Specific
Notice ) informing the appellant that he would be released from his position,
effective November 14, 2015 . IAF, Tab 14 at 16. The Specific Notice also
offered him an option of demotion to an EAS -21 position in lieu of termination.
Id. Three weeks after receiving the Specific Notice , the appellant applied for
retirement effective December 31, 2015. Id. at 18 -23, 27, 33. Thereafter, he filed
a timely appeal to the Board asser ting that: (1) the agency’s decision to eliminate
his position and demote him was based on his age; (2) the agency misled him by
extending the effective date of the RIF; (3) the proposed RIF demotion caused
him stress, which exacerbated his preexisting me dical condition; and (4) his
worsening health necessitated his retirement, which he characterized as
involuntary. IAF, Tab 1 at 5-6, 8, Tabs 8 -10.
3
¶3 Without holding the requested hearing, t he administrative judge issued an
initial decision dismissing the ap peal for lack of jurisdiction. IAF, Tab 1 at 2,
Tab 18, Initial Decision (ID) at 1. He reasoned that the Board lacked jurisdiction
over RIF appeals filed by nonpreference -eligible U.S. Postal Service employees
like the appellant . ID at 3 -4; IAF, Tab 1 at 1. The administrative judge also
found that the appellant’s decision to retire was voluntary regardless of the
difference between the General and Specific Notices as to the effective date of the
RIF demotion. ID at 4 -6. Finally, the administrative jud ge concluded that the
appellant’s worsening medical condition, even if caused by his stress over the
RIF process or the prospect of demotion, did not render his retirement
involuntary. Id.
¶4 The appellant has timely petition ed for review. Petition for Revi ew (PFR)
File, Tab 1. He argues that the lack of veteran s’ preference should be irrelevant
to the issue of the Board’s jurisdiction if the agency improperly conducts a RIF.
Id. at 3. The appellant also reiterates his position that his retirement should be
deemed involuntary because the stress caused by the RIF process and the prospect
of demotion worsened his preexisting medical condition. Id. In addition, he
asserts that: (1) the agency did not respond to his discovery request; and (2) the
administrative judge erred in construing his age discrimination allegation as a
mere aspect of his RIF challenges rather than as an independent claim. Id. at 3-4.
The agency has responde d to the petition, and the appellant has replied. PFR
File, Tabs 3 -4.
DISCUSSION OF ARGUME NTS ON REVIEW
¶5 The Board lacks jurisdiction over RIF appeals of nonpreference -eligible
employees in the U.S. Postal Service . Raymond v. U.S. Postal Service ,
45 M.S.P.R. 16 , 18 -19 (1990) . Therefore, t he administrative judge correctly
found that the Board lacks jurisdi ction to consider any of the appe llant’ s RIF
challenges .
4
¶6 The administrative judge also was correct in finding that the appellant
failed to nonfrivolously allege Board jurisdiction over his alleged involuntary
retirement claim. An employee -initiated action, such as a retirement, is presum ed
to be voluntary and, thus, outside the Board’s jurisdiction. Vitale v. Department
of Veterans Affairs , 107 M.S.P.R. 501 , ¶ 17 (2 007). However, an involuntary
retirement is tantamount to a removal and is, therefore, subject to the Board’s
jurisdiction. Id. To overcome the presumption that a retirement is voluntary, an
employee must show that the retirement resulted from the agenc y’s
misinformation, deception, or coercion. Id., ¶ 19. The touchstone of the
voluntariness analysis is whether, under the totality of the circumstances, a
reasonable person in the employee’s position would have felt deprived of freedom
of choice in his d ecision -making process. Id., ¶¶ 19 -20.
¶7 To establish involuntariness on the basis of a misrepresentation, an
employee must show that the agency made misleading statements, and he relied
on the misinformation to his detriment. Salazar v. Department of the Army ,
115 M.S.P.R. 296 , ¶¶ 9-12 (2010) . To establish involuntariness on the basis of
coercion, the employee must show that the retirement was a result of improper
acts by the agency, the agency effectively imposed the terms of the retirement,
and he had no realistic alternative but to retire. See Vitale , 107 M.S.P.R. 501 ,
¶ 19. For instance, a retirement may be viewed as coerced if the agency demand s
a decision on the s pot from the employee about whether he will or will not retire .
Compare Glenn v. U.S. Soldier’s and Airmen’ s Home , 76 M.S.P.R. 572 , 578-79
(1997) (finding that the appellant who was faced with the choice of retirement or
immediate resignation , raised a nonfrivolous allegation of coercion) , with S taats
v. U.S. Postal Service , 99 F.3d 1120 , 1126 (Fed. Cir. 1996) (determining that
2 weeks or longer to decide whether to re tire is sufficiently long to render the
choice voluntary ). The Board considers allegations of discrimination and reprisal
in connection with an alleged involuntary retirement only insofar as those
allegations relate to the issue of voluntariness. Vitale , 107 M.S.P.R. 501 , ¶ 20.
5
¶8 On review, the appellant does not dispute the administrative judge’s finding
that he had an ample period of 3 weeks to consider his options prior to making his
decis ion to retire, and we discern no basis to disturb that finding. ID at 2. Nor
does the appellant explain how the administrative judge erred in concluding that
the 1 -month extension in the effective date of the RIF demotion favored the
appellant , given tha t he was provided with more , not less, time to weigh his
options. ID at 5. Moreover, nothing in the appellant’s petition for review
indicates that the agency misled him about his rights, or that he relied on any
agency statement to his detriment.
¶9 The ap pellant maintains that he was displeased with the prospect of a
demotion and elected to retire because the stress he was experiencing exacerbat ed
his preexisting medical condition. PFR File, Tab 1 at 3. Such allegations,
however, are insufficient to rend er his decision to retire involuntary. See Vitale ,
107 M.S.P.R. 501 , ¶¶ 23, 26 (observing that the alleged worsening of the
appella nt’s medical condition by the apprehension caused by the agency’s actions
was insufficient to render his decision to retire involuntary). Thus, we find that
the administrative judge correctly found that the Board lacked jurisdiction over
the appellant’s r etirement claim.
¶10 Finally, the appellant alleges that his selection for a RIF demotion was
based on his age. PFR File, Tab 1; IAF, Tab 10 at 3. He does not explain,
however, how this alleged discrimination rendered his working conditions so
deficient or u npleasant that he was compelled to retire. See Vitale , 107 M.S.P.R.
501, ¶ 20. Because we lack jurisdiction over the appellant’s R IF demotion and
alleged involuntary retirement claims, we cannot adjudicate his age
discrimination claim. See McDonald v. Department of Veterans Affairs ,
86 M.S.P.R. 539 , ¶ 15 (2000) (finding that the Board could not hear a
discrimination claim because it lacked jurisdiction over the appellant’s RIF
appeal); Wren v. Department of the Army , 2 M.S.P.R. 1 , 2 (1980) (pointing out
6
that prohibited personnel practices under 5 U.S.C. § 2302(b) are not an
independent source of Board jurisdiction) ,2 aff’d , 681 F.2d 867 (D.C. Cir. 1982).
¶11 Accordingly, we discern no basis to disturb the initial decision.
NOTICE OF APPEAL RIGHTS3
You may obtain review of this final decision. 5 U.S.C. § 7703 (a)(1). By
statute, the nature of your claims determines the time limit for seeking such
review and the appropriate forum with which to file. 5 U.S.C. § 7703 (b).
Although we offer the following summary of available appeal rights, the Merit
Systems Protection Board does not provide legal advice on which option is most
appropriate for your situation and the rights described below do not represe nt a
statement of how courts will rule regarding which cases fall within their
jurisdiction. If you wish to seek review of this final decision, you should
immediately review the law applicable to your claims and carefully follow all
filing time limits and requirements. Failure to file within the applicable time
limit may result in the dismissal of your case by your chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a fin al Board order must file a petition for review with the U.S.
2 To the extent the administrative judge erred in not addressing the appellant’s
discovery request, PFR File, T ab 1 at 4, that oversight was harmless because the Board
lacks jurisdiction ove r the age discrimination allegation at the heart of his discovery
request, cf. Davis v. Department of Defense , 103 M.S.P.R. 516 , ¶ 13 (2006)
(concluding, in pertinent part, that the appellant was not prejudiced by a lack of
discovery because he did not seek information relevant to the dispositive jurisdictional
finding ).
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
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703 (b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Cou rt of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
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
8
representative in this case, and your representative receives this decision before
you do, then you must file with the district court no later than 30 calendar days
after your representative receives this decision. If the action involves a claim of
discrimination based on race, color, religion, sex, national origin, or a disabling
condition, you may be entitled to representation by a court -appointed lawyer and
to waiver of any requirement of prepayme nt of fees, costs, or other security. See
42 U.S.C. § 2000e -5(f) and 29 U.S.C. § 794a .
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702 (b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702 (b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative 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
9
(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 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.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.
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.
4 The original statutory provision that provided for judicial review of ce rtain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 11 5-195,
132 Stat. 1510.
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/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.
Contact information for 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 | GRIGEL_CARL_DE_0351_16_0401_I_1_FINAL_ORDER_1939020.pdf | 2022-07-05 | null | DE-0351-16-0401-I-1 | NP |
4,310 | https://www.mspb.gov/decisions/nonprecedential/DURKEE_STEVEN_C_CH_0841_16_0034_X_1_FINAL_ORDER_1939050.pdf | UNITED STATES OF AME RICA
MERIT SYSTEMS PROTEC TION BOARD
STEVEN C. DURKEE,
Appellant,
v.
OFFICE OF PERSONNEL
MANAGEMENT,
Agency,
and
LISA M. DURKEE (LIND BERG) ,
Intervenor.
DOCKET NUMBER
CH-0841 -16-0034 -X-1
DATE: July 5, 2022
THIS FINAL ORDER IS NONPRECEDENTIAL1
Steven C. Durkee , Litchfield, Minnesota, pro se.
Angerlia D. Johnson and Gwendolyn Johnson , Washington, D.C., for the
agency.
BEFORE
Cathy A. Harris , Vice Chairman
Raymond A. Limon , Member
Tristan L. Leavitt , Member
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been 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 This compliance proceeding was initiated by the appellant’ s May 3, 2016
petition for enforcement of the Board’s February 17, 2016 Order, which reversed
the decision by the Office of Personnel Management (OPM) to reduce the
appellant’s retirement annuity to provide an annuity for his former spouse .
Durkee v. Office of Personnel Management , MSPB Docket No. CH -0841 -16-
0034 -C-1, Compliance File (CF), Tab 1; Durkee v. Office of Personnel
Management , MSPB Docket No. CH -0841 -16-0034 -I-1, Initial Appeal File,
Tab 19, Initial Decision . On June 23, 2016, the administrative judge issued a
compliance initial decision finding OPM not in compliance with the February 17,
2016 Order, and OPM ’s non compliance was referred to the Board for
consideration. CF, Tab 3 , Complian ce Initial Decision (CID) . For the reasons
discussed below, we now find the agency in compliance and DISMISS the
petition for enforcement.
¶2 The administrative judge ’s compliance initial decision found that OPM was
not in compliance because it failed to submit any response to the appellant’s
petition for enforcement . CID at 3. As a result , the administrative judge ordered
OPM to take the following actions : (1) recalculate the appellant’s retirement
annuity in accordance with the Board’s February 17, 2 016 Order; (2) issue a final
decision explaining fully the basis for its calculation of the appellant’s annuity;
(3) advise the appellant of his right to file an appeal with the Board if he
disagreed with that new decision; and (4) tell the appellant prom ptly in writing
when it believed it had fully carried out the Board’s Order and to describe the
actions it took to carry out the Board’s Order. CID at 3-4.
¶3 On July 5, 2016, the appellant submitted a pleading in response to the
compliance initial decision . Durkee v. Office of Personnel Management , MSPB
Docket No. CH-0841 -16-0034 -X-1, Compliance File (CRF), Tab 1. In the
pleading, the appellant stated that he recently had received a “Notice of Annuity
Adjustment” from OPM, which appeared to indicate that OPM finally had
3
recalculated the appellant’s annuity in accordance with the Board’s Order. Id.
at 1-2. However, OPM’s letter did not satisfy its burden to prove compliance
because the letter lacked an explanation as to how OPM recalculated the
appellant’s annuity in accordan ce with the Board’s Final Order; an indication as
to whether the document would serve as OPM’s final decision regarding the
appellant’s annuity; a statement describing the appellant’ s rights to appeal the
decision; and a statement declari ng that OPM had fully carried out the Board’s
Order or describing the actions it took to carry out the Board’s Order. Id. As a
result, on February 24, 2017, the Board ordered OPM to provide this information.
CRF, Tab 4.
¶4 On August 10, 2017, OPM submitted a pleading in response to the Board’s
February 24, 2017 Order. CRF, Tab 5. In its submission, OPM explained its
recalculation of the appellant’s annuity , along with instructions to the appellant
concerning how to request r econsideration of the annuity decision from OPM . Id.
at 4-19. A review o f OPM’s submission does not reveal any error in its
recalculation of the appellant’s annuity. Additionally, on August 15, 2017, the
appellant confirmed to a representative of the Board’s Office of the General
Counsel that he was satisfied with OPM ’s submission and did not intend to file a
response. Therefore, based on OPM ’s submission and the appellant’s stateme nt,
we find that OPM is now in full compliance with the Board’s February 17, 2016
Order.2
¶5 Accordingly, the Board finds that OPM is in compliance and dismisses the
petition for enforcement. This is the final decision of the Merit Systems
Protection Board in this compliance proceeding. Title 5 of the Code of Federal
Regulations, section 1201.183(b) ( 5 C.F.R. § 1201.183 (b)).
2 Although OPM was required to issue a final decision, we find that OPM ’s issuance of
an initial decision with reconsideration rights does not render its effort to reach
compliance deficient because the appellant has indicated his satisfacti on with OPM ’s
submission .
4
NOTICE OF APPEAL RIG HTS3
You may obtain review of this final deci sion. 5 U.S.C. § 7703 (a)(1). By
statute, the nature of your claims determines the time limit for seeking such
review and the appropriate forum with which to file. 5 U.S.C. § 7703 (b).
Although we offer the following summary of available appeal rights, the Merit
Systems Protection Board does not provide legal advice on which option is most
appropriate for your situation and the rights desc ribed below do not represent a
statement of how courts will rule regarding which cases fall within their
jurisdiction. If you wish to seek review of this final decision, you should
immediately review the law applicable to your claims and carefully follow all
filing time limits and requirements. Failure to file within the applicable time
limit may result in the dismissal of your case by your chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one ap plies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seekin g
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703 (b)(1)(A).
If you submit a petition for 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 fi nal 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 t he court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Fe deral Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any att orney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision —including a disposition of you r discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703 (b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. ____ , 137 S. Ct. 1975 (2017). If you have a
representative in this case, and your repres entative receives this decision before
you do, then you must file with the district court no later than 30 calendar days
after your representative receives this decision. If the action involves a claim of
discrimination based on race, color, religion, sex , national origin, or a disabling
condition, you may be entitled to representation by a court -appointed lawyer and
6
to waiver of any requirement of prepayment of fees, costs, or other security. See
42 U.S.C. § 2000e -5(f) and 29 U.S.C. § 794a .
Contact informa tion for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702 (b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702 (b)(1). If you have a representative in th is case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it mu st be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option appli es to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302 (b)(8) or
other protected activities listed in 5 U.S.C. § 2302 (b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
7
disposition of allegations of a prohibited personne l practice described in
section 2302(b) other than practices d escribed in section 2302(b)(8), or
2302(b)(9)(A)(i), (B), (C), or (D),” then you may file a petition for judicial
review either with the U.S. Court of Appeals for the Federal Circuit or any court
of appeals of competent jurisdiction.4 The court of appeals must receive your
petition for review within 60 days of the date of issuance of this decision.
5 U.S.C. § 7703 (b)(1)(B).
If you submit a petition for judicial review to the U.S. Court of Appeal s for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for t he Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protecti on 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 ju risdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U .S. Court of Appeals
for the Federal Circuit or any other circuit court 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 | DURKEE_STEVEN_C_CH_0841_16_0034_X_1_FINAL_ORDER_1939050.pdf | 2022-07-05 | null | CH-0841-16-0034-X-1 | NP |
4,311 | https://www.mspb.gov/decisions/nonprecedential/KUCAN_STEVEN_NY_844E_13_0058_A_1_REMAND_ORDER_1939094.pdf | UNITED STATES OF AME RICA
MERIT SYSTEMS PROTEC TION BOARD
STEVEN KUCAN,
Appellant,
v.
OFFICE OF PERSONNEL
MANAGEMENT,
Agency.
DOCKET NUMBER
NY-844E -13-0058 -A-1
DATE: July 5, 2022
THIS ORDER IS NONPRECEDENTIAL1
Andrew J. Perlmutter , Esquire and Kevin L. Owen , Esquire , Silver Spring,
Maryland , for the appellant.
Edward H. Passman , Esquire , Washington, D.C., for the appellant.
Linnette Scott , 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 addendum initial
decision, which denied his motion for attorney fees in connection with his
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
require d to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117 (c).
2
successful app eal of the Office of Personnel Management (OPM)’s decision
denying his request for disability retirement. For the reasons discussed below, we
GRANT the appellant’s petition for review , REVERSE the addendum initial
decision, and REMAND the case to the New York Field Office for further
adjudication in accordance with this Order.
BACKGROUN D
¶2 A 2010 investigation conducted by the Department of Homeland Security’s
Office of Inspector General and the Immigration and Customs Enforcement’s
Office of Professional Responsibility revealed that the appellant , a Supervisory
Criminal Investigator, had stolen approximately $40,000 worth of Government
property , much of which was found at his home. Initial Appeal File (IAF),
Tab 11C, D at 27 , 37-39. On February 16, 2011, the agency placed the appellant
on administrative leave . A criminal complaint was filed in the U.S. District Court
for the District of New Jersey. Id. at 32 -35. The appellant was arrested on
May 17, 2011 , and agreed, upon conditio n of release , to be examined by a mental
health professional. The agency issued a decision to indef initely suspend the
appellant based on its having reasonable cause to believe that he had commit ted a
crime for wh ich a sentence of imprisonment might be im posed. Id. at 18. He
resigned the following day, September 20, 2011, “for medical reasons.” IAF ,
Tab 11B at 20. On October 4, 2011, the appellant pled guilty to theft,
concealment, and retention of G overnment property . IAF , Tab 11C at 42.
¶3 On January 4, 2012, the appellant applied for disability retirement under the
Federal Emp loyees’ Retirement System , citing as his disabling condition
vestibular cochlear vertigo resulting from several documented instances of
work -related head trauma . He stated that he suffered from a myriad of symptoms
associated with a cerebral concussion, hearing loss, fatigue, depression, anxiety,
3
hypertension , and sleep disorder.2 IAF, Tab 11D at 1. The appellant also applied
for, and was granted, disability benefits by the S ocial Security Administration.
IAF, Tab 11B at 9. On May 11, 2012, OPM granted the appellant’s disability
retirement application . IAF, Tab 11D at 20 . However, a fter receiving additional
information from his employing agency regarding his criminal case, O PM
rescinded its approval and, in a new initial decision, denied his application on the
basis that there were no medical records to support his claim that his condition
had worsened , caus ing a disable ment prior to his resignation. IAF , Tab 11 C. The
appellant s ubmitted additional medical documentation, IAF, Tab 11B, but on
November 27, 2012, OPM upheld its earlier denial on reconsideration, IAF,
Tab 11A. In its decision, OPM acknowledged that, during the reconsideration
process, the appellant ha d requested to add another medical condition (obsessive
compulsive behavior with hoarding behavior) to the basis for his claim, but stated
that it was unable to consider any conditi ons except those claimed on his initial
application for disability retireme nt. Id. at 1. T he appellant challenge d OPM’s
decision in an appeal to the Board. IAF , Tab 1.
¶4 Following an in -person hearing, the administrative judge issued an initial
decision , IAF, Tab 58, Initial Decision (ID) , in which she found that the
appellant ’s hearing loss was greater than that allowed by the standards for his
occupation al series, and that his judgment was significantly impaired by his
psychiatric condition , which also should disallow him from possessing a firearm,
as required by his job desc ription. ID at 6-8, 10 -12. The administrative judge
reversed OPM’s reconsideration decision , ID at 2, 12, and ordered that the
2 The appellant subsequently sought to amend his application, claiming that he also was
disabled by obsessive compulsive disorder and hoarding behavior. IAF, Tab 11B at 5.
4
appellant be granted benefits. The initial decision became the Board’s final
decision when neither party filed a petition for review.3
¶5 The appellant filed an initial motion for attorney fees in the amount of
$67,754.86.4 Attorney Fee File (AFF), Tab s 1, 3, 5 . The appellant argued that
fees are warranted in the interest of justice because OPM knew or should have
known when it is sued its reconsideration decision that it would not prevail on the
merits, and because OPM’s action was clearly without merit.5 AAF, Tab 1
at 11-16. OPM challenged the claim for fees as unwarranted under both
categorie s and argued that, in a ny event, the fees requested were not reasonable.
AAF, Tab 4.
¶6 In her initial decision, the administrative judge first found that the appellant
was the prevailing party and that he incurred fees. AAF, Tab 11, Addendum
Initial Decision (AID) at 10 -11. She found, however, that he failed to show that
the agency knew or should have known, when it issued its reconsideration
decision, that it would not prevail on the m erits, AID at 12 -14, or that the
agency’s action was clearly without merit, id. at 15 -16. Accordingly, the
administrative judge denied the motion for fees. Id. at 1, 16.
3 OPM did not file a petit ion for review challeng ing the administrative judge’s
consideration of and reliance on the appellant’s psychiatric condition as a basis for
finding that he met the requirements for a disability retirement .
4 Of th at amount , $61,048.97 represented fees for legal services performed by the
appellant’s attorney of record from the initiation of the appeal below, through the
hearing, a nd for several weeks thereafter, until he wi thdrew as the appellant’ s
representative due to his impending ret irement from the practice of law. AAF, Tab 1
at 19. The remaining amount , $6,705.89, represented fees for legal services performed
by the appellant’s current counsel for preparation of the fee petition, id. at 104 , plus
$2,464. 50 for additional fees incu rred during the attorney fees proceeding , for a total of
$9,170.39 . AAF, Tabs 3, 5 . As such, the grand total amount of the fee petition was
$70,219.36 .
5 The Board has held that the se are the two most relevant categories i n retirement
appeals for determining whether an award is warranted in the interest of justice .
Goldbach v. Office of Personnel 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).
5
¶7 The appellant has filed a petition for review, Petition for Review (PFR)
File, Tab 3, to which the agenc y has responded in opposition, PFR File , Tab 5.
ANALYSIS
¶8 To award fees under the clearly without merit standard, the Board must
determine that, at some point prior to the close of the appellate record, OPM’s
failure to acknowledge the appellant’s entitlement to the benefit sought was
blameworthy. Stewart v. Office of Personnel Management , 70 M.S.P.R. 544 , 551
(1996). To make this determination, the Board consider s whether the appellant
was misled by OPM or whether OPM failed to put him on notice of the kind of
evidence needed to prevail on reconsideration; the extent to which reversal was
based on evidence not p resented by the appellant but readily available to OPM;
and the extent to which the appellant produced evidence that was so com pelling
that reasonable minds could not differ as to his eligibility for the benefit sought
and OPM’s continued refusal to approv e the benefit prolonged the proceeding.
Id. The administrative judge found that her reversal of OPM’s reconsideration
decision was not based on evidence that was readily available to OPM before the
hearing, and that it was not until she heard the testimony6 and was able to assess
it that she concluded that the appellant was disabled at the time he resigned. ID
at 15.
¶9 On review, the appellant asserts that, in fact, the dispositive medical
testimony upon which th e administrative judge relied in reversing OPM’s
reconsideration decision was explicitly included in the reports of those doctors
which were attached to the appellant’s request for reconsideration. PFR File,
Tab 3 at 16 -17. The appellant’s claim is borne out by an examination of the
record. In finding the appellant’s conditions incompatible with useful and
efficient service, the administrative judge relied upon the hearing testimony of the
6 The appellant presented the testim ony of s even medical professionals at the hearing.
IAF, Tabs 52, 54.
6
appellant’s treating otolaryngologist to the effect that the appe llant’s hearing loss
was 50 decibels at the 3000 Hz level, that the medical standards for the criminal
investigation 1800 occupation series provide that hearing loss must not exceed
35 decibels at 1000, 2000, and 3000 Hz levels , and that surgery for the ap pellant
was not indicated. ID at 11 -12. Along with numerous assessments, however, the
otolaryngologist prepared a lengthy report which the appellant submitted with his
request for reconsid eration, and the report included that same information that the
administrative judge found dispositive. IAF, Tab 11 B at 379 -85. Similarly, the
administrative judge relied upon the testimony of the appellant’s neurologist to
the effect that the vertigo he experiences cannot be prevented by medication, that
his symptoms are progressive, and that, as he ages, the condition involving his
inner ear will not improve. ID at 11. Along with numerous assessments, the
neurologist prepared a report which the appellant submitted with his request for
reconsideration and the report included that same information regarding the
progressivity of the appellant’s conditions of hearing loss and related vertigo and
their intractability to any conventional therap ies. IAF, Tab 11B at 386 -90.
¶10 Additionally, without citing to any particular testimony, the administrative
judge found that the appellant’s psychiatric condition is such that he should not
be in possession of a firearm and that his hoarding behavior i s inconsistent with
useful and efficient service. ID at 12. Both the appellant’s psychiatrist and the
neuropsychologist to whom he referred the appellant prepared reports which the
appellant submitted with his request for reconsideration. These reports address
the appellant’s anxiety disorder which takes the form of obsessive -compuls ive
disorder with a prominent associated hoarding syndrome and explain how these
conditions render him un fit for his position . IAF, Tab 11B at 428 -38. We thus
find that , notwithstanding the administrative judge’s statement to the contrary,
her reversal o f OPM’s reconsideration decision was based on evidence that was
readily available to OPM before the hearing such that its decision was clearly
7
without merit .7 See Regnier v. Office of Personnel Management , 72 M.S.P.R.
229, 233 (1996); Davis v. Office of Personnel Management , 64 M.S.P.R. 6 , 10-11
(1994) . A n award of attorney fees is therefore warranted in the interest of
justice.8 See Regnier , 72 M.S.P.R. at 234; Davis , 64 M.S.P.R. at 10 -11.
ORDER
¶11 As noted, the appellant request s attorney fees totaling $70,219.36. AAF,
Tabs 1, 3, 5, an amount the agency claims is excessive, AAF, Tab 4. The Board
has held that the administrative judge is in the best position to evaluate the
documentation submitted by counsel to determine whether the amount requested
is reasonable, and t o evaluate the quality of the representation afforded by
counsel .9 See, e.g. , McKenna v. Department of the Navy , 108 M.S.P.R. 404, ¶ 13
(2008) . We, therefore, remand this case to the Board’s field o ffice for further
7 In support of her finding that the appellant is not entitled to attorney fees, t he
administrative judge questions the evidentiary value of certain of the medical reports ,
finding that they “appeared . . . [to have been] drafted —in part —by the appellant’s
attorneys” and did not reflect that the physicians knew of the appellant’s criminal case
or his indefinite suspension such that they would not have realized that he may have
had improp er motives in claiming to be disabled. AID at 13 -14. The findings in the
addendum initial decision do not comport with a reasonable reading of the findings of
the initial decision on the merits of the appeal. The findings from the initial decision
on th e merits when that decision became the Board’s final decision, not a re-review of
the full record developed below, control in determining whether an award of attorney
fees is warranted in the interest of justice. Gensburg v. Department of Veterans Affairs ,
80 M.S.P.R. 187 , ¶ 16 (1998). In her initial decision on the merits finding that the
appellant was disabled for useful and eff icient service in his position, the administrative
judge did not discount any of the medical evidence she reviewed . ID at 10-12.
8 Because we have found that an award of attorney fees is warranted in the interest of
justice in this appeal because OPM’s decision was clearly without merit, we need not
address whe ther an award of attorney fees is also warranted in the interest of justice
under the knew or should have known category. Parker v. Office of Personnel
Management , 75 M.S.P.R. 688 , 691 (1997).
9 The record in this case includes 2 days of hearing testimony.
8
adjudication of the appellant’s motion for attorney fees in accordance with this
Remand Order.
FOR THE BOARD:
Washington, D.C. /s/ for
Jennifer Everling
Acting Clerk of the Board | KUCAN_STEVEN_NY_844E_13_0058_A_1_REMAND_ORDER_1939094.pdf | 2022-07-05 | null | NY-844E-13-0058-A-1 | NP |
4,312 | https://www.mspb.gov/decisions/nonprecedential/FLAHN_VANESSA_A_NY_844E_21_0149_I_1_FINAL_ORDER_1939135.pdf | UNITED STATES OF AME RICA
MERIT SYSTEMS PROTEC TION BOARD
VANESSA A. FLAHN,
Appellant,
v.
OFFICE OF PERSONNEL
MANAGEMENT,
Agency.
DOCKET NUMBER
NY-844E -21-0149 -I-1
DATE: July 5, 2022
THIS FINAL ORDER IS NONPRECEDENTIAL1
Vanessa A. Flahn , Rochester, New York, pro se.
Appeals Officer , Washington, D.C., for the agency.
BEFORE
Cathy A. Harris , Vice Chair man
Raymond A. Limon, Member
Tristan L. Leavitt, Member
FINAL ORDER
¶1 The appellant ha s filed a petition for review of the initial decision, which
dismissed her appeal of an Office of Personnel Management (OPM)
reconsideration decision disallowing her application for disability retirement
benefits as untimely filed without good cause shown . Generally, we grant
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117 (c).
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 aff ected the
outcome of the case; or new and material evidence or legal argument is available
that, despite the petitioner’s due diligence, was not available when the record
closed. Title 5 of the Code of Federal Regulations, section 1201.115 ( 5 C.F.R.
§ 1201.115 ). After fully considering the filings in this appeal, we conclude that
the petitioner has not established any basis under section 1201.115 for granting
the petition for review. Therefore, we DENY the petition for review and
AFFIRM the initial decision, which is now the Board’s final decision. 5 C.F.R.
§ 1201.113 (b).
¶2 On review, the appellant submitted additional evidence challenging the
merits of OPM’s reconsideration decision, including: a letter from her former
employer denying her request for light duty; forms regarding the appellant’s
notice of injury; a letter fro m a former coworker regarding their experience with
disability retirement; the appellant’s prior complaint of discrimination; the
appellant’s application for refund of retirement deductions; and a doctor’s note.
Petition for Review File, Tab 1 at 7 -15. U nder 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). All the evidence the appellant submitted is at least 15 years old ,
and she has not shown why this evidence was unavailable before the record
closed. In any event, none of these documents support a finding of good cause
for the filing delay.
3
NOTICE OF APPEAL RIG HTS2
You may obtain revi ew of this final decision. 5 U.S.C. § 7703 (a)(1). By
statute, the nature of your claims determines the time limit for seeking such
review and the appropriate forum with which to file. 5 U.S.C. § 7703 (b).
Although we offer the following summary of available appeal rights, the Merit
Systems Protection Board does not provide legal advice on which option is most
appropriate for your situatio n and the rights described below do not represent a
statement of how courts will rule regarding which cases fall within their
jurisdiction. If you wish to seek review of this final decision, you should
immediately review the law applicable to your claims and carefully follow all
filing time limits and requirements. Failure to file within the applicable time
limit may result in the dismissal of your case by your chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703 (b)(1)(A).
If you submit a petition for 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 not ice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise which option is most appropriate in any matter.
4
U.S. Cou rt of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems 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
5
to waiver of any requirement of prepayment of fees, costs, o r other security. See
42 U.S.C. § 2000e -5(f) and 29 U.S.C. § 794a .
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed thr ough the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702 (b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receiv e
this decision. 5 U.S.C. § 7702 (b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Wash ington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5S W12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302 (b)(8) or
other protected activities listed in 5 U.S.C. § 2302 (b)(9)(A)(i), (B), (C), or (D) .
If so, and your judicial petition for review “raises no challenge to the Board’s
6
disposition of allegations of a prohibited personnel practice described in
section 2302(b) other than practices described in section 2302(b)(8), or
2302(b)(9)(A)(i), (B), ( C), or (D),” then you may file a petition for judicial
review either with the U.S. 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 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.
3 The original statutory provision that provided for judicial review of certain
whistleblower claims by a ny court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whis tleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115 -195,
132 Stat. 1510.
7
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 | FLAHN_VANESSA_A_NY_844E_21_0149_I_1_FINAL_ORDER_1939135.pdf | 2022-07-05 | null | NY-844E-21-0149-I-1 | NP |
4,313 | https://www.mspb.gov/decisions/nonprecedential/LENTZ_CHASE_M_SF_1221_15_0688_W_1_FINAL_ORDER_1938136.pdf | UNITED STATES OF AME RICA
MERIT SYSTEMS PROTEC TION BOARD
CHASE M. LENTZ,
Appellant,
v.
DEPARTMENT OF THE IN TERIOR,
Agency.
DOCKET NUMBER
SF-1221 -15-0688 -W-1
DATE: June 30, 2022
THIS FINAL ORDER IS NONPRECEDENTIAL1
Chase M. Lentz , Fresno, California, pro se.
Christine Foley and Kevin Mack , Sacramento, California, for the agency.
BEFORE
Cathy A. Harris , Vice Chairman
Raymond A. Limon , Member
Tristan L. Leavitt , Member
Member Limon recu sed 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
found jurisdiction over some of the claims he raised in this individual right of
action (IR A) appeal, denied the appellant’ s request for corrective action over
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case 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
those claims, and d ismissed the appellant’ s remaining claims for lack of
jurisdiction. The initial decisi on also dismissed the appellant’ s claim of
involuntary retirement under the doctrin e of collateral estoppel. Generally, we
grant petitions such as this one only when: the initial decision contains erroneous
findings of material fact; the initial decision is based on an erroneous
interpretation of statute or regulation or the erroneous application of the law to
the facts of the case; the administrative judge ’s rulings during either the course of
the appeal or the initial decision were not consistent with 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. 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 established any basis under section 1201.115 for granting
the petition for review. Therefore, we DENY the petition for review and, except
as expressly MODIFIED by this Final Order to find that the administrative judge
improperly applied collateral estoppel to bar the appellant’s claim that his
resignation was involuntary , the appellant nonfrivolously alleged that his
February 5, 2014 protected disclosure was a contributing factor in the proposed
14-day suspens ion under the knowledge -timing test, and the appellant did not
prove that his November 18, 2014 disclosure was protect ed, we AFFIRM the
initial decision.
BACKGROUND
¶2 On May 15, 2014, the agency issued the appellant a letter of reprimand
(LOR) based on charges of acting outside the scope of his authority and conduct
unbecoming. Initial Appeal File (IAF), Tab 6 at 68. On N ovember 13, 2014, the
agency again charged him with acting outside the scope of his authority and
conduct unbecoming, and proposed a 14 -day suspens ion. Id. at 49. In a
3
February 10, 2015 decision letter, the deciding official sustained both charges
underl ying the proposed suspension. IAF, Tab 6 at 31. The suspension penalty
was to be effective February 15, 2015. Id. On February 11, 2015, the
appellant notified the agency that he was resigning from his position, effective
February 13, 2015. Id. at 24. He indicated that his resignation was the result of a
hostile work environment. Id.
¶3 The appellant filed an IRA appeal alleging that the agency retaliated
against him for whistleblowing activity by issuing the LOR, by suspending him
effective February 15, 2015, and by harassing him and constructively discharging
him effective February 13, 2015, the effective date of his resignation.2
IAF, Tab 1. The administrativ e judge dismissed the appellant’ s constructive
discharge/involuntary retirement claim under t he doctrine of collateral estoppel.
IAF, Tab 25, Initial Decision (ID) at 5 -8. The administrative judge also found
that the Board has jurisdiction over a portion of the appeal pursuant to 5 U.S.C.
§ 1221, but he denied the appellant’ s request for corrective action for those
claims. The administrative judge dismissed the remaining portion of the appeal
for lack of jurisdiction. ID at 8 -32.
¶4 Specifically, the administrative judge found that the app ellant exhausted his
administrative remedy before the Offi ce of Special Counsel (OSC), and
established jurisdiction over the following disclosures: (1) an October 23, 2013
statement concerning removing a litera ry quotation from the appellant’ s work
space; (2) a February 5, 201 4 allegation that the appellant’ s supervisor made false
2 The appellant previously filed an appeal alleging that his resignation was involuntary,
which was dismissed for lack of jurisdiction. The appellant filed a petition for review
which the Board denied, affirming the initial decision. Lentz v. Department of the
Interior , MSPB Docket No. SF -0752 -15-0363 -I-1, Final Order (Jan. 11, 2016).
The U.S. Court of Appeals for the Federal Circuit vacated the Board’s decision and
remanded the appeal for further consideration of t he appellant’s claims, which the
Board will adjudicate in a separate appeal . Lentz v. Merit Systems Protection Board ,
876 F.3d 1380 , 1386 (Fed. Cir. 2017) ; Lentz v. Department of the Interior ,
MSPB Docket No. SF -0752 -15-0363 -R-1.
4
statements and withheld facts, which resulted in disciplinary action being taken
against the a ppellant; and (3) the appellant’ s November 18, 2014 statement that
his supervisor wa s trying to coerce and intimidate him into not using his sick or
Family and Medical Leave Act of 1993 (FMLA) leave. ID at 10; IAF, Tab 1.
The administrative judge also found that the appellant exhausted his remedy
before OSC regarding his claim that the agency retaliated against him for his
equal employment opportunity (EEO) activity. ID at 10; IAF, Tab 1.
¶5 The administrative judge further found that the appellant exhausted his
remedy before OSC regarding his claim that, in reprisal for his protected acti vity,
the agency (1) issued him an LOR, (2) proposed his suspension, and (3) harassed
him. ID at 10. However, the administrative judge found that the appellant did
not exhaust his remedy before OSC concerning his claims that the agency both
constructivel y and actually suspended him. Id. Additionally, the administrative
judge found that the appellant failed to prove that he exhausted his remedy with
OSC regarding numerous other disclosures3 the appellant identified in his appeal.
Finally, the administrative judge found that the Board lacks jurisdiction over the
appellant’ s claim of reprisal for filing an EEO complaint. ID at 31-32.
Accordingly, the administrativ e judge dismissed the appellant’ s involuntary
resignation claim purs uant to the doctrine of collateral estoppel, he denied
corrective action for claims over which the Board has jurisdiction, and he
dismissed the remaining claims for lack of jurisdiction. ID at 32.
¶6 The appellant has filed a petition for review of the initi al decision.4 Petition
for Review (PFR) File, Tab 1. The agency has filed a response. PFR File, Tab 3.
3 The administrative judge identified these alphabetically as disclosures (a) – (t).
ID at 11-14.
4 The appellant challenges the administrative j udge’s det ermination that he is
collaterally estopped from arguing that his resigna tion amounted to a constructive
discharge . Based on the court’s decision in Lentz v. Merit Systems Protection Board ,
876 F.3d 1380 , 1386 (Fed. Cir. 2017), which held that collateral estoppel could not
apply to the appellant’s constructive discharge claim, we agree. Thus, we modify the
5
DISCUSSION OF ARGUME NTS ON REVIEW5
¶7 To establish Board jurisdiction over an IRA appeal, an appellant must
establish that he exhausted his OSC remedies and nonfrivolously allege that:
(1) he made a protected disclosure; and (2) the disclosure was a contributing
factor in the agency ’s decision to take or fail to take a personnel action. Yunus v.
Department of Veterans Affairs , 242 F.3d 1367 , 1371 (Fed. Cir. 2001);
Sherman v. Department of Homeland Security , 122 M.S.P.R. 644 , ¶ 7 (2015 ).
A nonfrivolous allegation is an assertion that, if proven, could establish the
matter at issue.6 5 C.F.R. § 1201.4 (s). An allegation generally will be considered
nonfrivolous when, under oath or penalty of perjury, an individual makes an
allegation that is more than conclusory, plausib le on its face, and material to the
legal issues in the appeal. Id. Vague, conclusory, unsupported, and pro forma
allegations of alleged wrongdoing do not meet the nonfrivolous pleading standard
needed to establish the Board ’s jurisdiction over an IRA ap peal. El v.
Department of Commerce , 123 M.S.P.R. 76 , ¶ 6 (2015) , aff’d , 663 F. App’x 921
(Fed. Cir. 2016) .
initial decision to vacate its finding that the appellant is collaterally estopped from
arguing that his resignation was a constructive discharge . Nevertheless, we need not
determine whether the appellant proved that his alleged involuntary resignation
constituted a personnel action because, e ven assuming that the appellant met that
burden, and as set forth more fully below, he has not shown that his disclosures were
protected. See Parikh v. Department of Veterans Affairs , 116 M.S.P.R. 197, ¶ 7 (2011)
(holding that the Board may resolve the merits issues in an IRA appeal in any order it
deems most efficient); but see 5 U.S.C. § 1221 (e)(2) (permitting a finding on whether
the agency met its clear and convincing evidence burden only after a finding has been
made that a protected disclosure was a contributing factor in a personnel action).
5 We have reviewed the relevant legislation enacted during the pendency of this appeal
and have concluded that it does not affect the outcome of the appeal.
6 The U.S. Court of Appeals for the Federal Circuit clarified that, in whistle blower
cases, the nonf rivolous allegation standard is “ analogous to the ‘well -pleaded complaint
rule’ used to evaluate federal question jurisdiction in federal court.” Hessami v. Merit
Systems Protection Board , 979 F.3d 1362 , 1367 (Fed. Cir. 2020).
6
¶8 To satisfy the contributin g factor criterion at the jurisdictional stage of the
case, the appellant need only raise a nonfrivolous allegation that the fact of, or
the content of, the protected disclosure was one factor that tended to affect a
personnel action in any way. Sherman , 122 M.S.P.R. 644 , ¶ 8.
¶9 After establishing the Board ’s jurisdiction in an IRA appeal, the appellant
then must establish a prima fa cie case of whistleblowing retaliation by proving by
preponderant evidence that he made a protected disclosure that was a contributing
factor in a personnel action taken against him. 5 U.S.C. § 1221 (e)(1); Lu v.
Department of Homeland Security , 122 M.S.P.R. 335 , ¶ 7 (2015). The appellant
has a right to a hearing to meet this burden. Peterson v. Department of Veterans
Affairs , 116 M.S.P.R. 113 , ¶ 8 (2011). If the appellant makes out a prima fac ie
case, then the agency must prove, by clear and convincing evidence, that it would
have taken the same personnel action in the absence of the protected disclosure.
5 U.S .C. § 1221(e)(1 )-(2); Lu, 122 M.S.P.R. 335 , ¶ 7.
The Appellant’s Disclosures
The appellant alleged that he notified three individuals that someone’s
removing a paper copy of a literary quote from his work space was an act
of censorship and violated his right to free speech.
¶10 The appellant contended that on October 23, 2013, he noti fied three
individuals that someone removed a copy of a literary quotation from his work
space and that this constituted an act of censorship and violated his right to free
speech. The record reflects that the appellant had the following quotation printed
on a piece of paper and taped to the back of his work chair: “they smashed up
things and creatures and then retreated back into their money or their vast
carelessness or whatever it was that kept them together, and let other people clean
up the mess that they had made. ” IAF, Tab 21 at 56. It is undisputed that the
appellant ’s supervisor removed the quote from his chair sometime in
October 2013. Id. at 55. The administrative judge found that the appellant
exhausted his remedy before OSC regarding this disclosure and that it constituted
7
a nonfrivolous allegation that he made a disclosure protected under 5 U.S.C.
§ 2302 (b)(8).7 ID at 14.
¶11 The administrative judge then apparently assumed without making a finding
that the appellant nonfrivolously alleged that this disclosure was a contributing
factor, as the administrative judge found further that the appellant failed to prove
by preponderant evidence that a reasonable person would believe this disclosure
evidenced a violation by his supervisor of any law, rule, or regulation.
ID at 14-18. To the extent the appellant argued that he believed his supervisor ’s
actions in removing the paper viol ated his First Amendment right to free speech,
the administrative judge found that no reasonable person could believe that the
appellant ’s quotation amounted to speech on a matter of public concern.
Thus, the administrative judge found that no reasonable person could believe the
appellant was disclosing either a violation of his right to free speech under the
First Amendment, or of any other law, rule or regulation.8 ID at 17.
¶12 Regarding the appellant ’s assertion that removing the paper q uote amounted
to his supervisor’ s denying him due process, the administrative judge found that
the appellant failed to prove by preponderant evidence that he reasonably
believed that he had a protected property interest in the piece of paper containing
the literary quotatio n. Additionally, the administrative judge found that the
appellant failed to prove by preponderant evidence that he had a protected
7 In light of our analysis below, we have not addressed whether the a dministrative
judge’s finding —that the appellant’s claim that the October 23, 2013 notification
constituted a nonfrivolous allegation that he made a protected disclosure —was correct.
8 Although the administrative judge failed to make a jurisdictional contributing factor
determination on this disclosure prior to addressing whether the appellant proved by
preponderant evidence that he made a protected disclosure, the administrative judge
correctly found that the appellant’s disclosure was not protected. Thus, any error by the
administrative jud ge does not warrant reversal. An adjudicatory error that is not
prejudicial to a party’s substantive rights provides no basis for reversing an initial
decision. Panter v. Department of the Air Force , 22 M.S.P.R. 281 , 282 (1984).
8
property interest in the literar y quote, or that his supervisor’ s actions constituted
an abuse of discretion. ID at 18.
¶13 On review, the appellant argues that the administrative judge ’s decision
addressed only the free speech element, and that the administrative judge failed to
address the taking of his property and his Fifth Amendment right to due process.
PFR File, Tab 1 at 7. The appellant asserts that the fact that the agency ’s Bureau
of Land Management State Human Resources Office ordered the literary quote
returned to him shows that he has a property interest in it. Id. at 8.
¶14 However, contrary to the appellant ’s asserti ons, the administrative judge
addressed the appellant ’s due process argument and correctly found that the
appellant failed to prove by preponderant evidence that he reasonably believed
that he had a protected property interest in the piece of paper taped t o the back of
his chair. ID at 18.
¶15 Similarly, while the appellant does not specifically argue that the
administrative judge failed to address his abuse of authority argument concerning
this disclosure, the initial decision shows that the administrative ju dge thoroughly
addressed this argument and found that the appellant failed to prove by
prepondera nt evidence that his supervisor’ s actions constituted an abuse of
authority. Id. We have reviewed the administrative judge ’s determination and we
find no bas is upon which to disturb it. Id.
The appellant alleged that he disclosed that his supervisor withheld facts
and made false statements about him, resulting in disciplinary action taken
against him.
¶16 The appellant argued that he made a protected disclosure on
February 5, 2014, when he notified the field manager that his supervisor was
withholding facts and making false statements regarding her knowledge of the
goat grazing program and authorization. IAF, Tab 3 at 21, Tab 18 at 77.
The administrative judge found that the appellant’ s assertion constituted a
nonfrivolous allegation of a protected disclosure, and that the appellant
9
nonfrivolously alleged that his disclosure to the field manager was a contributing
factor in her decision to issue the LOR. ID at 14-15. The administrative judge
found further that the appellant failed to prove by preponderant evidence that he
reasonably believed he made a protected disclosure to the field manager regarding
the goat grazing. Specifically, the administrative judge found that the appellant
failed to prove by preponderant evidence that a reasonable person, with
knowledge of the essential facts known to and readily ascertainable by the
appellant, would conclude that the appellant ’s supervisor committed a violation
of a law, rule, or regulation, or an abuse of authority. Additionally, the
administrative judge found that the appellant knew the proper process for
approving goat grazing permits and that he failed to prove by preponderant
evidence that he reasonably believe d that during the relevant time,
December 2014, his supervisor had given him verbal authorization to sign the
goat grazing permit at issue. ID at 20 -26.
¶17 However, the administrative judge also found that the appellant did not
show that this claimed disclos ure was a co ntributing factor in the agency’ s
issuing the proposed suspension notice. ID at 15. Specifically, the administrative
judge found that the appellant failed to nonfrivolously allege that the deciding
official, who became the appellant ’s supervi sor on August 25, 2014
(new supervisor), knew about the appellant ’s February 5, 2014 disclosure to the
field manager prior to her issuing the notice of proposed suspension. ID at 15.
¶18 On review, the appellant contends that his new supervisor knew about his
February 5, 2014 disclosure prior to her issuing the notice of proposed suspension
on November 13, 2014, and that the administrative judge erred by finding that he
had not shown that the disclosure was a contributing factor. PFR File, Tab 1 at 5.
The appellant asserts that, prior to issuing the notice, the new supervisor had
access to the LOR, which was in his personnel file, and that his disclosure was
identified in the LOR when it alleged that he had “demonstrated conduct
unbecoming when you accused your supervisor of not only lying to me, but also
10
willfully deceiving me. ” PFR File, Tab 1 at 6. In addition, the appellant
contends that the LOR is mentioned throughout the suspension proposal notice.
Id. He asserts further that, because the field manager and the new supervisor
discussed the proposed suspension, the new supervisor also had constructive
knowledge of his disclosure. Id.
¶19 An appellant ’s nonfrivolous allegation that the personnel action occurred
within a period of time such that a reasonable person could conclude that the
protected activity was a contributing factor in that action is sufficient to meet the
knowledge -timing test, and satisfies the appellant ’s burden to nonfrivolously
allege that his protected disc losure was a contributing factor in the personnel
action. Carney v. Department of Veterans Affairs , 121 M.S.P.R. 446 , ¶ 7 (2014).
Therefore, if the appellant has alleged that the supervisors were aware of his
disclosures prior to the agency ’s decision to propose his suspension he will have
made allegations of fact that, if proven, could establish a prima facie case of
Board jurisdic tion. Id., ¶¶ 7-11.
¶20 Upon rev iewin g the record, we find that it supports the appellant ’s
assertions. Specifically, the proposed suspension referred to the LOR which
relied on the conversation wherein the alleged disclosure occurred. IAF, Tab 6
at 49, 51, 56-58. Further, the proposed suspension indicated that it was based on
the same misconduct cited in the LOR, stated that “a search of your personnel
record found ” the LOR, and quoted the LOR. IAF, Tab 6 at 59, 62, 64 -66.
¶21 Based upon the record evidence, we cannot conclude that the proposing
official contemplated the proposed suspension, initiated the proposal notice, or
issued the proposal notice prior to learning of the appellant ’s February 5, 2014
disclosure to the field manager. See, e.g. , Fickie v. Department of the Army ,
86 M.S.P.R. 525 , ¶ 9 (2000) (finding that an action that was merely
“contemplated and in preparation ” prior to a disclosure can serve as the predicate
personnel action in an IRA appeal). Thus, under the knowledge/timing test, we
find that the decision to propose the appellant ’s suspension was made after the
11
new supervisor learned of the appellant ’s February 5, 2014 disclosure and that it
may have had some effect on her decision to propose his suspension. Carey v.
Department of Veterans Affairs , 93 M.S.P.R. 676 , ¶ 10 (2003) (finding that an
appellant need only prove that the fact or content of the disclosure was one of the
factors that tended to affect the personnel action in any way). Accordingly, even
though the proposing official was not the appellant ’s supervisor at the time of the
disclosure, we find that the appellant has made a nonfrivolous allegation that his
protected disclosure was a contributing factor in the proposed suspension under
the knowledge/timing test. We thus vacate the administrative judge ’s finding that
the appellant failed to nonfrivolously allege that his February 5, 2014 disclosure
was a contributing factor in the decision to propose his suspension under 5 U.S.C.
§ 1221 (e)(l).
¶22 Nevertheless, even though we find that the appellant made a nonfrivolous
allegation that the February 5, 2014 disclosure was a contributing factor in the
notice of proposed suspension, we reach the same ultimate finding as did the
administrative judge, namely that the appellant failed to prove by preponderant
evidence that this disclosure constituted a protected disclosure. Specifically, the
administrative judge found that the appellant: (1) previously had followed the
process to obtain the necessary approval for the goat grazing program; (2) did not
obtain the required supervisors’ signatures for the authorization at issue here; and
(3) was not credible in claiming that he requested and received prior verbal
authorization and was contradicted by the written record. ID at 24 -25.
Additionally, the administrative judge found the appellant ’s alleged disclosure
both vague and conclusory because he failed to provide the details of the
conversation in which he allegedly received verbal authorization. Thus, while the
administrative judge erred by not finding that the February 5, 2014 disclosure was
a contributing factor in the proposed suspension, we agree with him that the
appellant failed to prove by preponderant evidence that he made a disclosure to
the field manager on February 5, 2014, that a reasonable person, with knowledge
12
of the essential facts known to and readily ascertainable by the appellant, would
believe evidenced a violation of law, rule, or regulation or an abuse of autho rity
by the appellant ’s supervisor.
The appellant alleged that he made a protected disclosure that his
supervisor tried to coerce and intimidate him into not using his FMLA
leave.
¶23 Concerning this November 18, 2014 disclosure, the administrative judge
foun d that the appellant exhausted his remedy bef ore OSC, and that the
appellant’ s allegations constituted a nonfrivolous allegation of a protected
disclosure. ID at 9 -10, 14 -15. However, the administrative judge found further
that this disclosure could not have been a contributing factor in the agency ’s
issuing the LOR or its notice of proposed 14 -day suspension. ID at 16.
The administrative judge noted that the appellant never returned to work after
November 14, 2014 , prior to his resignation; thus his al leged disclosure after that
date could not have been a contributing factor to a hostile work environment due
to harassment.
¶24 On review, the appellant chal lenges the administrative judge’ s
determination that his alleged disclosure after he permanently left t he agency
could not have been a contributing factor to a hostile work environment due to
harassment. PFR File, Tab 1 at 7. As the administrative judge correctly found,
however, the appellant ’s alleged disclosure on or after November 18, 2014,
could not h ave been a contributing factor in the agency ’s earlier issuance of the
May 15, 2014 LOR, or the November 13, 2014 notice of a proposed 14 -day
suspensi on. Rumsey v. Department of Justice , 120 M.S.P.R. 259 , ¶ 27 (2013)
(finding that disclosures made after the agency took the personnel action at issue
cannot have been a con tributing factor). Furthermore, o nly agency actions that,
individually or collectively, have practical and significant effects on the overall
nature and quality of an employee’s working conditions, duties, or
responsibilities will be found to constitute a personnel action covered by 5 U.S.C.
13
§ 2302 (a)(2)(A)(xii). Skarada v. Department of Veterans Affairs , 2022 MSPB 17,
¶ 16. Thus, we find no merit to the appellant ’s claims in this regard.
¶25 Moreover, the appellant has not proven that this disclosure is protected.
The appellant asserted that his supervisor tried to coerce and intimidate him into
not using his sick or FMLA leave in violation of 5 U.S.C. § 6385 (a), which
provides that an employee shall not directly or indirectly intimidate, threaten, or
coerce, or at tempt to intimidate, threaten, or coerce, any other employee for the
purpose of interfering with the employee’s exercise of any rights relating to
FMLA leave. IAF, Tab 15 at 21 -22. More specifically, the appellant contended
that the proposing official in formed him in a November 18, 2014 FMLA letter
that the FMLA “entitles eligible employees to take up to twelve workweeks of
unpaid leave (LWOP) in a 12 -month period,” with the word “unpaid” underlined
and in bold typeface, and that this emphasis incorrectly “impl[ied] that [he] will
only be entitled to unpaid leave.” IAF, Tab 3 at 36 -37. He also claimed that the
letter indicated that he could substitute paid leave to which he was entitled for the
unpaid leave “upon [the supervisor’s] approval,” and that th is latter language was
“meant to make me feel that I have less entitlement to leave than I actually do.”
Id. at 37. The appellant also noted that the letter instructed him to provide the
agency with a completed Form WH -380, Certification of Health Care P rovider,
and that this was “another attempt to coerce and intimidate me” because agencies
may request such medical certification, but are not required to do so. Id.
Finally, the appellant addressed the letter’s statement that a failure to provide
adequate medical documentation to support an absence may result in a placement
on absence without leave (AWOL), which may result in disciplinary action.
Id. at 38. The appellant ass erted that this statement “is intimidating and coercing
me by emphasizing AWOL and disciplinary action, but leaving out that I may
request that the provisional leave be charged as leave without pay or charged to
annual and/or sick leave.” Id. The agency approved FMLA leave for the
appellant on November 25, 2014, one week later. IAF, Tab 18 at 27.
14
¶26 The record does not appear to include a copy of the agency’s
November 18, 2014 FMLA letter. However, even assuming that the appellant has
accurately characteri zed the agency’s statements in that letter, they merely reflect
and are consistent with the legal and regulatory requirements relating to FMLA
leave and the fact that AWOL can lead to disciplinary action. See 5 U.S.C.
§§ 6382 (c)-(d), 6383; 5 C.F.R. §§ 630.1203 (a), .1206; see also Adams v.
Department of Labor , 112 M.S.P.R. 288 , ¶ 8 (2009) (holding that a sustained
charge of AWOL is inherently connected to the efficiency of the service).
Under these circumstances, the appellant has not proven that a reasonable p erson,
with knowledge of the essential facts known to and readily ascertainable by him,
would believe that these statements evidenced a violation of law, rule, or
regulation, such as section 6385(a), an abuse of authority by the appellant’s
supervisor, or any of the other situations detailed under 5 U.S.C. § 2302 (b)(8)(A).
Thus, we agree with the administrative judge’s determination that the appellant
was not entitled to corrective action as to this purported disclosure.
Exhaustion of Claims before OSC
¶27 In respo nse to the administrative judge’ s determination that the appellant
failed to exhaust some of his claims before OSC, the appellant asserts on review
that OSC ’s letter dated May 16, 2016, states, “You also allege that the negative
references are retaliation . . . . Because OSC previously made a determination to
close an earlier complaint involving all but the most recent allegations involving
negative references , OSC ’s current review only involved the allegedly retaliatory
negative references. ” PFR File, Tab 1 at 28. Thus, the appellant argues that the
administrative judge erred in determining that he did not exhaust his remedies
before OSC.
¶28 It appears from the appellant ’s OSC complaint and with OSC ’s
May 16, 2016 letter that the appellant may have exhausted his remedies with OSC
regarding some, or all 20, of the disclosures which the administrative judge found
that he had not exhausted. Having found evidence that the appellant exhausted
15
his OSC remedies with at least some of the 20 disclosures, we would ordinarily
remand this appeal to determine jurisdiction on those claims, and if appropriate, a
hearing on the merits. Kukoyi v. Departme nt of Veterans Affairs , 111 M.S.P.R.
404, ¶ 19 (2009) , overruled on other grounds by Mason v. Department of
Homeland Security , 116 M.S.P.R. 135 , ¶ 26 n. 7 (2011) . Nevertheless, we find
remand unnecessary in this appeal. Courts have the inherent authority, in the
interest of judicial efficiency, to dismiss an action because of the pendency of
another action, so long as an identity of issues exists and the controlling issues in
the dismissed action will be determined in another lawsuit. Kinler v. General
Services Administration , 44 M.S.P.R. 262 , 263 (1990). In most cases of judicial
efficiency, we would dismiss the subsequent appeal and the prior a ppeal would be
adjudicated. Id.; O’Leary v. Office of Personnel Management , 90 M.S.P.R. 124 ,
¶ 7 (2001).
¶29 However, we are dismissing the appellant ’s claims in this appeal, which the
administrative judge found were not exhausted, so that these claims can be
considered in the appellant’s subsequent appeal that was filed with the Board ’s
Western Regional Office. The subsequent appeal was docketed as an IRA appeal,
in which the appellant challenges the numerous disclosures which were found to
be not exhausted before OSC in this appeal, and he alleges the agency took the
action partly in response to his protected disclosures. Lentz v. Depa rtment of the
Interior , MSPB Docket No. SF -1221 -21-0497 -W-2. 9 The appellant has included
9 This separate IRA appeal before the Board’s Western Regional Office was originally
docketed as MSPB Docket No. SF -1221 -16-0681 -W-1. The appeal was refiled and
dismissed without prejudice multiple times. See MSPB Docket Nos. SF -1221 -16-0681 -
W-1 through SF -1221 -16-0681 -W-9. When the appeal was refiled a ninth time, due to
technical limitations of the Board’s software, it was assigned a new docket number,
MSPB Docket No. SF -1221 -21-0497 -W-1, and was again dismissed without prejudice
and then refiled. On March 8, 2022, the B oard’s Western Regional Office issued an
initial decision in MSPB Docket No. SF -1221 -21-0497 -W-2, dismissing the appeal
without prejudice to be automatically refiled within 15 calendar days of the first of the
following to occur: (1) the date of issuance of a Board opinion in SF -1221 -15-0688 -
W-1; or (2) September 5, 2022. See MSPB Docket No. SF -1221 -21-0497 -W-2, Initial
16
the same OSC documentation that he submitted in this appeal, and he included
evidence that he submitted a new filing with OSC in December 2015.
PFR File, Tab 1; Lentz v. Department of the Interior , MSPB Docket
No. SF-1221-16-0681 -W-1.
¶30 We find that the two appeals share an identity of issues. We also find that
the controlling issue of the present appeal —whether the appellant has made a
nonfrivolous allegation of juri sdiction for an IRA appeal and if so whether the
agency took the personnel action in reprisal for his disclosures —also will be
determined by the Board’s Western Regional Office . Because the appeal before
the Board’s Western Regional Office addresses the same issues currently before
us, we deny the portions of the appellant ’s petition for review concerning the
disclosures over which the administrative judge found that the appellant had not
exhausted his remedy with OSC, and dismiss those portions in the in terest of
justice.
The Appellant’s Remaining Arguments
¶31 Finally, the appellant reasserts his version of the various incidents and he
contends that the administrative judge ignored his evidence and arguments
throughout the initial decision.10 PFR File, Tab 1 at 9-16. For example, the
appellant argues that the administrative judge relied on inconsist ent statements by
the appellant’ s supervisor concerning the proper authorization for grazing and he
asserts that the administrative judge erred by not addressing his claim that he had
received verbal authorization, and that even so, no authorization was required
Decision (Mar. 8, 2022). After the issuance of this decision, the Board’s Western
Regional Office shall refile the appeal as MSPB Docket No. SF -1221 -21-0497 -W-3.
10 The appellant asserts on review that the administrative judge left out the agency’s
characterizing the charges as malicious and intentional in the LOR, and he contends that
the administrative judge changed the agency’s burden of proof by failing to require the
agency to prove these elements. PFR, Tab 1 at 4; IAF, Tab 28 at 45 -46.
However, because the merits of the underlying adverse actions are not before the Board
in this appeal, the administrative judge did not determine the merits of the charged
misconduct, and we have not considered these arguments on review.
17
because he had the authority to acquire services within the micro purchase
amount. Id. at 9-10. In this connection, the appellant also reasserts his clai m that
he was acting under the assumption that he had appropriate National
Environmental Policy Act11 documentation and authorization to conduct the goat
vegetation management project, and that his actions were not malicious and
intentional. Id. at 14. The appellant chal lenges the administrative judge’ s
credibility determinations regarding his supervisor and the testimony concerning
a meeting he had with her, and he asserts that the administrative judge ’s finding
that he did not have a “reasonable belief ” that his supervisor authorized the
project is “conclusory and unsupported ” by the evidence he submitted.
Id. at 12-13. Similarly, the appellant challenges the administrative judge ’s
finding that his disclosure concerning the interns was vague and conclus ory and
thus not protected. Id. at 15.
¶32 We have considered these argu ments, as well as the appellant’ s many other
arguments on review concerning the administrative judge ’s weighing of the
evidence. However, we discern no reason to reweigh the evidence or substitute
our assessment of the record evidence for that of the administrative judge.
See Crosby v. U.S. Postal Service , 74 M.S.P .R. 98 , 105 -06 (1997) (finding no
reason to disturb the administrative judge ’s findings when she considered the
evidence as a whole, drew appropriate inferences, and made reasoned
conclusions); Broughton v. Department of Health & Human Services , 33 M.S.P.R.
357, 359 (1987) (same). Accordingly, we find that the appellant has provided no
basis upon which to reverse the initial decision.
11 The National Environmental Policy Act sets forth a procedural process for analyzing
proposed Federal actions. IAF, Tab 6 at 68.
18
NOTICE OF APPEAL RIG HTS12
The initial decision, as supplemented by this Final Order, constitutes the
Board’s final decision in this matter. 5 C.F.R. § 1201.113 . You may obtain
review o f this final decision. 5 U.S.C. § 7703 (a)(1). By statute, the nature of
your claims determines the time limit for seeking such review and the appropriate
forum with which to file. 5 U.S.C. § 7703 (b). Although we offer the following
summary of available appeal rights, the Merit Systems Protection Board does not
provide legal advice on which option is most appropriate for your situation an d
the rights described below do not represent a statement of how courts will rule
regarding which cases fall within their jurisdiction. If you wish to seek review of
this final decision, you should immediately review the law applicable to your
claims and carefully follow all filing time limits and requirements. Failure to file
within the applicable time limit may result in the dismissal of your case by your
chosen forum.
Please read carefully each of the three main possible choices of review
below to deci de which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an a ppellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703 (b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
12 Since the issuance of the initia l decision in this matter, the Board may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise which option is most appropriate in any matter.
19
U.S. Court of App eals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the cour t’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal C ircuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney n or warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
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
20
to waiver of any 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 for review to the EEOC by regular U.S. mail, the
address of the EEOC is:
Office 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).
21
If so, and your judicial petition for review “raises no challenge to the Board’s
disposition of allegations of a prohibited p ersonnel practice described in
section 2302(b) other than practices described in section 2302(b)(8), or
2302(b)(9)(A)(i), (B), (C), or (D),” then you may file a petition for judicial
review either with the U.S. Court of Appeals for the Federal Circuit or a ny court
of appeals of competent jurisdiction.13 The court of appeals must receive your
petition for review within 60 days of the date of issuance of this decision.
5 U.S.C. § 7703 (b)(1)(B).
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained wit hin the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for info rmation regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
13 The original statutory provision that prov ided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file pe titions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to Nove mber 26, 2017. Pub. L. No. 115 -195,
132 Stat. 1510.
22
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
Contact information for the courts of appeals can be found at their
respective websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/Court Websites.aspx .
FOR THE BOARD:
Washington, D.C. /s/ for
Jennifer Everling
Acting Clerk of the Board | LENTZ_CHASE_M_SF_1221_15_0688_W_1_FINAL_ORDER_1938136.pdf | 2022-06-30 | null | SF-1221-15-0688-W-1 | NP |
4,314 | https://www.mspb.gov/decisions/nonprecedential/LENTZ_CHASE_M_SF_0752_15_0363_R_1_REMAND_ORDER_1938142.pdf | UNITED STATES OF AME RICA
MERIT SYSTEMS PROTEC TION BOARD
CHASE M. LENTZ,
Appellant,
v.
DEPARTMENT OF THE IN TERIOR,
Agency.
DOCKET NUMBER S
SF-0752 -15-0363 -R-1
SF-4324 -15-0364 -M-1
SF-4324 -16-0198 -I-1
SF-4324 -17-0229 -I-1
DATE: June 30, 2022
THIS ORDER IS NONPRECEDENTIAL1
Chase M. Lentz , Fresno, California, pro se.
Christine Foley and Kevin D. Mack , Esquire, Sacramento, California, 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 th ese appeal 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
REMAND ORDER
¶1 The appellant has petition ed for review of the initial decision s in Lentz v.
Department of the Interior , MSPB Docket Nos. SF-4324 -16-0198 -I-1 (0198
Appeal) and SF-4324 -17-0229 -I-1 (0229 Appeal) , which denied corrective action
in his Uniformed Services Employment and Reemployment Rights Act of 1994
(USERRA) appeal s. In addition, the appellant has pending before the Board his
USERRA appeal in Lentz v. Department of the Interior , M SPB Docket
No. SF-4324 -15-0364 -M-1 (0364 Appeal) , in which the U.S. Court of Appeals for
the Federal Circuit vacated the Board’s holding that his resigna tion was voluntary
and remanded for a redetermination on that issue. See Lentz v. Merit Systems
Protection Board , 876 F.3d 1380 , 1381 (Fed. Cir. 2017). The court found that the
Board erred when it bifurcated a single appeal filed by the appellant into a
separate appeal filed under 5 U.S.C. chapter 75, Lentz v. Department of the
Interior , MSPB Docket No. SF -0752 -15-0363 -I-1, Final Order (Jan. 11, 2016 )
(0363 Appeal) , and the 0364 USERRA appeal, and thereby failed to consider the
totality of the evidence in determining the voluntariness question. Id. at 1386.
The court has asked the Board to address whether the totality of events, on all of
the e vidence, produced a working environment sufficiently hostile as to lead to an
involuntary resignation . Id.
¶2 For the following reasons, we VACATE the initial decision s in the 0198
and 0229 Appeal s, REOPEN and VACATE the initial decision in the
0363 Appeal, and JOIN all of these cases with the vacated and remanded
0364 Appeal . We further FIND that the appellant has made nonfrivolous
allegations that entitle him to a hearing, and REMAND the se case s for further
adjudication. We also order the Board’s Western Regional Office to JOIN these
cases with the appellant’s separate IRA appeal that is before that office, MSPB
3
Docket No. SF -1221 -21-0497 -W-3,2 because doing so would expedite their
processing and not adversely affect the interests of the parties . See 5 U.S.C.
§ 7701 (f)(2) ; 5 C.F.R. § 1201.36 (b).
BACKGROUND
¶3 The appellant, a Botanist with the agency’s Bureau of Land Management ,
filed separate USERRA appeals on December 29, 2014, alleging that his military
service and protected activity were substantial or motivating factors in the
issuance of a fully successful performance appraisal for fiscal year 2014 and the
denial of a reasonable accommodation request. Lentz v. Department of the
Interior , MSPB Docket No. SF -4324 -15-0215 -I-1, Initial Decision at 1-2
(Apr. 27, 2015 ) (0215 ID) ; MSPB Docket No. SF -4324 -15-0225 -I-1, Final Order ,
¶ 2 (Sept. 21, 2015 ) (0225 Final Order ). The administrative judge and the Board
denied corrective action in those cases upon finding that the appellant did not
prove that his military service or his filing of a prior USERRA complaint was a
substantial or motivating factor in those actions , and that the agency proved that
it would have taken the same action s for a valid reason and in the absence of the
2 This separate IRA appeal before the Board’s Western Regional Office was originally
docketed as MSPB Docket No. SF -1221 -16-0681 -W-1. The appeal was refiled and
dismissed without prejudice multiple times. See MSPB D ocket Nos. SF-1221 -16-0681 -
W-1 through SF -1221 -16-0681 -W-9. When the appeal was refiled a ninth time, due to
technical limitations of the Board’s software, it was assigned a new docket number,
MSPB Docket No. SF -1221 -21-0497 -W-1, and was again dismissed w ithout prejudice
and then refiled. On March 8, 2022, the Board’s Western Regional Office issued an
initial decision in MSPB Docket No. SF -1221 -21-0497 -W-2, dismissing the appeal
without prejudice to be automatically refiled within 15 calendar days of the first of the
following to occur: (1) the date of issuance of a Board opinion in SF -1221 -15-0688 -
W-1; or (2) September 5, 2022. See MSPB Docket No. SF -1221 -21-0497 -W-2, Initial
Decision (Mar. 8, 2022). As set forth in the Board’s separately issued decisi on in
MSPB Docket No. SF -1221 -15-0688 -W-1, the Board’s Western Regional Office shall
refile the appeal as MSPB Docket No. SF -1221 -21-0497 -W-3. Further, in accordance
with this Remand Order, the Western Regional Office shall join MSPB Docket
No. SF-1221 -21-0497 -W-3 with these cases.
4
protected activity . 0215 ID at 5-10; 0225 Final Order , ¶¶ 3-4, 6. Those app eals
became final on June 1, 2015, and September 21, 2015 , respective ly.
¶4 On February 25, 2015 , the appellant filed an appeal alleging that his
February 13, 2015 resignation was involuntary , and that the agency therefore
constructively discharged him based on continual harassment, discrimination, and
reprisal . 0363 Appeal, Initial Appeal File (0363 IAF) , Tabs 1, 11 , Initial
Decision (0363 ID) at 4-5. The administrative judge dismissed the appeal for
lack of jurisdiction in a July 10, 2015 initial decision , finding that the appellant
did not make a nonfrivolous allegation that the agency coerced his resignation by
reprimanding him , sustaining a proposed 14-day suspension, and failing to select
him for various positions ; an e mployee is not guara nteed a stress -free
environment; many months had elapsed between th e reprimand and the
resignation; the appellant did not explain why he could not have continue d his
employment while he pursued relief from those actions ; a list of expectations did
not constitute an improper act or create intolerable working conditions ; and his
claims of a failure to reasonably accommodate him were conclusory and vague .
0363 ID at 1, 7-15, 18-19. The Board denied the appellant’s petition for review.
Lentz v. Department of the Interior , MSPB Docket No. SF -0752 -15-0363 -I-1,
Final Order (Jan. 11, 2016).
¶5 Based on the same appeal form filed in the 0363 Appeal, the administrative
judge docketed a separate USERRA appeal based on the appellant’s allegation
that the agency violated USERRA when it constructively discharged him by
means of his Februar y 13, 2015 involuntary resignation . 0364 Appeal, Initial
Appeal File, Tabs 1, 12 , Initial Decision (0364 ID) at 1 , 4. The administrative
judge dismissed that appeal for lack of jurisdiction in a January 19, 2016 initial
decision , finding that the appellant was collaterally estopped from relitigating the
issue of whether his resignation was involuntary given the Final Order in the
0363 Appeal . 0364 ID at 2, 6. The administrative judge further found that the
appellant failed to make nonfrivolou s allegations that a reasonable person in his
5
position would have felt compelled to resign due to USERRA -based
discrimination or reprisal. 0364 ID at 7-8. On petition for review of that initial
decision, the Board noted that, for reasons that were unclea r, the regional office
docketed the appellant’s February 25, 2015 pleading as two separate appeals of
the involuntary resignation: one under 5 U.S.C. ch apter 75, and one under
USERRA . Lentz v. Department of the Interior , MSPB Docket No. SF -0752 -15-
0364 -I-1, Final Order, ¶¶ 1, 5 (Oct. 14, 2016). Nevertheless, t he Board agreed
with the administrative judge’s application of collateral estoppel and dismissal of
the appeal of the alleged involuntary resignation, but forwarded the appellant’s
USERRA claims con cerning his letter of reprimand (LOR) , 14-day suspension,
and alleged constructive suspension to the regional office for docketing as a new
appeal. Id., ¶¶ 1, 13-15. As set forth above, the court vacated th at decision on
December 12, 2017, finding that the Board erred in separa ting the chapter 75 and
USERRA appeals, and remanded for a redetermination regarding whether the
totality of the events produced a working environment sufficiently hostile as to
lead to an involuntary resignation . See Lentz , 876 F.3d at 1381.
¶6 While the above appeals were pending , the appellant filed additional
appeals on July 12, 2015, January 4, 2016 , and August 7, 2016 , (1) challenging in
an IRA appeal the LOR, decision to suspend for 14 days, and harassment leading
to his alleged involuntary resignation , Lentz v. Department of the Interior , MSPB
Docket No. SF -1221 -15-0688 -W-1 (0688 Appeal); (2) alleging that the agency
violated USERRA when it failed to select him for several vacancies and a detail
(0198 Appeal) ; and (3) alleging that the agency violated USERRA when his prior
managers provided him with negative employment references to prospective
employers after he resigned , see Lentz v. Department of the Interior , MSPB
Docket No. SF -4324 -16-0680 -I-1 (0680 Appeal) .3 The administrative judge
3 We have not joined the 0688 Appeal and the 0680 Appeal with these appeal s, but
instead adjudicate those case s separately . As discussed in the separately issued Board
decision in the 0688 Appeal, the resolution of that case , an IRA appeal, turns on
6
either applied the doctrine of collateral estoppel, dismissed the appeals for lack of
jurisdiction , and/or denied corrective action in the appeals . T he appellant has
filed petitions for review of those initial decisions.
¶7 On August 7, 2016, the appellant filed a second IRA appeal in Lentz v.
Department of the Interior , MSPB Docket No. SF -1221 -16-0681 -W-1. The
administrative judge dismissed that appeal without prejudice to refiling multiple
times , finding that the disclosures and pe rsonnel actions largely overlapped with
those raised in the 0688 Appeal , which was then pending before the full Board .
Lentz v. Department of the Interior , MSPB Docket No. SF-1221 -21-0497 -W-2
(0497 Appeal) , Initial Decision at 1-3 (Mar. 8, 2022 ). Finally, on February 3,
2017 , the administrative judge docketed the 0229 Appeal, encompassing the
USERRA claims forwarded by the Board in the 0364 Appeal, namely, the LOR ,
14-day suspension, and alleged constructive suspension . The administrative
judge dismissed for lack of jurisdiction the constructive suspension claim and
denied corrective action regarding the remaining actions . 0229 Appeal, Initial
Appeal File , Tab 17, Initial Decision (0229 ID) at 2, 9-37. The appellant has
petitioned for review of t hat decision .
ANALYSIS
¶8 As set forth above, t he court in Lentz held that the proper question in this
case is whether the totality of the evidence, including both the evidence of alleged
USERRA violations and the evidence of other coercive agency actions, rendered
whether the appellant made protected disclosures , and not on whether his resignation
was involuntary and thus a personnel action. The actions at issue in th e 0680 Appeal
postdate the appellant’s resignation, and thus could not have contributed to any hostile
work environment that led to a constructive discharge . 0680 Appeal, Initial Appeal
File, Tab 14 at 2 (defining the issue as whether the appellant was discriminated against
based on his prior protected USERRA activity in job ref erences issued by the agency on
March 2, 2015, March 18, 2015, April 21-22, 2015, June 2, 2015 , July 14, 2015, and
September 30, 2015 ); see Terban v. Department of Energy , 216 F.3d 1021 , 1024 (Fed.
Cir. 2000) (finding that the period of time between the allegedly coercive act and the
retirement is usually the most pr obative evidence of involuntariness) .
7
the appellant’s resignation involuntary . Lentz , 876 F. 3d at 1386 . The court held
that the cause of action in the 0364 Appeal was the alleged constructive
discharge, not the USERRA violation alone, and that “[a]ll of the evidence
relevant to constructive discharge must be considered . . . .” Id. Thus, the
appropriate standard in this case is whether the totality of events, on all of the
evidence, produced a working environment sufficiently hostile as to lead to an
involuntary resignation. Id. In remanding the case to the Board, however, the
court stated th at it had not decided whether the appellant’s allegations were
nonfrivolous based on the totality of the evidence. Id.
¶9 The court addressed much of the evidence it considered relevant for the
Board to address in determining whether the appellant’s working environment
was sufficiently hostile to lead him to resign involuntarily. For example, the
court noted that the agency had issued a LOR, as well as a proposed and sustained
14-day suspension, and that the appellant had been on medical leave between his
receipt of the proposal letter and his resignation and had alleged a denial of
reasonable accommodation . Id. at 1382 -83. The court further noted that the
appellant’s resignation letter cited harassment and a hostile work environment
that aggravated an illn ess and his veterans disability and made his work
circumstances intolerable. Id. at 1382. It further observed the appellant’s
contentions that his performance had been rated “superior” until the most recent
2 years of employment , he had filed complaints alleging discrimination and
harassment by his supervisors, including USERRA complaints, and he had alleged
that the LOR and 14 -day suspension were retaliatory and discriminatory, leading
to his coerced resignation. Id. The court mentioned that the appell ant had
alleged before the Board that the agency discriminated against him based on his
status as a disabled veteran and retaliated against him for filing USERRA
complaints , and had alleged retaliation for whistleblowing activity in separate
appeals . Id.
8
¶10 To be entitled to an evidentiary hearing on jurisdiction, an employee
seeking to show that his resignation was involuntary must make nonfrivolous
allegations that could establish jurisdiction. Middleton v. Department of Defense ,
185 F.3d 1374 , 1379 -80 (Fed. Cir. 1999). A nonfrivolous allegation is an
assertion that, if proven, could establish the matter at issue. 5 C.F.R. § 1201.4 (s).
Based on the above events described by the court, we find that the appellant has
nonfrivolous ly alleg ed that the agency issued a LOR, proposed and sustained a
14-day suspension, denied him a reasonable accommodation, reduced his
performance ratings, and otherwise created a hostile work environment based on
his status as a disabled veteran , his filing of USERRA complaints, a nd his
whistleblowing disclosures , thereby making his working environment sufficiently
hostile so as to lead to his involuntary resignation .4 He has further nonfrivolously
alleged that these allegedly improper actions by the agency created depression,
stress, and anxiety that further led to his involuntary resignation. See 0363 IAF,
Tab 3 at 11 -12, 15, Tab 4 at 4 (resignation letter asserting that “[t]he many acts of
harassment that I have been subjected to have created a hostile work environment
that has severely aggravated an illness and disabilities which have caused me to
be placed on sick leave for an indefinite period of time,” “several times during
2014, I have been pushed to the limits of what I could endure and had to take
significant amounts of s ick leave as a result,” “[t]his continued harassment is
making it nearly impossible for me to recover from the aggravated illness and
disabilities,” and he had no choice but to resign because “I can no longer endure
the physical and mental pain caused by m y aggravated illness and disabilities”).
The Board has held that such allegations entitle the appellant to a jurisdictional
4 Although the court explained that the appellant had filed separate appeals that were
“not here at issue” alleging that the agency’s “actions” were in reprisal for protected
whistleblowing activity, Lentz , 876 F.3d at 1382, the appellant’s resignation letter
reflects that his hostile work environment claim in connection with his alleged
involuntary resignation included his belief that the agency had punished him for his
whistleblower disclosures, 0363 IAF, Tab 4 at 4.
9
hearing on the issue of whether a retirement or resignation is involuntary. See
O’Brien v. Department of Agriculture , 91 M.S.P.R. 139, ¶¶ 5-9 (2002) (finding a
nonfrivolous allegation of an involuntary retirement based on assertions of
harassment and retaliation that led to , among other things, depression) ; Koury v.
Department of Defense , 84 M.S.P.R. 219 , ¶¶ 13-14, 17 (1999) (remandin g for a
jurisdictional hearing upon finding that the appellant made a nonfrivolous
allegation that he had been subjected to an ongoing pattern of reprisal and
harassment that led to his resignation when he was unable to return to work due
to anxiety); Jone s v. Department of the Navy , 66 M.S.P.R. 421 , 423-25 (1995)
(remanding for a jurisdictional hearing because the appellant made a non frivolous
allegation that his resignation was involuntary due to health concerns caused by
agency harassment); Swift v. U.S. Postal Service , 61 M.S.P.R. 29 , 32-33 (1994)
(remanding for a jurisdictional hearing based on nonfrivolous allegation s that the
appellant suffered from depression with anxiety as a result of specified acts of
harassment). Under these circumstances, we find that the appellant has made
nonfrivolous allegation s of fact that entitle him to a jurisdictional hearing.5
¶11 We further find that, because the 0198 , 0229 , and 0497 Appeals that have
been , or will be, joined to the 0363 and 0364 Appeal s involve the unde rlying
allegations identified by the court t hat are relevant to the issue of the
voluntariness of the appellant’s resignation , the initial decisions in the 0198 and
0229 Appeals are vacated and the appellant is entitled to a combined hearing in
all of the joined cases if he requests one , and the opportunity to submit additional
5 The court noted that the administrative judge had reported that the appellant did not
request a hearing below, but instead requested the opportunity to develop the written
record. Lentz , 876 F.3d at 1384 n.3. Nevertheless, in light of our determination that
the appellant has raised a nonfrivolous allegation that his resignation was involuntary,
he is entitled to a hearing if he requests one on remand. If he does not request a hearing
on remand, he is entitled to present written evidence and argument so as to fully
develop the record on the question of the voluntariness of his resignation. See Lentz ,
876 F.3d at 1384 (noting that the appellant “states that he provided thirty -six pieces of
evidence, none of which was directly addressed,” and that the adm inistrative judge
declined to consider information that had been segregated in the 0363 Appeal).
10
evidence and argument in those cases if he does not request a hearing . In this
regard, we note that the 0198 Appeal involves an alleged violation of USERRA in
the agency’s failure t o select him for vacancies and a detail ,6 and the 0229 Appeal
involves the LOR, 14 -day suspension, and alleged constructive suspension in the
context of a USERRA appeal .7 To establish Board jurisdiction over a USERRA
discrimination appeal, the appellant m ust allege the following: (1) h e performed
duty or has an obligation to perform duty in a uniformed service of the United
States; (2) the agency denied him initial employment, reemployment, retention,
promotion, or any benefit of employment; and (3) the d enial was due to the
performance of duty or obligation to perform duty in the uniformed service.
Gossage v. Department of Labor , 118 M.S.P.R. 455 , ¶ 10 (2012). A claim of
discrimination under USERRA should be broadly and liberally construed in
determining whether it is nonfrivolous. Id. Once an appellant has established
jurisdiction over a USERRA appeal, he has an unconditional ri ght to a hearing.
Palumbo v. Department of the Interior , 112 M.S.P.R. 206 , ¶ 7 (2009). Here, we
6 Although the court does not appear to have specifically mentioned the appellant’s
allegations that the agency failed to select him for vacancies and a detail in violation of
USERRA, the record in the 0363 Appeal indicates that he raised these claims in
connection with his assertion that the agency created a hostile work environment that
led to his involuntary resignation. 0363 IAF, Tab 3 at 6-7, 9, 26 -27, 30, 34.
7 The appellant alleges on review in the 0229 Appeal that the administrative judge
improperly failed to docket his constructive suspension claim as a separate chapter 75
appeal. 0229 Appeal, Petition for Review File, Tab 1 at 5. We agree. Given the
court’s reasoning in Lentz , 876 F.3d at 1386 , that the proper question in that case was
whether th e totality of the evidence, including both the evidence of alleged USERRA
violations and the evidence of other coercive agency actions, rendered the appellant’s
resignation involuntary, we similarly find that , in determining whether the agency
constructively suspended the appellant, the totality of the evidence, including evidence
of alleged USERRA violations and evidence of other alleged coercive acti ons, must be
considered. See Thomas v. Department of the Navy , 123 M.S.P.R. 628, ¶ 9 (2016 )
(although various fact patterns ma y give rise to an appealable constructive suspension,
all such claims are premised on the proposition that an absence that appears to be
voluntary actually is not because the employee lacked a meaningful choice in the matter
and it was the agency’s wrongfu l actions that deprived her of that choice ). Thus, the
administrative judge shall docket , join with these appeals, and adjudicate on remand a n
appeal under 5 U.S.C. chapter 75 of the appellant’s constructive suspension claim .
11
agree with the administrative ju dge that the appellant made nonfrivolous
allegations in the 0198 and 0229 Appeals entitling him to a hearing, should he
request one on remand. 0198 Appeal, Initial Appeal File , Tab 28, Initial Decision
at 5; 0229 ID at 2, 6 -9. Although the administrative judge must adjudicate on
remand the merits of the 0198 and 0229 Appeals, we also note that, when
allegations of discrimination or reprisal are alleged in connection with a
determination of voluntariness, such as the issue of the voluntariness of the
appel lant’s resignation in th ese case s, such evidence of discrimination or reprisal
may be addressed insofar as it relates to the issue of voluntariness and not
whether the evidence would establish discrimination or reprisal as an affirmative
defense. O’Brien , 91 M.S.P.R. 139, ¶ 6.
¶12 The administrative judge shall adjudicate all of these joined cases a fter a
single hearing, if requested by the appellant , and in a single initial decision.
Although the 0215 and 0225 Appeal s involve d the appellant’s performance
appraisal a nd claim that the agency denied him a reasonable accommodation, and
although these actions were mentioned by the court in Lentz , 876 F.3d at 1382 -83,
and could have been a factor in the hostile working conditions that led to his
alleged involuntary resignation, the Board’s decisions in those cases bec ame final
and were not appealed to the court . Therefore, the administrat ive judge on
remand need not readjudicate the merits of those cases, but must consider the
underlying allegations in those cases in addressing the totality of the evidence as
it relates to the appellant’s alleged involuntary resignation. Similarly, the
administrative judge on remand need not readjudicate the merits of the
0688 Appeal, which is an IRA appeal, because that appeal has become final in a
separately issued Board decision . Nevertheless, he must consider the underlying
allegations of reprisal for whistleblowing in addressing the totality of the
evidence as it relates to the appellant’s alleged involuntary resignation. See
Neice v. Department of Homeland Security , 105 M.S.P.R. 211 , ¶ 8 (2007).
12
ORDER
¶13 Accordingly, f or the reasons discussed above, we remand these case s to the
regional office for further adjudication in accordance with this Remand Order.
FOR THE BOARD:
Washin gton, D.C. /s/ for
Jennifer Everling
Acting Clerk of the Board | LENTZ_CHASE_M_SF_0752_15_0363_R_1_REMAND_ORDER_1938142.pdf | 2022-06-30 | null | S | NP |
4,315 | https://www.mspb.gov/decisions/nonprecedential/LENTZ_CHASE_M_SF_4324_16_0680_I_1_FINAL_ORDER_1938168.pdf | UNITED STATES OF AME RICA
MERIT SYSTEMS PROTEC TION BOARD
CHASE M. LENTZ,
Appellant,
v.
DEPARTMENT OF THE IN TERIOR,
Agency.
DOCKET NUMBER
SF-4324 -16-0680 -I-1
DATE: June 30, 2022
THIS FINAL ORDER IS NONPRECEDENTIAL1
Chase M. Lentz , Fresno, California, pro se.
Kevin D. Mack , Esquire and Deborah Smith , Sacramento, California, 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
denied his request for corrective action under the Uniformed Services
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or 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
Employment a nd Reemployment Rights Act of 1994 (codified as amended at
38 U.S.C. §§ 4301 -4335) (USERRA) . 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).
BACKGROUND
¶2 The appellant filed a Board appeal alleging that the agency violated
USERRA when his former supervisors at the agency provided negative
employment references to his prospective employers. Initial Appeal File (IAF),
Tab 1. The record reflects that the appellant was employed as a Botanist with the
agency’s Bureau of Land Management (BLM) until his resignation on
February 13, 2015, and tha t he was rated superior on his performance appraisals
for fiscal years 2007 -2012 and fully successful for 2013 and 2014. IAF, Tab 1,
Tab 6 at 28-36, Tab 9, Subtab 4a, Tab 15, Subtab 3. Prior to resigning his
position with the agency, the appellant had en gaged in USERRA activity when he
filed a complaint with the Department of Labor (DOL) on December 2, 2014,
alleging that he had been nonselected for various vacancies in violation of
USERRA. IAF, Tab 6 at 6-8. His second -line supervisor knew of his USERR A
3
claim with DOL. The appellant also filed other Board appeals alleging USERRA
violations. Id. at 9-18.
¶3 After resigning from the agency, the appellant applied for numerous
positions, but he was not hired for any position for which his first - or second -line
supervisor gave job references. IAF, Tab 11 at 4, Tab 12 at 6 -7, 44, 62. The
appellant filed a complaint with DOL alleging that his former supervisors had
provided negative job references in reprisal for exercising his rights under
USERRA. IAF, Tab 1 , Tab 11 at 8 -14. DOL notified the appellant that it found
no evidence that any adverse actions taken were because of his veteran status.
IAF, Tab 1 at 44. The appellant requested a referral of his claim to the Office of
Special Counsel (OSC), which, af ter investigating his claim, notified him that it
was closing its file. Id. The appellant subsequently filed this appeal. Id. at 39.
¶4 During the adjudication of the appeal, the administrative judge defined the
sole issue as whether the appellant was disc riminated against based on his prior
protected USERRA activities when his first - and second -line supervisors provided
job references to the U.S Army Corps of Engineers, BLM, and the Bureau of
Reclamation.2 IAF, Tab 14 at 2. In an initial decision based o n the written record
because the appellant did not request a hearing, the administrative judge found
jurisdiction but denied the appellant’s request for corrective action. IAF, Tab 17,
Initial Decision ( ID) at 5-12. Specifically, the administrative judge found that the
appellant failed to prove by preponderant evidence that his protected activity
under USERRA was a motivating or substantial factor in the agency’s actio ns at
issue in this appeal. ID at 5-12.
¶5 The appellant has filed a petition for review. Petition for Review (PFR)
File, Tab 1. The agency has filed a response in opposition. PFR File, Tab 3.
2 The summary of the close -of-record conference indicates that the appellant was not
arguing that the negative job references were the result of discrimination based on his
prior service in the military. IAF, Tab 14 at 2.
4
DISCUSSION OF ARGUMENTS ON REVIEW
¶6 Under 38 U.S.C. § 4311 (b), an agency is prohibited from discriminating in
employment against or taking any adverse employment act ion against any person
because “he has taken an action to enforce a protection provided by USERRA or
has exercised a right provided for by USERRA.” Kitlinski v. Merit Systems
Protect ion Board , 857 F.3d 1374 , 1381 (Fed. Cir. 2017) ; Burroughs v.
Department of the Army , 120 M.S.P.R. 392 , ¶ 7 (2013). To prevail on the merits
of a claim under 38 U.S.C. § 4311 (b), an appellant must prove by preponderant
evidence that his USERRA -protected activity was a substantial or motivating
factor in the agency’s action. Burroughs , 120 M.S.P.R. 392 , ¶¶ 5, 7. If the
appellant makes that showing, the agency can avoid liability by demonstrating , as
an affirmative defense, that it would have taken the same action for a valid reason
with out regard to his uniformed service. Id. An agency therefore violates
section 4311(b ) if it would not have taken the action but for the appellant’s
uniformed service. Id.
¶7 Discriminatory motivation under USERRA may be established by direct
evidence or ma y be reasonably inferred from a variety of factors, including
proximity in time between the employer’s military activity and the adverse
employment action, inconsistencies between the proffered reason and other
actions of the employer, an employer’s expres sed hostility towards members
protected by the statute together with knowledge of the employee’s military
activity, and disparate treatment of certain employees compared to other
employees with similar work records or offenses . Brasch v. Department of
Transportation , 101 M.S.P.R. 145 , ¶ 9 (2006).
The administrative judge correctly found that the job references provided by the
first-line supervisor suggest no unlawful hostility or bias based on the appellant’s
prior USERRA activity.
¶8 The record reflects that the appellant’s first -line supervisor supervised him
from August 24, 2014, to February 13, 2015, and that she proposed his 14-day
5
suspension on November 13, 2014. IAF, Tab 15, Subtab 3. The first -line
supervisor provided references for the appellant to the Bureau of Reclamation on
March 2, 2015, to the BLM office in Oregon on March 18, 2015, to the BLM
office in Nevada on Ju ne 2, 2015, and to the U.S. Army Corps of Engineers on
April 22, 2015. IAF, Tab 15, Subtabs 3 -4.
¶9 On review, the appellant reasserts the numerous challenges he raised below
and he continues to argue that his first -line supervisor provided inaccurate
statem ents during job references for him in reprisal for his USERRA activity.
PFR File, Tab 1 at 7 -17. The appellant also argues that the administrative judge
erred by not addressing the inconsistencies between the five separate job
references she provided to his prospective employers. Id.
¶10 We find that the administrative judge thoroughly considered the five
separate job references provided by the appellant’s first -line supervisor. ID
at 5-6. He also considered the basis behind the charges in the 14 -day suspension
proposed by his first -line supervisor. ID at 7. The administrative judge further
considered the appellant’s arguments concerning the accuracy of his first -line
supervisor’s recommendations, including, for example, his claim that comments
in th e job references concerning his communication abilities were inconsistent
and not credible because his first -line supervisor also stated in a prior affidavit
that he “had not previously failed to follow my orders/directions.” ID at 7; IAF,
Tab 15 at 5.
¶11 The administrative judge found that the statements in the job references
provided by the first -line supervisor were well supported by the specific incidents
in the 14 -day suspension notice. ID at 8. He explained why he did not find a
credibility issue betw een the first -line supervisor’s statement and the references
she provided, noting that her assessment in her declaration was consistent with
the references she provided to the appellant’s prospective employers. Id. In
addition, he found nothing suspiciou s in the timing of the first -line supervisor’s
comments because she was responding to the reference requests after the
6
appellant already had resigned his position with the agency. Id. While the
appellant disagrees with the administrative judge’s findings , we have thoroughly
reviewed the record and, for the reasons discussed below, we discern no basis
upon which to disturb them.
¶12 For instance, the appellant asserts that his first -line supervisor made an
inconsistent statement when she was asked during the Bureau of Reclamation
reference to identify his leadership style or approach and she responded “No
direct experience to speak to.” PFR File, Tab 1 at 7; IAF, Tab 6 at 24. He asserts
that this comment contradicts her response of “Inspired loyalty in his interns” on
the U.S. Army Corps of Engineers reference when asked to identify his leadership
capabilities and, when asked during the BLM reference if he has served in a
leadership role, she answered “[y]es, project lead for grazing permit renewal and
Happy Valley Greenhouse.” IAF, Tab 6 at 24. However, the questions on the
three separate job references are different and we find no inconsistency in the
answers. Regarding the first comment, the appellant’s first -line supervisor
supervised him for less than 1 year, and he asserts that, because he was on sick
leave, she only supervised him for 2 1/2 months. PFR File, Tab 1 at 8. Based on
the relatively short period of time that she actually supervised him, she may not
have had any direct experience of actua lly observing a specific leadership style or
approach used by the appellant during that time frame . In contrast, the first -line
supervisor’s other two comments focused on whether she found the appellant
capable of holding a leadership role, and whether he held a leadership role under
her supervision. IAF, Tab 15, Subtab 4.
¶13 The appellant also contends that the administrative judge erred in his
assessment of the first -line supervisor’s comments to two different individuals
from the U.S. Army Corps of Engi neers regarding the proficiency of his work.
PFR File, Tab 1 at 8. For example, the appellant argues that the administrative
judge incorrectly “quoted” the first -line supervisor’s comment when he said she
stated that the appellant would “occasionally” ma ke technical errors in his work.
7
ID at 6. The appellant argues that the first -line supervisor used the word “some”
not “occasionally,” and that the two words have different meanings. PFR File,
Tab 1 at 8. However, the administrative judge did not quote the statements made,
but instead summarized the first -line supervisor’s comments. ID at 6. Moreover,
while the appellant appears to argue that the first -line supervisor’s use of the
word “some” rather than “occasionally” made this a negative reference, we find
this argument unpersuasive.
¶14 Regarding the administrative judge’s consideration of the language in the
proposed suspension notice, the appellant also argues that the agency improperly
introduced evidence of the letter of reprimand and 14 -day suspens ion. He
contends that, because he did not raise the disciplinary actions in this appeal, it
was improper for the agency to submit evidence of the letter of reprimand and
suspension, and for the administrative judge to consider them. PFR File , Tab 1.
How ever, the record reflects that the appellant’s disciplinary actions were raised
first in documents included with his initial appeal. IAF, Tab 1. Nevertheless, the
job references provided by either supervisor make no mention of the disciplinary
actions. IAF, Tab 15, Subtab 4. Rather, the agency submitted evidence of the
letter of reprimand and 14 -day suspension on appeal to support the explanations
of the appellant’s supervisors regarding their responses to questions asked in the
job references. Id., Subtab 3. We find no abuse of discretion by the
administrative judge in considering the record as a whole, including the letter of
reprimand and the notice and decision letter for his suspension. An
administrative judge has wide discretion to control the p roceedings before him, to
accept and consider the evidence he finds relevant, and to ensure that the record
on significant issues is fully developed. 5 C.F.R. § 1201.41 (b)(3); see Tisdel l v.
Department of the Air Force , 94 M.S.P.R. 44 , ¶ 13 (2003).
¶15 Accordingly, we agree with the administrative judge that the referen ces
provided by the appellant’s first -line supervisor suggest no unlawful hostility or
bias based on the appellant’s prior USERRA activity. Rather, we find that the
8
references were either neutral or positive and that, although the appellant would
have pre ferred only positive references, the neutral comments reflect his first -line
supervisor’s valid concerns regarding his performance in specific areas.
Accordingly, we agree with the administrative judge that the appellant did not
show that his protected ac tivity under USERRA was a motivating or substantial
factor in these identified job references.
The appellant has failed to prove that his second -line supervisor was motivated
by his prior USERRA activity to provide negative employment references to his
prospective employers.
¶16 The appellant’s second -line supervisor supervised him from September 12,
2010, to February 13, 2015. IAF, Tab 15, Subtab 1. Due to a vacancy in the
Resources Supervisor position, she also served as his first -line supervisor from
March 2012 , to February 2013. Id. The second -line supervisor provided job
references for the appellant to the U.S. Forest Service on December 17, 2013, and
July 14, 2015, to the U.S. Army Corps of Engineers on April 21, 2015, and to the
BLM Winnemucca Field O ffice on September 30, 2015. Id., Subtabs 1 -2. On
May 15, 2014, his second -line supervisor issued him a letter of reprimand based
on two charges: “Acting Outside the Scope of Your Authority” and “Conduct
Unbecoming,” and on February 10, 2015, she sustai ned a proposed 14 -day
suspension based on the same charges. Id., Subtabs 5, 7.
¶17 On review, the appellant argues that the administrative judge did not fully
analyze the inaccurate statements in the three job references provided by his
second -line supervis or in 2015. PFR File, Tab 1 at 19. For example, the
appellant contends that the administrative judge erred in not addressing the
statement that his second -line supervisor had not witnessed him in a leadership
role. Id. Similarly, he argues that, becaus e his second -line supervisor directly
supervised and rated his performance in 2012, any of her comments on the job
evaluations in 2015 that were more negative than his 2012 ratings were
inconsistent and false. Id. at 19 -21. For instance, he claims that, because she was
9
his immediate supervisor in 2012 and 2013, she falsely stated in the 2015 job
reference that she could not speak to the specific details concerning the level of
supervision that is required over him. Id. at 19. Similarly, he claims that h er
2015 comments regarding his varying work ethic between the programs are
inconsistent with his 2012 performance evaluation when she rated him as superior
in the comparable critical elements. Id. at 21.
¶18 We find that the administrative judge thoroughly co nsidered the job
references provided by the appellant’s second -line supervisor, as well as the letter
of reprimand and her decision on the appellant’s sustained suspension. ID
at 8-10. Additionally, he considered the appellant’s arguments concerning the
differences between the relatively positive employment reference in
December 2013, prior to his engaging in protected USERRA activities, compared
to her later references. ID at 11. The administrative judge credited the
second -line supervisor’s statement that her 2015 references were impacted by the
appellant’s change in attitude and his various conflicts with management, as
reflected in the letter of reprimand and suspension decision. ID at 12.
¶19 We have thoroughly reviewed the record and find no basis upo n which to
disturb the administrative judge’s findings concerning the second -line supervisor.
While the appellant continues to challenge the 2015 job references she provided,
his arguments involve the same 3 -year gap between the references and the period
when she directly supervised him in 2012 and 2013. PFR File, Tab 1 at 20 -27.
Although it is undisputed that the appellant engaged in protected USERRA
activity in late 2014, the record demonstrates that his work performance and the
supervision required ov er him in 2012 and 2013 were not necessarily at the same
level as they were in 2014 and 2015. IAF, Tab 15, Subtabs 1 -4. Here, the
second -line supervisor specifically addressed this period of time in her
declaration and she explained that there was a chan ge in the appellant’s
workplace attitude and demeanor and that he began to have conflicts with
management concerning program areas, responsibilities, and communication. Id.,
10
Subtab 1. Even though the appellant disagrees with her conclusion regarding the
change in the quality of his performance during this period of time, we discern no
basis to disturb the administrative judge’s determination to credit the second -line
supervisor’s declaration on this point. See Broughton v. Department of Health &
Human Se rvices , 33 M.S.P.R. 357 , 359 (1987) (finding that there is no reason to
disturb the administrative judge’s conclusions when the init ial decision reflects
that she considered the evidence as a whole, drew appropriate inferences, and
made reasoned conclusions).
¶20 The appellant also appears to be arguing that the references provided by his
second -line supervisor are inconsistent because the 2015 references are more
positive and complimentary regarding his communication skills compared with
the charging language in the letter of reprimand and suspension he received. PFR
File, Tab 1 at 20. Thus, he reiterates his claim that she purposefully provided
inaccurate job references. However, while her comments may have been more
positive in her 2015 references for him than the charging language in the
disciplinary actions he received, such positive comments fail to support the
appellant’s argument that she provided negative employment references to his
prospective employers. To the extent the appellant is attempting to challenge the
merits of the letter of reprimand and his 14 -day suspension, those actions are not
before the Board in this appeal an d we have not addressed them. Accordingly, in
considering the record as a whole, we agree with the administrative judge’s
findings that the appellant failed to prove that his second -line supervisor was
motivated by his prior USERRA activity to provide neg ative employment
references to his prospective employers.
The appellant argues that the administrative judge was biased and failed to
interpret the arguments in the light most favorable to him as a pro se appellant.
¶21 In making a claim of bias or prejudice a gainst an administrative judge, a
party must overcome the presumption of honesty and integrity that accompanies
administrative adjudicators . Oliver v. Department of Transportation , 1 M.S.P.R.
11
382, 386 (1980). An administrative judge’s conduct during the course of a Board
proceeding warrants a new adjudication only if his comments or actions evidence
“a deep -seated favoritism or antagonism that would make fair judgment
impossible.” Bieber v. Department of the Army , 287 F.3d 1358 , 1362 -63 (Fed.
Cir. 2002) (quoting Liteky v. United States , 510 U.S. 540 , 555 (1994)).
¶22 Here, the appellant raises numerous arguments in which he alleges that the
administrative judge was biased and failed to interpret the arguments in the light
most favorable to him as a pro se appellant. PFR File, Tab 1 at 5 -6, 17. For
example, the appellant contends the administrative judge demonstrated bias by
accepting whatever rationalization his supervisors provided “ regardless of how
irrational and inconsistent” their statements were. Id. at 5-6. However, we have
reviewed the record and find no evidence of bias, and, as explained above, we
find the appellant’s arguments regarding the consistency of his supervisors’
statements unavailing. To the extent the appellant appears to argue that the
administrative judge demonstrated bias because he failed to address every
document or question raised concerning the job references, an administrative
judge’s failure to mention all of the evidence of record does not mean that he did
not consider it in reaching his decision. Marques v. Department of Health &
Human Services , 22 M.S.P.R. 129 , 132 (1984), aff’d , 776 F.2d 1062 (Fed. Cir.
1985) (Table).
¶23 Finally, the appellant contends that the administrative judge focused on
misrepresentations by the agency and failed to consider that his former
supervisors were highl y motivated to retaliate against him because he had
exercised his rights protected under USERRA. PFR File, Tab 1. However, we
find that the administrative judge issued an initial decision that thoroughly
addressed the issues and made reasoned findings an d determinations. Spithaler v.
Office of Personnel Management , 1 M.S.P.R. 587 , 589 (1980). While the
appellant disagrees with those findi ngs, we find that his arguments provide no
basis to disturb the initial decision. See Broughton , 33 M.S.P.R. at 359.
12
Accordingly, we find that the administrative judge correctly denied the
appellant’s request for corrective action.
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 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 all
filing time limits and requirements. Failure to file within the 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).
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.
13
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful 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
14
discrimination based on race, color, religion, sex, national origin, or a disabling
condition, you may be entitled to representation by a court -appointed lawyer and
to waiver of any requirement of prepayme nt of fees, costs, or other security. See
42 U.S.C. § 2000e -5(f) and 29 U.S.C. § 794a .
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702 (b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702 (b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative 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
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 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
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.
16
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a gi ven 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_Loca tor/CourtWebsites.aspx .
FOR THE BOARD:
Washington, D.C. /s/ for
Jennifer Everling
Acting Clerk of the Board | LENTZ_CHASE_M_SF_4324_16_0680_I_1_FINAL_ORDER_1938168.pdf | 2022-06-30 | null | SF-4324-16-0680-I-1 | NP |
4,316 | https://www.mspb.gov/decisions/nonprecedential/KEMPF_WILLIAM_E_CH_0845_16_0544_I_1_FINAL_ORDER_1937651.pdf | UNITED STATES OF AME RICA
MERIT SYSTEMS PROTEC TION BOARD
WILLIAM E. KEMPF,
Appellant,
v.
OFFICE OF PERSONNEL
MANAGEMENT,
Agency.
DOCKET NUMBER
CH-0845 -16-0544 -I-1
DATE: June 29, 2022
THIS FINAL ORDER IS NONPRECEDENTIAL1
William E. Kempf , Lafayette, Indiana, pro se.
Jane Bancroft , Washington, D.C., for the agency.
BEFORE
Cathy A. Harris , Vice Chairman
Raymond A. Limon , Member
Tristan L. Leavitt , Member
FINAL ORDER
¶1 The appellant has f iled a petition for review of the initial decision, which
dismissed his appeal of an Office of Personnel Management (OPM)
reconsideration decision for lack of jurisdiction . Generally, we grant petitions
such as this one only in the following circumstances : the initial decision contains
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or 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 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 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 and AFFIRM the initial
decision, which is now the Board’s final decision. 5 C.F.R. § 1201.113 (b).
BACKGROUND
¶2 The appellant filed an appeal challenging an OPM reconsideration decision
finding that he was overpaid $17 ,465.13 in civil service annuity benef its under
the Federal Employees ’ Retirement System (FERS). Initial Appeal File (IAF),
Tab 1. During the processing of the appeal, OPM notified the Board that it had
rescinded its reconsideration decision and requeste d that the appeal be dismissed.
IAF, Tab 6. The administrative judge issued an initial decision that granted the
agency’s request and dismissed the appeal for lack of jurisdiction. IAF, Tab 7,
Initial Decision (ID) at 2.
¶3 The appellant filed a petition f or review challenging the dismissal. Petition
for Review (PFR) File, Tab 1. The agency filed a response in opposition. PFR
File, Tab 4.
DISCUSSION OF ARGUME NTS ON REVIEW
¶4 As the administrative judge properly explained, i f OPM completely rescinds
a recons ideration decision, its rescission divests the Board of jurisdiction over the
appeal in which that reconsideration decision is at issue, and the appeal must be
3
dismissed . ID at 2; see F rank v. Office of Personnel Management , 113 M.S.P.R.
164, ¶ 7 (2010) .
¶5 Here, the appellant asserts on review that, because he has not received all of
the relief that he could have received if the matte r had been adjudicated and he
had prevailed, the administrative judge erred in dismissing his appeal as moot
based on OPM’s rescission of the reconsideration decision. PFR File, Tab 1
at 2-3. However, the administrative judge did not make a finding regar ding
mootness ; rather , she dismissed the appeal for lack of jurisdiction based on
OPM’s rescission of the reconsideration decision . ID at 2 . Although the
appellant objects to the dismissal of his appeal, he has not challenged the
accuracy of OPM’s statement regarding the rescission or identified any other
basis on which to find that the Board retains jurisdiction over this appeal despite
that r escission. Accordingly, we find that the Board does not have jurisdiction
over this appeal and that the administrative judge correctly dismissed it . See
Frank , 113 M.S.P.R. 164 , ¶ 7.
¶6 Further, OPM stated it “will remand this case to the Post Adjudication
Branch to issue a new initial final decision about the overpayment with rights to
reconsideration.” IAF, Tab 6 at 4. If the appell ant is dissatisfied with any
subseq uent OPM decision regarding an overpayment of his FERS benefits, he
may request that OPM reconsider the decision and, if he is still dissatisfied, he
may again appeal OPM’s final decision to the Board. See 5 U.S.C. § 8347 (d)(1);
5 C.F.R. § 841.308 . Any future appeal must be filed within the time limits set
forth in the Board’s regulations. See 5 C.F.R. § 1201.22 (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
2 Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise which option is most appropriate in any matter.
4
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 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.
5
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that 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, re ligion, sex, national origin, or a disabling
condition, you may be entitled to representation by a court -appointed lawyer and
to waiver of any requirement of prepayment of fees, costs, or other security. See
42 U.S.C. § 2000e -5(f) and 29 U.S.C. § 794a .
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702 (b)(1). You must file any such request with the
6
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702 (b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancem ent Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302 (b)(8) or
other protected activities listed in 5 U.S.C. § 2302 (b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
disposition of allegations of a prohibited personne l practice described in
section 2302(b) other than practices described in section 2302(b)(8), or
2302(b)(9)(A)(i), (B), (C), or (D),” then you may file a petition for judicial
review either with the U.S. Court of Appeals for the Federal Circuit or any court
of appeals of competent j urisdiction.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 2 7, 2017. The All Circuit Review Act, signed into law by the President on
7
petition for review within 60 days of the date of issuance of this decision.
5 U.S.C. § 7703 (b)(1)(B).
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D .C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
July 7, 2018, permanently allows 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.
8
Contact information for the courts of appeals can be found at their
respective websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/C ourtWebsites.aspx .
FOR THE BOARD:
Washington, D.C. /s/ for
Jennifer Everling
Acting Clerk of the Board | KEMPF_WILLIAM_E_CH_0845_16_0544_I_1_FINAL_ORDER_1937651.pdf | 2022-06-29 | null | CH-0845-16-0544-I-1 | NP |
4,317 | https://www.mspb.gov/decisions/nonprecedential/RAMOS_TORRES_PABLO_ENRIQUE_NY_315H_17_0040_I_1_FINAL_ORDER_1937681.pdf | UNITED STATES OF AME RICA
MERIT SYSTEMS PROTEC TION BOARD
PABLO ENRIQUE RAMOS -TORRES,
Appellant,
v.
DEPARTMENT OF VETERA NS
AFFAIRS,
Agency.
DOCKET NUMBER
NY-315H -17-0040 -I-1
DATE: June 29, 2022
THIS FINAL ORDER IS NONPRECEDENTIAL1
Pablo Enrique Ramos -Torres , Vega Baja, Puerto Rico, pro se.
Ana M. Margarida , San Juan, Puerto Rico, 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 probationary termination appeal for lack of jurisdiction. Generally,
we grant petitions such as this one only in the following circumstances: the
initial decision contains erroneous findings of material fact; the initial decision is
1 A nonprecedential order is one 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 contributing to the Board’s case law. See 5 C.F.R. § 1201.117 (c).
2
based on an erroneous interpretation of statute or regulation or the erroneous
application of the law to the facts of the case; the administrative judge’s rulings
during either the course of the appeal or th e 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 t hat, despite the petitioner’s due diligence, was not
available when the record closed. Title 5 of the Code of Federal Regulations,
section 1201.115 ( 5 C.F.R. § 1201.115 ). After fully considering the filings in this
appeal, we c onclude that the petitioner has not established any basis under
section 1201.115 for granting the petition for review. Therefore, we DENY the
petition for review 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 appealed the agency’s action terminating him from his GS -07
Legal Administrative Specialist position for unac ceptable conduct during his
probationary period . Initial Appeal File (IAF), Tab 1 at 1, 3, 6 -9. He did not
request a hearing. Id. at 2. He contended that the agency committed harmful
error in deciding to terminate him, that the decision was based on a prohibited
personnel practice, and that it was not in accordance with law. Id. at 3. The
administrative judge gave the appellant notice of the elements and burdens he
must meet to establish jurisdiction over his p robationary termination appeal. IAF,
Tab 2. In his response, t he appellant argued that the agency committed harmful
error because it removed him in less than 2 hours and failed to give him the
procedural protections set forth in 5 C.F.R. § 315.805 . IAF, Tab 3 at 5-7. He
argue d that a collective bargaining agreement required the agency to give h im
those procedural protections as well as counseling regarding his allegedly
unsatisfactory performance. Id. The agency responded in opposition to the
appellant’s appeal. IAF, Tab 5.
3
¶3 The administrative judge issued an initial decision, dismissing the appeal
for lack of jurisdiction and finding that the appellant did not meet the statutory
definition of an “emp loyee” under 5 U.S.C. § 7511 (a)(1)(A)(i) with appeal rights
to the Boar d. IAF, Tab 8 , Initial Decision (ID) at 4. He also found that the
appellant failed to show, or even allege, that he had comp leted the 1 year of
current, continuous service under other than a temporary appointment required for
the Board to have jurisdiction over the appeal under 5 U.S.C.
§ 7511 (a)(1)(A)(ii).2 ID at 4 -5. The administrative judge further found that the
Board lacked jurisdiction over the appeal under 5 C.F.R. § 315.806 (b) because the
appellant failed to make a nonfrivolous allegation that his termination was based
on partisan political reasons or marital status discrimination, or that his
termination was based in whole or in part on a preappointment reason such that he
was entitled to, but failed to receive , the procedural protections set forth in
5 C.F.R. § 315.805 . ID at 5 -6. The administrative judge also rejected the
appellant’s claims that the agency committed harmful error or engaged in a
prohibited personnel practi ce, finding that neither claim was an independent
source of Board jurisdiction. ID at 6-7.
DISCUSSION OF ARGUME NTS ON REVIEW
¶4 In his petition for review, the appellant argues that the agency terminated
him for preappointment reasons and fa iled to afford him the procedural
2 Before the appellant’s September 2016 appointment to the position at issue, IAF,
Tab 3 at 21, 26, Congress enacted the National Defense Authorization A ct for Fiscal
Year 2016 (2016 NDAA) on November 25, 2015 , Pub. L. No. 114 -92, 129 Stat. 726.
The 2016 NDAA amended the definition of an “employee” under 5 U.S.C.
§ 7511 (a)(1)(A)(ii). Pub. L. No. 114 -93, §1105 , 129 Stat. at 1023 -24. This amendment
affects individuals appointed to permanent position s in the competitive service at the
Department of Defense; s ection 7511(a) (1)(A) (ii) is unchanged as it pertains to the
appellant . See id. Thus, the administrative judge’s citing to the previous version of the
provision is harmless error . IAF, Tab 2 at 3 n.3 ; ID at 2; see Panter v. Department of
the Air Force , 22 M.S.P.R. 281 , 282 (1984) (explaining that an adjudicatory error tha t
is not prejudicial to a party’ s substantive rights provides no basis for reversal of an
initia l decision).
4
protections set forth in 5 C.F.R. § 315.805 , which he claims violated his right to
due process. Petition for Review ( PFR ) File, Tab 1 at 4 -5. We disagr ee. The
record reflects that the agency terminated the appellant during his probationary
period for postappointment reasons. IAF, Tab 1 at 7 -9. It is undisputed that the
agency appointed the appellant to his position on September 4, 2016, subject to a
1-year probationary period. Id. at 7. Subsequently, on November 3, 2016, before
the end of his probationary period, the agency terminated him for unacceptable
conduct that took place during an altercation on October 24, 2016 . Id.; IAF,
Tab 3 at 29.
¶5 To the extent that the appellant continues to argue that he was terminated
for preappointment reasons due to his status as a law school graduate, we agree
with the administrative judge that the appellant failed to nonfrivolously allege
that he was terminated because of a condition arising before his appointment. ID
at 5-6. As the administrative judge properly explained, the Board distinguishes
between a preexisting condition and the effect th at condition has on an
employee’ s performance during his probationa ry period. ID at 6; see, e .g.,
Von Deneen v. Department of Transportation , 33 M.S.P.R. 420 , 423, aff’d ,
837 F.2d 1098 (Fed. Cir. 1987) . Thus, even if the appellant ’s status as a law
school graduate indirectly caused or contributed to the October 24, 2016
altercation , the agency ultimately terminated him for his conduct during the
altercation and not his law school degree . See R ivera v. Department of the Navy ,
114 M.S.P.R. 52 , ¶ 8 (2010) (finding that the appellant’s fa ilure to secure
approval for a G overnment credit card, even if attributable to preappointment
credit problems, constituted a postappointme nt reason for termination).
¶6 Concerning the appellant’s argument regarding the agency’s alleged
violation of the collective bargaining agreement, we agree with the administrative
judge that the Board lacks jurisdiction over this matter absent an otherwise
appealable action. ID at 6 -7; see Hurston v. Department of the Army ,
113 M.S.P.R. 34 , ¶ 11 (2010) (finding that, because the Board ha s no jurisdiction
5
over the probationary termination appeal, the Board also has no independent
jurisdict ion to adjudicate the appellant’ s discrimination and harmful error
claims ).
¶7 Finally, t he appellant notes several errors in the initial decision, such a s
typographical errors (e.g., citing 5 U.S.C. § 7313 (b) rather than 5 U.S.C.
§ 7513 (b)) and the occasional use of the wrong gender when re ferring to the
appellant. PFR File, Tab 1 at 5-6. However, none of these errors provide a basis
for disturbing the administrative judge ’s decision to dismiss the appeal for lack of
jurisdiction. See Panter v. Department of the Air Force , 22 M.S.P.R. 281 , 282
(1984). Similarly, the appellant’s contentions concerning the statements of a
colleague regarding the appellant’s law degree do not establish that the agency
terminated him for preappointment reasons or cast doubt on the administrative
judge’s analysis of the appeal. ID at 5 . Accordingly, we deny the appellant’s
petition for review.
NOTICE OF APPEAL RIG HTS3
You may obtain review of this final decision. 5 U.S.C. § 7703 (a)(1). By
statute, the nature of your claims determines the time limit for seeking such
review and the appropriate forum with which 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
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 matte r.
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 th is decision. 5 U.S.C.
§ 7703 (b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following 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.
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 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 r equest for review to the EEOC by regular U.S. mail, the
address of the EEOC is:
8
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Pr otection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302 (b)(8) or
other protected activities lis ted in 5 U.S.C. § 2302 (b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
disposition of allegations of a prohibited personnel practice described in section
2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i),
(B), (C), or (D),” then you may file a petition for judicial review either with the
U.S. Court of Appeals for the Federal Circuit or any court of appea ls of
competent jurisdiction.4 The court of appeals must receive your petition for
review within 60 days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(B).
4 The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115 -195,
132 Stat. 1510.
9
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Feder al
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the 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
respe ctive 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 | RAMOS_TORRES_PABLO_ENRIQUE_NY_315H_17_0040_I_1_FINAL_ORDER_1937681.pdf | 2022-06-29 | null | NY-315H-17-0040-I-1 | NP |
4,318 | https://www.mspb.gov/decisions/nonprecedential/THORNBURY_JOSHUA_D_DE_0752_14_0490_X_1_ORDER_1937728.pdf | UNITED STATES OF AME RICA
MERIT SYSTEMS PROTEC TION BOARD
JOSHUA D. THORNBURY,
Appellant,
v.
DEPARTMENT OF VETERA NS
AFFAIRS,
Agency.
DOCKET NUMBER
DE-0752 -14-0490 -X-1
DATE: June 29, 2022
THIS ORDER IS NONPRECEDENTIAL1
Charles A. Shaw , Esquire, Prescott, Arizona, for the appellant.
Maxine N. Romero , Esquire, Phoenix, Arizona, for the agency.
BEFORE
Cathy A. Harris, Vice Chairman
Raymond A. Limon , Member
Tristan L. Leavitt , Member
ORDER
¶1 This case is before the Board on the appellant’s petition for enforcement
filed on February 25, 2017. Thornbury v. Department of Veterans Affairs , MSPB
Docket No. DE-0752 -14-0490-C-1, Compliance File ( CF), Tab 1. As discussed
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117 (c).
2
below, we find the age ncy in noncompliance and order it to take appropriate steps
to comply with the Board’s Final Order .
DISCUSSION OF ARGUME NTS AND EVIDENCE ON COMPLIANCE
¶2 The final Board order in the underlying removal appeal directed the agency
to pay the appellant back pay retroactive to June 27, 2014. Thornbury v.
Department of Veterans Affairs , MSPB Docket No. DE -0752 -14-0490 -I-2, Appeal
File (I -2 AF), Tab 18 , Initial Decision at 14. The administrative judge issued a
compliance initial decision finding the agency noncomp liant with the Final Order .
Thornbury v. Department of Veterans Affairs , MSPB Docket No. DE-0752 -14-
0490-C-2, Compliance File (C -2 CF), Tab 8, Compliance Initial Decision (CID);
C-2 CF, Tab 11, Erratum to Compliance Initial Decision (Erratum) . The
compliance initial decision became final o n March 20, 2018. CID at 6.
¶3 The administrative judge informed the agency that, if it decided to take the
actions ordered in the compliance initial decision, it must submit to the Clerk of
the Board a narrative s tatement and evidence establishing compliance. CID
at 5-7. In addition, he informed both parties that they could file a petition for
review of the compliance initial decision if they disagreed with the findings
therein. CID at 5 -7. Neither party filed any submission with the Clerk of the
Board within the time limit set forth in 5 C.F.R. § 1201.114 . As such, pursuant to
5 C.F.R. § 1201.183 (b)-(c), the administrative judge’s findings of noncompliance
became final, and the appellant’s petition for enforcement was referred to the
Board for a final decision on issues of compliance. Thornbury v. Department of
Veterans Af fairs , MSPB Docket No. DE -0752 -14-0490 -X-1, Compliance Referral
File (CRF), Tab 1.
¶4 On July 12 , 201 8, and April 12 , 201 9, the Clerk of the Board issued show
cause orders direct ing the agency to provide evidence of compliance and a
narrative explanation . CRF , Tab s 9, 20. In its responses to the Board’s show
cause orders, the agency explained that it made a series of pay adjustment errors
that created overpayments. See, e.g., CRF, Tab 14 at 6 -7, Tab 22 at 4 -7. The
3
agency states that although the removal action was effected on June 27, 2014, see
Thornbury v. Department of Veterans Affairs , MSPB Docket No. DE-0752 -14-
0490-I-1, Initial Appeal File, Tab 5, Subtab 4a, at 11 -13, it paid the appellant for
an additional pay period after his removal, see CRF, Tab 22 at 4 (agency
narrative), 34 (leave and earning statement for pay period (PP) 2014-13). To pay
off this debt, the agency states that it withheld $372.57 from the appellant’s tax
refund and $463.88 from the payout of his annual leave and comp time. Id. at 4.
This left a remaining debt of $416.35. Id. at 5. The agency mailed the appellant
a letter on September 6, 2014 , notifying him that he owed a debt of $416.35. Id.
at 4-5.
¶5 According to the agency, the Defense Finance Accounting Service (DFAS)
did not process the cancellation of the June 27, 2014 removal until January 9,
2015, even though the agency had promised to reinstate the appellant effective
December 1, 2014. See I-2 AF, Tab 4 at 20 (letter from agency to the appellant
dated November 25 , 2014, directing the appellant to report for duty on
December 1, 2014); I -2 AF, Tab 12 at 7 (prehearing submission stating that the
appellant was reinstated on December 1, 2014); CRF, Tab 22 at 5 (stating that the
removal was canceled on January 9, 2015). When the removal was canceled on
January 9, 2015, DFAS restored the appellant’s annual leave balance of
41.5 hours and comp time balance of 1.0 hour s. CRF, Tab 22 at 5. According to
the agency, this leave restorati on created another debt in the amount of $673.47.
Id. It does not appear that the agency explained these payroll errors to the
appellant. See I-2 AF, Tab 4 at 22 (appellant’s declaration, dated March 12,
2015, averring that as of that date he had not been contacted by the agency or
DFAS abo ut his reinstatement with status quo relief). Instead, the agency mailed
the appellant a letter, dated January 24, 2015, notifying him that he owed a debt
of $673.47 due to “Time and Attendance change(s).” I -2 AF, Tab 4 at 30 (letter
from DFAS to app ellant, dated Jan . 24, 2015); 35 (debt worksheet dated
4
January , 10, 2015 , showing debts based on overpayments of $649.89 for “ PA LSL
ANNUAL ” and $23.58 for “ PS FPAY COMP ”).
¶6 On January 10, 2015, the agency paid the appellant the net amount of
$309.00 for PP 2014-26. CRF, Tab 14 at 12 -13 (earnings and leave statement);
CRF, Tab 22 at 5, 46 -47. This was not back pay, but rather pay for time worked
after the appellant was reinstated on December 1, 2014 . Specifically, this was
pay for the week of December 29, 201 4, through January 2, 2015. CRF, Tab 22
at 5.
¶7 On January 30, 2015, the agency paid the appellant the net amount of
$11,035.36 in back pay . I-2 AF, Tab 4 at 28 (leave and earnings statement) . The
back pay included 1,040 hours from July 12, 2014 , through December 27, 2014.
CRF, Tab 14 at 11 , 13; CRF, Tab 22 at 5 (paragraph i) , 47-48. The back pay
included 32 hours of holiday pay and 1 hour of comp time, although the agency
did not explain how these hours were determined. Id. The a gency deducted the
outstanding debts of $416.35 and $673.47, giving the appellant an “adjusted”
gross back pay of $15,721.28, which was further reduced to a net of $11,035.36
based on various deductions. Id.
¶8 Subsequently, the agency states that DFAS discovered more errors.
Specifically, DFAS determined that the appellant was not paid for a full 80 hours
for PP 2014 -13 and PP 2014 -14. CRF, Tab 22 at 6 (paragraph p) . The agency
states that DFAS “ paid out the missing $1,089.82 retro funds ,” id., but there is no
evidence of such a payment or of interest on such a payment . The appellant avers
that he did not receive any payments after January 2015. CRF, Tab 18 at 61 .
¶9 On April 18, 2015, the agency states that it processed a retroactive
within -grade increase (WIGI) effective on June 29, 2014 , and which increased the
appellant’s salary from $32,683 to $3 4,074 on that date . CRF, Tab 22 at 6
(paragraphs l and r) , 52-53. A ccording to the agenc y, it issued the appellant a
payment for this adjustment in the amount of $546.72 ( $470.81 after deductions)
on April 18, 2015 . CRF, Tab 22 at 52 -53. The agency states that this retroactive
5
action was in error . CRF, Tab 22 at 6 (paragraph r) . “This created a debt of
$546.72 which was collected from the retro funds. ” Id. The appellant avers that
he did not receive the April 18, 2015 payment. CRF, Tab 18 at 61.
¶10 Pursuant to 5 U.S.C. § 1204 (a)(2), the Board has jurisdiction to consider an
appellant’s claim of agency noncompliance with a Board order. Kerr v. National
Endowment for the Arts , 726 F.2d 730 , 733 (Fed. Cir. 1984). The agency bears
the burden of proving that it has complied. 5 C.F.R. § 1201.183 (d). See Spates v.
United States Postal Service , 70 M.S.P.R. 438 , 441 (1996). An agency’s
assertions of compliance must include a clear explanation of its compliance
actions supported by understandable documentary evidence. Vaughan v.
Department of Agriculture , 116 M.S.P.R. 319 , ¶ 5 (2011).
The A gency Must Reimburse the Appellant for $552.44 Tax Refund Offset
¶11 On February 18, 2017, the agency sent the appellant a letter notifying him
that he had a “delinquent debt” of $478.58. CRF, Tab 18 at 64. This letter, as
with the previous letters, did not clearly explain the source of the debt. Instead, it
warned that “[i]f we do not hear from you, we will report your debt to the U.S.
Department of the Treasury for the Treasury Offset Program (TOP)” and that the
appellant would be responsible for “any and all fees associated with the offset
program.” Id. On March 7, 2018, the Department of Treasury notified the
appellant that it had offset a debt of $552.44 from his tax refund. Id. at 63. The
appellant seeks reimbursement for this amount. CRF, Tab 18 at 32, Tab 23
at 14-16.
¶12 In the show cause order issued by the Clerk of the Board on April 12, 2019,
the agency was directed to explain “whether the agency created a debt that was
deducted from the appellant’s tax refund, whether that debt was legitimate, a nd if
not, whether the debt has been canceled and the appellant reimbursed. ” CRF,
Tab 20 at 2. In response to the order , the agency denie d that th e offset was
related to a debt that it created and instead suggest ed that the $552.44 might have
6
been collected on behalf of a different agency or as a court -ordered garnishment.
CRF, Tab 22 at 8. This assertion is in direct conflict with the evidence provided
by the appellant . The Department of the Treasury’s offset notice explicitly
states —under the h eading “Who Do I Owe?” —that it applied the offset to the
debt that the appellant owed to the agency, which it identifies as “ Prescott VAMC
649.” CRF, Tab 18 at 63. We find, based on the agency’s notice to the appellant
that it would collect the debt thro ugh the Treasury Offset Program, id. at 64 , and
the subsequent notice from the Department of Treasury that the debt had, indeed,
been collected through that program and sent to the agency, id. at 63, that the
agency collected an unsubstantiated debt of $55 2.44 from the appellant’s tax
refund. Accordingly, the agency must reimburse the appellant in the amount of
$552.44 , plus applicable interest.
The Agency Must Effectuate the Appellant’s Within -Grade Increase
¶13 The record evidence supports a finding that the appellant should have
received a WIGI , effective on November 2, 2014, increasing his salary from
General Schedule (GS) 5, step 2 , to GS -5, step 3 , i.e., from $32,683 to $33,738 .
CRF, Tab 22 at 5 (paragraph j), 49 -50. The appellant’s prior WIGI , from GS-5,
step 1 , to GS -5, step 2, occur red on October 20, 2013 . CRF, Tab 14 at 12 (leave
and earnings statement showing salary of $32,683 and last WIGI on October 20,
2013). Therefore, he was entitled to a WIGI from GS -5, step 2, to GS -5, step 3,
52 weeks l ater, on October 20, 2014. See 5 U.S.C. § 5335 (a)(1) (providing that a
GS employee, subject to certain conditions, shall receive an increase from step 2
to step 3 after 52 weeks). Because October 20, 2014 fell within the middle of
PP 2014 -21, it should have taken effect on the first day of PP 2014 -22, i.e.,
November 2, 2014. See 5 C.F.R. § 531.412 (a) ( stating that a WIGI shall b e
effective on the first day of the first pay period following completion of the
required waiting period and in compliance with the conditions of eligibility ). The
agency’s evidence, however, shows that it process ed the appellant’s pay at GS-5,
7
step 2 for PP 2014 -22 through PP 2014 -26. See CRF, Tab 22 at 42 -46.
Therefore, the appellant is entitled to the difference between step 2 and step 3 pay
for those five pay periods, i.e., PP 2014 -22, PP 2014 -23, PP 2014 -24,
PP 2014 -25, and PP 2014 -26, along with applicable interest.2
The Agency Owes Back Pay for January 5 , 2015
¶14 The appellant asserts that the agency erred by ending the back pay period on
January 2, 2015, given that the notice of his second removal was n ot served on
him by that date and he did not receive a copy until one was provided by his
attorney on January 9, 2015. See I-2 AF, Tab 4 at 25 (declaration of appellant) ,
64 (postmark indicating that the agency mailed its removal decision to the
appellant’s attorney on January 5, 2015) . The appellant states that he continued
to report for duty until Monday , January 5, 2015, “when he was told by an agency
employee not to return to work the following day. ” I-2, AF, Tab 1 at 5 .
¶15 In its response to the petition for enforcement, the agency stated that the
appellant was on “constructive notice” from the notice of proposed removal that
he “could be removed,” and that on January 2, 2015, “the agency effectuated his
removal and Appellan t was told the removal was effectuated.” CF, Tab 4 at 4.
However, c onstructive notice, or notice of a proposed action, is not sufficient
under the applicable regulations. The agency was required to “deliver the notice
of decision to the employee on or b efore the effective date of the action.”
5 C.F.R. § 752.404 (g)(2). Cf. Loui v. Merit Systems Protection Board , 25 F.3d
1011 , 1014 (Fed. Cir. 1994) (holding that, for purposes of determining when the
time period for appeal begins in cases in which the stated effective date in a
removal notice is earlier than the date of delivery of the removal notice, the date
2 We note that the agency states that it retroactively processed the WIGI effective
November 16 , 2014, and made a correction payment to the appellant in the amount of
$153.27 on March 21, 2015. See CRF, Tab 22 at 5 (paragraph j), 49 -50. However, the
agency has not provided proof of this payment, and the appellant avers that he did not
receive it. CRF, Tab 18 at 61.
8
of delivery must be considered to be the effective date). The agency has provided
no evidence that the removal decision was served on the appellant on or before
January 2, 2015 .
¶16 Subsequently, the parties agreed that the app ellant would be paid for
January 5, 2015. CF, Tab 7 at 6-7. The agency states that it “processed ” payment
in the amount of $129.36. CRF, Tab 22 at 6 (paragraph q) . The only evidence of
this payment, however, is a DFAS remedy ticket that has a handwritten notation
that it was paid on March 12, 2018. CRF, Tab 14 at 25. Moreover, it appears
that the $129.36 may have been applied to various debts created by agency
processing errors. See CRF, Tab 22 at 6 -7. The agency states that the a ppellant
was ultimately paid $49.36 during PP 2018-04. See CRF, Tab 14 at 18, 25,
Tab 22 at 58. In a sworn declaration, however, the appellant avers that he did not
receive any payments from the agency after January 2015. CRF, Tab 18 at 21, 61
(declaration at ¶ 3 ). He asserts that he is owed $130.64 for January 5, 2015 ,
based on his hourly rate of $16.33 for this time period multiplied by 8 hours.
CRF, Tab 23 at 12. Given the absence of any explanation of how the agency
computed the pay for January 5, 2015, and its lack of proof of payment, we find
that the agency owes the appellant payment for J anuary 5, 2015 , in the amount of
$130.64 , plus applicable interest.
The Agency Owes the Appellant Additional Holiday Pay
¶17 An appellant’s entitlement to holiday back pay i s computed using the same
principles applied to overtime back pay.3 See Blanchard v. Department of
Justice , 40 M.S.P.R. 513 , 516 (1989). Overtime back pay may be computed
based on either pre -removal overtime history or average overtime hours worked
by similarly -situated employees during the removal period. Johnson v. U.S.
Postal Service , 71 M.S.P.R. 303 , 306 (1996). Here, the agency’s methodology is
3 We note that the appellant has not contested the agency’s computation of his overtime
back pay.
9
not clear. The January 24, 2015 (PP 2015 -01) back pay included 32 hours of
holiday p ay in the amount of $501 .12, i.e. , $15.66 per hour . See I-2 AF, Tab 4
at 28; CRF, Tab 14 at 11, 13, 23; CRF, Tab 23 at 21 . The appellant’s pay for his
last week of work, PP 2014 -26, did not include holiday pay for January 1, 2015.
See CRF, Tab 14 at 12 -13, Tab 22 at 46 -47.
¶18 The agency states that it later learned that the appellant should have been
paid for Labor Day 2014, Veterans Day 2014, and New Year’s Day 201 5, and that
he was not paid for those three holidays because the agency’s “corrected
timecards” did not show that the appellant worked on those holidays. CRF,
Tab 22 at 7. The agency indicate s that if the appellant were paid for these
holidays, he would be owed $379.92 , plus interest in the amount of $55.27 (based
on payment during PP 2018 -08).
¶19 The appellant states that he should be paid at the rate of $16.33 per hour for
all three holidays because he received a WIGI from GS -5, step 2 , to GS -5, step 3,
effective June 29, 2014. CRF, Tab 23 at 9. As discussed above, however, the
evidence shows that the appellant’s WIGI should have been effective on
November 2, 2014 , and that the June 29, 2014 date was an error by the agency .
See CRF, Tab 22 at 6 (paragraphs l and r) . We conclude that the appellant is
owed holiday p ay at the $15.66 rate for Labor Day 2014 , and Veterans Day 2014 ,
for a total of $250.56 , and at the $16.33 rate for New Year’ s Day 2015 , for a total
of $130.64 . Thus , the agency owes the appellant $381.20 for holiday p ay, plus
applicable interest.
The Agency Must Compensat e the Appellant for his Annual L eave
¶20 The appellant has consistently alleged that he did not receive
reimbursement for 97.5 hours of annual leave. See, e.g., I-2 AF, Tab 4 at 10, 28;
CF, Tab 1 at 5, 39; CRF, Tab 18 at 6 n.2, 12 -13. At the hearing on April 15,
2015, an agency human resources representative testified that if the then -ongoing
audits at the agency showed that the appellant had not been compensated for his
10
accrued leave, he would be. I-2 AF Tab 18 at 5. She stated tha t the agency
planned to remedy these issues within 30 -60 days of the hearing. Id.
¶21 Initial ly, the agency stated that the appellant was paid $1,511.90 for
97.5 hours on April 10, 2015. CRF, Tab 14 at 11 , 15. The agency later provided
a leave and earning statement that listed a sum of $1,511.90 for annual leave and
$23.58 for 1 hour of comp time . CRF, Tab 22 at 51 -52. According to the agency,
the payment of $23.58 created yet another debt because it had already paid the
appellant for comp time in its Ja nuary 24, 2015 payment. CRF, Tab 22 at 5 -6
(paragraph k) . The agency mailed the appellant a letter notifying him of this debt
on April 18, 2015. Id. at 6. In any event, the agency’s evidence shows that the
appellant actually received a net payment of “ $.00” on April 10, 2015. Id. at 51.
This is consistent with the appellant’s declaration that he did not receive any
payments from the agency after January 2015. CRF, Tab 18 at 21, 61 (declaration
at ¶ 3).
¶22 The appellant states that he accrued 192 hours of leave between his date of
hire on October 21, 2012 , and January 2, 2015 , and that the agency previously
agreed to pay him for those hours following an audit . CRF, Tab 23 at 10 -12.
There is nothing in the record to substantiate th e claim that the appellant accrued
192, rather than 97.5, hours of annual leave . Furthermore, whatever the agency
promised in the settlement agreement appears to have been contingent on its
audit. See CF, Tab 7 at 7. There is no audit report in the record that supports
192 hours. We therefore conclude that the agency owes the appellant for
97.5 hours of annual l eave, plus applicable interest. The agency’s computation of
the appellant’s compensation for annual leave should take into account that the
appellant was due a WIGI to GS -5, step 3, effective PP 2014 -22.
The Agency Must Reimburse the Appellant for his FEHB Withholdings
¶23 The agency states that it refunded the appellant’s withholdings for the
Federal Employees’ Health Benefits (FEHB) program in the amount of $2 ,664.74
11
on April 16, 2015. CRF, Tab 22 at 6 (paragraph m) . The agency’s evidence
shows payment of $2,664.74 on May 2, 2015 , during PP 2015 -08. CRF, Tab 14
at 17, Tab 22 at 53-54. The appellant responds that “[i]f, in fact, these premiums
were refu nded, they were not paid to [the appellan t], and [the agency] has offered
no proof or evidence that they were ever ‘refunded’ or ‘paid’ to [the appellant].”
CRF, Tab 23 at 14. The appellant includes a declaration in which he avers, under
penalty of perju ry, that he never received a check or electronic funds transfer for
his unreimbursed FEHB premiums. Id. at 19 -20 (declaration, paragraphs 2 & 3).
In light of the appellant’s declaration, and in the absence of any proof of payment
by the agency, we conclu de that the agency still owes the appellant $2,664.74 for
his unreimbursed FEHB premiums , with applicable interest.
The Agency Owes Interest on Back Pay
¶24 The Back Pay Act provides that back pay “shall be payable with interest”
and states that the interest shall be computed at the overpayment rate set forth in
the Internal Revenue Code at 26 U.S.C. § 6621 (a)(1). 5 U.S.C. § 5596 (b)(2). In
a hearing before the administrative judge on April 15, 2015, an agency human
resources representative testified that “the agency agrees that it did not pay the
appellant the required interest on his back pay.” I -2 AF Tab 18 at 5. The
administrative judge, in his compliance initial decision, found that it was
undisputed that the agency had not paid the interest due. Erratum at 1-2. After
the case was forw arded to the Board, the Clerk issued two orders directing the
agency to show cause that it had properly calculated and paid interest on back
pay. CRF, Tab 9, Tab 20.
¶25 In its first response, the agency state d:
As noted in the CFO’s memorandum , the calculati on of the interest
and interest on interest had to be broken into three separate
calculations because of erroneous SF -50’s that had been submitted
and then corrected at different points in time. This document was one
of three calculations made to resolve t he settlement payments. One
was p aid by [Electronic Funds Transfer ( EFT )] to the bank in March
12
of 2018, the remaining two portions were issued as a check from
DFAS and mailed to the address on the settlement agreement
documents.
CRF, Tab 14 at 7.
¶26 The age ncy states that it processed interest on the $15,721.28 gross back
pay that it paid on January 24, 2015 , and computed the amount of interest at
$99.52, as well as interest on that interest in the amount of $11.32 , for a total of
$110.84 . CRF, Tab 14 at 21 -22, Tab 22 at 6. The interest rate was 3 percent.
CRF, Tab 22 at 60. The agency states that it also processed the third amount of
interest , which it computed to be in the amount of $144.38. CRF, Tab 14 at 25;
CRF, Tab 22 at 6 (paragraph t) . While the agency’s first response stated that the
interest payments were made by EFT and then by two separate check s mailed to
the appellant, CRF, Tab 14 at 7, the second response indicates that the agency
made one payment of t he total of $255.22 in inte rest ($110.84 + $144.28) on
March 3, 2018 , during pay period 2018 -04. CRF, Tab 22 at 57 -58.
¶27 In any event, t he appellant states that he did not receive this payment , and
the agency has not provided any proof of payment. CRF, Tab 23 at 16, 19 -20.
Citing c oncern about further delay, the appellant states that he “prefers to accept
the agency’s computation of $255.22 and add a rough estimate of $100.00 more,
for total back pay interest to be awarded in the amount of $355.22. ” CRF, Tab 23
at 16 -17. We find t hat the agency owes the appellant $255.22 in interest, plus
interest on that interest and on the additional payments discussed herein. With
respect to the appellant’s proposal of limiting additional interest to $100, we note
that t he parties are free to c ome to an agreement on the additional interest owed
so that compliance can be expedite d. In the absence of such an agreement ,
however, we do not have a basis to award the appellant the specific amount of
$100. 00.
13
ORDER
¶28 Accordingly, the agency is ORDERED , within 30 calendar days , to pay the
appellant $552.44 to reimburse him for the offset from his tax refund; $130.64 as
back pay for January 5, 2015; $381.21 for holiday p ay; $2,664.74 for
unreimbursed FEHB premiums; and $255.22 for back pay interest; for a total
amount of $ 3,984.25. In addition, the agency must pay the appellant the
difference between GS -5, step 2 pay and GS-5, step 3 pay for P ay
Periods 2014 -22 through 2014 -26. The agency also must compensate the
appellant for 97.5 hours of annual leave , taking into account that the appellant
was due a WIGI to GS -5, step 3, effective PP 2014 -22. The agency must pay the
appellant applicable interest on all of these payments. The agency must submit a
narrative explanation and documentary evidence of its interest calculations, as
well as documentary evidence of a check or electronic payment made to the
appellant.
¶29 If satisfactory evidence of compliance is not received, the Board will
impose sanctions, pursuant to 5 U.S.C. § 1204 (a)(2) and (e)(2)(A) and 5 C.F.R.
§ 1201.183 , against Shannon Wasielewski , Chief Financial Officer, Northern
Arizo na VA Health Care Systems, as the responsible agency official.
NOTICE TO THE APPELL ANT
Following the agency’s submission of evidence, you may respond no later
than 21 calendar days after the date shown on the agency’s certificate of
service. The response may be filed electronically through https://e -
appeal.mspb.gov/, by facsimile to (202) 653 -7130, or by mail to:
Clerk of the Board
Merit Systems Protection Board
1615 M Street NW
Washington, DC 20419
14
Any response must be served on the agency and proof o f such service
provided to the Board. If you do not respond, the Board may assume you are
satisfied and dismiss the petition for enforcement as moot.4
FOR THE BOARD:
Washington, D.C. /s/ for
Jennifer Everling
Acting Clerk of the Board
4 When the Board issues a final decision or order in this compliance matter, the
appellant may file a motion for attorney fees with the Bo ard’s Denver Field Office. See
5 C.F.R. § 1201.203 (c). | THORNBURY_JOSHUA_D_DE_0752_14_0490_X_1_ORDER_1937728.pdf | 2022-06-29 | null | DE-0752-14-0490-C-1; DE-0752-14-0490-C-2; DE-0752-14-0490-X-1 | NP |
4,319 | https://www.mspb.gov/decisions/nonprecedential/BENNETT_DARLENE_PATRICE_DC_0752_21_0142_I_1_FINAL_ORDER_1937795.pdf | UNITED STATES OF AME RICA
MERIT SYSTEMS PROTEC TION BOARD
DARLENE PATRICE BENN ETT,
Appellant,
v.
DEPARTMENT OF COMMER CE,
Agency.
DOCKET NUMBER
DC-0752 -21-0142 -I-1
DATE: June 29, 2022
THIS FINAL ORDER IS NONPRECEDENTIAL1
Darlene Patrice Bennett , Suitland, Maryland, pro se.
Sandra Soderstrom , Washington, D.C., for the agency.
BEFORE
Cathy A. Harris, Vice Chairman
Raymond A. Limon, Member
Tristan L. Leavitt, Member
FINAL ORDER
¶1 The appellant has filed a petition for review of the initial decision, which
sustained her removal. Generally, we grant petitions such as this one only in the
following circumstances: the initial decision contains erroneous findings of
material fact; the initial decision is based on an erroneous in terpretation of statute
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or dis tinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117 (c).
2
or regulation or the erroneous application of the law to the facts of the case; the
administrative judge’s rulings during either the course of the appeal or the initial
decision were not consistent with required procedures or involv ed 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 sec tion 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 contends that the administrative judge was biased against her
and abused her discr etion by failing to grant the following motions: (1) a motion
to disqualify the agency representative; (2) a motion to compel production of
work product by the agency’s representative; and (3) a motion for subpoena. See
Initial Appeal File (IAF) , Tabs 9, 25, 44 ; Petition for Review (PFR) File, Tab 1
at 5-8. The appellant also contends that the administrative judge improperly
excluded four of her former coworkers as witnesses. PFR File, Tab 1 at 7.
¶3 In making a claim of bias or prejudice against an administrative judge, a
party must overcome the presump tion of honesty and integrity that accompanies
administrative adjudicators . Oliver v. Department of Transportation , 1 M.S.P.R.
382, 386 (1980). The fact that an administrative judge has ruled against a party
in the past, or a mere conclusory allegation of bias, do es not provide sufficient
basis for disqualification. Lee v. U.S. Postal Service , 48 M.S.P.R. 274 , 281
(1991). Rather, the administrative judge’s conduct during the course of a Board
proceeding warrants a new adjudication only if the administrative judge’s
comments or actions e vidence “a deep -seated favoritism or antagonism that would
make fair judgment impossible.” Bieber v. Department of the Army , 287 F.3d
3
1358 , 136 2-63 (Fed. Cir. 2002) (quoting Liteky v. United States , 510 U.S. 540,
555 (1994 )).
¶4 We find that the administrative judge did not abuse her discretion with
respect to any of the above -referenced motions. In the motion to disqualify, the
appellant argued that there was a conflict of interest because the agency
representative had previousl y advised the agency on matters regarding the
appellant’s employment. However, we agree with the administrative judge that
this fact alone did not constitute a conflict of interest. IAF, Tab 13. In the
motion to compel, the appellant sought production o f documents which the
agency had withheld based on attorney work product doctrine and attorney -client
privilege. IAF, Tab 25. The appellant argued that the agency could not invoke
attorney -client privilege because a crime had been committed. Id. at 3. However,
the administrative judge properly rejected that argument because the appellant
had failed to provide any specific allegation of criminal or fraudulent misconduct,
and had also failed to allege that the agency had waived the attorney work
product d octrine. IAF, Tab 27 at 2 -3. Finally , the administrative judge properly
denied the appellant’s motion for a subpoena as the appellant had already
withdrawn her request for a hearing. IAF, Tab 45.
¶5 As to the denial of witnesses, the appellant failed to object to that ruling
below and is precluded from raising the issue on review. Tarpley v. U.S. Postal
Service , 37 M.S.P.R. 579 , 581 (198 8). Moreover, an administrative judge has
wide discretion under the Board’s regulations to exclude witnesses when it has
not been shown that their testimony would be relevant, material, and
nonrepetitious. Franco v. U.S. Postal Service , 27 M.S.P.R. 322 , 325 (1985); see
5 C.F.R. § 1201.41 (b)(8), (10). We discern no abus e of discretion in the
administrative judge’s decision to deny the proposed witnesses.
¶6 We have considered the appellant’s remaining arguments and find they are
without merit. The appellant’s mere disagreement with the administrative judge’s
findings of f act and credibility determinations does not warrant further review.
4
See Crosby v. U.S. Postal Service , 74 M.S.P.R. 98 , 106 (1997) (finding no reason
to disturb the administrative judge’s findings when she considered the evidence
as a whole, drew appropriate inferences, and made reasoned conclusions);
Broughton v. Department of Health & Human Services , 33 M.S.P.R. 357 , 359
(1987) (same).
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. Failur e to file within the applicable time
limit may result in the dismissal of your case by your chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questi ons
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
2 Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise which option is most appropriate in any matter.
5
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703 (b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washingto n, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
conta ined within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a giv en case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in par t, on unlawful discrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 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
6
you do, then you must file with the district court no later than 30 calendar days
after your representative receives this decision. If the action involves a claim of
discrimination based on race, color, religion, sex, national origin, or a disabling
condition, you may be entitled to representation by a court -appointed lawyer and
to waiver of any requirement of prepayment of fees, costs, or other security. See
42 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 EEOC is:
Office 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
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 protect ed activities listed in 5 U.S.C. § 2302 (b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
disposition of allegations of a prohibited p ersonnel practice described in
section 2302(b) other than practices described in section 2302(b)(8), or
2302(b)(9)(A)(i), (B), (C), or (D),” then you may file a petition for judicial
review either with the U.S. Court of Appeals for the Federal Circuit or a ny court
of appeals of competent jurisdiction.3 The court of appeals must receive your
petition for review within 60 days of the date of issuance of this decision.
5 U.S.C. § 7703 (b)(1)(B).
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained wit hin the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
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.
8
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for info rmation regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
Contact information for the courts of appeals can be found at their
respective websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/Court Websites.aspx .
FOR THE BOARD:
Washington, D.C. /s/ for
Jennifer Everling
Acting Clerk of the Board | BENNETT_DARLENE_PATRICE_DC_0752_21_0142_I_1_FINAL_ORDER_1937795.pdf | 2022-06-29 | null | DC-0752-21-0142-I-1 | NP |
4,320 | https://www.mspb.gov/decisions/nonprecedential/POREE_CARLOS_R_DA_831E_17_0318_X_1_FINAL_ORDER_1937861.pdf | UNITED STATES OF AME RICA
MERIT SYSTEMS PROTEC TION BOARD
CARLOS R. POREE,
Appellant,
v.
OFFICE OF PERSONNEL
MANAGEMENT,
Agency.
DOCKET NUMBER
DA-831E -17-0318 -X-1
DATE: June 29, 2022
THIS FINAL ORDER IS NONPRECEDENTIAL1
Carlos R. Poree , Baton Rouge , Louisiana, pro se.
Jo Bell , Washington, D.C., for the agency.
BEFORE
Cathy A. Harris , Vice Chairman
Raymond A. Limon , Member
Tristan L. Leavitt , Member
FINAL ORDER
¶1 This case is before the Board on the appellant’s petition for enforcement of
the February 8, 2018 compliance initial decision ordering the Office of Personnel
Management (OPM) to submit evidence that it has issued a new reconsideration
1 A nonprecedential order is one that the Board has determined does not add
significantly to the 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 on the appe llant’s application for disability retirement. Poree v. Office
of Personnel Management , MSPB Docket No. DA -831E -17-0318 -C-1,
Compliance File, Tab 9, Compliance Initial Decision (CID) at 4. For the reasons
discussed below, we find OPM in compliance and DI SMISS the petition for
enforcement.
DISCUSSION
¶2 The agency bears the burden to prove its compliance with a Board order.
Vaughan v. Department of Agriculture , 116 M.S.P.R. 319 , ¶ 5 (2011). An
agency’s assertions of compliance must include a clear explanation of its
compliance actions supporte d by documentary evidence. Id. The appellant may
rebut the agency’s evidence of compliance by making “specific, nonconclusory,
and supported assertions of continued noncompliance.” Brown v. Office of
Personnel Management , 113 M.S.P.R. 325 , ¶ 5 (2010).
¶3 OPM initially denied the appellant’s application for disability retirement on
the ground that his application was untimely , but on appeal the administrative
judge determined in a decision issued on July 18, 2017, that the appellant had
proved by preponderant evidence that the 1-year time limit for filing should be
waived. Poree v. Office of Personnel Management , MSPB Docket No. DA -831E-
17-0318 -I-1, Initial Appeal File, Tab 16, Initial Decision at 2 . The administrative
judge then ordered OPM to issue a new reconsideration decision addressing his
application. Id. On D ecember 1, 2017, the appellant filed a petition fo r
enforcement al leging that OPM had failed to comply with the order. CID at 1.
OPM did not dispute that it was not in compliance with the Board’s order, and the
administrative judge found that it was not in full compliance and ordered OPM to
submit evidence that it has issued a new reconsideration decision on the
appellant’s application. Id. at 3-4. The case subsequently was referred to the
Board’s Office of General Counsel to obtain compliance.
3
¶4 On March 7, 2018, OPM submitted a copy of i ts March 1, 2018 final
decision on the appellant’s application for disability retirement. Poree v. Office
of Personnel Management , MSPB Docket No. DA -831E -17-0318 -X-1,
Compliance Referral File (CRF) , Tab 1.2 On its face, OPM’s document is
evidence that i t has complied with the Board’s decision. The Board’s
acknowledgment order notified the appellant that he may respond to OPM’s
submission within 20 calendar days of its date of service and that the Board may
assume from a failure to respond that he is sat isfied and dismiss his petition .
CRF , Tab 2. The appellant did not respond to OPM’s submission.
¶5 Accordingly, in view of OPM’s issuance of the ordered final decision on the
appellant’s application and the absence of a response from the appellant, the
appe llant’s petition for enforcement is dismissed. This is the final decision of the
Merit Systems Protection Board in this compliance proceeding. Title 5 of the
Code of Federal Regulations, section 1201.183(c)(1) ( 5 C.F.R. § 1201.183 (c)(1)).
2 In its March 1, 2018 decision, OPM found that the appellant did not meet the criteria
for entitlement to a disability retirement, and the appellant appealed OPM’s decision to
the Board. CRF, Tab 1 at 8; Poree v. Office of Personnel Management , MSPB Docket
No. DA -831E -18-0257 -I-1, Initial Appeal File (0257 IAF), Tab 1. In a June 26, 2018
initial decision, the administrative judge vacated OPM’s decision and remanded the
appeal to OPM for issuance of a new final decision. 0257 IAF, Tab 10, Initial Decision.
On November 8, 2018, the appellant petitioned for enforcement of the initial decision.
Poree v. Office of Personnel Management , MSPB Docket No. DA -831E -18-0257 -C-1,
Compliance File (0257 CF), Ta b 1. In a December 10, 2018 compliance initial
decision, the administrative judge found that OPM established compliance with the
June 26, 2018 initial decision and dismissed the appellant’s petition for enforcement.
0257 CF, Tab 7, Compliance Initial Dec ision. The compliance initial decision became
the final decision of the Board on January 14, 2019, after neither party filed a petition
for review. Id. at 3.
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 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 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 noti ce of review rights included in final decisions. As indicated in the notice, the
Board cannot advise which option is most appropriate in any matter.
5
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is availabl e at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this 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 hav e a
representative in this case, and your representative receives this decision before
you do, then you must file with the district court no later than 30 calendar days
after your representative receives this decision. If the action involves a claim of
discrimination 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 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
7
disposition of allegations of a prohibited personnel practice described in
section 2302(b) other than practices described in section 2302(b)(8), or
2302(b)(9)(A)(i), (B), (C), or (D),” then you may file a petition for judicial
review either with the U.S. Court of Appeals for the Federal Circuit or any court
of appeals of competent jurisdiction. The court of appeals must receive your
petition for review within 60 days of the date of issuance of this decision.
5 U.S.C. § 7703 (b)(1)(B).
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
8
Contact information for the courts of appeals can be found at their
respective websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsit es.aspx .
FOR THE BOARD:
Washington, D.C. /s/ for
Jennifer Everling
Acting Clerk of the Board | POREE_CARLOS_R_DA_831E_17_0318_X_1_FINAL_ORDER_1937861.pdf | 2022-06-29 | null | DA-831E-17-0318-X-1 | NP |
4,321 | https://www.mspb.gov/decisions/nonprecedential/KEBREAU_LUCRETIA_RENE_DC_315H_17_0759_I_1_FINAL_ORDER_1937872.pdf | UNITED STATES OF AME RICA
MERIT SYSTEMS PROTEC TION BOARD
LUCRETIA RENE KEBREA U,
Appellant,
v.
DEPARTMENT OF HEALTH AND
HUMAN SERVICES,
Agency.
DOCKET NUMBER
DC-315H -17-0759 -I-1
DATE: June 29, 2022
THIS FINAL ORDER IS NONPRECEDENTIAL1
Lucretia Rene Kebreau , Germantown, Maryland, pro se.
Christy Te , 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 for lack of jurisdiction her appeal of an involuntary resignation before
the completion of her probationary period . The appellant argues that the
administrative judge failed to consider her claim of disability discrimination and
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
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
allege s that marital status discrimination may have played a role in her proposed
termination .2 Petition for Review File, Tab 1 at 4 -5. Generally, we grant
petitions such as this one only in t he 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 admi nistrative 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 evidenc e 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 i nitial decision, which is now the Board’s final decis ion. 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
2 The administrative judge found that the appellant failed to address the issue of marital
status discrimination. Initial Appeal File (IAF) , Tab 10, Initial Decision (ID) at 3. The
appellant, however, allege d below that she was in the process of getting a divorce and
submitted evidence that agency officials knew of her divorce. IAF, Tab 3.
Nonetheless, the administrative judge correctly found that the appellant failed to raise a
nonfrivolous allegati on that the agency’s termination was based on her marital status.
ID at 4. Thus, to the extent that the administrative judge erred in determining that the
appellant failed to address the issue of marital status discrimination, any such error
does not provide a basis for review. See Panter v. Department of the Air Force ,
22 M.S.P.R. 281 , 282 (1984).
3 Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board can not advise which option is most appropriate in any matter.
3
review and the appropriate forum with which to file. 5 U.S.C. § 7703 (b).
Although we offer the following summary of available appeal rights, the Merit
Systems Protection Board does not provide legal advice on which option is most
appropriate for your situation and the rights described below do not represent a
state ment of how courts will rule regarding which cases fall within their
jurisdiction. If you wish to seek review of this final decision, you should
immediately review the law applicable to your claims and carefully follow all
filing time limits and requireme nts. Failure to file within the applicable time
limit may result in the dismissal of your case by your chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If y ou have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703 (b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional 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 receives this decision before
you do, t hen you must file with the district court no later than 30 calendar days
after your representative receives this decision. If the action involves a claim of
discrimination based on race, color, religion, sex, national origin, or a disabling
condition, you may be entitled to representation by a court -appointed lawyer and
to waiver of any requirement of prepayment of fees, costs, or other security. See
42 U.S.C. § 2000e -5(f) and 29 U.S.C. § 794a .
Contact information for U.S. district courts can be found at th eir respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702 (b)(1). You must file any such request with the
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 receives thi s decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative 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 Feder al Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Opera tions
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of r eprisal for whistleblowing disclosures under 5 U.S.C. § 2302 (b)(8) or
other protected activities listed in 5 U.S.C. § 2302 (b)(9)(A)(i), (B ), (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.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
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 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.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the 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
Contac t information for the courts of appeals can be 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 | KEBREAU_LUCRETIA_RENE_DC_315H_17_0759_I_1_FINAL_ORDER_1937872.pdf | 2022-06-29 | null | DC-315H-17-0759-I-1 | NP |
4,322 | https://www.mspb.gov/decisions/nonprecedential/JUNIUS_KENNETH_DA_0845_17_0031_I_1_FINAL_ORDER_1937884.pdf | UNITED STATES OF AME RICA
MERIT SYSTEMS PROTEC TION BOARD
KENNETH JUNIUS,
Appellant,
v.
OFFICE OF PERSONNEL
MANAGEMENT,
Agency.
DOCKET NUMBER
DA-0845 -17-0031 -I-1
DATE: June 29, 2022
THIS FINAL ORDER IS NONPRECEDENTIAL1
Kenneth Junius , New Orleans, Louisiana, pro se.
Jane Bancroft , Washington, D.C., for the agency.
BEFORE
Cathy A. Harris , Vice Chairman
Raymond A. Limon , Member
Tristan L. Leavitt , Member
FINAL ORDER
¶1 The appellant has f iled a petition for review of the initial decision, which
dismissed his Federal Employees ’ Retirement System (FERS) overpayment
appeal for lack of jurisdiction. Generally, we grant petitions such as this one only
in the following circumstances: the initi al decision contains erroneous findings
1 A nonprecedential order is one that the Board has determined does not add
significantly to the 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
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 eith er the course of the appeal or
the initial decision were not consistent with required procedures or involved an
abuse of discretion, and the resulting error affected the outcome of the case; or
new and material evidence or legal argument is available that, despite the
petitioner’s due diligence, was not available when the record closed. Title 5 of
the Code of Federal Regulations, section 1201.115 ( 5 C.F.R. § 1201.115 ). After
fully considering the filings in this appeal, we conclude that the petitioner has not
established any basis under section 1201.115 for granting the petition for review.
Therefore, we DENY the petition for review and AFFIRM the initial decision,
which is now the Board’s final decision. 5 C.F.R. § 1201.113 .
BACKGROUND
¶2 The Office of Personnel Management (OPM) issued a reconsideration
decision on September 27, 2016, affirming i ts calculation of a $29,906
overpayment in FERS annuity benefits and denying the appellant’s request for a
waiver . Initial Appeal File (IAF), Tab 1 at 8 -11. Based on a finding of financial
hardship, OPM adjusted the repayment schedule and indicated that it would
collect the overpayment in 664 monthly installments of $45, plus a final
installment of $26 , beginning with the appellant’s annuity payment check dated
January 1, 2017 . Id. at 11.
¶3 The appellant filed an appeal with the Board on October 17, 2016 ,
contesting OPM’s reconsideration decision. IAF, Tab 1. OPM filed a motion to
dismiss the appeal on November 15, 2016 , stating that it had “ rescinded the
decision under appeal, [and] there no longer remains any matter over which the
Board retains jurisd iction.” IAF, Tab 6 at 4. OPM also stated that it would cease
all collection attempts and issue a new decision after further review of the amount
of the overpayment. Id. The administrative judge granted OPM’ s mot ion and
3
dismissed the appeal for lack of jurisdiction based on his finding that OPM had
completely rescinded the final decision. IAF, Tab 9, Initial Decision (ID) at 2.
¶4 The appellant has filed a petition for review, arguing the merits of his
appeal. Petition for Review (PFR) File, Tab 1. The agency has responded to his
petition. PFR File, Tab 6.
DISCUSSION OF ARGUME NTS ON REVIEW
¶5 On review, the appellant does not address the administrative judge’s finding
that the Board has no jurisdiction over this appeal . Ins tead, he submits medical
documentation and asserts that he did not know that he needed to fi le this
evidence on appeal below . PFR File, Tab 1 at 3, Tab 3. He also submits
evidence and argument that he is in debt because of his election to take disability
retirement. PFR File, Tab 1 at 4, 6 -9. He contends that he did not understand
how the disability retirement system works or that the money he received was not
his. Id. at 4. He further states that he only applied for disability retirement
because the Postal Service threatened him with removal based on his absences
from an on -the-job injury . Id. at 3-4. For the reasons discussed below, we find
that the administrative judge properly dismissed this appeal for lack of
jurisdiction.
¶6 The Board has jurisdiction over OPM determinations affecting an
appellant’s rights or interests under FERS after OPM has issued a fina l or
reconsideration decision. 5 U.S.C. § 8461 (e)(1); Okello v. Office of Pe rsonnel
Management , 120 M.S.P.R. 498 , ¶¶ 13-14 (2014) ; 5 C.F.R. § 841.308 . If OPM
completely rescinds the reconsideration decision, however, the rescission divests
the Board of jurisdiction over the appeal in which the reconsideration decision is
at issue, an d the appeal must be dismissed. Martin v. Office of Personn el
Management , 119 M.S.P.R. 188 , ¶ 8 (2013). Here, OPM asserted that it had
completely resci nded the final decision and intended to issue a new decision
regarding the alleged overpayment . IAF, Tab 6 at 4. The appellant did not
4
dispute these contentions below or on review, despite being expli citly informed
by OPM’s motion and the initial decision that such rescission divests the Board of
jurisdiction. ID at 3 ; IAF, Tab 6 at 4 ; see Boughton v. Department of Agriculture ,
94 M.S.P.R. 347 , ¶¶ 5‑6 (2003) (finding it sufficient that an agency’s motion to
dismiss or an initial decision put the appellant on notice of the Board’ s
jurisdictional requirements , providing him with an opportunity to meet his burden
on review ). Rather, the appellant a rgues the merits of his appeal, which is
immaterial to the jurisdictional issue before the Board on review. PFR File,
Tab 1 at 3-4; see Sapla v. Department of the Navy , 118 M.S.P.R. 551 , ¶ 7 (2012)
(finding that an appellant’s arguments concerning defamation and the basis for
the agency’s withdrawal of a job offer were not relevant to issue of the Board’s
jurisdiction over the agency’s withdrawal of t he job offer, the issue currently
before the Board) . We therefore affirm the administrative judge’s decision to
dismiss this appeal for lack of jurisdiction.
¶7 As noted above, OPM indicated that it intends to issue a new decision
concerning the alleged overpayment. IAF, Tab 6 at 4. The dismissal of this
appeal does not preclude the appellant from filing another appeal if he disagrees
with OPM’s new reconsideration decision . Franklin v. Office of Personnel
Management , 62 M.S.P.R. 168 , 169 -70 (1994) . The appellant must file any future
appeal within the limits set forth in the Board’s regulations. Id.; see 5 C.F.R.
§ 1201.22 . Because the appellant’s arguments on review present no basis to
disturb the initial decision, we deny his petition for review.
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
2 Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise w hich option is most appropriate in any matter.
5
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 particu lar
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
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 p rovided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703 (b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. ____ , 137 S. Ct. 1975 (2017). If you have a
representative in this case, and your representative receives this decision before
you do, th en you must file with the district court no later than 30 calendar days
after your representative receives this decision. If the action involves a claim of
discrimination based on race, color, religion, sex, national origin, or a disabling
condition, you may be entitled to representation by a court -appointed lawyer and
to waiver of any requirement of prepayment of fees, costs, or other security. See
42 U.S.C. § 2000e -5(f) and 29 U.S.C. § 794a .
Contact information for U.S. district courts can be found at the ir respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) 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 Op erations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702 (b)(1). If you have a representative in this case,
and your representative receives this decision before you do, t hen you must file
with the EEOC no later than 30 calendar days after your representative 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 Employ ment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opp ortunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302 (b)(8) or
other protected activities listed in 5 U.S.C. § 2302 (b)(9)(A)(i), (B), (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
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
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 cou rt’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal 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.
July 7, 2018, permanently allows appellants to file petitions for judicial 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.
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/CourtWeb sites.aspx .
FOR THE BOARD:
Washington, D.C. /s/ for
Jennifer Everling
Acting Clerk of the Board | JUNIUS_KENNETH_DA_0845_17_0031_I_1_FINAL_ORDER_1937884.pdf | 2022-06-29 | null | DA-0845-17-0031-I-1 | NP |
4,323 | https://www.mspb.gov/decisions/nonprecedential/SMITH_LASHONA_S_CH_0752_20_0550_X_1_FINAL_ORDER_1937900.pdf | UNITED STATES OF AME RICA
MERIT SYSTEMS PROTEC TION BOARD
LASHONA S. SMITH,
Appellant,
v.
UNITED STATES POSTAL SERVICE,
Agency.
DOCKET NUMBER
CH-0752 -20-0550 -X-1
DATE: June 29, 2022
THIS FINAL ORDER IS NONPRECEDENTIAL1
Arthur R. Ehrlich , Esquire, Chicago, Illinois, for the appellant.
Cynthia L. Edwards -Bender , Glen Ellyn, Illinois, for the appellant.
Hannah C. Brothers , Esquire, Chicago, Illinois, for the agency.
BEFORE
Cathy A. Harris, Vice Chairman
Raymond A. Limon, Member
Tristan L. Leavitt, Member
FINAL ORDER
¶1 In a November 30, 2021 compliance initial decision, the administrative
judge found the agency in partial noncompliance with the Board’s May 13, 2021
final decision reversing the appellant’s removal and ordering the agency 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
retroactively restore her with back pay and benefits. Smith v. U.S. Postal Service ,
MSPB Docket No. CH -0752 -20-0550 -I-1, Initial Appeal File, Tab 33, Initial
Decision; Smith v. U.S. Postal Service , MSPB Docket No. CH -0752 -20-0550 -C-1,
Compliance File, Tab 6, Compliance Initial Decision (CID) . For the reasons
discussed below, we find the agency in compliance and DISMISS the petition for
enforcement.
DISCUSSION OF ARGUME NTS AND EVIDENCE ON COMPLIANCE
¶2 In the compliance initial decision, the administrative judge found that the
agency had failed to pay the appellant all back pay owed, with interest, as the
agency’s back pay calculations included an improper deduction of $26,993.00 for
unemployment benefits and excluded time during the back pay period wherein the
appellant made reasonable efforts to find work as required by the agency’s
Employee and Labor Relations Manual (ELM).2 CID at 4 -9. Accordingly, she
granted the appellant’s petition for enforcement and ordered the agency to :
(1) recompute the appella nt’s back pay award in accordance with the instructions
provided; (2) pay the appellant all back pay owed; and (3) restore the appellant’s
leave balances with any leave she accrued during the back pay period. CID
at 9-10.
2 As stated in the compliance initial decision:
In the Postal Service, only employees who have veterans preference are
covered by the Back Pay Act. Davis v. U.S. Postal Service , 64 M.S.P.R.
652, 658 (1994). Entitlement to back pay for those who, like the
appellant, lack veterans preference is subject to conditions imposed by the
agency’ s Employee and Labor Relations Manual (ELM). Id. at 659 -60.
The ELM requires non -preference eligible employees to file a Form 8038
titled, “Employee Statement to Recover Back Pay,” describing their
efforts to seek employment. Where, as here, the back pa y period exceeds
six months, the ELM directs that, excluding the first 45 days after the
effective date of their removal, the employees must have sought work and
must provide documentation they made reasonable efforts to do so while
awaiting the outcome of their Board appeal. CID at 3 -4.
3
¶3 The administrative judge informed the agency that, if it decided to take the
ordered actions, it must submit to the Clerk of the Board a narrative statement and
evidence establishing compliance . CID at 11. The compliance initial decision
also informed the parties that they coul d file a petition for review if they
disagreed with the compliance initial decision. CID at 12 -13. Neither party filed
a petition for review and, on January 4, 2022, the agency informed the Board that
it had complied with the compliance initial decision. Smith v. U.S. Postal
Service , MSPB Docket No. CH -0752 -20-0550 -X-1, Compliance Referral File
(CRF), Tab 1. Accordingly, the appellant’s petition for enforcement has been
referred to the Board for a final decision on issues of compliance. 5 C.F.R.
§ 1201.183 (c).
¶4 In its January 4, 2022 compliance submission, the agency indicated that it
had recomputed the appellant’s back pay award in accordance with the
instructions provided and that, pe nding a review from the agency’s auditor, the
appellant should be receiving a check for all back pay owed within the same week
and should have her leave restored within one to two pay periods. CRF, Tab 1.
As evidence of its compliance, the agency provide d a “Back Pay
Decision/Settlement Worksheet” signed by both the appellant and the agency’s
Back Pay Coordinator, indicating how the agency recomputed the appellant’s
back pay award, id. at 17-28, with copies of the documentation and agency
policies it reli ed upon also attached, id. at 29 -50, 107-47, 156-83. The appellant
did not respond to the agency’s submission.
¶5 By order dated February 25, 2022, the Board ordered the agency to submit a
response, via affidavit and documentary evidence, addressing its comp liance with
the administrative judge’s orders to make final determinations as to whether it
had finally paid the appellant all back pay owed and restored her leave balances
with her entitled leave. CRF, Tab 3 at 3 .
¶6 The agency respon ded to the Board’s order on March 16, 2022 . CRF,
Tab 4. T he agency averred tha t it has now paid the appellant all back pay and
4
interest owed , with $5,792.80 in back pay issued to her on August 16, 2021 , via
six postal money orders ; $35,387.37 in back pay issued to her via a check mailed
to her home address on January 10 , 2022 ; and $1,984.69 in interest issued to her
via a check mailed to her home address on January 13, 2022. CRF, Tab 4 at 6-7.
It further averred that, in pay period 2 of 2022 , it restored t he appellant’s leave
balances by crediting to her 120 hours of annual leave and 80 hours of sick
leave .3 Id. As evidence of its compliance, the agency provided copies of the
postal money orders with receipts, id. at 18 -21; tracking information for both the
backpay and interest checks, id. at 22 -24, 26 -28; a copy of the interest check, id.
at 25 ; and copies of the payroll journals showing the appellant’s credited leave
balances, id. at 29 -32. Again, the appellant did not respond to the agency’s
submissio n.
ANALYSIS
¶7 When the Board finds a personnel action unwarranted or not sustainable, it
orders that the appellant be placed, as nearly as possible, in the situation he would
have been in had the wrongful personnel action not occurred. House v.
Department of the Army , 98 M.S.P.R. 530 , ¶ 9 (2005). The agency bears the
burden to prove its compliance with a Board order. An agency’s asser tions of
compliance must include a clear explanation of its compliance actions supported
by documentary evidence. Vaughan v. Department of Agriculture , 116 M.S.P.R.
319, ¶ 5 (2011). The appellant may rebut the agency’s evidence of compliance by
making “specific, nonconclusory, and supported assertions of continued
noncompliance.” Brown v. Office of Personnel Management , 113 M.S.P.R. 325 ,
¶ 5 (2010).
¶8 Here, the agency has demonstrated that it has paid the appellant a total of
$41,180.17 in back pay and $1,984.69 in interest and restored to her 120 hours of
3 The agency indicates that , upon crediting these annual and sick leave hours to the
appellant , her total annual and sick leave balances were offset by her reques ts to use
leave during the back pay period. CRF, Tab 4 at 7, 30.
5
annual leave and 80 hours of sick leave . The appellant has not responded to
either of the agency’s compliance submissions, despite twice being notified of her
opportunity to do so, including having been cautione d that the Board may assume
she is satisfied and dismiss her petition for enforcement if she did not respond.
CRF, Tab s 2-3. Accordingly, we assume that the appellant is satisfied with the
agency’s compliance. See Baumgartner v. Department of Housing & Urban
Development , 111 M.S.P.R. 86 , ¶ 9 (2009).
¶9 In light of the foregoing, we find that the agency is now in compliance and
dismiss the appellant’s petition for enforcement. This is the final decision of the
Merit Systems Protection Board in this compliance proceeding. Title 5 of the
Code of Federal R egulations, sec tion 1201.183(c)(1) ( 5 C.F.R. § 1201.183 (c)(1)).
NOTICE OF APPEAL RIGHTS4
You may obtain review of this final decision. 5 U.S.C. § 7703 (a)(1). By
statute, the nature of your claims determines the time limit for seeking such
review and the appropriate forum with which to file. 5 U.S.C. § 7703 (b).
Although we offer the following summary of available appeal rights, the Merit
Systems Protection Board does not provide legal advice on which option is most
appropriate for your situation and the rights described below do not represent a
statement of how courts wi ll rule regarding which cases fall within their
jurisdiction. If you wish to seek review of this final decision, you should
immediately review the law applicable to your claims and carefully follow all
filing time limits and requirements. Failure to file within the applicable time
limit may result in the dismissal of your case by your chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
4 Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise which option is most appropriate in any matter.
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 p etition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703 (b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D .C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
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
7
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703 (b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. ____ , 137 S. Ct. 1975 (2017). If you have a
representative in this case, and your representative receives this decision before
you do, then you must file with the district court no later than 30 calendar days
after your representative receives this decision. If the action involves a claim of
discrimination based on race, color, religion, sex, national origin, or a disabling
condition, you may be entitled to representation by a court -appointed lawyer and
to waiver of any requirement of prepayme nt of fees, costs, or other security. See
42 U.S.C. § 2000e -5(f) and 29 U.S.C. § 794a .
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702 (b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702 (b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative 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
8
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 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:
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 re troactive 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.
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/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the 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 | SMITH_LASHONA_S_CH_0752_20_0550_X_1_FINAL_ORDER_1937900.pdf | 2022-06-29 | null | CH-0752-20-0550-X-1 | NP |
4,324 | https://www.mspb.gov/decisions/nonprecedential/LANIER_CHRIS_AT_0752_21_0487_I_1_FINAL_ORDER_1937276.pdf | UNITED STATES OF AME RICA
MERIT SYSTEMS PROTEC TION BOARD
CHRIS LANIER,
Appellant,
v.
DEPARTMENT OF THE AI R FORCE,
Agency.
DOCKET NUMBER
AT-0752 -21-0487 -I-1
DATE: June 28, 2022
THIS FINAL ORDER IS NONPRECEDENTIAL1
Henry Lee Brown , Michelle Smith and Marion L. Williams , Warner
Robins, Georgia, for the appellant.
Kristi Marie Winger Minor , Warner Robins, Georgia, 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. On petition for review, the appellant argues that the agency
committed harmful error when it failed to follow its own procedures, the penalty
is unreasonabl e, and his medical condition of diabetes was not considered; thus,
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
requi red to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117 (c).
2
his positive drug test should be voided and his removal s hould be reversed or
mitigated .2 Generally, we grant petitions such as this one only in the following
circumstances: the initial decision contains erroneous findings of material fact;
the initial decision is based on an erroneous interpretation of statute or regulation
or the erroneous application of the law to the facts of the case; the administrative
judge’s rulings during either the course of the appeal or the initial decision
were not consistent with required procedures or involved an abuse of discretion,
and the resulting error affected the outcome of the case; or new and material
evidence or legal argument is available that, de spite 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
consider ing the filings in this appeal, we conclude that the petitioner has not
established any basis under section 1201.115 for granting the petition for review.
Therefore, we DENY the petition for review and AFFIRM the initial decision,
which is now the Board’s final decision. 5 C.F.R. § 1201.113 (b).
2 On review, the appellant provides a number of additional medical documents showing
his diabetes, prediabetes, and his family history of diabetes. P etition for Review File,
Tab 5 at 9. His medical records include patie nt charts for his visits on May 18, 2021,
May 25, 2021, and July 9, 2021 and bloodwork and imaging res ults from the May 18,
2021 visit. Id. at 11 -22. He also provides a 2014 article stating that immunoassay
tests, which dominate urine drug screens, may cause false positive results. Id. at 23 -32.
These documents were not included in the record below. The Board generally will not
consider evidence submitted for the first time with a petition for review absent a
showing that it was unavailable before the record closed before the administrative judge
despite the party’s due diligence. Avansino v. U.S. Postal Service , 3 M.S.P.R. 211 ,
213-14 (1980). The documents were available before the record closed below, and the
appellant’s explanation as to why he was unable to submit them then is not persuasive ,
nor has he explained how the 2014 article is of sufficient weigh t to warrant an outcome
different than that of the initial decision. Russo v. Veterans Administration , 3 M.S.P.R.
345, 349 (1980) .
3
NOTICE OF APPEAL RIG HTS3
You may obtain review of this final decision. 5 U.S.C. § 7703 (a)(1). By
statute, the nature of your claims determines the time limit for seeking such
review and the appropriate forum with which to file. 5 U.S.C. § 7703 (b).
Although we offer the 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
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 particul ar forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703 (b)(1)(A).
If you submit a petition for 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 issua nce of the initial decision in this matter, the Board may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise which option is most appropriate in any matter.
4
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional i nformation about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rule s of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pr o bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or E EOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discriminatio n. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703 (b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. ____ , 137 S. Ct. 1975 (2017). If you have a
representative in this case, and your representative receives this decision before
you do, then you must file with the district court no later than 30 calendar days
after your representative receives this deci sion. If the action involves a claim of
discrimination based on race, color, religion, sex, national origin, or a disabling
condition, you may be entitled to representation by a court -appointed lawyer and
5
to waiver of any requirement of prepayment of fees , costs, or other security. See
42 U.S.C. § 2000e -5(f) and 29 U.S.C. § 794a .
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702 (b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702 (b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative 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
6
disposition of allegations of a prohibited p ersonne l practice described in
section 2302(b) other than practices described in section 2302(b)(8), or
2302(b)(9)(A)(i), (B), (C), or (D),” then you may file a petition for judicial
review either with the U.S. Court of Appeals for the Federal Circuit or a ny court
of appeals of competent jurisdiction.4 The court of appeals must receive your
petition for review within 60 days of the date of issuance of this decision.
5 U.S.C. § 7703 (b)(1)(B).
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
4 The original statutory pr ovision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appe llants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
The All Circuit Review Act is re troactive to November 26, 2017. Pub. L. No. 115 -195,
132 Stat. 1510.
7
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 | LANIER_CHRIS_AT_0752_21_0487_I_1_FINAL_ORDER_1937276.pdf | 2022-06-28 | null | AT-0752-21-0487-I-1 | NP |
4,325 | https://www.mspb.gov/decisions/nonprecedential/WEISBROD_GEORGE_AT_0831_16_0549_I_1_FINAL_ORDER_1937377.pdf | UNITED STATES OF AME RICA
MERIT SYSTEMS PROTEC TION BOARD
GEORGE WEISBROD,
Appellant,
v.
OFFICE OF PERSONNEL
MANAGEMENT,
Agency.
DOCKET NUMBER
AT-0831 -16-0549 -I-1
DATE: June 28, 2022
THIS FINAL ORDER IS NONPRECEDENTIAL1
Demetrius Sterling , Birmingham, Alabama, for the appellant.
Karla W. Yeakle , Washington, D.C., for the agency.
BEFORE
Cathy A. Harris , Vice Chairman
Raymond A. Limon , Member
Tristan L. Leavitt , Member
FINAL ORDER
¶1 The appellant has filed a petition for review of the initial decision, which
affirmed the decision of the Office of Personnel Management (OPM) to dismiss
his request for reconsideration as untimely filed . Generally, we grant petitions
such as this one only in the following circumstances: the initial decision contains
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or 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 findings of material fact; the initial decision is based on an erroneous
interpretation of statute or regulation or the erroneous application of the law to
the facts of the case; the ad ministrative judge’s rulings during either the course of
the appeal or the initial decision were not consistent with required procedures or
involved an abuse of discretion, and the resulting error affected the outcome of
the case; or new and material evide nce or legal argument is available that, despite
the petitioner’s due diligence, was not available when the record closed. Title 5
of the Code of Federal Regulations, section 1201.115 ( 5 C.F.R. § 1201.115 ).
After fully considering the filings in this appeal, we conclude that the petitioner
has not established any basis under section 1201.115 for granting the petition for
review. Therefore, we DENY the petition for review . Except as expressly
MODIFIED by this Final Order to vacate the administrative judge’s finding that
OPM’s dismissal of the appellant’s request for reconsideration was not
unreasonable or an abuse of discretion , we AFFIRM the initial decision .
BACKGROUND
¶2 On November 18, 200 6, OPM issued the appell ant a letter informing him of
its determination that he had been restored to earning capacity and that , as a
result, he no longer was eligible to receive disability retirement benefits. Initial
Appeal File (IAF), Tab 5 at 17-18. In a second letter issued the same day, OPM
advised the appellant that his benefits should have terminated as of June 30, 2006,
and that , consequently, it had overpaid h im disability retiremen t benefits in the
amount of $5, 343.32 . Id. at 19-26. The second letter informed the appellant that
he could request reconsideration of OPM’ s determination s by completing an
enclosed form, and either mailing or hand delivering the form to OPM “within
30 calendar days after the date of [OPM’s] letter .” Id. at 20 -21 (emphasis in
original). The letter also explained that OPM would extend the 30 -day time limit
for filing a request for reconsideration only if the appellant demonstrated that he
3
was unaware of the time limit or was prevented from respondin g by a cause
beyond h is control . Id. at 26.
¶3 On February 2, 2016, the appellant submitted correspondence concerning
his disability retirement benefits to his Congressman, who forwarded it to OPM
for its review on February 24, 2016. IAF, Tab 5 at 7 -8. It appears that OPM
considered the forwarded February 2, 2016 correspondence as a request for
reconsideration of its two November 18, 2006 decision s. Id. at 5. On May 3,
2016, OPM issued a final de cision dismissing the appellant’ s request as untimely
filed , finding that the appellant had not provided sufficient argument or evidence
to justify an extension of the time limit. Id. at 5-6.
¶4 The appellant appealed OPM’ s final decision to the Board. IAF, Tab 1.
Because he was appealing an OPM determination that a request for
reconsideration was untimely filed, t he administrative judge issued an order
explaining that the appellant had the burden of proof to show either that he was
not notified of the time limit or that circ umstances beyond his control prevented
him from timely requesting reconsideration . IAF, Tab 11. In response, the
appellant discussed the merits of his request for reconsideration and he recounted
telephone conversations he had with OPM representatives ov er the years. IAF,
Tab 12.
¶5 In its response to the appeal, OPM provided several documents. IAF,
Tab 5. In particular, it provided documentation concerning the appellant’s 2016
correspondence with his Congressman, in which he challenged the ongoing
collection of the overpayment, id. at 8, and requested reinstatement of his
disability retirement benefits, id. at 12 -14. It also provided an August 7, 2007
letter to the appellant’s Congressman, in which it claimed that it suspended the
collection of the ove rpayment at issue and informed the appellant of the steps he
would need to take to apply for the reinstatement of his disability retirement
annuity. Id. at 15-16.
4
¶6 In an initial decision based on the written record, the administrative judge
affirmed OPM’ s decision dismissing the appellant’s request for reconsideration as
untimely filed . IAF, Tab 13, Initial Decision (ID). He found that the appellant
did not demonstra te that OPM failed to notify him of the time limit for filing a
reque st for reconsiderat ion. ID at 2-4. The administrative judge also found that
the appellant did not show that he qualified for an extension of OPM’s regulatory
criteria for f iling a reconsideration request and that OPM’s dismissal of his
February 2, 2016 request for reconsid eration on timeliness grounds was not
unreasonable or an abuse of discretion. ID at 4.
¶7 The appellant has filed a petition for review of the initial decision, the
agency has responded in opposition , and the appellant has filed a reply to the
agency’s respo nse. Petition for Review (PFR) File, Tabs 1, 4 -5. Upon review of
the existing record, the Acting Clerk of the Board issued a show cause order for
clarification of certain issues , including whether the appellant has sought
reinstatement of his disability retirement benefits and whether OPM resumed
collection of the overpayment at issue . PFR File, Tab 6. In response to the order,
OPM confirmed that , as of the date of its filing, the appellant ha d not taken the
steps necessary to seek reinstatement of his disability retirement annuity and that
it had not resumed collection of the overpayment at issue. PFR File, Tab 7 at 4,
6. It also provided the appellant instructions on how to apply for a deferred
annuity. Id. at 6. In the appellant’s response to the order, he describes several
unsuccessful attempts to communicate with OPM regarding his desire to rei nstate
his disability annuity or collect a deferred annuity. PFR File, Tab 10 .
DISCUSSION OF ARGUME NTS ON REVIEW
¶8 When OPM dismisses an individual’ s request for reconsideration of an
initial decision as untimely filed , the Board has jurisdiction over an appeal
regarding the timeliness determination. Rossini v. Office of Personnel
Management , 101 M.S.P.R. 289 , ¶ 7 (2006 ). A request for reconsideration of an
5
initial decision issued by OPM regarding retireme nt benefits generally must be
received by OPM within 30 calendar days from the date of the initial decision.
5 C.F.R. § 831.109 (e)(1). OPM may extend the time limit for filing a request for
reconsideration when the applicant can prove that he was not notified of the time
limit and was not otherwise aware of it, or that he was prevented by
circumstances beyond h is control from making the request within the time limit.
5 C.F.R. § 831.109 (e)(2); see Azarkhish v. Office of Personnel Management ,
915 F.2d 675 , 677 (Fed. Cir. 1990). If the appellant fails to show that he was not
notified of the time limit and was not otherwise aware of it, or that he was
prevented by circumstances beyond h is control from making the request within
the time limit, the issue of whether OPM was unreasonable or abus ed its
discretion in denying his untimely request for reconsideration is not reached.
Azarkhish , 915 F.2d at 678.
¶9 Here, to be timely, the appellant needed to file a request for reconsideration
of OPM’s November 18, 2006 decisions by December 18, 2006. IAF, Tab 5
at 21. The appellant has not argued that he was unaware of this deadline. To the
extent the appellant’s response to the administrative judge’s order could be
viewed as an argument that his undated telephone con versations with OPM
representatives constituted an oral request for reconsideration, IAF, Tab 12, we
find such argument unpersuasive. OPM’s November 16, 2006 letters informed
the appellant that a request for reconsideration could be made by completing a
form and submitting it to OPM by hand deliver y or mail, which is consis tent with
its regulations that were in place at that time . IAF, Tab 5 at 21; see 5 C.F.R.
§ 831.1304 (b)(1) (2006) (specifying that requests for reconsideration may be
made by hand delivery or mail) ; see also 5 C.F.R. § 831.109 (d) (2006) (providing
that a request for reconsideration must be in writing).
¶10 The appellant states that he is at a disadvantage in pursuing his appeal
because of a medical condition . PFR File, Tab 1 at 1. To the extent the appellant
is argu ing that his medical condition prevented him from making his
6
reconsideration request by the December 18, 2006 deadline, we note that the
appellant stated that this medical condition arose because of an injury sustained
in July 2007 , and he does not set for th any circumstances —medical or
otherwise —that prevented him from making a request for reconsideration
between November 18 and December 18, 2006 . IAF, Tab 1 at 1, Tab 12 at 2. We
find, t herefore, that he has not shown that he was prevented by circumstances
beyond h is control from making the request within the time limit .
¶11 To the ex tent the appellant argues that he cannot afford an attorney , PFR
File, Tab 1 at 2-3, he has designated a representative on review , PFR File, Tabs 1,
5, and he also had designated a representative below, IAF, Tab 9 . Moreover, with
an exception not applicable to the circumstances involved in this appeal, the
Board is without any authority to appoint counsel in an appeal. See, e.g.,
Innocent v. Office of Personnel Manage ment , 108 M.S.P.R. 453 , ¶ 10, aff’d,
296 F. App’ x 925 (Fed. Cir. 2008 ).
¶12 Whe n, as here, the appellant fails to show that he was not notified of the
deadline and was not otherwise aware of it, or that he was prevented by
circumstances beyond h is control from making the request within the time limit,
the appellant is not entitled to a waiver of the time limit and we will not reach the
issue of whether OPM was unreasonable or abused its discretion in denying h is
untimely request for reconsideration. See Azarkhish , 915 F.2d at 678.
Accordin gly, we vacate the administrative judge’s fin ding in this regard and
affirm the initial decision with this modification.
¶13 Finally, because we affirm OPM’s dismissal of the appellant’s
reconsideration request as untimely filed, we lack jurisdiction to review the
merits of his request or his other griev ances against OPM. See Rossini ,
101 M.S.P.R. 289 , ¶ 7 .
7
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 time limit for seeking such review and 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 b elow do not represent a statement of how courts will rule
regarding which cases fall within their jurisdiction. If you wish to seek review of
this final decision, you should immediately review the law applicable to your
claims and carefully follow all fil ing time limits and requirements. Failure to file
within the applicable time limit may result in the dismissal of your case by your
chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies t o your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judic ial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703 (b)(1)(A).
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.
8
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any a ttorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and tha t such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703 (b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. ____ , 137 S. Ct. 1975 (2017) . If you have a
representative in this case, and your representative receives this decision before
you do, then you must file with the district court no later than 30 calendar days
after your representative receives this decision. If the action involves a claim of
9
discrimination based on race, color, religion, sex, national origin, or a disabling
condition, you may be entitled to representation by a court -appointed lawyer and
to waiver of any requirement of prepayment of fees, costs, or other security. See
42 U.S.C. § 2000e -5(f) and 29 U.S.C. § 794a .
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702 (b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702 (b)(1 ). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for rev iew to the EEOC by regular U.S. mail, the
address of the EEOC is:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhan cement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302 (b)(8) or
10
other protected activities listed in 5 U.S.C. § 2302 (b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
disposition of allegations of a prohibited personne l practice described in
section 2302(b) other than practices described in section 2302(b)(8), or
2302(b)(9)(A)(i), (B), (C), or (D),” then you may 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).
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at 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
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.
11
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
Contact information for the courts of appeals can be found at their
respective websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/ CourtWebsites.aspx .
FOR THE BOARD:
Washington, D.C. /s/ for
Jennifer Everling
Acting Clerk of the Board | WEISBROD_GEORGE_AT_0831_16_0549_I_1_FINAL_ORDER_1937377.pdf | 2022-06-28 | null | AT-0831-16-0549-I-1 | NP |
4,326 | https://www.mspb.gov/decisions/nonprecedential/MYERS_CARTY_CB_7121_18_0003_V_1_FINAL_ORDER_1937407.pdf | UNITED STATES OF AME RICA
MERIT SYSTEMS PROTEC TION BOARD
CARTY MYERS,
Appellant,
v.
UNITED STATES POSTAL SERVICE,
Agency.
DOCKET NUMBER
CB-7121 -18-0003 -V-1
DATE: June 28, 2022
THIS FINAL ORDER IS NONPRECEDENTIAL1
Carty Myers , Bridgeport, Connecticut, pro se.
Krista M. Irons , 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 file d a request for review of an arbitration decision that
dismissed as untimely his grievance of the agency’s decision to remove him. For
the reasons set forth below, we DISMISS the request for review for lack of
jurisdiction. However, we FORWARD the appellant’s submission to the
Northeastern Regional Office for docketing as an appeal challenging his 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 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 The appellant was a City Carrier before his removal in July 2015. Request
for Review (RFR) File, Tab 1 at 5 . There is a dispute about when the appellant
received notice of his removal, but, on or about July 28, 2015, his union filed a
grievance on his behalf pursuant to procedures set forth in the governing
collective bargaining agreement (CBA). Id. at 4-5. On February 12, 2016, the
arbitrator issued a decision dismissing the grievance as untimely filed, pursuant
to the 14 -day deadline set forth in the CBA . Id. at 7-10.
¶3 On November 1, 2017, the appellant filed a request for review of the
arbitrator’s decisio n with the Board. Id. at 1-2, 11. The Clerk of the Board
issued an acknowledgment order, notifying the appellant , in part , that his request
for review appeared to be untimely filed and ordering the appellant to file
evidence and argument to prove that his request was timely or that good cause
existed for any delay. RFR File, Tab 2 at 3 (citing Kirkland v. Department of
Homeland Security , 119 M.S.P.R. 74 , ¶ 4 (2013); 5 C.F.R. § 1201.155 (b)). The
appellant did not file a response to the acknowledgmen t order. The agency filed a
motion to dismiss the request for review for lack of jurisdiction or, in the
alternative, to dismiss the request as untimely filed . RFR File, Tab 4 at 4-6. The
appellant did not file a response to the agency’s motion.
ANALYSIS
¶4 The Board generally has jurisdiction to review an arbitrator’s decision
under 5 U.S.C. § 7121 (d) when the subject matter of the grievance is one over
which the Board has jurisdiction, the appellant either raised a claim of
discrimination under 5 U.S.C. § 2302 (b)(1) with the arbitrator in connection with
the underlying action or raises a claim of discrimination in connection with the
underlying action under 5 U.S.C. § 2302 (b)(1) for the first time with the Board if
such allegations could not be raised in the negotiated grievance procedure, and a
final decision has been issued. Jones v. Department of Energy , 120 M.S.P.R.
3
480, ¶ 8 (2013), aff’d , 589 F. App’x 972 (Fed. Cir. 2014); 5 C.F.R.
§ 1201.155 (a)(1), (c). However, a Postal Service employee does not have the
right of Board review of an arbitration decision because 5 U.S.C. § 7121 does not
apply to the U.S. Postal Service. Anderson v. U.S. Postal Service , 109 M.S.P.R.
558, ¶ 4 (2008). Therefore, we dismiss the appellant’s request for review of the
arbitration decision for lack of jurisdiction.2
¶5 Nevertheless, the Board may have jurisdiction over the appellant’s
underlying removal action. Under 5 U.S.C. § 7121 (e)(1), an individual affected
by a personnel action —such as a removal —that is both appealable to the Board
and covered by a negotiated grievance procedure may contest the action bef ore
the Board or under the negotiated grievance procedure, but not both. See
Anderson , 109 M.S.P.R. 558 , ¶ 5. However, this bin ding election of remedies
does not apply to Postal Service employees with appeal rights , who are entitled to
simultaneously pursue both a grievance and a Board appeal . See Mays v. U.S.
Postal Service , 995 F.2d 1056 , 1058 (Fed. Cir. 1993); Anderson , 109 M.S.P.R.
558, ¶ 5. Preference -eligible Postal Service employees who have completed
1 year of continuous service in the same or similar positions have Board appeal
rights .3 5 U.S.C. § 7511 (a)(1)(B)(ii); 39 U.S.C. § 1005 (a)(4)(A) (i); Toomey v.
U.S. Postal Service , 71 M.S.P.R. 10, 12 (1996) .
¶6 The record is not clear whether the appellant was a preference -eligible
Postal Service employee or otherwise met any of the criteria under 39 U.S.C.
§ 1005 (a)(4)(A). RFR File, Ta bs 1, 4. We therefore forward the appellant’s
submission to the Board’s Northeastern Regional Office for docketing as an
appeal challenging his removal. After docketing the appeal, the administrative
2 Having determined that the Board lacks jurisdiction, we do not address the apparent
untimeliness of the appellant’s request for review.
3 Management or supervisory employees and Postal Service employees engaged in
personnel work other than in a purely nonconfidentia l capacity who have completed
1 year of current continuous service in the same or similar positions also have Board
appeal rights. 39 U.S.C. § 1005 (a)(4)(A)(ii).
4
judge should inf orm the parties of the standard for Bo ard jurisdiction and provide
them an opportunity to respond to the jurisdictional issue with evidence and
argument.
¶7 In addition , to the extent that the appellant intended to file an appeal of an
adverse action, there is an issue concerning the timeliness of the appeal.
Generally, a n appeal of a removal action must be filed with the Board within
30 days of the effective date of the action or within 30 days of receipt of the
agency’s final decision, whichever is later. See 5 C.F.R. § § 1201.22 (b)(1) ,
1201.154(a) . Generally, p ursuit of a grievance does not extend the time for filing
a Board appeal. Anderson , 109 M.S.P.R. 558 , ¶ 7. The arbitrator’s decision is
not clear regarding the date on which the removal became effective. RFR File,
Tab 1 at 6. Although the precise date on which the appellant r eceived the
agency’s notice of removal was disputed in the testimony of the parties during the
arbitration hearing, a grievance challenging his removal was apparently filed on
or about July 28, 2015. Id. at 4-5. It therefore appears that the appea l, which was
filed on November 1 , 2017, was untimely by more than 2 years. After docket ing
the appeal, the administrative judge should inform the appellant that his appeal
appears to be untimely and provide him the opportunity to establish that the
appeal wa s timely filed or that good cause exists for his delay in filing. See
5 C.F.R. § § 1201.22 , 1201.154.
¶8 This is the Board’s final decision regarding the request for review of the
arbitratio n decision.
NOTICE OF APPEAL RIGHTS
You may obtain review of this final decision. 5 U.S.C. § 7703 (a)(1) . By
statute, the nature of your claims determines the time limit for seeking such
review and the appropriate forum with which to file. 5 U.S.C. § 7703 (b).
Although we offer the following summar y of available appeal rights, the Merit
Systems Protection Board does not provide legal advice on which option is most
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 for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition 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
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 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
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 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.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 a ppeals of competent 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.
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/pro bono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the 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 | MYERS_CARTY_CB_7121_18_0003_V_1_FINAL_ORDER_1937407.pdf | 2022-06-28 | null | CB-7121-18-0003-V-1 | NP |
4,327 | https://www.mspb.gov/decisions/nonprecedential/LEWIS_JERMAINE_ANTHONY_DA_0752_16_0347_I_1_REMAND_ORDER_1937431.pdf | UNITED STATES OF AME RICA
MERIT SYSTEMS PROTEC TION BOARD
JERMAINE ANTHONY LEW IS,
Appellant,
v.
UNITED STATES POSTAL SERVICE,
Agency.
DOCKET NUMBER
DA-0752 -16-0347 -I-1
DATE: June 28, 2022
THIS ORDER IS NONPRECEDENTIAL1
Gale R. Thames , Washington, D.C., for the appellant.
Yvette K. Bradley , 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 alleged constructive suspension appeal for lack of jurisdiction . For
the reasons discussed below, we GRANT the appellant’s petition for re view 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 t he regional office for further adjudication in accordance
with this Remand Order.
DISCUSSION OF ARGUME NTS ON REVIEW
¶2 The appellant is employed as a Carrier Technician by the agency. Initial
Appeal File (IAF), Tab 16 at 28. On November 4, 2015, he filed an appeal
claiming that the agency failed to restore him to duty after his physician cleared
him to return to work with restrictions . Lewis v. U.S. Postal Service , MSPB
Docket No. DA-0353 -16-0073 -I-1, Ini tial Decision (July 11, 2016). T he
administ rative judge issued a decision that dismissed the appeal for lack of
jurisdiction, finding that the appellant failed to raise a nonfrivolous allegation
that his absence was the result of a compensable injury. Id. During the
processing of that appeal, the appellant alleged that the agency improperly placed
him in a nonduty, non pay status , and the administrative judge docketed those
allegations in the present appeal. IAF, Tab 1.
¶3 The administrative judge issued a jurisdictional order, advising the
appella nt that his claim that the agency improperly placed him in a nonduty,
nonpay status may establish a constructive suspension appealable to the Board
under 5 U.S.C. §§ 7512 (2) and 7513(d) . IAF, Tab 3 at 3 -4. She explained that an
employee’s continued absence constitutes a constructive suspension when an
involuntary absence occurs at the agency’s direction or when the following
conditions are met: (1) an employee, who had been absent from work due t o
medical restrictions, requests work within those restrictions; (2) the agency is
bound by an agency policy, regulation, or contractual provision to offer available
light -duty work to the employee; and (3) the agency fails to offer the employee
any availa ble light -duty work. Id. at 3 (citing Hahn v. U.S. Postal Service ,
86 M.S.P.R. 139, ¶ 6 (2000 )). She further explained that, once an employee
makes a nonfrivolous allegation that he was able to work within certain
restrictions, that he communicated his willingness to work, and that the agency
3
prevented him from returning to work, the burden then shift s to the agency to
show either that there was no work available within the employee’s restrictions or
that it offered such work to the employee, and he declined it. Id. In the order,
the administrative judge instructed the appellant to file evidence and argument in
support of his claim. Id. at 4. The appellant replied, arguing, among other
things, that the agency refused to allow him to return to work with
accommodation beginning in April 2013 , despite his repeated requests. IAF,
Tabs 5, 8, 15, 17. He also submitted medical documentation dated 2012 through
2015, and provided both signed and unsigned statements on his behalf. IAF,
Tabs 7, 10 -11, 14, 18.
¶4 In an initial decision issued without holding the requested hearing, the
administrative judge dismi ssed the appeal for lack of jurisdiction. IAF, Tab s 1,
19, Initial Decision (ID) at 2. She found that the appellant failed to raise a
nonfrivolous allegation that he was able to return to work to perform his normal
duties and that , as a result, his absen ce beginning April 10, 2013, did not
constitute a constructive suspension. ID at 5 -7. The appellant has filed a petition
for review, an d the agency has filed a response in opposition . Petition for Review
(PFR) File, Tabs 1, 3.
¶5 Prior to the issuance of t he initial decision, the Board clarified its
jurisprudence regarding constructive suspension claims , such as alleged here, in
Bean v. U.S. Postal Service , 120 M.S.P.R. 397 (2013) . In particular, the Board
noted that it has recognized several fact patterns that may give rise to an
involuntary constructive suspension and it therefore rejected as misleading the
statement in a line of Board cases (including Hahn on which the administrative
judge relied) that constructive suspensions arise in only two situations. Bean ,
120 M.S.P.R. 397 , ¶ 8 n.4 ; ID at 3 . Instead, the Board held that, assuming the
jurisdictional requirements of 5 U.S.C. chapter 75 are otherwise met, proof of the
following by preponderant evidence is sufficient to establish jurisdiction over a
constructive suspension claim : (1) the employee lacked a meaningful choice in
4
the ma tter; and (2) it was the agency’ s wrongful actions that deprived the
employee of that choice. Bean , 120 M.S.P.R. 397 , ¶ 8 ; see Romero v. U.S. Postal
Service , 121 M.S.P.R. 606 , ¶ 8 (2014) (applying the jurisdictional standard set
forth in Bean ); see also Rosario -Fabregas v. Merit Systems Protection Board ,
833 F.3d 1342 , 1345 -46 (Fed. Cir. 2016) (finding that the Board’ s standard for
establishing jurisdiction in constructive suspension cases, as set forth in Romero ,
is appropriate). If the appellant makes a nonfrivolous allegation of jurisdiction,
then he is entitled to a jurisdictional hearing. Barrand v. Department of Veterans
Affairs , 112 M.S.P.R. 210, ¶ 8 (2009) . A nonfrivolous allegation of B oard
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).
¶6 An appellant must receive explicit information on what is required to
establish an appealable jurisdictional issue. Burgess v. Merit Systems Protection
Board , 758 F.2d 641 , 643 -44 (Fed. Cir. 1985). Here , the administrative judge did
not inform the appellant of the pr oper jurisdictional standard. IAF, Tab 3.
Further, neither the agency’s pleadings nor the initial decision properly placed the
appellant on notice of how to establish jurisdiction over his appeal. ID; IAF,
Tab 16; cf. 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 contain the notice that was
lacking or if the initial decision puts the appellant on notice of what he must do to
establish jurisdiction, thus affording him the opportunity to meet his
jurisdictional burden on review).
¶7 Moreover, the appellant made the following allegations in sworn statements
below: he has a service -connected medical disability of which the agency is
aware; the agency previously approved leave for his serious medical condition
under the Family and Medical Leave Act of 1993; one of his medical conditions
has been exacerbated as a direct result of h is managers’ creation of a hostile work
5
environment ; he recovered sufficiently to ret urn to work with accommodation; he
informed the agency of his desire to return to work and his request for
accommodation ; he submitted medical documentation supporting his requests ; the
agency failed to reasonably accommodate him ; the agency refused to accept or
consider his medical documentation ; the agency did not seek to have him
evaluated by one of its doctors to clarify its questions concerning his medical
conditions ; and the agency refused to meaningfully engage in the interactive
process .2 IAF, Tabs 5, 8, 15, 17 . In addition, the appellant submitted the sworn
statement of his union representative that supports many of his assertions,
including those concerning the appellant’s medical doc umentation and the
agency’s involvement in the interactive process . IAF, Tab 14 at 7. We find that
the appellant’ s allegations, if proven, could establish that he lacked a meaningful
choice in the ma tter and that it was the agency’ s improper actions that depri ved
him of that choice. See Bean , 120 M.S.P.R. 397 , ¶ 8. The jurisdictional
prerequisites of chapter 75 otherwise appear to be satisfied becaus e the appellant
is a preference -eligible U.S. Postal Service employee with 1 year of current
continuous service and his absence lasted for more than 14 days. IAF, Tabs 1, 5,
15, 17 ; see 5 U.S.C. §§ 7511 (a)(1)(B)(ii), 7512(2). Therefore, we find that the
appellant has made a nonfrivolous allegation that he was subjected to an
appealable constructive suspension under the clarified standard set forth in Bean .
¶8 Accordingly, we r emand this appeal for a jurisdictional hearing to afford the
appellant an opportunity to prove jurisdiction over his constructive suspension
claim after providing him with clear notice of the elements and burdens of proo f
2 The appellant claims that he submitted medical documentation to the agency showing
that he has recovered sufficiently to return to work with accommodation and that his
“medical professionals could not have stated it any clearer ‘[the appellant] is able to
perform the duties of his job with accommodations.’” IAF, Tab 17 at 4 (quoting alleged
medical professionals). However, we agree with the administrative judge’s finding that
the appellant failed to submit below any medical documentation to prove that he indeed
was cleared to work or what restrictions his physicians had imposed. ID at 6.
Therefore, the appellant must submit this medical documentation on remand.
6
of such a claim . See Bean , 120 M.S.P.R. 397 , ¶ 14 (remanding a constructive
suspension appeal for a jurisdictional hearing) ; Sage v. Department of the Army ,
108 M.S.P.R. 398, ¶¶ 7, 9 (2008) (remanding a constructive suspension appeal for
proper Burgess notice under the former jurisdiction al standard).
ORDER
For the reasons discussed abo ve, 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 | LEWIS_JERMAINE_ANTHONY_DA_0752_16_0347_I_1_REMAND_ORDER_1937431.pdf | 2022-06-28 | null | DA-0353-16-0073-I-1; DA-0752-16-0347-I-1 | NP |
4,328 | https://www.mspb.gov/decisions/nonprecedential/KING_JAMES_E_AT_0752_21_0271_I_1_FINAL_ORDER_1937432.pdf | UNITED STATES OF AME RICA
MERIT SYSTEMS PROTEC TION BOARD
JAMES E. KING,
Appellant,
v.
DEPARTMENT OF THE AR MY,
Agency.
DOCKET NUMBER
AT-0752 -21-0271 -I-1
DATE: June 28, 2022
THIS FINAL ORDER IS NONPRECEDENTIAL1
Michael I. Sheeter and Morgan Smith , Esquire, Dallas, Texas, for the
appellant.
Mary Rae Dudley , Fort Gordon, Georgia, 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 sustained his removal . On petition f or review, the appellant argues that the
administrative judge erred in sustaining the three charges of misconduct, erred in
finding that he did not establish his affirmative defenses of harmful error, equal
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and 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
employment opportunity (EEO) retaliation, and disability discrimination, and
erred in finding that the penalty of removal was within the bounds of
reasonable ness . 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 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 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 . Except as expressly MODIFIED to
address the appellant’s disparate penalty claim, we AFFIRM the initial decision.2
2 To the extent that the appellant alleges that the agency committed harmful procedural
error because it failed to provide him with due pro cess rights, i.e. notice and
an opportunity to respond, regarding its decision to decertify him from the Individua l
Responsibility Program (IRP), Petition for Review File, Tab 4 at 17, due process rights
are not extended to an agency’s discretionary decision to revoke a previously granted
privilege. See Holton v. Department of the Navy , 123 M.S.P.R. 688 , ¶ 29 (2016)
(finding that the agency was entitled to rev oke the appellant’s privilege to report to
duty , although he remained in a pay statu s, after a failed drug test without affording him
due process ), aff’d , 884 F.3d 1142 (Fed. Cir. 2018); see, e.g. , Department of the Navy v.
Egan , 484 U.S. 518 , 528 -29 (1988) (observing that an employee does not have a right to
a security clearance because granting of such a clearance is a discretionary act);
Gargiul o v. Department of Homeland Security , 727 F.3d 1181 , 1184 -85 (Fed. Cir. 2013)
(finding that, because an employee does not have a property intere st in a security
clearance, its revocation does not implicate due process) . Because granting the IRP
certification is a discretionary act by the agency, the agency has a right to revoke it
without extending due process rights. The appellant did receive all appropriate due
process rights regarding his removal from the Federal service, which was based, in part,
on his failure to a maintain a condition of employment, namely the IRP certification.
3
¶2 The appellant has alleged b elow and on review that his first -line supervisor
is a comparator and that the agency treated him more leniently for purposes of the
penalty determination in this case . Initial Appeal File (IAF), Tab 24 at 11 ,
Tab 25 at 4 ; Petition for Review File, Tab 4 at 15 -16. Although not addressed in
the initial decision , we find that the appellant has not proven this claim .
¶3 To establish disparate penalties, the appellant must show that the charges
and the circumstances surrounding the charged behavior are substanti ally similar
to those in the comparator’s case. Archuleta v. Department of the Air Force ,
16 M.S.P.R. 404, 4007 (1983) ; see Douglas v. Veterans Administration ,
5 M.S.P.R. 280, 305 (1981) (calling for a comparison with penalties “imposed
upon other employees for the same or similar offenses”) . As explained by the
administrative judge in his analysis of the appellant’s clam of retaliation for EEO
activity, IAF, Tab 29, Initial Decision (ID) at 16-18, the circumstances
surrounding the appellant’s first -line supervisor’ s conduct are significantly
different from the charges in this appeal . Moreover, the proper inquiry is whether
the agency knowingly treated employees differently “in a way not justified by the
facts, and intentionally for reasons other than the efficiency of the service.”
Facer v. Department of the Air Force , 836 F.2d 535 , 539 (Fed. Cir. 1988) . The
appellant has not shown such treatment here . Thus, he has not shown that his
first-line supervisor is a proper comparator.
¶4 In any event, the consistency of the penalty with those imposed upon other
employees for the same or similar offenses is simply one of a nonexhaustive list
of 12 factors that ar e relevant for consideration in determining the
appropriateness of a penalty. Douglas , 5 M.S.P.R. at 305-06. The deciding
official and the administrative judge otherwise properly weighed those factors in
finding the penalty of removal reasonable in this case. ID at 21 -23.
4
NOTICE OF APPEAL RIG HTS3
The initial decision, as supplemented by this Final Order, constitutes the
Board’s final decision in this matter. 5 C.F.R. § 1201.113 . You may obtain
review of this final decisi on. 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 des cribed 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 c ase, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circui t, which must be 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 init ial decision in this matter, the Board may have updated
the notice 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. 2043 9
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within t he court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for informati on regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawfu l discrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703 (b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. ____ , 137 S. Ct. 1975 (2017). If you have a
representative in this case, and your representative receives this decision before
you do, then you must file with the district court no later than 30 calendar days
after your representative recei ves 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 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
with the EEOC no later than 30 calendar days after your representative 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
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 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 Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
4 The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 201 8, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
The Al l Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115 -195,
132 Stat. 1510.
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.a spx.
FOR THE BOARD:
Washington, D.C. /s/ for
Jennifer Everling
Acting Clerk of the Board | KING_JAMES_E_AT_0752_21_0271_I_1_FINAL_ORDER_1937432.pdf | 2022-06-28 | null | AT-0752-21-0271-I-1 | NP |
4,329 | https://www.mspb.gov/decisions/nonprecedential/STERKINS_MORGAN_MALANESE_AT_844E_17_0623_I_1_FINAL_ORDER_1936858.pdf | UNITED STATES OF AME RICA
`MERIT SYSTEMS PROTEC TION BOARD
MALANESE STERKINS -MORGAN,
Appellant,
v.
OFFICE OF PERSONNEL
MANAGEMENT,
Agency.
DOCKET NUMBER
AT-844E -17-0623 -I-1
DATE: June 27, 2022
THIS FINAL ORDER IS NONPRECEDENTIAL1
Joel Willis , Esquire, Atlanta, Georgia, for the appellant.
Jo Bell , 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 Office of Personnel Management (OPM) reconsideration decision
that denied her application for a disability retirement annuity under the Federal
Employ ees’ Retirement System (FERS). Generally, we grant petitions such as
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or 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 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 discretio n, 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, se ction 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 .2 5 C.F.R. § 1201.113 (b).
¶2 For the f irst time on review, the appellant submits the following evidence
and argument. She asserts that her representative on appeal did not submit
“documents/evidence” on her behalf but she does not explain why specific
documents and evidence should change the result in her case.3 Petition for
Review File, Tab 1 at 3. She asserts that the administrative judge s hould have
2 OPM has filed a motion to dismiss the petition for review, arguing that it fails to
comply with 5 C.F.R. § 1201.114 (b). Petition for Review (PFR ) File, Tab 3 at 4 -5.
Specifically, OPM argues that the petition for review does not state the appellant’s
objections to the initial decision, and instead cites to an unrelated U.S. Court of
Appeals for the Federal Circuit case, Service Women’ s Action Net work v. Secretary of
Veterans Affairs , 815 F.3d 1369 (Fed. Cir. 2016 ), discussed below. OPM a rgues that it
is not a party to the Federal Circui t case. The appellant has responded in opposition to
the agency’s motion. PFR File, Tab 1 at 4. We deny the agency’s motion to dismiss
the petition. The Board does not require pro se petitioners to frame issues with
precision. See Beverly v. U.S. Postal Service , 113 M.S.P.R. 51, ¶ 7 (2010). Although
the appellant was represented below, she filed the petition for review o n her own
behalf.
3 The Board has long held that an appellant will be held responsible for the failings of
her chosen representative. PFR File, Tab 1 at 3; see Hoback v. Department of the
Treasury , 86 M.S.P.R. 425 , ¶ 14 (2000).
3
applied Service Women’s Action Network v. Secretary of Veterans Affairs ,
815 F.3d 1369 (Fed. Cir. 2016) , and she submits a pleading from that case but
does not explain how applying it would change the outcome of her Boa rd appeal.4
Id. at 4-5, 7 -16. She contends that the administrative judge should have
considered the following information: (1) her employing agency did not submit
the Department of Labor Office of Workers’ Compensation Programs Form CA -2
that she filled out with her supervisor; (2) she requested disability retirement
from her employing agency in June 2015 , and she retired in August 2015; and
(3) OPM acknowledged receipt of her application for disability retirement
7 months after she applied. Id. at 4. The appellant also makes the conclusory
assertion that the initial decision was wrong and she is entitled to disability
retirement based on “FR 4.3 Resolution of Reasonable Doubt,” “FR 4 .23 Attitude
of rating officers, ” “Electronic Code of Federal Regulati ons,” and “CHRONIC
ADJUSTMENT DISORDER -9440.” Id. at 5. Further, the appellant appears to
allege bias by the administrative judge. Id. After fully considering the filings in
this appeal, we c onclude that the petitioner has not established any basis und er
5 C.F.R . § 1201.115 for gra nting the petition for review.
4 The appellant provides no citation for the case but she may be referring to the decision
issued by the court in Service Women’ s Action Network , 815 F.3d 1369 . In that case ,
the Federal Circuit declined to order t he Department of Veterans Affairs to promulgate
a new regulation regarding the adjudication of certain military sexual trauma
(MST) -based disability claims . Id. Although one of the appellant’s claimed medical
conditions is MST, the Federal Circuit decision in that case did not change the
applicable evidentiary standard to quali fy for disability retirement benefits under FERS
or the appellant’s burden of proof in this appeal . Initial Appeal File, Tab 14, Initial
Decision at 2-3. Therefore, even if we were to consider this newly submitted document
on review, we discern no basis to disturb the initial decision. Russo v. Veterans
Administration , 3 M.S.P.R. 345 , 349 (1980) (finding 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 ).
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 to file. 5 U.S.C. § 7703 (b).
Although we offer the following summary of available appeal rights, the Merit
Systems Protection Board does not provide legal advice on which option is most
appropriate for your situation and the rights described b elow do not represent a
statement of how courts will rule regarding which cases fall within their
jurisdiction. If you wish to seek review of this final decision, you should
immediately review the law applicable to your claims and carefully follow all
filing time limits and requirements. Failure to file within the applicable time
limit may result in the dismissal of your case by your chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicia l review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703 (b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
5 Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise which option is most appropriate in any matter.
5
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 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
6
to waiver of any requirement of prepayment of fees, costs, or other security. See
42 U.S.C. § 2000e -5(f) and 29 U.S.C. § 794a .
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702 (b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702 (b)(1 ). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for 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
7
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.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 infor mation about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
6 The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 201 8, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
The Al l Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115 -195,
132 Stat. 1510.
8
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 | STERKINS_MORGAN_MALANESE_AT_844E_17_0623_I_1_FINAL_ORDER_1936858.pdf | 2022-06-27 | null | AT-844E-17-0623-I-1 | NP |
4,330 | https://www.mspb.gov/decisions/nonprecedential/ALLEN_ASUNTA_R_SF_315H_17_0630_I_1_FINAL_ORDER_1936882.pdf | UNITED STATES OF AME RICA
MERIT SYSTEMS PROTEC TION BOARD
ASUNTA R. ALLEN,
Appellant,
v.
DEPARTMENT OF VETERA NS
AFFAIRS,
Agency.
DOCKET NUMBER
SF-315H -17-0630 -I-1
DATE: June 27, 2022
THIS FINAL ORDER IS NONPRECEDENTIAL1
Anthony Gallegher , San Diego, California, for the appellant.
Eric LaZare , San Diego, California, for the agency.
BEFORE
Cathy A. Harris , Vice Chairman
Raymond A. Limon , Member
Tristan L. Leavitt , Member
FINAL ORDER
¶1 The appellant , a preference eligible , has filed a petition for review of the
initial decision, which dismissed his appeal challenging his probationary
termination from his excepted service position for lack of jurisdiction. On
petition f or review, the appellant argues that (1) he had more than 2 years 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
continuous service if his prior service in a “work -study” position with the agency
is included , (2) his prior military service should count towards his probationary
period, (3) the agency committed unid entified prohibited personnel practices
because it did not have enough evidence to justify his termination, and (4) the
agency violated his due process rights in connection with his termination .
Petition for Review File, Tab 1 at 1 -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 l aw to
the facts of the case; the administrative judge’s rulings during either the course of
the appeal or the initial decision were not consistent with required procedures or
involved an abuse of discretion, and the resulting error affected the outcome of
the case; or new and material evidence or legal argument is available that, despite
the petitioner’s due diligence, was not available when the record closed. Title 5
of the Code of Federal Regulations, section 1201.115 ( 5 C.F.R. § 1201.115 ).
After fully considering the filings in this appeal, we conclude that the petitioner
has not established any basis under section 1201.115 for granting the petition for
review. Therefore, we DENY the petition for review and AFFIRM the initial
decision, which is now the Boar d’s final decision. 5 C.F.R. § 1201.113 (b).
¶2 Despite his suggestion on review, the appellant’s prior active duty military
service d oes not count towards the 1 year of “current continuous service” required
to establish jurisdiction under chapter 75. 5 U.S.C. § 7511 (a)(1)(B);
Cunningham v. Department of the Army, 119 M.S.P.R. 147 , ¶ 6 (2013). The
appellant’s allegation that he previously served in a “work study” position with
the agency lacks details necessary to demonstrate the requisite 1 year of current
continuous service in a same or similar position : namely, the time frame in which
he worked, whether there was any break in service between the two positions, and
the duties performed in the prior position . See Clark v. U.S. Postal Service ,
123 M.S.P.R. 466 , ¶¶ 6 -7 (2016) (finding that vague, unsupport ed, and pro forma
3
allegations do not meet the nonfrivolous standard), aff’d , 679 F . App’x 1006
(Fed. Cir. 2017) (Table) . Because the Board lacks jurisdiction over the appeal,
we also lack jurisdiction over the appellant’s allegations of unspecified prohib ited
personnel practices and due process violations . See Wren v. Department of the
Army , 2 M.S.P.R. 1 , 2 (1980 ), aff’d , 681 F.2d 867 (D.C. Cir. 1982) ; see also
Rivera v. Department of Homeland Security , 116 M.S.P.R. 429 , ¶ 16 (2011).
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
filing time limits and requirements. Failure to file within the 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
2 Since the issuance of the initial decision in this matter, the Board may have updated
the not ice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise which option is most appropriate in any matter.
4
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703 (b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particu lar
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services p rovided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision —including a disposition of you r discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703 (b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. ____ , 137 S. Ct. 1975 (2017) . If you have a
representative in this case, and your representative receives this decision before
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 informati on for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702 (b)(1). You must file any su ch request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702 (b)(1). If you have a representative in this case,
and your represe ntative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative 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
6
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you hav e raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302 (b)(8) or
other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
disposition of allegations of a prohibited personnel practice described in
section 2302(b) other than practices described in section 2302(b)(8), or
2302(b)(9)(A)(i), (B), (C), or (D),” then you may file a 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 Ci rcuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit i s available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “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 a ny court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whis tleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115 -195,
132 Stat. 1510.
7
If you are interested i n securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the 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 websit es, 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 | ALLEN_ASUNTA_R_SF_315H_17_0630_I_1_FINAL_ORDER_1936882.pdf | 2022-06-27 | null | SF-315H-17-0630-I-1 | NP |
4,331 | https://www.mspb.gov/decisions/nonprecedential/JOHNSON_FREDDIE_DC_0842_16_0749_I_1_FINAL_ORDER_1937038.pdf | UNITED STATES OF AME RICA
MERIT SYSTEMS PROTEC TION BOARD
FREDDIE JOHNSON, III ,
Appellant,
v.
DEPARTMENT OF THE AR MY,
Agency.
DOCKET NUMBER
DC-0842 -16-0749 -I-1
DATE: June 27, 2022
THIS FINAL ORDER IS NONPRECEDENTIAL1
Freddie Johnson, III , Stafford, Virginia, pro se.
Weston C. Harlan , Fort Rucker, Alabama, 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 appeal of the agency ’s decision denying him eligibility for Special
Retirement Coverage (SRC) as untimely filed . Generally, we grant petitions such
as this one only in the following circumstances: the initial decision contains
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
require d to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117 (c).
2
erroneous findings of material fact; the initial decision is based on an erroneous
interpretation of statute or regulation or the erroneou s application of the law to
the facts of the case; the administrative judge’s rulings during either the course of
the appeal or the initial decision were not consistent with required procedures or
involved an abuse of discretion, and the resulting error af fected the outcome of
the case; or new and material evidence or legal argument is available that, despite
the petitioner’s due diligence, was not available when the record closed. Title 5
of the Code of Federal Regulations, section 1201.115 ( 5 C.F.R. § 1201.115 ).
After fully considering the filings in this appeal, we conclude that the petitioner
has not established any basis under section 1201.115 for granting the petition for
review. Therefore, we DENY the petition for review and AFFIRM the initial
decision, which is now the Board’s final decision. 5 C.F.R. § 1201.113 (b).
BACKGROUND
¶2 By a letter dated May 12, 2016 , the agency informed the appellant that his
position as an Air Traffic Control Specialist was no longer eligible for SRC
classification. Initi al Appeal File (IAF), Tab 1 at 6 . Th at letter also informed the
appellant that he could file an appeal of the ag ency’s decision with the Board
“within 30 days of this letter or 30 days from the date the retirement code
correction is processed , whichever is later. ” Id. On July 21, 2016, the appellant
filed a Board appeal challenging the agency ’s reclassification de cision . IAF,
Tab 1. The administrative judge issued an acknowledgment order informing the
appellant that his appeal appeared to be untimely and directing him to file
evidence and argument proving either that his appeal was timely filed or that
good cause existed for his untimely filing. IAF, Tab 2 at 2 -3. The appellant did
not respon d. The agency replied, arguing that the appeal should be dismissed as
untimely filed without good cause shown and addressing the merits of the SRC
reclassification decision . IAF, Tab 4.
3
¶3 The administrative judge issued an initial decision without holding the
requested hearing, finding that the appellant ’s appeal was untimely filed without
good cause shown for waiv ing the Board’s timeliness regulations. IAF, Tab 5,
Initial Decision (ID) at 4. The administrative judge determined that the appellant
admitted to receiving the agency’s decision letter on June 6, 2016, and that the
retirement code correction was processed by the agency on June 9, 2016 , as
reflected in a Standard Form 50 ( SF-50) submitted by the agency. ID at 3; IAF,
Tab 1 at 4 , Tab 4 at 25 . She further found that 30 days from those dates would
have been July 6, 2016 , and July 11, 2016 , respectively .2 ID at 3. Because the
appellant filed his appeal on July 21, 2016 , at least 10 days after both filing
deadline s, the administrative judge dismissed the appeal as untimely filed . ID
at 4.
DISCUSSION OF ARGUME NTS ON REVIEW
¶4 The appellant has filed a petition for review in which he argues that his
appeal was timely filed. Petition for Review (PFR) File, Tab 1. He asserts that
the SF-50 provided by the agency that reflect s the change in his retirement code
from “L” (SRC Federal Employees’ Retirement System (FERS) retirement) to
“K” (Standard FERS retirement) was never made available to him and was not
included in his official personnel file. Id. at 5. Instead, the appellant claims that
the change in his retirement code was first reflected on his leave and earnings
statement for the pay period starting July 9 , 20 16, which included a remark
identifying the change . Id. at 5, 9. He argues that, b ecause he filed his appeal
within 30 days of the end of that pay period , his appeal was timely filed. Id.
at 5-6. He also asserts that he did not make this argument below because the
agency’s filings failed to alert him to the fact that he was required to respond . Id.
2 As the administrative judge noted, July 9, 2016 , fell on a Saturday so the appeal would
have been due the next business day, Monday, July 11, 2016 , at the lates t. ID at 3 n.2.
4
at 4. The agency has filed a response to the petition for review. PFR File, Tab 3
at 5.
¶5 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 material evidence not
previou sly available despite the party’ s due diligence. See Hodges v. Office of
Personnel Management , 101 M.S.P.R. 212 , ¶¶ 7 -9 (2006) (ref using to consider
the appellant’ s arguments, raised for the first time on review, in support of her
position that s he had good cause for untimely refiling her appeal) ( citing Banks v.
Department of the Air Force , 4 M.S.P.R. 268 , 271 (1 980)); 5 C.F.R.
§ 1201.115 (d). The appellant has provided no explanation for why he could not
have raised the argument below that he timely filed his appeal within 30 days of
the processing of the change in his retirement status.
¶6 Furthermore , the appellant’s argument that he was unaware that it was his
responsibility to file additional evidence and argument in response to the
agency’s dismissal motion is similarly unavailing. PFR File, Tab 1 at 4. As the
agency correctly notes in its response to the petition for review , the
administrative judge’s acknowledgment order clear ly set forth that it was the
appellant’s burden to prove timeliness, and ordered him to file any additional
evidence and argument on the timel iness question within 15 days of that order.
IAF, Tab 2 at 3 ; PFR File, Tab 3 at 5 . The order also noted that the record would
close 25 calendar days after the date of that order , and that no new evidence or
argument would be accepted unless the appellan t could show that it was
unavailable before the record closed. IAF, Tab 2 at 3 . The appellant did not file
anything in response to the a cknowledgment order and has provided no
explanation for his failure to do so . As such, the appellant has failed to show that
his argument on review is based on any new and material evidence that was not
previously available despite his due diligence . Hodges , 101 M.S.P.R. 212 ,
¶¶ 7-9.
5
¶7 Accordingly, we affirm the initial decision dismissing the appeal as
untimely filed without good cause.
NOTICE OF APPEAL RIG HTS3
You may obtain review of this final decision. 5 U.S.C. § 7703 (a)(1). By
statute, the nature of your claims determines the time limit for seeking such
review and the appropriate forum with which to file. 5 U.S.C. § 7703 (b).
Although we offer the following summary of available appeal rights, the Merit
Systems Protection Board does not provide legal advice on which option is most
appropriate for your situation and the rights described below do not represent a
statement of 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
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 qu estions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be 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 m atter.
6
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
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/prob ono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 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
7
discrimination based on race, color, religion, sex, national origin, or a disabling
condition, you may be entitled to representation by a court -appo inted lawyer and
to waiver of any requirement of prepayment of fees, costs, or other security. See
42 U.S.C. § 2000e -5(f) and 29 U.S.C. § 794a .
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed thr ough the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702 (b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receiv e
this decision. 5 U.S.C. § 7702 (b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
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
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 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.4 The court of appeals must receive your
petition for review within 60 days of the date of issuance of this decision.
5 U.S.C. § 7703 (b)(1)(B).
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
4 The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115 -195,
132 Stat. 1510.
9
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
Contact information for the courts of appeals can be found at their
respective websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
FOR THE BOARD:
Washington, D.C. /s/ for
Jennifer Everling
Acting Clerk of the Board | JOHNSON_FREDDIE_DC_0842_16_0749_I_1_FINAL_ORDER_1937038.pdf | 2022-06-27 | null | DC-0842-16-0749-I-1 | NP |
4,332 | https://www.mspb.gov/decisions/nonprecedential/KELLY_BRENDAN_D_DA_1221_20_0466_W_1_FINAL_ORDER_1936529.pdf | UNITED STATES OF AME RICA
MERIT SYSTEMS PROTEC TION BOARD
BRENDAN D. KELLY,
Appellant,
v.
DEPARTMENT OF COMMER CE,
Agency.
DOCKET NUMBER
DA-1221 -20-0466 -W-1
DATE: June 24, 2022
THIS FINAL ORDER IS NONPRECEDENTIAL1
Brendan D. Kelly , Cypress, Texas, pro se.
Christiann C. Burek and William T. Yon , 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 corrective action in his individual right of action appeal. Generally, we
grant petitions such as this one only in the following circumstances: the initial
decision conta ins erroneous findings of material fact; the initial decision is based
1 A nonprecedential order is one that the Board has determined does not add
significantly to the 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
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 peti tioner’s due diligence, was not available when the record
closed. Title 5 of the Code of Federal Regulations, section 1201.115 ( 5 C.F.R.
§ 1201.115 ). After fully considering the filings in this appeal, we conclude that
the petitioner has not established any basis under section 1201.115 for granting
the petition for review. Therefore, we DENY the petition for review. Except as
expressly MODIFIED to clarify that the appellant’s disclosure regarding alleged
racist hiring practices could not have constituted a protected disclosure under
5 U.S.C. § 2302 (b)(8) because it concerned title VII viola tions, we AFFIRM the
initial decision .
¶2 Under the Whistleblower Protectio n Enhancement Act of 2012 , an appellant
may establish a prima facie case of retaliation for whistleblowing disclosures
and/or protected activity by proving by preponderant evidence2 that (1) he made a
disclosure described under 5 U.S.C. § 2302 (b)(8) or engaged in protected activity
described under 5 U.S.C. § 2302 (b)(9) (A)(i), (B), (C), or (D), and (2) the
whistleblowing disclosure or protected activity was a contributing factor in the
agency’s decision to take a personnel action against him. 5 U.S.C. § 1221 (e)(1);
Webb v. Department of the Interior , 122 M.S.P.R. 248, ¶ 6 (2015). A protected
disclosure is one that an appellant reasonably belie ves evidences a ny violation of
any law, rule, or regulation, gross mismanagement, a gross waste of funds, an
abuse of authority, or a substantial and specific danger to public health and
safety. Mudd v. Department of Veterans Affairs , 120 M.S.P.R. 365 , ¶ 5 & n.3
2 Preponderant evidence is the degree o f 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 t rue than untrue. 5 C.F.R. § 1201.4 (q).
3
(2013). The proper test for determining whether an employee had a reasonable
belief that h is disclosures we re protected is whether a disinterested observer with
knowledge of the essential facts known to and readily ascertainable by the
employee could reasonably conclude that the actions evidenced a ny of the
conditions set forth in 5 U.S.C. § 2302 (b)(8). Id., ¶ 5.
¶3 Here, the administrative judge concluded that the appellant failed to show
that he made a protected disclosure under 5 U.S.C. § 2302 (b)(8) and, therefore,
was not entitled to any corrective action . Initial Appeal File (IAF), Tab 47,
Initial Decision (ID) at 11. In so concluding, she explained that the appellant
alleged that he had made two protected disclosures to agency personnel , i.e., that
he had disclosed (1) “fraud ” by reporting negative comments written on his
performance appraisal3 and (2) racist hiring practices with in his office . ID
at 6-10. She found, however, that neither disclosure constituted a protected
disclosure under 5 U.S.C. § 2302 (b)(8) . ID at 8, 11. Regarding the appellant’s
alleged disclosure of fraud , the administrative judge reasoned that, prior to filing
his complaint with the Office of Special Counsel , the appellant had filed a formal
equal employment opportunity (EEO) complaint wherein he had alleged that the
negative comments on his appraisal were precipitated by discrimination on the
basis of his age and sex, and in re prisal for prior EEO activity. ID at 6. She
explained that the Board has consistently held that disclosures regarding
discrimination /harassment under title VII and/or EEO reprisal are excluded from
coverage under 5 U.S.C. § 2302(b)(8) . ID at 6 -7. She also found that the
appellant had failed to show that he reasonabl y believed that he had disclosed
fraud because the comments on his appraisal were su pported , subjective, and did
“not appear to be patently false.” ID at 10-11. Regarding the appellant’s
3 The appellant’s filings before the administrative judge indicated that he believed that
the unfavorable comments amounted to fraud under the title 18 of the U.S. Criminal
Code because his performance appraisal, which he believed to constitute an official
Government record, had been falsified. E.g., IAF, Tab 35 at 6.
4
purported disclosure of racist hiring practices, the administrative judge reason ed
that, at the hearing, the appellant had testified that he had no knowledge of any
racist hiring practices at the agency; instead he had qualified h is disclosure as
having involved “alleged r acist hiring practices.” ID at 9. She explained that the
appellant had indicated that he had no knowledge about any of the individuals
who had applied for positions in his office or their qualifications; rather, he felt
that he had to “stand up” for diversity in a general sense because he believed that
recent hires in his office did not reflect the diversity of Houston, Texas . Id. The
administrative judge reasoned that , although the appellant’s efforts to encou rage
diversity in the workplace were commendable, his disclosure of racism in
agency’s hiring process was “wholly without any evidence to corroborate it” and
amounted to nothing more than a vague, unsubstantiated “hunch” and, therefore,
did not constitute a protected disclosure under 5 U.S.C. § 2302(b)(8) . ID at 9-10.
We discern no basis to disturb the administrative judge’s conclusion that the
appellant’s disclosure of unfavorable comments on his performance appraisal did
not constitute a protected disclosure under 5 U.S.C. § 2302 (b)(8) .
¶4 The appellant challenges the administrative judge’s conclusion that he
failed to show that he made a protected disclosure under 5 U.S.C. § 2302 (b)(8)
regarding negative comments made on his performance appraisal .4 Petition for
Review ( PFR ) File, Tab 1 at 7 -11. To this end, he contends that the
administrative judge made a “prejudicial” error by considering his prior EEO
complaint because the complaint involved different issues and did not involve a
claim of whistleblower retaliation. Id. at 7-8, 10. The appellant also contends
4 The initial decision characterized the appellant’s purported disclosure as pert aining to
written comments made on his 2016 midyear progress review. ID at 6, 10; IAF, Tab 11
at 85-86, Tab 14 at 110 -15. Both before the administrative judge and on review,
however, the appellant has referenced other unfavorable written assessments of h is
performance. E.g., IAF, Tab 35 at 14, 27; PFR File, Tab 1 at 4 , 10. To the extent he
argues that he made a protected disclosure regarding any of these other assessments, we
find that a different outcome is not warranted; indeed, we find that none of the
appellant’s disclosures regarding unfavorable assessments or ra tings of his performance
constitute a protected disclosure under 5 U.S.C. § 2302 (b)(8 ).
5
that the administrative judge failed to review all of the evidence in the record,
some of which showed that the unfavorable comments made about his
performance were inaccurate. Id. at 9, 11. In so contending , he argues that the
administrative judge “reduced the argument [regarding his purported disclosure of
fraud] to heresy5 (sic) and took the side of the manage r in agreeing that [ the
appellant ] was a poor performer.” Id. at 9. We find the appellant’s assertions
unavailing.
¶5 Here, we discern two separate alleged protected disclosures regarding the
appellant’s unfavorable midyear performance appraisal. First, the appellant
ostensibly contend ed that he had disclosed that the agency had violated
anti-discrimination laws when he filed a formal EEO complaint on January 12,
2017, contend ing that the “unfair and unsubstantiated negative claims” on his
appraisal were precipitated by discrimination on the basis of his sex and age,
reprisal for prior EEO activity, and harassment constituting a hostile work
environment. IAF, Tab 10 at 118 -19. S econd, he allege d that he reported
criminal fraud when he informed agency management that the unfavorable
comments were unsubstantiated and, therefore, that a Government document had
been falsified. E.g., IAF, Tab 35 at 6-7.
¶6 The appellant’s disclos ure of the agency’s purported violation of
anti-discrimination laws via his EEO complaint does not constitute a protected
disclosure under 5 U.S.C. § 2302 (b)(8) . Indeed, a s set forth in the initial
decis ion, disclosures regarding discrimination, a hostile work environment,
and/or EEO reprisal are excluded from coverage under 5 U.S.C. § 2302 (b)(8) . ID
at 6-7; see Edwards v. Department of Labor , 2022 MSPB 9, ¶¶ 10, 17 (explaining
that alleged reprisal for opposition to practices made unlawful by t itle VII does
5 We surmise that the appellant intended to reference “hearsay.” PFR File, Tab 1 at 9.
To the extent he co ntends that the administrative judge erroneously relied on hearsay
evidence, his vague contention does not warrant a different outcome. See Hidalgo v.
Department of Justice , 93 M.S.P.R. 645 , ¶ 20 (2003) (stating that relevant hearsay
evidence is admissible in administrative proceedings before the Board).
6
not constitute a pro tected disclosure under section 2302(b)(8) ). Moreover, such
disclosures do not fall under the purview of 5 U.S.C. § 2302 (b)(9)(A)(i). Id.,
¶¶ 24-25 (explaining that a complaint or grievance is pr otected under 5 U.S.C.
§ 2302 (b)(9)(A)(i) only if the it seeks to remedy a violation of 5 U.S.C.
§ 2302 (b)(8)).
¶7 Regarding the appellant’s purported disclosure of fraud , we discern no basis
to disturb the administrative judge’s conclusion that the appellant failed to show
that he reasonably believed that he had disclosed any of the categories of
wrongdoing enumerated under 5 U.S.C. § 2302 (b)(8) . ID at 10-11; see Crosby v.
U.S. Postal Service , 74 M.S.P.R. 98 , 105 -06 (1997) (finding no reason to disturb
the admin istrative judge’s findings when she considered the evidence as a whole,
drew appropriate inferences, and made reasoned conclusions); Broughton v.
Department of Health & Human Services , 33 M.S.P.R. 357 , 359 (1987) (same) ;
see also Marques v. Department of Health & Human Services , 22 M.S.P.R. 129 ,
132 (1984 ) (explaining that an administrative judge’s failure to discuss all of the
evidence of record does not mean that the evidence was not considered), aff’d ,
776 F.2d 1062 (Fed. Cir. 1985) ( Table) . Indeed , we find that a disinterested
observer with knowledge of the essential facts known to and readily ascertainable
by the appellan t could not reasonably conclude that, in reporting the unfavorable
comments, the appellant had disclose d a violation of law, i.e., fraud ; rather, he
expressed disagreement with unfavorable , subjective assessments of his
performance .6 See Gryder v. Department of Transportation , 100 M.S.P.R. 564 ,
¶ 13 (2005) (finding that the appellant’s conveyance of his disagreement with the
6 We also find that a disinterested observer could not reasonably conclude that th e
appellant had disclosed any of the other categories of wrongdoing enumerated under
5 U.S.C. § 2302 (b)(8) . See Mc Corcle v. Department of Agriculture , 98 M.S.P.R. 363 ,
¶¶ 22, 24 (2005) (reasoning that the appellant failed make a nonfrivolous allegation that
he had made a protected disclosure of either “gross mismanagemen t” or an “abuse of
authority” when he made allegations that, among other things, questioned managerial
decisions and accused agency personnel of conspiring against him).
7
agency’s decision not to rehire him did not amount to a protected disclosure).
Thus , a different outco me is not warranted.
We modify the initial decision to clarify that , even if the appellant reasonably
believed that he had disclosed racist hiring practices, such a disclosure would not
fall under the purview of 5 U.S.C. § 2302 (b)(8) .
¶8 The appellant challenges the administrative judge’s conclusion that he
failed to show that he made a protected disclosure regarding racist hiring
practices at the agency .7 PFR File, Tab 1 at 4 -6, 7, 10 . As discussed , the
administrative judge concluded that, because the appellant had only an
unsubstantiated “hunch” that the agency had employed racist hiring practices, he
failed to show that he reasonably believed that he made a protected disclosure
under 5 U.S.C. § 2302 (b)(8 ). ID at 8-10. We modify the initial decision to
clarify that, because the appellant’s disclosure pertained to a title VII violation, it
necessarily fell outside the purview of 5 U.S.C. § 2302 (b)(8) , even if the
appellant had a reasonable belief that such a violation had occurred . See
Edwards , 2022 MSPB 9, ¶ 178; see also Von Kelsch v. Department of Labor ,
7 To support this argument, the appellant provides additional documents, i.e., vario us
emails exchanged between the appellant and agency personnel. PFR File, Tab 1
at 13-20. 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. See Avansino v. U.S. Postal Service ,
3 M.S.P.R. 211 , 214 (1980) ; 5 C.F.R. § 1201.115 (d). In any event, the documents are
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) .
8 In Edwards , the Board overruled its prior decision in Kinan v. Department of Defense ,
87 M.S.P.R. 561 (2001) . Edwards , 2022 MSPB 9 , ¶¶ 19-20. In Kinan , as here, the
appellant had made broad disclosures regarding discrimination, to include disclosing
that an agenc y component had refused to hire African Americans. Kinan , 87 M.S.P.R.
561, ¶ 3. In Kinan , the Board reasoned that, because the ap pellant had not file d an EEO
complaint on his own behalf but had instead raised broader concerns, his disclosure fell
under 5 U.S.C. § 2302 (b)(8) . Id., ¶ 13 n.2. In Edwards , however, the Board explicitly
overruled Kinan to the extent it “found that alleged reprisal for opposition to practices
made unlawful by t itle VII constitutes a protected disclosure under section 2302(b)(8) .”
Edwards , 2022 MSPB 9 , ¶ 20. In so doing, the Board explained that appellant s are not
8
59 M.S.P.R. 503 , 509 (1993) ( reasoning that C ongress did not intend to extend
protection to appellants who allege that their agencies retaliated against them
after they challenged practices made unlawful by t itle VII ), overruled on other
grounds by Thomas v. Department of the Treasury , 77 M.S.P.R. 224 , 236 n.9
(1998) , overruled by Ganski v. Department of the Interior , 86 M.S.P.R. 32
(2000) . Thus, although we agree that the appellant’s disclosure regarding alleged
racist hiring practice s did not constitute a protected disclosure under 5 U.S.C.
§ 2302 (b)(8) ,9 we modify the basis for this finding.
The appellant raises additional arguments; however, none of these arguments
warrant a different outcome.
¶9 The appellant asserts that a “labor lawyer,” A.G., was “struck as a witness .”
PFR File, Tab 1 at 5 -6. He also asserts that the administrative judge did not
allow him to ask “the administrative people” certain questions and o nly permitted
him to question the “decision makers.” Id. at 6-7. We find th ese assertions both
unclear and unavailing. An administrative judge has broad discretion to regulate
the course of the hearing and to exclude evidence and witnesses that have not
been shown to be relevant, material, and nonrepetitious. Thomas v. U.S. Postal
Service , 116 M.S.P.R. 453 , ¶ 4 (2011); 5 C.F.R. § 1201.41 (b)(8), (10). To obtain
reversal of an initial decision on the basis of the exclusion of a witness, the
appellant must show that a relevant witness or evidence, which could have
affected the outcome, was disallowed. See Thomas , 116 M.S.P.R. 453 , ¶ 4. Here,
neither the appellant nor the agency requested A. G. as a witness ; accordingly this
witness was not , as the appellant asserts, “struck” from testifying at the hearing .10
without redress insofar as the anti -retaliation provision of title VII provides broad
protect ion. Id., ¶ 23.
9 Because this disclosure concerned a violation of title VII, it does did not fall under the
purview of 5 U.S.C. § 2302 (b)(9)(A)(i). See Edwards , 2022 MSPB 9 , ¶¶ 24-25.
10 To the extent the appellant argues that the agency should have called A.G. as a
witness but failed to do so, PFR File, Tab 1 at 5, his asserti on is again unavailing, see
Lohr v. Department of the Air Force , 24 M.S.P.R. 383 , 386 (1984) (reasoning that an
9
IAF, Tab 21 at 11-12, Tab 22 at 21 -25, Tab 27 at 16 -17, Tab 36 at 3-4 & nn.5 -6.
Moreover, the appellant does not clearly identify any evidence /testimony that he
was precluded from presenting at the hearing nor does he discernably explain how
the disallowed evidence /testimony would have affected the outcome of his appeal.
See Thomas , 116 M.S.P.R. 453 , ¶ 4 ; see also Tines v. Department of the Air
Force , 56 M.S.P.R. 90 , 92 (1992) (explaining that a petition for review must
contain sufficient specificity to enable the Board to ascertain whether there is a
serious evidentiary challenge and concluding that the appellant’s petition
contained neither evi dence nor argument demonstrating error by the
administrative judge). Thus, a different outcome is not warranted.
¶10 The appellant states that, because an agency witness “lied under oath,” the
administrative judge “was thus appearing to lie because she was li ed to under
oath at the hearing.” PFR File, Tab 1 at 5. The appellant thereafter twice states
that the administrative judge “lied” in the initial decision . Id. at 9-10. To the
extent the appellant, through these assertions, is alleging either bias or favoritism
on part of the administrative judge, we find his assertion unavailing. The Board
has consistently held that, in making a claim of bias or favoritism against an
administrative judge, the appellant must overcome the presumption of honesty
and int egrity that accompanies all administrative adjudicators. Washington v.
Department of the Interior , 81 M.S.P.R. 101 , ¶ 7 (1999) (c iting In re King ,
1 M.S.P.R. 146 , 151 (1979)). This presumption can be overcome only by a
substantial showing of personal bias. Williams v. U.S. Po stal Service ,
87 M.S.P.R. 313 , ¶ 12 (2000). Here, we find that the appellant has not made such
a showing; indeed, his ostensible claim is both vague and unsubstantiated.
¶11 The appellant state s that neither the administrative judge nor agency
counsel provided him with an audio recording of the hearing. PFR File, Tab 1
at 11. However , the hearing audio recording, IAF, Tab 42, Hearing Recording,
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).
10
which served as the official hearing record, was placed in the record and,
therefore, readily available to the appellant, see 5 C.F.R. § 1201.53 (a). Thus, the
appellant’s asse rtion does not warrant a different outcome.
¶12 The appellant makes a series of allegations regarding purported personnel
actions allegedly taken by the agency , to include the denial of step increases,
negative and/or untimely performance appraisals, and his having been placed on a
performance opportunity plan and a performance improvement plan . PFR File,
Tab 1 at 4 -12. These arguments, however, do not provide a basis to disturb the
initial decision ; indeed, absent a showing that he made a disclosure descri bed
under 5 U.S.C. § 2302 (b)(8) or engaged in prote cted activity described under
5 U.S.C. § 2302 (b)(9)(A)(i), (B), (C), or (D), the appell ant is unable to prove a
prima facie case of whistleblower retaliation . See Webb , 122 M.S.P.R. 248, ¶ 6.
Thus, the appellant’s assert ions regarding personnel actions do not provide a
basis to disturb the initial decision .
¶13 Lastly, for the first time on petition for review, the appellant argues that the
administrative judge was not properly appointed under the Appointments Clause.
PFR F ile, Tab 1 at 8 -11 & n.3. In support of his argument, the appellant
reference s the U.S. Supreme Court’s decision in Lucia v. Securities & Exchange
Commission , 138 S. Ct. 2044 (2018) . Id. The Board generally will not consider
an argument raised for the first time in a petition for review absent a showing that
it is based on new and material evidence not previously available despite the
party’s due diligence. Clay v. Depa rtment of the Army , 123 M.S.P.R. 245 , ¶ 6
(2016); 5 C.F.R. § 1 201.115 (d). Here , the appellant offers no justification for his
failure to timely raise his Appointments Clause claim before the administrative
judge. McClenning v. Department of the Army , 2022 MSPB 3, ¶¶ 5-15 (holding
that, in order to be timely, an Appointments Clause claim must be raised before
the close of the record before the administrative judge). Thus, his argument does
not warrant a different outcome.
¶14 Accordingly, we affirm the initial decision as modified .
11
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 claim s determines the time limit for seeking such review and the appropriate
forum with which to file. 5 U.S.C. § 7703 (b). Although we offer the following
summary of available appeal rights, the Merit Systems Protection Board does not
provide legal advice on which option is most appropriate for your situation and
the rights described below do not represent a statement of how courts will rule
regarding which cases fall within their jurisdiction. If you wish to seek review of
this final decision, you should immediately review the law applicable to your
claims and carefully follow all filing time limits and requirements. Failure to file
within the applicable time limit may result in the dismissal of your case by your
chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to 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).
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.
12
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is 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
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 in volves a claim of
13
discrimination based on race, color, religion, sex, national origin, or a disabling
condition, you may be entitled to representation by a court -appointed lawyer and
to waiver of any requirement of prepayment of fees, costs, or other secur ity. See
42 U.S.C. § 2000e -5(f) and 29 U.S.C. § 794a .
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702 (b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative 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 deliver y or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302 (b)(8) or
14
other protected activities l isted in 5 U.S.C. § 2302 (b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
disposition of allegations of a prohibited personne l practi ce described in
section 2302(b) other than practices described in section 2302(b)(8), or
2302(b)(9)(A)(i), (B), (C), or (D),” then you may file a petition for judicial
review either with the U.S. Court of Appeals for the Federal Circuit or any court
of app eals of competent jurisdiction.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 pet ition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additio nal information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regardi ng pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
12 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.
15
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
Contact info rmation for the courts of appeals can be 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 | KELLY_BRENDAN_D_DA_1221_20_0466_W_1_FINAL_ORDER_1936529.pdf | 2022-06-24 | null | DA-1221-20-0466-W-1 | NP |
4,333 | https://www.mspb.gov/decisions/nonprecedential/BLASCO_ANDREW_J_PH_0831_16_0141_I_1_FINAL_ORDER_1936530.pdf | UNITED STATES OF AME RICA
MERIT SYSTEMS PROTEC TION BOARD
ANDREW J. BLASCO,
Appellant,
v.
OFFICE OF PERSONNEL
MANAGEMENT,
Agency.
DOCKET NUMBER
PH-0831 -16-0141 -I-1
DATE: June 24, 2022
THIS FINAL ORDER IS NONPRECEDENTIAL1
Andrew J. Blasco , Kensington, Connecticut, 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 Office of Personnel Management (OPM) has filed a petition for review
of the initial decision, which reversed its decision finding that the appellant was
not entitled to retirement benefits . For the reasons discussed below, 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
OPM’s petition for review and REVERSE the initial decision. OPM’s
reconsideration decision is AFFIRMED .
BACKGROUND
¶2 The appellant was employed by the Department of Veterans Affairs (DVA)
from 1977 to 1988 as a Biomedical Equipment Support Specialist on a full -time
schedule. On his sep aration, he sought and received a refund of his Civil Service
Retirement System (CSRS) retirement contribution s. Initial Appeal File (IAF),
Tab 8 at 39. He was reemployed in 1989 on an intermittent schedule under an
appointment that wa s excluded from CSR S coverage. Id. at 25. On April 22,
1993, while still under an intermittent schedule, his appointment was converted to
one that conferred CSRS coverage.2 Id. On November 11, 2014, the appellant
filed an application for a deferred annuity , id. at 21 -28, based on his
November 30, 2014 retirement , id. at 30.
¶3 OPM denied the appellant’s application, initially and on reconsideration ,
explaining that, when he retired , he was age 62 with 18 years, 2 months , and
12 days of creditable service, and that, due to the nature of his intermittent
appointment, he did not meet the “one out of two” requirement for an annuity.
IAF, Tab 8 at 6-8, 16. In its reconsideration decision, OPM referred to 5 U.S.C
§ 8333 (b), stating that the appellant “did not complete 1 year of continued service
within the 2 years immediately preceding [his] sepa ration in a position subject to
the [Civil Service] Retirement Act.” Id. at 8.
¶4 On appeal, the appellant argued that, during his last period of employment,
he was in a covered position because contributions were withheld from his pay,
and that therefore he did meet the “1 out of 2” requirement. IAF, Tab 16. He
requested a hearing. IAF, Tab 1 at 1.
2 The appellant was under CSRS Offset , which is the same as CSRS, but it is also
coordinated with Social Security . IAF, Tab 16 at 14.
3
¶5 Thereafter, the administrative judge issued an initial decision in which he
considered the parties’ differing view s on the applicability of 5 U.S.C. § 8333 (b)
to the appellant’s situation . IAF, Tab 26, Initial Decision (ID). Specifically, the
administrative judge considered OPM’s position that “covered service” must be
calculated lik e “creditable service” which requires a determination of actual time
worked , meaning that an intermittent employee like the appellant must have
worked the equivalent of 1 “work year” of creditable, covered service during his
last 2 years of service to qual ify for retirement benefits , which the appellant did
not.3 ID at 3 -4. The administrative judge also considered the appellant’s position
that the applicable law only requires that 1 of his last 2 years of service have been
covered service, and that the cr editable service calculation is irrelevant. The
administrative judge found the appellant’s position “persuasive,” ID at 4, and “the
more reasonable” of the two , ID at 6 , and o n that basis reversed OPM’s
reconsideration decision , ID at 1, 7. The administr ative judge remand ed the case
to OPM and order ed it to process the appellant’s retirement benefits application
and calculate his annuity consistent with the administrative judge’s initial
decision, and then to issue a new reconsideration decision. I D at 7 .
¶6 The agency has filed a petition for review, Petition for Review (PFR) File,
Tab 1 , to which the appellant has responded , PFR File, Tab 3 .
ANALYSIS
¶7 The appellant’s entitlement to an annuity is governed by chapter 83 of
title 5 of the U.S. Code. Two type s of Federal service are pertinent to a
determination of whether an individual is entitled to a retirement annuity under
the Civil Service Retirement Act (CSRA) —“creditable service” and “covered
service.” Almost all Federal service is creditable service. Covered service is
more limited in scope, referring to Federal employees who are “subject to” the
3 The appellant worked 1 mo nth and 10 days in 2013 and 27 days in 2014, his last
2 years of service. IAF, Tab 8 at 18 -19.
4
CSRA, i.e., employees who must deposit part of the ir basic pay into the Civil
Service Retirement and Disability Fund (the Fund) . Noveloso v. Office of
Perso nnel Management , 45 M.S.P.R. 321 , 323 (1990) , aff’d , 925 F.2d 1478 (Fed.
Cir. 1991) (Table) .
¶8 There are two requirements that govern eligibility for an annuity under the
CSRA. 5 U.S.C. § 8333 . The first is that the employee must have completed at
least 5 years of civilian service. 5 U.S.C. § 8333 (a). There is no question that
the appellant met this requirement. In finding that he also met the second
requirement, the administrative judge agreed with the appellant that the law
requires only that 1 of his last 2 years have been covered service , 5 U.S.C.
§ 8333 (b), which it was . ID at 5; IAF, Tab 8 at 31.4
¶9 However, the administrative judge misreads 5 U.S.C. § 8333 (b) as not
requiring that 1 of the appellant ’s last 2 years also be creditable service .
Subpart (b) requires that an employee has complete d, within the last 2 years
before any separation from service, except a separation because of death or
disability, at least 1 year of creditable civilian service that is covered service.
The issue here is whether, because of his intermittent schedule, the appellant had
1 year of creditable service out of his last 2 years of service.
¶10 Intermittent employment means employment without a regularly scheduled
tour of duty. 5 C.F.R. § 340.401 (b). There is no dispute that the appellant had an
intermittent work schedule. IAF, Tab 16 at 14. OPM’s Civil Service Retirement
System (CSRS) and Federal Employees’ Retirement System (FERS) Handbook for
Personnel and Payroll Offices (Handbook) explains how such service is credited.
De Laet v. Office of Personnel Management , 70 M.S.P.R. 390 , 394 (1996)
(recognizing that the Handbook is an authoritative interpretation of employee
4 Early on in the adjudication of this appeal, OPM took the positon that the appellant
had not been engaged in “covered service” for 1 of the last 2 years befor e his
separation. IAF, Tab 8 at 4. Ultimately OPM acknowledged that the appellant’s
service was covered because retirement contributions were deducted from his salary
during his last appointment. PFR File, Tab 1 at 9.
5
rights and agency respons ibilities under Federal retirement laws) ; see Handbook
(April 1998), https://www.opm.gov/retirement -services/publications -
forms/csrsfers -handbook/ (last visited J une 23, 2022 ). It provides that , with
certain exceptions not applicable here , such employees can only receive credit for
time they actually served. See Handbook , Section 20A3.1 -1(C)(1); see also
Handbook , Section 50A2.1 -3(G)(1) (generally, when an individual is employed
on an intermittent basis without a prearranged regularly scheduled tour of duty,
only the actual days in a pay status are credited). Therefore, even though the
appellant ’s service was covered service, because he only worked 1 month and
10 days in 2013 and 27 days in 2014, his last 2 years of service, IAF, Tab 8
at 18-19, he did not complete 1 year of creditable civilian service prior to his
2014 separation , and therefore he is not entitled to an annuity .5 5 U.S.C.
§ 8333 (b).
¶11 In reversing the initial decision , we agree with OPM that the administrative
judge erred in crediting the appellant ’s witnesses , DVA employees who worked in
the agency’s retirement counseling center , who testified at the hearing that, over
the years, other similarly situated employees had received retirement benefits
from OPM. ID at 6 ; Hearing Compact Disc . That testimony is not relevant to the
matter at issue because it involves statutory interpretation , which is a question of
law, and therefore such unsubstantiated anecdotal evidence has no bearing on thi s
case. Herrera v. United States , 849 F.2d 1416 , 1417 -18 (Fed. Cir. 1988). Nor do
we attach any significance to the fact that OPM originally found the appellant
eligible for benefits , IAF, Tab 16 at 5, and then, in its subsequent decision, found
that he was not, id. at 6, or that, even then, it incorrectly maintained that his
ineligibility was due to the fact that his service was not covered , id. Payments of
money from the Fund are limited to those authorized by statute, see Office of
5 Notwithstanding this disposition, the appellant is entitled to have returned to him the
amounts deducted from his pay during th is period of service for which no eligibility for
an annuity has been established. 5 U.S.C. § 8333 (b).
6
Personnel Management v. Richmond , 496 U.S. 414 , 416 (1990) , and the
requirements for eligibility for a retirement benefit are substantive legal
requirements that allow for no admin istrative discretion by OPM or by the Board.
Andrada v. Office of Personnel Management , 74 M.S.P.R. 226 , 233 , aff’d ,
132 F.3d 55 (Fed. Cir. 1997) (Table) .
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
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.
7
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703 (b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the 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
8
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 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
9
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302 (b)(8) or
other protected activities listed 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.7 The court of appeals must receive your
petition for review within 60 days of the date of issuance of this decision.
5 U.S.C. § 7703 (b)(1)(B).
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
7 The ori ginal statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, perma nently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
The All Circui t Review Act is retroactive to November 26, 2017. Pub. L. No. 115 -195,
132 Stat. 1510.
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 regarding pro bono representation
for Merit Systems Protection Board appellants before the 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 | BLASCO_ANDREW_J_PH_0831_16_0141_I_1_FINAL_ORDER_1936530.pdf | 2022-06-24 | null | PH-0831-16-0141-I-1 | NP |
4,334 | https://www.mspb.gov/decisions/nonprecedential/HALTERMAN_JESSE_R_DC_0432_16_0833_C_1_ORDER_1936020.pdf | UNITED STATES OF AME RICA
MERIT SYSTEMS PROTEC TION BOARD
JESSE R. HALTERMAN,
Appellant,
v.
DEPARTMENT OF HOMELA ND
SECURITY,
Agency.
DOCKET NUMBER
DC-0432 -16-0833 -C-1
DATE: June 23, 2022
THIS ORDER IS NONPRECEDENTIAL1
Allison B. Eddy , Esquire , and Neil C. Bonney , Esquire , Virginia Beach,
Virginia, for the appellant.
Lorna Jerome , Washington, D.C., 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 , and the appellant has filed a
cross petition for review of the compliance initial decision, which granted the
appellant’s petition for enforcement in part . For the reasons discussed below, we
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or 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
DENY the petition for review and GRANT the cross petition for review . We
REVERSE the administrative judge’s finding of compliance regarding the int erest
on back pay for pay period 16 of 2016 (PP16/2016) . W e AFFIRM the remainder
of the compliance initial decision , except as expressly MODIFIED to clarify the
analysis concerning the deductions for retroactive life insurance premiums and
the sufficiency of the agency’s evidence of compliance with its obligati ons to pay
interest on back pay , and to address the appellant’s claims that the agency’s delay
in processing his back pay caused him to lose profits on his Thrift Savings Plan
(TSP) account contributions .
BACKGROUND
¶2 The appellant filed a Board appeal challenging the agency’s decision to
remove him from Federal service, which the parties settled. Halterman v.
Departm ent of Homeland Security , MSPB Docket No. DC -0432 -16-0833 -I-1,
Initial Appeal File (IAF), Tab 21 at 4-7, Tab 22, Initial Decision (ID) at 1 -2.
After determining that the parties understood and voluntarily entered into the
settlement agreement and that it was lawful on its face, the administrative judge
issued an initial decision that dismissed the appeal as settled and entered the
agreement into the record for enforcement purposes. ID at 1 -2. The initial
decision became final on February 17, 2017, after neither party filed a petition for
review. ID at 3.
¶3 In relevant part, the parties agreed that, by March 16, 2017, the agency
would provide the appellant with a cl ean record and “back pay and benefits (to
include overtime pay and leave accrual) retroactive to August 17, 2016 through
January 13, 2017,” and make “[a]ppropriate deductions . . . to cover benefit s
premiums and/or contributions. ”2 Halterma n v. Department of Homeland
2 We take into account that, according to th e National Finance Center
(NFC) pay calendars, the back pay period began in PP16/2016 and ended in pay
perio d 01 of 2017 . Department of Agriculture, NFC, 2016 Pay Period Calendar,
https://www.nfc.usda.gov/Publications/Forms/1217n_16.pdf (last visited June 22,
3
Security , MSPB Docket No. DC -0432 -16-0833 -C-1, Compliance File (CF), Tab 1
at 9-11; IAF, Tab 21 at 4.
¶4 The appellant filed this petition for enforcement claiming that the agency
failed to provide back pay for PP16/2016 and pay period 01 of 2017 (PP01/2017)
or any interest on back pay, improperly deducted life insurance premiums from
his back pay, and did not correct his employment records. CF, Tab 1 at 5 -7. He
requested attorney fees and costs in connection with the petition for enforcement .
Id. at 7. In response, the agency argued that it was in compliance because it paid
the app ellant all of the back pay and interest owed, made the appropriate
deductions from his back pay, and corrected his Standard Form 50 (SF-50). CF,
Tab 3 at 4 -6. In support, t he agency submitted sworn declarations from two
Human R esource (HR) Specialist s; a declaration from the Chief of the Retirement
and Benefits Service Center; relevant back pay regulation s; payroll and back pay
information ; and the Federal Government Employees’ Life Insurance ( FEGLI )
Program Handbook issued by the Office of Personnel Mana gement. Id. at 7-42.
¶5 In reply, the appellant asserted that the agency failed to pay the back pay
owed for PP16/2016 within the “requisite timeframe. ” CF, Tab 1 at 9 -11, Tab 4
at 4. Similarly, he claimed that the int erest payment supposedly made on the
entire back pay was untimely and that there was no indication the payment
covered all of the interest owed. CF, Tab 4 at 5-6. He also argued that the
agency’s deduction for retroactive life insurance premiums violated 5 C.F.R.
§ 550.805 (e)(3)(iv)(B), a regulation implementing the Back Pay Act. Id. at 7-9.
He further claimed that the agency failed to deduct his TSP contributions from his
back pay for PP01/2017 or to make matching contributions , and that , although
TSP deductions had been made from his back pay for other pay periods, those
funds and the agency’s matching contributions had not yet appeared in his TSP
2022 ); Department of Agriculture, NFC, 2017 Pay Period Calendar ,
https://www.nfc.usda.gov/Publications/Forms/1217n_17.pdf (last visited J une 22,
2022).
4
account . CF, Tab 3 at 9, Tab 4 at 5 , 12, 15. Finall y, he alleged that the agency
failed to timely issue his resignation SF -50 and to show it cancelled the removal
SF-50. CF, Tab 4 at 9.
¶6 The administrative judge issued a compliance initial decision , granting the
appellant’s petition for enforcement in pa rt. CF, Tab 7, Compliance Initial
Decision (CID) at 1, 10. She applied the Back Pact Act in analyzing the
appropriateness of the agency’s back pay and interest payments. CID at 6. As to
the appellant’s claim that the agency had not yet paid him back pa y, she found
that, although the agency initially breached the settlement agreement by failing to
pay the appellant back pay for PP16/2016, that issue was moot because the
agency paid the appellant the ou tstanding back pay on March 24, 2017, and
interest on March 29, 2017. CID at 6. She further found that the agency timely
paid the appellant during the normal pay cycle for PP01/2017 and that the
appellant was not entitled to additional interest for that pay period because the
agency computed the interest t hrough Jan uary 30, 2017, which was within
30 days of the date the payment was actually made, February 24, 2017, as
permitted by Back Pay Act provision 5 U.S.C. § 5596 (b)(2)(B)(i). CID at 6-7.
¶7 The administrative judge found the agency in partial noncompliance
because it failed to make the necessary TSP deductions for PP01/2017 and
ordered the agency to make the appropriate deductions from the back pay and
contributions to the appellant’s TSP account. CID at 9. She found the agency in
compliance regarding the remaining TSP contributions because, although the TSP
contributions had not yet appeared in the appellant’s TSP account, the agency had
proven it had made the deductions from back pay as of March 10, 2017 . Id.; CF,
Tab 1 at 17. She found that the settlement agreement, which allowed for
“appropriate deductions” to be made from the back pay, permitted the agency to
deduct retroactive life insurance premium s, and that 5 C.F.R.
§ 550.805 (e)(3)(iv)(B) was inapplicable absent a finding that the removal was
5
erroneous. CID at 7-8. Finally, s he found that the agency corrected the
appellant’s SF -50, as required . CID at 8 -9.
¶8 The agency has filed a petition for review of the compliance initial decision
challenging the administrative judge’s findings of noncompliance with its TSP
obligations . Compliance Petition for Review ( CPFR) File, Tab 1 . The appellant
has submitted a respon se, in which he agree s with the administrative judge’s
finding as to his entitlement to TSP contributions for PP 01/2017 , but nonetheless
waive s that claim “to avoid a debt collection procedure.” CPFR File, Tab 3 at 15.
Accordingly, we dismiss the agency ’s petition for review as moot . See Uhlig v.
Department of Justice , 83 M.S.P.R. 29 , ¶ 7 (1999) (finding an appeal moot whe n
there is no effective relief the Board can grant).
¶9 The appellant also has filed a cross petition for review. CPFR File, Tab 3
at 4. He does not challenge the administrative judge’s finding concerning his
revised SF -50. However, he dispute s her remaini ng findings. Id. As argued
below, he claims that the agency has not shown that it paid him the appropriate
interest owed on the back pay , improperly deducted retroactive life insurance
premiums from his back pay , and breached the settlement agreement by failing to
pay the full back pay amount and interest within the agreed -upon timeframe. Id.
at 10-15. He indicates that he received the TSP contributions on the remainder of
his back pay in his TSP account in May 2017. CPFR File, Tab 3 at 7. According
to the appellant, this delay in transferring the funds caused him to lose profits.
Id. at 15 n.2. He requests that the Board order the agency to submit additional
information explaining its interest computations, reimburse his FEGLI
deducti ons, and pay “reasonable attorney’s fees incurred in the compliance
action.” Id. at 15-16. The agency has filed a response and addendum to its
response to the appellant’s cross petition. C PFR File, Tab s 5-6.
6
DISCUSSION OF ARGUME NTS ON REVIEW
¶10 A settleme nt agreement is a contract and, as such, will be enforced in
accord ance with contract law. Burke v. Department of Veterans Affairs ,
121 M.S.P.R. 299 , ¶ 8 (2014). The Board will enforce a settlement agreement
that has been entered into the record in the same manner as a final Board decision
or order. Id. When the appellant alleges noncompliance with a settlement
agreement, the agency must produce relevant material evidence of its compliance
with the agreement or show that there was good cause for noncompliance. Id.
The ultimate burden, however, remains with the appellant to prove breach by a
preponderance of the evidence. Id.
The a ppellant is not entitled to reimbursement for the retroactive FEGLI
deductions .
¶11 The appellant disagrees with the administrative judge’s finding that the
agency properly deducted retroactive FEGLI contributions from his back pay .
CID at 7-8. He argues that he did not experience either of the qualifying
conditions of death or accidental dismemberment set forth in 5 C.F.R.
§ 550.805 (e)(3)(iv) (B), which he claims is applicable eve n absent a finding that
his removal was erroneous. CPFR File, Tab 3 at 13 -14. He claims that the
agency therefore should not have deducted retroactive life insurance premiums
from his gross back pay . Id.
¶12 An agency generally must withhold “from th e emplo yee’s pay a share of the
cost of the [FEGLI] insurance” for each period during which an employee is
insured. 5 U.S.C. § 8707 (a). Section 550.805(e)(3)(iv) states that it is
“consistent with” 5 U.S.C. § 8706 (e).3 Under 5 U.S.C. § 8706 (e):
3 We interpret 5 C.F.R. § 55 0.805 (e)(3)(iv) in a ma nner consistent with 5 U.S.C.
§ 8706 (e), to which it expressly refers . See Hesse v. Department of the Army ,
104 M.S.P.R. 647 , ¶ 16 (2006) (declining to defer to regulations that were inconsistent
with the applicable statutory provision and its legislative history). Although 5 C.F.R.
§ 550.805 (e)(3)(iv) cites to 5 U.S.C. § 8706 (d), as the result of a statutory amendment,
the provision was relocated to 5 U.S.C. § 8706 (e). National Defense Authorization Act
for Fiscal Year 2008, Pub. L. No. 110 -181, § 1102(1), 122 Stat. 3, 345. To the extent
7
If the insurance of an employee stops because of separation from the
service or suspension without pay, and the separation or suspension
is thereafter officially found to have been erroneous, the employee is
deemed to have been insured during the period of erroneous
separation or suspension. Deductions otherwise required by
section 8707 of this chapter shall not be withheld from any backpay
awarded for the period of separation or suspension unless death or
accidental dismemberment of the employee occurs during such
period.
When an agency agrees to pay an appellant back pay and benefits without
admitting wrongdoing , the exception for FEGLI deduction s in 5 U.S.C. § 8706 (e)
does not apply . Alfonso v. Department of Justice , 96 M.S.P.R. 266 , ¶¶ 7-8
(2004) ; IAF, Tab 21 at 4. Rather, t he exception for FEGLI deductions set forth in
section 8706(e) only applies when there has been an official finding of
wrongdoing. Alfons o, 96 M.S.P.R. 266 , ¶ 8. In the context of a settlement
agreement, t he parties can bargain to except FEGLI from the back pay award . Id.
(explaining that because an appellant who settled his appeal with the agency had
the opportunity to ba rgain for or to reject FEGLI coverage, section 8706(e ) was
inapplicable ).
¶13 Although the appellant argues that the agency has admitted that it removed
him without providing him with due process, there has been no official Board
finding of wrongdoing. CPFR File, Tab 3 at 13 n.1; CF, Tab 3 at 5. There is no
indication that the appellant declined FEGLI c overage when entering into the
agreement, the agreement allowed for “ [a]ppropriate deductions” from the back
pay, and the parties agreed it “d[id] not constitute an admission of wrongdoing by
either party.” IAF, Tab 21 at 4. T he appellant subsequently de clared that he
would have declined coverage if asked, CF, Tab 4 at 12, but by signing the
agreement, he affirmed “that he ha[d] been provided with the opportunity to
thoroughly discuss all aspects of this Settlement Agree ment with his private
that the administrative judge relied exclusively on the language of the regulation,
without looking to 5 U.S. C. § 8706 (e), we modify the initial decision. CID at 7-8.
8
attorne ys,” I AF, Tab 21 at 6. Accordingly, we find that the deduction prohibition
in 5 U.S.C. § 8706 (e) is inapplicable . Thus, we find that the retroactive FEGLI
deduction s were permitted under 5 U.S.C. § 8707 (a).
The administrative judge properly found the agency’s failure to pay back pay and
interest for PP16/2016 on time was rendered moot by subsequent payments.
¶14 The appellant reasserts his claim that the agency violated the settlement
agreement by failing to pay him back pay and interest for PP16/2016 with in the
agreed upon deadline, apparently in disagreement with the administrative judge’s
finding that such claim was moot.4 CPFR File, Tab 3 at 14-15; CID at 6. The
administrative judge found that the agency’s delayed payments for this pay period
breached the settlement agreement, but that the claim was moot . CID at 6.
Because the appellant received the outstanding back pay for PP16/ 2016, and he is
not seeking to rescind the agreement , there is no more relief the Board may
provide. CPFR File, Tab 3 at 14 -16. We therefore agree with the administrative
judge that this claim is moot. ID at 6; see Burke , 121 M.S.P.R. 299, ¶ 13
(dismissing as moot the appellant’s petition for enforcement because there was no
meaningful relief that the Boa rd could provide).
The agency complied with its obligations to provide the appellant the interest
owed on the back p ay for pay period 17 of 2016 ( PP17/2016 ) to PP01/2017 , but is
in noncompliance with its obligations regarding the interest on back pay for
PP16/2016.
¶15 The appellant argues that the administrative judge erred in finding that the
evidence the agency submitted below was sufficient proof of compliance with its
obligations to pay the appellant interest on his back pay. CPFR File, Tab 3
at 10-12, 15. We agree and modify this part of the initial decision. The evidence
below reflects that the agency paid the appellant interest on back pay of $615.06
4 The parties do not dispute the administrative judge’s finding that they intended to
apply to the settlement agreement the statutory definition of back pay from the Back
Pay Act. CID at 6. They also do not dispute that, as a result, the back pay provision of
the settlement agreement requires the agency to pay interest. Id.; 5 U.S.C.
§ 5596 (b)(2)(A). We decline to disturb this finding on review.
9
and $71.47. CF, Tab 3 at 7 -8, 12, Tab 4 at 11. That is not s atisfactory evidence
of compliance . To be in compliance with the requirement that it pay the appellant
interest, the agency must produce evidence of the rate at which it paid interest
and show its calculations so that the Board could determine if it properly paid
interest on back pay. Tubesin g v. Department of Health & Human Services ,
112 M.S.P.R. 393 , ¶ 17 (2009) ; see 5 C.F.R. § 1201.183 (a)(1)(i) (explaining that
an alleged noncomplying party must submit evidence of compliance in response
to a petition for enforcement , including a narrative explanation of the calculation
of back pay and other benefits, and supporting documents) .
¶16 As to the interest on back pay for PP17/2016 to PP01/2017, the agency has
provided sufficient information on review to prove that it complied with its
obligation. CPFR File, Tab 5 at 7 -15, Tab 6 at 6 -7. We have consider ed this
evidence. See Singletary v. U.S. Postal Service , 84 M.S.P.R. 211, ¶ 5 (1999 )
(relying on the agency’s evidence of compliance submitted on review in
dismissing the appellant’s petition for review of the compliance initial decision as
moot).
¶17 In her supplemental declaration, an HR Specialist asserts that the agency
paid the appellant the correct interest payments from August 21, 2016, to
March 17, 2017. CPFR File, Tab 5 at 7 . The two payroll reports submitted on
review reflect that on March 15, 2017, the agency requested manual payments of
$615.06 for the back pay issued for PP17/2016 to PP01/2017, and $71.47, for the
lump sum payme nt for 96 hours of annual leave . Id. at 14 -15. The back pay
computation summary report reflects that the interest for those two payments
accrued from August 21, 2016, and August 25, 2016, respectively, to March 17,
2017. Id. at 9-11; IAF, Tab 3 at 17 . The appellant has not challenged the
veracity of the salary, interest rate , or date ranges relied upon in that
computation . We find that the appellant is not entitled to additional interest for
that period because, as computed, the payment covered the effective dates of
those agency action s to March 17, 2017, 4 days before the appellant received that
10
interest payment. Id.; CF, Tab 3 at 12 , Tab 4 at 11; see 5 C.F.R. § 550.806 (a)(1)
(beginning the interest accrual on “ the date or dates . . . on which the employee
would have received the pay, allowances, and differentials if the unjustified or
unwarranted personnel action had not occurred ”), § 550.806 (a)(2) (permitting the
agency to select a date for the interest accrual to end “that is no more than
30 days before the date of the back pay interest payment”).
¶18 Although the appellant contends th at this interest payment was untimely, we
disagree.5 CPFR File, Tab 3 at 11 . On March 15, 2017, the agency submitted a
manual request for the interest payment on the back pay for PP17 /2016 through
PP01/2017 and the annua l leave lump sum payment. CPFR File, Tab 5 at 14-15;
CF, Tab 3 at 7 -8, 12 . The appellant received this money in his account on
March 21, 2017, 5 days after the March 16, 2017 deadline for providing the
appellant with back pay and benefits . CF, Tab 1 at 9-11, Tab 4 at 11; IAF,
Tab 21 at 4. Even assuming this delay was a material breach of the agreement,
the issue is now moot. See Burke , 121 M.S.P.R. 299, ¶ 13; Langst on v.
Department of the Army , 84 M.S.P.R. 597 , ¶ 8 (1999) (finding compliance
because the agency issued the payment before the 60 -day deadline, even though
the appellant did not receive it by that date) .
¶19 However, as to the interest on back pay for the period of August 17 -20,
2016, or PP16/2016 , the agency still has not submitted any evid ence that it paid
the appellant , despite its assertion to the contrary . CPFR File, Tab 5 at 4 -5. We
therefore find the agency in noncompliance with the settlement agreement by
failing to pay the appellant interest on his back pay for that period. See Rivera v.
U.S. Postal Service , 107 M.S.P.R. 542 , ¶ 7 (2007) (finding the agency in
noncompliance with the settlement agreement because it failed to pay the
appellant interest on the back pay award).
5 As on review, the appellant argued on appeal that the agency breached the settlement
agreement by failing to pay the interest by Ma rch 16, 2016. CF, Tab 4 at 5. The
administrative judge did not consider this claim. We consider it on review.
11
The appellant ’s claim that he lost profits on his TSP contributions due to agency
delay does not provide a basis for review.
¶20 With the exception of the appellant’ s TSP contributions for PP01/2017 , the
administrative judge found the agen cy in compliance regarding the appellant’s
TSP contributions because, although they had not yet appeared in his TSP
account, the agency proved it had made the deductions from back pay as of
March 10, 2017. CID at 9; CF, Tab 1 at 17. The appellant asserts on review that
he received contributions in May 2017, but that the delay caused him to lose
profits.6 CPFR File, Tab 3 at 7, 15 n.2.
¶21 The TSP was estab lished by the Federal Employees’ Retirement System Act
of 1986 (FERSA), Pub. L. No. 99 -335, 100 Stat. 51 4 (codified as amended large ly
at 5 U.S.C. §§ 8351 and 8401 -80), and has been implemented by the Federal
Retirement Thrift Investment Board (FRTIB) through regulations at 5 C.F.R.
part 1600. The a gency was required to comply with the FERSA and with the
applicable TSP regul ations in issuing the appellant’ s back pay. See 5 C.F.R.
§ 550.805 (h) ( requiring agencies to “correct errors that affect an employee’ s
[TSP] account ” when paying back pay , consistent with FRTIB regulations).
Pursuant to FRTIB regulation 5 C.F.R. § 1605.13 , a TSP participant who receives
back pay is entitled to “breakage,” or the loss or gain that he would have incurred
or realized on his shares had his separation not occurred.7 5 C.F.R. §§ 1605.1 ,
.13(a)(3) .
¶22 As to the a ppellant’s breakage, t he agency must show that it requested the
FRTIB to compute interest and lost earnings. Price v. U.S. Postal Service ,
118 M.S.P.R. 222 , ¶ 16 (2012). On review, the agency submitted the appellant’s
6 The appellant’s claim that the agency’s delay in posting his TSP contributions to his
account caused him to lose profits is d istinct from his claim that the agency failed to
make the required TSP deductions and matching contributions for PP01/2017 , which he
waived . PFR File, Tab 3 at 15.
7 Unlike 5 U.S.C. § 8706 (e), which governs retroactive FEGLI payments from back pay
awards, the FRTIB regulation entitling the appellant to breakage, 5 C.F.R. § 1605.13 ,
does not require a finding that the agenc y action was erroneous .
12
TSP transaction history report , which reflects that late contributions and
associated breakage for each contribution was deposited in the appellant’s
account between March and May 2017 . PFR File, Tab 1 at 7 -15. This evidence
indicates that the agency made the required request to the FRTIB .
¶23 Furthermore , breakage is calculated as the difference between the “as of
date,” which is the date the TSP contribution s hould have been made, and “the
date the contribution is posted to the [TSP] account.” 5 C.F.R. §§ 1605.1 ,
.2(b)(1) (iv). There is no dispute as to the accuracy of the “as of ” dates or the
“posted” dates . Further, many of the posting dates reflect that payment was not
made until May 2017 . PFR File, Tab 1 at 7 -15. The TSP, not the agency, is
responsible for calculating breakage. 5 C.F.R. § 1605.2 (a). Thus, the appellant’s
vague allegation that he lost profits because his contributions did not post to his
account until May 2017 , does not rebut the agency’s evidence of compliance. See
Vaughan v. Department of Agriculture , 116 M.S.P.R. 319 , ¶ 5 (2011) (explaining
that the appellant may rebut the agency’s evidence of compliance by making
specific, nonco nclusory, and supported assertions of continued noncompliance).
Accordingly, the appellant has not met his burden of proving that the agency
failed to comply with its obligations concerning his breakage. See Burke ,
121 M.S.P.R. 299 , ¶ 8 (explaining that the ultimate burden remains with the
appellant to prove breach by a preponderance of the evidence) .
The appellant’s request for attor ney fees is premature.
¶24 The appellant has renewed his request for attorney fees in connection with
these compliance proceedings . CPFR File, Tab 3 at 15-16. No final decision has
been issued in this compliance matter ; therefore, we need not address his re quest
because it is premature . See Galatis v. U.S. Postal Service , 109 M.S.P.R. 651 ,
¶ 14 (2008); 5 C.F.R. § 1201.203 (d) (requiring a motion for attorney fees to be
filed as soon as possible after a final decision of the Board but no later than
60 days after the date on which a decision becomes final).
13
¶25 Accordingly, b ecause we find the agency in noncompliance, the agency is
directed to file evidence of compliance with the Clerk of the Board . The
appellant will be afforded the opportunity to respond to that evidence. The
appellant’s petition for enforcement will be re ferred 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 fa ith. Because the purpose of that proceeding is to obtain compliance, when
appropriate, an Office of General Counsel a ttorne y or paralegal may engage in ex
parte communications to, among other things, better understand the evidence of
compliance and/or any objections to that evidence. Thereafter, the Board will
issue a final decision fully addressing the appellant ’s petition for review of the
compliance initial decision8 and setting forth the appellant ’s further appeal rights
and right to attorney fees , if applicable.
ORDER
¶26 We ORDER the agency to submit to the Clerk of the Board within 45 days
of the date of this decision satisfactory evidence of compliance with this decision.
This evidence shall adhere to the requirements set forth in 5 C.F.R.
§ 1201.183 (a)(6)(i ), including submitting evidence and a na rrative statement of
compliance. The agency’s submission must include proof that it properly paid the
appellant the interest ow ed on back pay for PP16/2016 that has accrued from
August 17, 201 6. We ORDER the appellant to cooperate in good faith in the
agency’s efforts to issue the outstanding interest on back pay due and to provide
all necessary information the agency requests to help it carry out the Board’s
Order. The agency must serve all parties with copies of its submission.
8 The subsequent decision may incorporate the analysis and findings set forth in this
Order.
14
¶27 The Board will assign a new docket number to this matter,
DC-0432-16-0833 -X-1. All subsequent filings should refer to the new docket
number set forth above and should be faxed to (202) 653 -7130 or mailed to the
following address:
Clerk of the Board
U.S. Merit Systems Protection Board
1615 M Street, N.W.
Washington, D.C. 20419
Submissions may also be made b y electronic filing at the MSPB’ s e-Appeal site
(https://e -appeal.mspb.gov) in accordance with the Board’s regulation at 5 C.F.R.
§ 1201.14 .
¶28 The appellant may respond to the agency’s evidence of compliance within
20 days of the date of service of the agency’s submission. 5 C.F.R.
§ 1201.183 (a)(8). If the appellant does not respond to the agency’ s evidence of
compliance, the Board may assume that he is satisfied with the agency’ s actions
and dismiss the petition for enforcement.
¶29 The agency is reminded that, if it fails to provide adequate ev idence of
compliance, the responsible agency official and the agency’ s representative may
be required to appear before the General Counsel of the Merit Systems Protection
Board to show cause why the Board should not impose sanctions for the agency’ s
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 r eceive 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).
15
¶30 This Order does not constitute a final order and is therefore no t subject to
judicial review under 5 U.S.C. § 7703 (a)(1). Upon final resolution of the
remaining issues in this petition for enforcement by the Board, a final order shall
be issued which shall be subject to judicial review.
FOR THE BOARD:
Washington, D.C. /s/ for
Jennifer Everling
Acting Clerk of the Board | HALTERMAN_JESSE_R_DC_0432_16_0833_C_1_ORDER_1936020.pdf | 2022-06-23 | null | DC-0432-16-0833-C-1 | NP |
4,335 | https://www.mspb.gov/decisions/nonprecedential/PELLUM_CHERIE_L_DA_0752_17_0028_I_1_FINAL_ORDER_1936157.pdf | UNITED STATES OF AME RICA
MERIT SYSTEMS PROTEC TION BOARD
CHERIE L. PELLUM,
Appellant,
v.
DEPARTMENT OF THE AR MY,
Agency.
DOCKET NUMBER
DA-0752 -17-0028 -I-1
DATE: June 23, 2022
THIS FINAL ORDER IS NONPRECEDENTIAL1
Cherie L. Pellum , San Antonio, Texas, pro se.
Kristina Letcher , Esquire, Joint Base San Antonio, Fort Sam Houston,
Texas, for the agency.
Casey W. Hinson , Esquire, Falls Church, Virginia, for the agency.
BEFORE
Cathy A. Harris , Vice Chairman
Raymond A. Limon , Member
Tristan L. Leavitt , Member
FINAL ORDER
¶1 The appellant has filed a petition for review of the initial decision, which
dismissed the appeal of her removal based on a settlement agreement. For the
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
require d to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117 (c).
2
reasons discus sed below, we GRANT the appellant’s petition for review and
VACATE the initial decision . We RESCIND the settlement agreement,
REINSTATE the removal appeal, and FORWARD the case to the Board’s Dallas
Regional O ffice for further adjudication in accordance w ith this Final Order.
BACKGROUND
¶2 The appellant was removed from her position as a GS -6 Vocational Nurse,
effective September 14, 2016, based on her inability to perform her duties. Initial
Appeal File (IAF), Tab 9 at 33 , 36, 186 . The specification supp orting the action
indicated that the appellant could not perform her essential duties because she had
been barred from accessing the agency’s information systems, including but not
limited to accessing the electronic medical record system and the electroni c
healthcare record system. Id. at 186. The proposal notice also indicated that, on
July 25, 2 012, before she entered on duty with the agency in the position at issue
and while she was on active duty , she was notified of a preliminary decision to
deny he r security clearance due to a series of delinquent debts; that her security
clearance was in fact denied on or about November 3, 2012; that she was
nonetheless appointed to her current civilian position on April 6, 2015, although
placed on administrative leave on April 21, 2015; that the agency unsuccessfully
sought a waiver for her continued access to unclassified information systems to
allow her to perform her duties; and that, as the agency advised the appellant ,
while her position did not require a sec urity clearance, she remained barred from
access ing the information systems she needed to perform her essential duties,
including accessing patient records or charts, documenting patient records,
accessing physician orders or notes, and accessing or inputting patient drugs. Id.
¶3 The appellant filed an appeal of her removal with the Board, IAF, Tab 1,
and requested a hearing, id. at 2, which was duly set , IAF, Tab 16. On January 6,
2017 , the last work day before the scheduled hearing, the parties sub mitted to the
administrative judge a signed settlement agreement. IAF, Tab 17. In pertinent
3
part, the agency agreed to pay the appellant $1,500 .00 and, within 20 days,
request the cancelation of her removal, provide her with a clean personnel record,
and remove from her Official Personnel File all matters related to the removal
action. Id. For her part, the appellant agreed that her signature on the agreement
would constitute a request to resign for personal reasons, effective September 14,
2016, and th at she would withdraw her appeal with prejudice. Id. The
administrative judge canceled the hearing, IAF, Tab 18, and , on January 9, 2017,
issued a decision dismissing the appeal as settled , IAF, Tab 19, Initial Decision
at 2.
¶4 The following day, January 10, 2017, the appellant filed a petition for
review. Petition for Review (PFR) File, Tab 1. With her petition, she enclosed a
January 10, 2017 memorandum for the record with the subject , “Security
Clearance Verification ,” indicat ing that her security c learance was granted by the
Department of Defense Central Adjudication Facility on January 5, 2017. Id.
at 4. The appellant stated that, had she known about this information on that
date, she would not have entered into the settlement agreement because the
impediment to her perfor ming her duties had been lifted. Id. at 3. The agency
has responded in opposition to the appellant’s petition for review. PFR File,
Tab 3.
ANALYSIS
¶5 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 certain , limited
grounds, inter alia, fraud or a mutual mistake of material fact under which both
parties acted. See, e.g. , Harris v. Department of Veterans Affairs , 142 F.3d 1463 ,
1468 (Fed. Cir. 1998); Hamilton v. Department of Veterans Affairs , 92 M.S.P.R.
467, ¶ 7 (2002). A mutual mistake of fact is a shared, mistaken belief of the
parties regarding a material assumption of fact underlying their agreement.
Brown v. Department of the Army , 108 M.S.P.R. 90 , ¶ 5 n.1 (2008); Garcia v.
4
Department of the Air Force , 83 M.S.P.R. 277 , ¶ 10 (1999) (citing As’Salaam v.
U.S. Postal Service , 65 M.S.P .R. 417, 421 (1994) ).
¶6 Further, implicit in any contract is the requirement that the parties fulfill
their respective obligations in good faith, and acting in bad faith may constitute
breach. Adams v. U.S. Postal Service , 72 M.S.P.R. 6 , 11 (1996). The Board has
defined “bad faith” as “the conscious doing of a wrong because of dishonest
purpose of moral obliquity.” Id.
¶7 As described above, the parties’ January 6, 2017 settlement agreement was
premised on the basic assumption that the appellant ’s security clearance , and
attendant access to information necessary to the performance of her duties, had
been d enied in 2012 , and that the propriety of that agency action remained
pending before the appropriate authority. The memorandum the appellant
submitted to the Board with her petition for review indicates that, in fact, on the
day before the parties signed t he agreement, her security clearance was granted.
PFR File, Tab 1 at 4. Thus, the parties may have executed the agreement under a
mutual mistake of fact, i.e., by virtue of the fact that her security clearance had
been granted, the appellant now had access to the information she needed to
perform her duties. Cf. Woodjones v. Department of the Army , 89 M.S.P.R. 196 ,
¶ 12 (2001) (holding that a shared misunderstanding about whether a decision on
the appellant ’s disability retirement application had been made, and the ti me to
challenge it had passed, would be a mutual mistake of fact).
¶8 On the other hand, if the individual s who negotiated the agreement on
behalf of the agency knew or had reason to know that the appellant ’s security
clearance had been granted, the n, at the very least, the agency would have
negotiated the agreement in bad faith, keeping to itself the knowledge th at the
impediment to the appellant ’s performing her duties had been lifted. However,
there is nothing in the record to indicate whether, at the time the parties executed
5
the settlement agreement, either one kne w or had reason to know that the
appellant ’s security clearance had been granted.2
¶9 Nonetheless, either under the theory of mutual mistake or bad faith on the
part of the agency in negotiating the settlement agreement, it must be set aside.
Vance v. Department of the Interior , 114 M.S.P.R. 6 79, ¶¶ 14-16 (2010); Farrell
v. Department of the Interior , 86 M.S.P.R. 384 , ¶ 8 (2000) ( stating that “[a]
settlement agreement must be set aside if it is tainted with invalidity either by
fraud p racticed upon a party or by a mutual mistake under which both parties
acted”). As a result, the underlying appeal must be reinstate d. Vance ,
114 M.S.P.R. 6 79, ¶ 16.
ORDER
¶10 For the reasons discussed abo ve, we rescind the settlement agreement and
reinstate the appeal. We forward the case to the Dallas Regional Office for
further adjudication in accordance with this Final 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 time limit for seeking such
review and the appro priate forum with which to file. 5 U.S.C. § 7703 (b).
Although we offer the following summary of available appeal rights, the Merit
Systems Protection Board does not provide legal advice on which option is most
appropriate for your situation and the rights described below do not represent a
2 The Security Clearance Verification the appellant submitted with her petition for
review was not issued by the work facility at which she was employed , and there is no
indication on that document that a copy was forwarded there. PFR File, Tab 1 at 4.
Nor has t he agency indicated , in its response to the appellant’s petition, whether it was
aware that her security clearance had been granted at the time it entered into the
settlement agreement. PFR File, Tab 3.
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 matte r.
6
statement of how courts will rule regarding which cases fall within their
jurisdiction. If you wish to seek review of this final decision, you should
immediate ly review the law applicable to your claims and carefully follow all
filing time limits and requirements. Failure to file within the applicable time
limit may result in the dismissal of your case by your chosen forum.
Please read carefully each of the t hree main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703 (b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the c ourt at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc. uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an app eal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
7
Board neithe r endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed tha t you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703 (b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. ____ , 137 S. Ct. 1975 (2017). If you have a
representative in this case, an d your representative receives this decision before
you do, then you must file with the district court no later than 30 calendar days
after your representative receives this decision. If the action involves a claim of
discrimination based on race, color, religion, sex, national origin, or a disabling
condition, you may be entitled to representation by a court -appointed lawyer and
to waiver of any requirement of prepayment of fees, costs, or other security. See
42 U.S.C. § 2000e -5(f) and 29 U.S.C. § 794a .
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702 (b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702 (b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
8
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for 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.
9
petition for review within 60 days of the date of issuance of this decision.
5 U.S.C. § 7703 (b)(1)(B).
If you submit a petition for judi cial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional informatio n about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Prac tice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono 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
Jennife r Everling
Acting Clerk of the Board | PELLUM_CHERIE_L_DA_0752_17_0028_I_1_FINAL_ORDER_1936157.pdf | 2022-06-23 | null | DA-0752-17-0028-I-1 | NP |
4,336 | https://www.mspb.gov/decisions/nonprecedential/BURGESS_MICHAEL_W_AT_0831_16_0098_I_1_FINAL_ORDER_1935558.pdf | UNITED STATES OF AME RICA
MERIT SYSTEMS PROTEC TION BOARD
MICHAEL W. BURGESS,
Appellant,
v.
OFFICE OF PERSONNEL
MANAGEMENT,
Agency.
DOCKET NUMBER
AT-0831 -16-0098 -I-1
DATE: June 22, 2022
THIS FINAL ORDER IS NONPRECEDENTIAL1
Michael W. Burgess , Americus, Georgia, 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 has filed a petition for review of the initial decision, which
affirmed the reconsideration decision of the Office of Personnel Management
(OPM) to reduce his retirement annuity by eliminating credit for his post -1956
military service once he became eligible for Social Security benefits . Generally,
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
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
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 in terpretation 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 involv ed an abuse of discretion, and the resulting
error affected the outcome of the case; or new and material evidence or legal
argument is available that, despite the petitioner’s due diligence, was not
available when the record closed. Title 5 of the Code of Federal Regulations,
section 1201.115 ( 5 C.F.R. § 1201.115 ). After fully considering the filings in this
appeal, we conclude that the petitioner has not established any basis under
section 1201.115 for granting the petition for review. Therefore, we DENY the
petition for review . We MODIFY the initial decision to find that, although an
appellant may establish administrative error by relying on indirect or incomplete
information as prov ided by the Social Security Administration (SSA), the
appellant failed to prove such an error occurred in his case. Except as expressly
MODIFIED by this Final Order, we AFFIRM the initial decision.
BACKGROUND
¶2 On January 2, 2015, the appellant was sepa rated from the U.S. Air Force
Reserve Command after signing an application for immediate retirement. Initial
Appeal File (IAF), Tab 4 at 22, 24 , 44-45. In April 2015, a fter the appellant
reached 62 years of age, OPM contacted SSA to determ ine whether he was
entitled to Social Security benefits. Id. at 10, 22. After learning that he was
entitled to such benefits, and because he did not pay a deposit for his military
service prior to his retirement , OPM recomputed the appellant’s annuity to
eliminate credit for his post -1956 military service. Id. at 6.
¶3 The appellant appealed OPM’s decision to the Board. IAF, Tab 1. The
administrative judge held a telephonic hearing, the recording of which was lost.
3
IAF, Tab 11, Initial Decision (ID) at 2 n.*. Because the recording was lost , the
administrati ve judge scheduled a second telephonic hearing, but the appellant did
not participate. Id. Because the appellant failed to show good cause for that
failure, the administrative judge informed the pa rties that he would decide the
case on the basis of the written submissions and his notes from the first hearing.
Id. The administrative judge affirmed OPM’s reconsideration decision. ID
at 1-2, 6. The appellant has filed a petition for review, to whic h OPM has
responded in opposition . Petition for Review (PFR) File, Tabs 1, 4.
DISCUSSION OF ARGUME NTS ON REVIEW
¶4 Pursuant to statute, t he appellant was entitled to receive credit for his active
duty military service performed after 1956 under both the C ivil Service
Retirement System and the Social Security system only if he deposited an amount
equal to 7% of his total post -1956 military pay with the Civil Service Retirement
and Disability Fund. See 5 U.S.C. §§ 8332 (j), 8334(j); McDevitt v. Office of
Personnel Management , 118 M.S.P.R. 204 , ¶ 6 (2012). Pursuant to statute and
regulation, th e appellant was required to complete this deposit prior to separating
from his employing agency. See 5 U.S.C. § 8334 (j)(1)(A) ; Thomas v. Office of
Personnel Management , 107 M.S.P.R. 334 , ¶ 14 (2007) ; 5 C.F.R. § 831.2104 (a).
If he failed to mak e such a deposit, OPM was required to recalculate his annuity
payments when he first became eligible for Social Security benefits , to exclude
credit for his post -1956 service. McDevitt , 118 M.S.P.R. 204 , ¶ 6.
¶5 OPM’s regulations permit a post separation deposit when an annuitant’s
failure to make the deposit prior to retirement wa s due to administrative error.
Id.; 5 C.F.R. §§ 831.2104 (a), 831.2107(a)(1) . The Board may find administrative
error and waive the deposit deadline in the following circumstances : (1) the
employee can show that he relied on misinformation in electing not to make the
deposit; (2) an application package contains obvious errors or internal
inconsistencies that OPM or the employing agency is obligated to investigate and
4
resolve before processing the application; or (3) an emp loyee elected to make the
deposit and the paperwork is in order, but neither the employing agency nor OPM
followed through to ensure the deposit was made. McDevitt , 118 M.S.P.R. 204 ,
¶ 7. The appellant has the burden of proving by a preponderance of the evidence
that an administrative error took place . Lancaster v. Office of Personnel
Management , 112 M.S.P.R. 76 , ¶ 8 (2009).
¶6 Here, the appellant alleges he did not make a deposit for his military service
because he relied on a confusing and incomplete SSA estimated statement of
benefits that misled him into believing that he did not have sufficient credits to
qualify for Social Security benefits . IAF, Tab 1 at 3, 7-9. The administrative
judge did not make a finding on whether the appellant proved the allegation
because he found that an error of that type could not constitute an administrative
error. ID at 4 -5. We disagree.
¶7 The U.S. Court of Appeals for the Federa l Circuit has held that , if an
employee asks for information regarding the amount of the military deposit or the
consequences of failing to make the deposit, the Government commits
administrative error “if its response either misrepresents the dollar amoun ts in
question or is so indirect, inaccurate, or incomplete as to confuse or mislead the
employee as to the amount of the deposit or the effect of any failure to make the
deposit on the annuity recalculation.” McCrary v. Office of Personnel
Management , 459 F.3d 1344 , 1349 (Fed. Cir. 2006). The court cited approvingly
the Board’s decision in Fleak v. Office of Personnel Management , 57 M.S.P.R.
338, 340 (1993). Id. at 1348. In Fleak , the Board found administrative error
after the appellant established he did not make a deposit fo r his military service
because he relied on an SSA estimated statement of benefits that erroneously
informed him that he did not have sufficient credits to qualify for Social Security
benefits . Fleak , 57 M.S.P.R. at 340. Accordingly, we find that an appellant may
establish administrative error by showing he did not make the required deposit
because an SSA statement was sufficiently indirect or incomplete as to confuse
5
him concerning the amount of credits he had earned. See McCrary , 459 F.3d
at 1348 -49; Fleak , 57 M.S.P.R. at 340.
¶8 However, we also find that the appellant failed to prove that the statement
in question was sufficiently indirect or incomplete as to reasonably confuse him
and cause him to elect not to make a deposit for his military service . The
appellant has not submitted a copy of the alleged ly confusing SSA statement into
the record. For purposes of this decision, we have accepted his representation of
the content of the SSA statement. He claims that the “Social Security Statement”
confused him because in one section it declared , “‘You have earned enough
credits’ for retirement benefits,” but another section contained the words , “If you
have enough work credits.” PFR File, Tab 1 at 2. The appellant asse rts that these
two conflicting statements led him to believe that the SSA statement was a
courtesy notice sent to inform him about the benefits he would qualify for if he
attained the necessary 40 credits. Id. at 2-3. He alleges that he assumed that
once he obtained 40 credits, SSA would send him a statement that explicitly
notified him that he had obtained 40 credits. Id. at 3. We find that t he appellant
has not demonstrated that his assumption that he had not earned enough credits
was reasonably based on any information provided to him by the Government ,
particularly because the SSA statement stated he had “earned enough credits .”
Id.; cf. Thomas , 107 M.S.P.R. 334 , ¶¶ 18-19 (finding that the appellant’s mistaken
belief that led him to not make a deposit was based on his own erroneous
assumptions and was not attributable to the Government) . Accordingly, we find
that he has not es tablished administrative error in this case.
¶9 Further, we take official notice that SSA provides a sample of a “Soc ial
Security Statement” on its publicly available website that contains the same
statements and information that the appellant references .2 5 C.F.R. § 1201.64 . In
2 A more recent sample SS A statement is also available. Social Security
Administration, https ://www.ssa.gov/myaccount/materials/pdfs/SSA -7005 -SM-
SI%20Wanda%20Worker%20Young.pdf (last visited June 22 , 202 2).
6
the sample, the declaration “You have earned enough credits,” is provided under a
section entitled “Your Estimated Benefits.” The words , “If you have enough
work credits,” are provided under a separate section entitled “How Your Benefits
Are Estimated.” It is clear to any reasonable reader that the former section was
specific to the addressee, while the latter section provides information on how
SSA calculates ben efits estimates more generally. We find that these statements
are not indirect or inco mplete as to reasonably confuse, much less mislead ,
someone into believing that they did not have sufficient credits to qualify for
Social Security benefits.
¶10 Although th e recording of the first telephonic hearing was lost, we find that
a remand is unnecessary because the appellant has not alleged that the initial
decision failed to accurately summarize all the arguments and evidence he
presented. PFR File, Tab 1; see Harp v. Department of the Army , 791 F.2d 161 ,
163 (Fed. Cir. 1986 ) (rejecting a claim that the unavailability of a hearing
transcript constituted harmful error per se; the court noted that “such loss is not
fatal” to the court’s ability to review a Board appeal, depending upon whether the
appellant can establish that he was prejudiced by the loss of the hearing
transcript, whether the appellant can show that the administrative judge failed to
consider or misused any particular testimony from the hearing, and whether other
evidence existed in the record that would support the administrative judge’s
findings); Smith v. Office of Personnel Management , 100 M.S.P.R. 500 , ¶ 6
(2005) ( finding that remand i s generally unnecessary if the existing record is
sufficient for meaningful review and the appellant has not alleged that any
particular testimony was misconstrued by the administrative judge). Nor did the
appellant otherwise allege that he was prejudiced by the loss of the recording .
PFR File, Tab 1; see Jezouit v. Office of Personnel Management , 97 M.S.P.R. 48 ,
¶ 12 (2004) (finding that , to obtain reversal of an initial decision on the ground
that the administrative judge abused his discretion in excluding evidence, the
7
petitioning party must show on review that relevant evidence , which could have
affected the outc ome, was disallowed) , aff’d , 121 F. App’x 865 (Fed. Cir. 2005) .
¶11 For the reasons set forth above, we deny the appellant’s petition for review
and affirm the initial decision, as modified by this Final Order, still affirming
OPM’s reconsideration decision.
NOTICE OF APPEAL RIG HTS3
The initial decision, as supplemented by this Final Order, constitutes the
Board’s final decision in this matter. 5 C.F.R. § 1201.113 . You may obtain
review of this final decision. 5 U.S.C. § 7703 (a)(1). By statute, the nature of
your claims determines the time limit for seeking such review and the appropriate
forum with which to file. 5 U.S.C. § 7703 (b). Although we offer the following
summary of available appeal rights, the Merit Systems Protection Board does not
provide legal advice on which option is most appropri ate for your situation and
the rights described below do not represent a statement of how courts will rule
regarding which cases fall within their jurisdiction. If you wish to seek review of
this final decision, you should immediately review the law appli cable to your
claims and carefully follow all filing time limits and requirements. Failure to file
within the applicable time limit may result in the dismissal of your case by your
chosen forum.
Please read carefully each of the three main possible choi ces of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in genera l. As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
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
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703 (b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of parti cular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court o f Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil actio n with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703 (b)(2); see Perry v. Meri t Systems
Protection Board , 582 U.S. ____ , 137 S. Ct. 1975 (2017). If you have a
9
representative in this case, and your representative r eceives this decision before
you do, then you must file with the district court no later than 30 calendar days
after your representative receives this decision. If the action involves a claim of
discrimination based on race, color, religion, sex, national origin, or a disabling
condition, you may be entitled to representation by a court -appointed lawyer and
to waiver of any requirement of prepayment of fees, costs, or other security. See
42 U.S.C. § 2000e -5(f) and 29 U.S.C. § 794a .
Contact information for U.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
10
(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 original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisd iction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115 -195,
132 Stat. 1510.
11
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
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 | BURGESS_MICHAEL_W_AT_0831_16_0098_I_1_FINAL_ORDER_1935558.pdf | 2022-06-22 | null | AT-0831-16-0098-I-1 | NP |
4,337 | https://www.mspb.gov/decisions/nonprecedential/TAYLOR_JEFFREY_L_SF_0842_16_0666_I_1_FINAL_ORDER_1935682.pdf | UNITED STATES OF AME RICA
MERIT SYSTEMS PROTEC TION BOARD
JEFFREY L. TAYLOR,
Appellant,
v.
UNITED STATES POSTAL SERVICE,
Agency.
DOCKET NUMBER
SF-0842 -16-0666 -I-1
DATE: June 22, 2022
THIS FINAL ORDER IS NONPRECEDENTIAL1
Jeffrey L. Taylor , Otis Orchards, Washington, pro se.
Steven B. Schwartzman , Seattle, Washington, 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, w hich
affirmed the agency’s decision denying his application to make a deposit to
receive retirement credit under the Federal Employees’ Retirement System
(FERS) for Federal service performed from August 23, 2003 , to April 15, 2016.
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; t he Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s ca se law. See 5 C.F.R. § 1201.117 (c).
2
Generally, we grant pet itions 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 t o 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 pe tition for review and AFFIRM the initial decision,
which is now the Board’s final decision. 5 C.F.R. § 1201.113 (b).
DISCUSSION OF ARGUME NTS ON REVIEW
¶2 The appellant w as employed by the U.S. Postal Service as a Rural C arrier
from August 23, 2003, to April 15, 2016. Initial Appeal File (IAF), Tab 6
at 5-26. H e submitted an application to make a service credit payment under
FERS for his Federal service from August 23, 2003 , to April 15 , 2016. IAF,
Tab 7 at 5. On June 27, 2016, t he agency denied his request , finding that, under
FERS, non career civilian service performed may only be credited for retirement
purposes if it was performed prior to January 1, 1989. IAF, Tab 1 at 7. The
appellant filed a Board appeal asserting that , during the relevant time, he worked
up to 60 -70 hours per week and he did not believe that it was fair that employees
who served in the position prior to January 1, 1989 , could make a service credit
payment , but he could not. Id. at 5.
3
¶3 Based on the written record,2 the administrative judge issued an initial
decision, affirming the agency’s decision. IAF, Tab 12, Initial Decision (ID).
The administrative judge found that the appellant’s service between August 23,
2003, and April 15, 2016, was not covered under FERS because no retirement
deductions were withheld from the appellant’s pay and the agency made no FERS
contribution during this time. ID at 3. The administrative judge further found
that the appellant w as not entitled to make a deposit to receive credit for his
service under FERS because the relevant laws and regulations only permit an
employee to make a deposit to obtain credit for Federal ci vilian service performed
on or before January 1, 1989. ID at 4 (citing 5 U.S.C. § 8411 (f)(2) and 5 C.F.R.
§ 842.304 (a)(2)). For the reasons set forth in the initial decision, we agree wi th
the administrative judge that the agency correctly determined that the appellant is
not entitled to make a FERS deposit for his post -1989 service.3
¶4 On review, the appellant reiterates his argument that it is unjust to allow
employees to make a deposit t o obtain credit for service prior to January 1, 1989,
but not af ter. Petition for Review File, Tab 1 at 4. Such an argument, however,
does not provide a basis for reversal because the appellant’s entitlement to make a
deposit is a matter of law. See, e. g., Muyco v. Office of Personnel Management ,
114 M.S.P.R. 694 , ¶ 15 (2010).
¶5 Accordingly, we affirm the initial decision.
2 The appellant did not request a hearing. IAF, Tab 1 at 2.
3 The administrative judge cited Quiocson v. Office of Personnel Management , 490 F.3d
1358 , 1360 (Fed. Cir. 2007), for the proposition that a retroactive deposit would not
convert the appellant’s non covered service into covered serv ice. ID at 4. Quiocson ,
however, addressed whether the appellant served in a covered position under the Civil
Service Retirement System, and is thus inapplicable here. Any error, however , does not
provide a basis for reversal because the administrative judge otherwise properly
determined that the appellant is not enti tled to make a service credit payment under
FERS for service performed after 1989. See 5 U.S.C. § 8411 (b)(3), (f)(2) ; 5 C.F.R.
§ 842.304 (a)(2)(i).
4
NOTIC E 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 appropria te forum with which to file. 5 U.S.C. § 7703 (b).
Although we offer the following summary of available appeal rights, the Merit
Systems Protection Board does not provide legal advice on which opt ion is most
appropriate for your situation and the rights described below do not represent a
statement of how courts will rule regarding which cases fall within their
jurisdiction. If you wish to seek review of this final decision, you should
immediately review the law applicable to your claims and carefully follow all
filing time limits and requirements. Failure to file within the applicable time
limit may result in the dismissal of your case by your chosen forum.
Please read carefully each of the thre e main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judic ial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703 (b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit yo ur petition to the cou rt 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 no tice, 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.us courts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appea l to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 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 d ecision before
you do, then you must file with the district court no later than 30 calendar days
after your representative receives this decision. If the action involves a claim of
discrimination based on race, color, religion, sex, national origin, or a disabling
condition, you may be entitled to representation by a court -appointed lawyer and
6
to waiver of any requirement of prepayment of fees, costs, or other security. See
42 U.S.C. § 2000e -5(f) and 29 U.S.C. § 794a .
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may r equest review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702 (b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702 (b)(1). If you have a representative in this case,
and your representative receives t his decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative 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 Fed eral Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Ope rations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302 (b)(8) or
other protected activities listed in 5 U.S.C. § 2302 (b)(9)(A)(i) , (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
7
disposition of allegations of a prohibited personnel practice described in
section 2302(b) other than practices described in section 2302(b)(8), or
2302(b )(9)(A)(i), (B), (C), or (D),” then you may file a petition for judicial
review either with the U.S. Court of Appeals for the Federal Circuit or any court
of appeals of competent jurisdiction.5 The court of appeals must receive your
petition for review wi thin 60 days of the date of issuance of this decision.
5 U.S.C. § 7703 (b)(1)(B).
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must subm it your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the c ourt’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal C ircuit. 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, 201 7. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal C ircuit or any other circuit court of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115 -195,
132 Stat. 1510.
8
Contact information for the courts of appeals can be found at their
respective websites, which can be acc essed 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 | TAYLOR_JEFFREY_L_SF_0842_16_0666_I_1_FINAL_ORDER_1935682.pdf | 2022-06-22 | null | SF-0842-16-0666-I-1 | NP |
4,338 | https://www.mspb.gov/decisions/nonprecedential/HUNTLEY_MELLODY_E_CH_0752_19_0568_I_2_REMAND_ORDER_1935169.pdf | UNITED STATES OF AME RICA
MERIT SYSTEMS PROTEC TION BOARD
MELLODY E. HUNTLEY,
Appellant,
v.
SOCIAL SECURITY
ADMINISTRATION,
Agency.
DOCKET NUMBER
CH-0752 -19-0568 -I-2
DATE: June 21, 2022
THIS ORDER IS NONPRECEDENTIAL1
Mellody E. Huntley , Glendale Heights , Illinois, pro se.
James Hail , Esquire, Jordan Stein , and Linda M. Januszyk , Chicago,
Illinois, for the agency.
BEFORE
Cathy A. Harris , Vice Chairman
Raymond A. Limon , Member
Tristan L. Leavitt , Member
REMAND ORDER
¶1 The appellant has filed a petition for review of the initial decision, which
dismissed her removal appeal for lack of jurisdiction. For the reasons discussed
below, we GRANT the appellant’s petition for review and REMAND the case 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 ar e not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and 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 Central Regional Office for further adjudication in accordance with this
Remand Order.
BACKGROUND
¶2 The appellant was a Legal Assistant with the age ncy’s Office of Hearing
Operations. Huntley v. Social Security Administration , MSPB Docket No.
CH-0752 -19-0568 -I-1, Initial Appeal File (IAF), Tab 139 at 16. In August 2019 ,
the appellant filed an application for a disability retirement annuity with the
Office of Personnel Management (OPM) . Id. at 35, Tab 151 at 32 ; Huntley v.
Social Security Administration , MSPB Docket No. CH -0752 -19-0568 -I-2, Appeal
File (I -2 AF) , Tab 10 at 44 . Effective September 9, 2019, the agency removed
her under chapter 75 of ti tle 5 for conduct unbecoming a Federal employee and
failure to follow instructions. IAF, Tab 139 at 16-36. She subsequently filed a
Board appeal challengin g her removal. IAF, Tab 1 at 6-12.
¶3 In November 2019, OPM appro ved the appellant’s application for disability
retirement. IAF, Tab 164 at 4 -6. At the appellant’s request, the administrative
judge dismissed the appeal without prejudice , pending OPM’s processing of the
appellant’s annuity. IAF, Tab 162 at 3, Tab 163 at 1, Tab 165 at 2 -3. She
subse quently refiled her appeal, alleging she “never received [her] retirement
settlement agreement.” I-2 AF, Tab 1 at 3.
¶4 Following an order to produce the alleged settlement agreement, the
administrative judge issued an initial decision dismiss ing the appea l. I-2 AF,
Tab 8 at 2, Tab 17, Initial Decision (ID) at 1 -2. The administrative judge found
that the appellant failed to produce a copy of the alleged settlement agreement or
any evidence of an oral agreement and failed to identify how the agency breache d
the alleged settlement agreement. ID at 5 -6. Accordingly, the administrative
judge found that the Board lacked jurisdiction over “this compliance appeal to
enforce the terms ” of an alleged settlement agreement. ID at 6.
3
¶5 The appellant has filed a pet ition for review. Petition for Review (PFR)
File, Tab 1. Among other things, she references the “Retirement Annuity
Settlement Agreement” and reasserts that her removal was “wrongful .” Id. at 5-6.
The agency has responded to her petition for review, and the appellant has replied
to its response.2 PFR File, Tabs 4 -6.
DISCUSSION OF ARGUME NTS ON REVIEW
The administrative judge erred by not adjudicating the appellant’s removal.
¶6 The administrative judge dismissed the appeal, finding the appellant failed
to produce any evidence of a settlement agreement over which the Board might
have jurisdiction. ID at 4 -6. In addition to reasserting her settlement agreement
claim, the appellant on review challenges her removal , which was the subject of
her original B oard appeal. IAF, Tab 1 at 6 -12; PFR File, Tab 1 at 5.
¶7 The Board has jurisdiction over the removal of a tenured Federal employee.
5 U.S.C. §§ 7511 (a)(1), 7512(1) , 7513(d) ; see Epley v. Inter -Amer ican
Foundation , 122 M.S.P.R. 572 , ¶ 14 (2015) (finding that an individual who met
the definition of “employee” under 5 U.S.C. § 7511 (a)(1)(A) was entitled to
appeal her removal to the Board) . Under 5 U.S.C. § 7701 (j), an individual’s
status under any retirement system may not be taken into account in a case
2 The appellan t has additionally filed three pleading s on review apparently seeking to
change her name in connection with this appeal . PFR File, Tab 21 at 4, Tab 23 at 4 ,
Tab 32 at 4 . However, the various requests differ on what exact name she prefers . Id.
Therefore, to the extent the appellant is seeking to change her name, we deny her
request for lack of clarity .
To the extent the appellant is attempting in these pleadings to supple ment her
arguments on review , raise new matters, or initiate the settlement process, we decline to
consider them . PFR File, Tab 23 at 4-6, Tab 32 at 4 -5. As the Office of the Clerk of
the Board previously advised the parties , once the record closes on re view , no
additional evidence or argument will be accepted unless it is new and material and the
party submitting it show s that it was not readily available before the record closed .
PFR File, Tab 2 at 1-2; 5 C.F.R. § 1201.114 (k). The appellant has submitted her
pleading after the close of the record and has not made the required showing . The
appellant may wish to raise her request to engage in settlement discussions with the
agency and the administrative judge on remand.
4
involving a removal from the service. Thus, when an agency issues its removal
decision before an appellant retires , the Board retains jurisdiction over the
appellant’s removal. Mays v. Department of Transportation , 27 F.3d 1577 ,
1579 -81 (Fed. Cir. 1994) ; Paula v. Social Security Administration , 119 M.S.P.R.
138, ¶ 12 (2013). However, if an agency rescinds its removal decision as the
result of an employee’s voluntary decision to retire retroactive to the effective
date of the removal , the removal may be moot, thus depriving the Board of
jurisdiction. Jenkins v. Merit Systems Protection Board , 911 F.3d 1370 , 1374 -75
(Fed. Cir. 2019) ; Cooper v. Department of the Navy , 108 F.3d 324 , 325-26
(Fed. Cir. 1997) .
¶8 There appears to be no dispute that the a ppellant is an employee under
5 U.S.C. § 7511 (a)(1)(A). IAF, Tab 139 at 16, 30 -33. The appellant’s removal
here was effect ed September 9, 2019. Id. at 16. There is no indication in the
record that the agency rescinded the removal . However, OPM approved and
began payments on the appellant’s disability retirement annuity . IAF, Tab 164;
I-2 AF, Tab 11 at 48 -52. Accordingly, we must remand this appea l for a
determination of whether the Board retains jurisdiction over her removal under
5 U.S.C. § 7701 (j), or if the removal is now moot . If the administrative judge
determines the Board has juris diction over the removal , she should schedule the
appellant’s requested hearing on the merits . IAF, Tab 1 at 2.
The administrative judge correctly determined that the Board has no jurisdiction
over the appellant’s alleged settlement agreement.
¶9 The app ellant on review suggests that the agency breached the “Retirement
Annuity Settlement Agreement,” which she states she “never received .” PFR
File, Tab 1 at 5, Tab 5 at 4. The administrative judge found that the appellant did
not produce a settlement agre ement, show evidence of an oral settlement
agreement, or demonstrate how the agency breached the alleged settlement
agreement. ID at 6. The Board has jurisdiction to enforce a settlement agreement
that has been entered into the record for that purpose. Delorme v. Department of
5
the Interior , 124 M.S.P.R. 123 , ¶¶ 9-21 (2017). Because neither party submitted
an agreement or asserted the Board has authority to enforce it, we agree with the
administrative judge that the Board lacks jurisdiction over the alleged breach .3
¶10 In making our decision , we have not considered the documents the appellant
has submitted wit h her petition for review . PFR File, Tab 1 at 10 -38, Tab 5
at 8-29, Tab 6 at 4 -6. The Board will grant a petition for review when, among
other reasons, new and material evidence is available that, despite t he petitioner’ s
due diligence, was not available when the record closed. Ellis v. U.S. Postal
Service , 121 M.S.P.R. 570 , ¶ 6 (2014) ; 5 C.F.R. § 1201.115 (d). The documents
submitted by the appellant predate the close of record below, and the appellant
has not explained why she did not submit them at that time. Ellis , 121 M.S.P.R.
570, ¶ 6; 5 C.F.R. § 1201.115 (d); IAF, Tab 8 at 3 ; see Avansino v. U.S. Postal
Service , 3 M.S.P.R. 211 , 213 -14 (1980) (explaining that u nder 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 ). Further, to the ex tent the documents are already in the record below,
they are not new evidence. Meier v. Department of the Interior , 3 M.S.P.R. 247 ,
256 (1980).
3 After the appellant refiled her appeal, she expressed disagreement with OPM’s
processing of her retirement annuity. For example, she questioned whether she should
have been allowed to take a regular retirement and suggested there was a discrepancy in
her benefits . I-2 AF, Tab 9 at 4, 22. She appears to re -raise these claims on review.
PFR File, Tab 1 at 5, Tab 5 at 4-5. To the exten t the appellant disagrees with OPM’s
handling of her annuity and related benefits, she may file a separate appeal naming
OPM as the responding agency . We express no opinion as to the Board’s jurisdiction
over such an appeal . Generally, the Board has jurisdiction over retirement matters only
after OPM has issued a reconsideration decision or the appellant has repeatedly
requested such a decision and the evidence indicates that OPM does not intend to issue
one. Fletcher v. Office of Perso nnel Management , 118 M.S.P.R. 632 , ¶ 5 (2012 ). The
record before us does not contain a reconsideration decision.
6
ORDE R
¶11 For the reasons discussed above, we remand this case to the Central
Regional Office for further adjudication in accordance with this Remand Order.
FOR THE BOARD:
Washington, D.C. /s/ for
Jennifer Everling
Acting Clerk of the Board | HUNTLEY_MELLODY_E_CH_0752_19_0568_I_2_REMAND_ORDER_1935169.pdf | 2022-06-21 | null | CH-0752-19-0568-I-1; CH-0752-19-0568-I-2 | NP |
4,339 | https://www.mspb.gov/decisions/nonprecedential/JUNEJA_PAWAN_SF_1221_15_0504_C_1_ORDER_1935206.pdf | UNITED STATES OF AME RICA
MERIT SYSTEMS PROTEC TION BOARD
PAWAN JUNEJA,
Appellant,
v.
DEPARTMENT OF VETERA NS
AFFAIRS,
Agency.
DOCKET NUMBER
SF-1221 -15-0504 -C-1
DATE: June 21, 2022
THIS ORDER IS NONPRECEDENTIAL1
Pawan Juneja , Beverly Hills, California, pro se.
Joseph Manuel Briones , Los Angeles, California, for the agency.
BEFORE
Cathy A. Harris , Vice Chairman
Raymond A. Limon, Member
Tristan L. Leavitt , Member
ORDER
¶1 The appellant h as filed a petition for review of the compliance initial
decision, which dismissed his petition for enforcement as moot . For the
following reasons, we GRANT the petition for review , VACATE the compliance
initial decision , and find the agency in NONCOMPLIANCE .
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case 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 On April 23, 20 15, the appellant filed an individual right of action (IRA)
appeal with the Board. Juneja v. Department of Veterans Affairs , MSPB Docket
No. SF -1221 -15-0504 -W-1, Initial Appeal File (IAF), Tab 1 at 1. On June 1 2,
2015, the parties entered into a settlement agreement in which the appellant
agreed to withdraw his appeal in exchange for, among other things, the agency’s
agreement to revise his Fiscal Year (FY) 2013 Proficiency Report pursuant to
explicit terms in t he agreement and remov e any references to the prior FY 2013
Proficiency Report from his Official Personn el File (OPF). IAF, Tab 11 at 2 . As
a result, the administrative judge issued an initial decision dismissing the appeal
as settled. Juneja v. Departm ent of Veterans Affairs , MSPB Docket No. SF -1221 -
15-0504 -W-1, Initial Decision (June 12, 2015). Neither party petitioned for
review.
¶3 On June 29, 2016, after learning that the agency did not revise the FY 2013
Proficiency R eport or update his OPF pursuant to the agreement’s terms , the
appellant filed a petition for enforcement . Juneja v. Department of Veterans
Affairs , MSPB Docket No. SF -1221 -15-0504 -C-1, Compliance File (CF), Tab 1
at 3. The appellant requested the enforcement of the settlement agreement and
sanctions against the agency. Id.
¶4 In response to the petition for enforcement, the agency acknowledged that it
failed to update the revised FY 2013 Proficiency Report in the appellant’s OPF
but claimed that it was a technical oversight. CF, Tab 6 at 4. It asserted th at it
had corrected the FY 2013 Proficiency Report in a timely manner but that it failed
to upload the document to the appellant’s OPF. Id. It also asserted that it
uploaded the report to the appellant’s OPF on July 1, 2016 , after he filed his
petition for enforcement . Id. at 5. The agency provided documentation to
support its a ssertions. Id. at 7-12.
¶5 In the compliance initial decision, the administrative judge dismissed the
appellant’s petition for enforcement as moot. Juneja v . Department of Veterans
3
Affairs , MSPB Docket No. SF -1221 -15-0504 -C-1, Compliance Initial Decision
(CID). She found that, although the appellant’s frustration concerning the
agency’s delay in complying with the settlement agreement was reasonable, the
agency submitted credible documentation to support its assertion of full
compliance with the settlement agreement . CID at 4. She also denied the
appellant’s request for sanctions. CID at 3.
¶6 The appellant has filed a petition for review, the agency has resp onded in
opposition, and the appellant has replied to the agency’s opposition. Petition for
Review (PFR) File, Tabs 1, 3 -4.
DISCUSSION OF ARGUME NTS ON REVIEW
¶7 A settlement agreement is a contract, and the Board will adjudicate a
petition to enforce a settl ement agreement in accordance with contract law. Allen
v. Department of Veterans Affairs , 112 M.S.P.R. 659 , ¶ 7 (2009), aff’d , 420 F.
App’ x 980 (Fed. Cir. 2011). When, as here, an appellant alleges noncompliance
with a settlement agreement, the agency must produce relevant, material, and
credible evidence of its compliance with the agreement. Id. The ultimate burden,
however, remains with the appellant, as the party seeking enforcement, to prove
breach by a preponderance of the evidence. Id.
¶8 On review, t he appellant’s primary challenge to the compliance initial
decision is the administrative judge’s f ailure to address his argu ment that the
revised FY 2013 Proficiency Report contains harmful information that constitutes
a breach of the settlement agreement . PFR File, Tab 1 at 3 -4, Tab 4 at 3 ; CF,
Tab 11. Pursuant to the agreement, the agency agreed to make certain revisions
to the FY 2013 Proficiency Report, including allowing the appellant to submit a
written comment for attachment to the report in his OPF. IAF, Tab 11 at 2. Upon
review of the evidence that the agency submitted in support of its compliance,
however, it appea rs that it uploaded to the appellant’s OPF the written comment
that he attached to his petition for enforcement , and not the written comment that
4
he supplied to the agency pursuant to the agreement’s terms . CF, Tab 6 at 9. As
a result, the uploaded copy of the appellant’s written comment contains the
Board’s e -Appeal information concerning the document, including the pleading
number and the 2016 submission da te. Id. The appellant argues that the agency
has b reached the agreement because, by uploading the document containing the
Board’s e -Appeal information to his OPF, the agency revealed that the FY 2013
Proficiency R eport was the subject of a Board appeal . PFR File, Tab 1 at 3 -4,
Tab 4 at 3 . The appellant claims that he would be “better o ff” without the written
comment uploaded by the agency because of the harmful information it contains .
PFR File, Tab 4 at 3.
¶9 A breach of a settlement agreement is material when it relates to a matter of
vital importance or goes to the essence of the contract. Kitt v. Department of the
Navy , 116 M.S.P.R. 680 , ¶ 11 (2011). In his IRA appeal, the appellant identified
the FY 2013 Proficiency Report as the personnel action that the agency took
against him in retaliation for making several protected disclosures. IAF, Tab 1
at 5. The settlement agreement specifically called for the agency to revise the
report and remove all references to the prior report from his OPF. IAF, Tab 11
at 2. Therefore, we find that the essence of the contract was a clean record
regarding the FY 2013 Proficiency Report and that, by alerting anyone who reads
the report that it was the subject of a Board appeal , it essentially negates the
benefit of his bargain. See King v. Department of the Navy , 130 F.3d 1031 ,
1033 -34 (Fed. Cir. 1997). Accordingly, we find that the inclusion of the
e-Appeal information on the appellant’s written comment constitutes a material
breach of the agreement. See, e.g. , Kitt, 116 M.S.P.R. 680 , ¶¶ 2 –3, 9, 11 (finding
that the agency materially breached a settlement agreement by reta ining a record
of the appellant’ s removal despite a provision in the agreement requiring it to
change the removal to a 30 ‑day suspension). Because we find that the agency
breached a material provision of the settlement agreement, the appellant is not
5
required to establish that the breach caused him actual harm. See Mullins v.
Department of the Air Force , 79 M.S.P.R. 206 , ¶ 13 (1998) (explaining that the
breach was material not because it resulted in a monetary loss but because the
breached provision was material to the agreement).
¶10 When one party commits a mat erial breach of a settlement agreement, the
other party ordinarily is entitled either to enforce the settlement agreement or to
rescind it and to reinstate his appeal. Kitt, 116 M.S.P.R. 680 , ¶ 12. Here, the
appellant seeks enforcement of the agreement. CF, Tab 1 at 3 ; PFR File, Tab 1
at 6. Accordingly, we order the agency to remove the copy of the appellant’s
written comment from h is OPF that it uploaded initially and replace it with a
clean copy of his written comment; that is, a copy that does not include the
Board’s e -Appeal information .
¶11 The appellant again seeks the imposition of sanctions against the agency for
its failure to c omply with the settlement agreement. PFR File, Tab 1 at 6. We
find, however, that sanctions are not warranted at this time. See, e.g. , Mercado v.
Office of Personnel Management , 115 M.S.P.R. 65 , ¶ 8 (2010).
¶12 Because we have found the agency in noncompliance, the agency is directed
to file evidence of complia nce with the Clerk of the Board, and the appellant will
be afforded the opportunity to respond to that evidence. The appellant’ s petition
for enforcemen t will be referred to the Board’ s Office of General Counsel, and,
depending on the nature of the submis sions, an attorney with the Office of
General Counsel may contact the parties to further discuss the compliance
process. The parties are required to cooperate with that individual in good faith.
Because the purpose of the proceeding is to obtain complian ce, 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 fin al decision fully addressing the appellant’ s petition for review of t he
6
compliance initial decision and setting forth the appellant’ s further appeal rights
and the right to attorney fees, if applicable .2
ORDER
¶13 We ORDER the agency to submit to the Clerk of the Board within 45 days
of the date of this Order satisfactory evidence of compliance. This evidence shall
adhere to the requirements set forth in 5 C.F.R. § 1201.183 (a)(6)(i), includi ng
submission of evidence and a narrative statement of compliance. The agency’ s
submission shall demonstrate that it removed the appellant’s written comment
from his OPF and replaced it with a clean copy, as set forth above . The agency
must serve all par ties with copies of its submission .
¶14 The agency’s submission should be filed under the new docket number
assigned to this compliance referral matter, MSPB Docket No. SF -1221 -15-
0504 -X-1. All subsequent filings should refer to the compliance referral docket
number set forth above and should be faxed to (202) 653 –7130 or mailed to the
following address:
Clerk of the Board
U.S. Merit Systems Protection Board
1615 M Street, N.W.
Washington, D.C. 20419
Submissions also may be made by electronic filing at the Boa rd’s e -Appeal site
(https://e -appeal.mspb.gov) in accordance with its regulation at 5 C.F.R.
§ 1201.14 .
¶15 The appellant may respond to the agency’s evidence of compliance within
20 days of the date of service of the agency’s submission. 5 C.F.R.
§ 1201.183 (a)(8). If the appellant does not respond to the agency’s evidence of
compliance, the Board may assume that he is satisfied with the agency’s actions
and dismiss the petition for enforcement.
2 The subsequent decision may incorporate the analysis and findings set forth in this
Order .
7
¶16 The agency is reminded that, if it fails to provide adequate evidence of
compliance, the responsib le agency official and the agency’s representative may
be required to appear before the General Counsel of the Merit Systems Protection
Board to show cause why the Board should not impose sanctions for the agency’s
noncompliance in this case. 5 C.F.R. § 1201.183 (c). The Board’s authority to
impose sanctions includes the authority to order that the responsible agency
official “shall not be entitled to receive payment for service as an em ployee
during any period that the order has not been complied with.” 5 U.S.C.
§ 1204 (e)(2)(A).
¶17 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/ for
Jennifer Everling
Acting Clerk of the Board | JUNEJA_PAWAN_SF_1221_15_0504_C_1_ORDER_1935206.pdf | 2022-06-21 | null | SF-1221-15-0504-C-1 | NP |
4,340 | https://www.mspb.gov/decisions/nonprecedential/KELANI_MOJISOLA_A_DC_315H_18_0060_I_1_FINAL_ORDER_1934432.pdf | UNITED STATES OF AME RICA
MERIT SYSTEMS PROTEC TION BOARD
MOJISOLA A. KELANI,
Appellant,
v.
DEPARTMENT OF HOUSIN G AND
URBAN DEVELOPMENT,
Agency.
DOCKET NUMBER
DC-315H -18-0060 -I-1
DATE: June 16, 2022
THIS FINAL ORDER IS NONPRECEDENTIAL1
Mojisola A. Kelani , Washington, D.C., pro se.
Emily Carapella , 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 her probationary termination appeal for lack of jurisdiction . On
petition for review, the appellant argues that the agency terminated her
approximately 3 days before the end of her probationary period , asserts that the
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
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 has engaged in a seri es of chemical attacks directed at her, and contends
that the agency provided her misinformation relating to her termination.
Generally, we grant petitions such 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 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 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 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
2 Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise which option is most appropriate in any matter.
3
immediately review the law applicable to your claims and carefully follow all
filing time limits and requirements. Failure to file within the applicable time
limit may result in the dismissal of your case by your chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case . If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703 (b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison 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.
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 base d, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeal s for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703 (b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. ____ , 137 S. Ct. 1975 (2017). If you have a
representative in this case, and your representative receives this decision before
you do, then you must file with the district court no later than 30 calendar days
after your representative receives this decision. If the action involves a claim of
discrimination based on race, color, religion, sex, national origin, or a disabling
condition, you may be entitled to representation by a court -appointed lawyer and
to waiver of any requirement of prepayment of fees, costs, or other security. See
42 U.S.C. § 2000e -5(f) and 29 U.S.C. § 794a .
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebs ites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702 (b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702 (b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
addr ess of the EEOC is:
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 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.3 The court of appeals must receive your
petition for review within 60 days of the date of issuance of this decision. 5
U.S.C. § 7703 (b)(1)(B).
3 The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act , signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit co urt of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115 -195,
132 Stat. 1510.
6
If you submit a petition for judicial review to th e U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5 , 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the 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 appea ls can be found at their
respective websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
FOR THE BOARD:
Washin gton, D.C. /s/ for
Jennifer Everling
Acting Clerk of the Board | KELANI_MOJISOLA_A_DC_315H_18_0060_I_1_FINAL_ORDER_1934432.pdf | 2022-06-16 | null | DC-315H-18-0060-I-1 | NP |
4,341 | https://www.mspb.gov/decisions/nonprecedential/SPARKS_MARCUS_L_AT_0831_16_0677_I_1_FINAL_ORDER_1933761.pdf | UNITED STATES OF AME RICA
MERIT SYSTEMS PROTEC TION BOARD
MARCUS L. SPARKS,
Appellant,
v.
OFFICE OF PERSONNEL
MANAGEMENT,
Agency.
DOCKET NUMBER
AT-0831 -16-0677 -I-1
DATE: June 15, 2022
THIS FINAL ORDER IS NONPRECEDENTIAL1
Marcus L. Sparks , Crestview, Florida, 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 has filed a petition for review of the initial decision, which
affirmed the final decision of the Office of Personnel Management (OPM) that
recalculated his Civil Service Retirement System (CSRS) ann uity to eliminate
credit for his post-1956 military service and found an overpayment. For the
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or 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
reasons set forth below, we GRANT the petition for review and RE VERSE the
initial decision. OPM’ s final decision is NOT SUSTAINED.
BACKGROUND
¶2 The appellant retired in the fall of 2013 from hi s position at Eglin Air Force
Base , and, in February 2016, OPM notified him that it had recalculated his
annuity to remove credit for his post -1956 military service because the Social
Security Administration had certified his eligibility for old-age retire ment
benefits and he had no t made the required deposit at or before his retirement .
Initial Appeal File (IAF), Tab 1 , Tab 4 at 25 -41. It also notified him that it had
found a $4,645.00 overpay ment in CSRS annuity benefits . IAF, Tab 4 at 28‑33.
The appe llant requested reconsideration of the decision and a waiver of the
overpayment. Id. at 12-19. OPM denied the appellant’s request, finding that ,
because he had failed to make the required deposit, it had properly recalculated
his annuity to eliminate cre dit for his post -1956 military service . Id. at 8.
Concerning the overpayment, OPM found that , even though the appellant was not
at fault in causing it, OPM could not waive the overpayment because recovery
would not be against equity and good conscience . Id. at 8-9. Nevertheless, OPM
did lower the monthly collection schedule set forth in its initial decision. Id.
at 10, 29.
¶3 The appellant filed this appeal and OPM responded. IAF, Tabs 1, 4. After
holding a telephonic hearing, the administrative judge issued an initial decision
finding that the appellant was not entitled to make a belated post -1956 military
service deposit and that he failed to show that he wa s entitled to a waiver of the
over payment or an y further adjustment in the repayment schedule. IAF, Tab 8,
Initial Decision (ID). In his petition for review , the appellant reiterates his
argument made below that the agency misinformed him regarding the
consequences of not paying the deposit and identifies several discrepancies and
inconsistencies in his retirement paperwork . P etition for Review (PFR) File,
3
Tab 1; IAF, Tab 7 . Although it identified a new agency representative, PFR File,
Tab 3, OPM did not respond to the appellant’s petition for review.
¶4 For the reasons set forth below, we find t hat the appellant established
through preponderant evidence that his former agency commi tted administrative
error that caused him not to make the required deposit to obtain credit for his
post-1956 military service. Thus, we find that the appellant has es tablished that
he is entitled to make a post -separation deposit.
DISCUSSION OF ARGUME NTS ON REVIEW
¶5 An annuitant who retires after September 7, 1982, is entitled to receive
credit for active military service performed after 1956 under both CSRS and the
Social Security system if he deposits an amount equal to 7 % of his total
post‑1956 military pay, plus interest, with the Civil Service Retirement and
Disability Fund. Hooten v. Office of Personnel Management , 114 M.S.P.R. 205 ,
¶ 6 (2010) ; see 5 U.S.C. § 8334 (j). If the annuitant fai ls to make such a deposit,
OPM must recalcu late the annuity payments when he first becomes eligible for
Social Security benefits to exclude credit for the post -1956 military service.
5 U.S.C. § 8332 (j); Hooten , 114 M.S.P.R. 205 , ¶ 6. Those employees who retire
on or after October 1, 1983, must make such a deposit before their separation
from service upon which entitlement to an annuity is based. Hooten ,
114 M.S.P.R. 205 , ¶ 6; 5 C.F.R. § 831.2104 . However, the Board will order OPM
to permit a post -separation deposit if there was adminis trative error by the
individual’ s employing agency or OPM and the failure to make the deposit prior
to retirement was the product of that administrative error. Hooten , 114 M.S.P.R.
205, ¶ 6; 5 C.F.R. § 831.2107 (a)(1).
¶6 In his initial decision, t he administrative judge found that the OPM Form
1515 that the appellant signed provided him with adequate information regarding
his military deposi t and the consequences of not paying it. ID at 4. However, in
this case, the appellant’s OPM Form 1515 is missing important information
4
related to the military deposit requirement . Consistent with the appellant’s
contention that he received no real counseling c oncerning his military deposit, the
space allocated on the second page of his OPM Form 1515 to provide him with an
agency contact to obtain “further information about making a deposit for your
military service that occ urred after December 31, 1956 ,” is blank . IAF, Tab 7
at 1, Tab 4 at 67. Similarly , there is information missing from the appellant’s
Standard Form 2801 ( SF-2801 ), Agency Checklist of Immediate Retirement
Procedures, concerning his military deposit, with several questions left
unanswered and the markings for several other questions insufficient to discern
their meaning. IAF, Tab 4 at 60 .
¶7 Additionally, some of the information on the appellant’s retirement forms is
contradicted by his sworn hearing testim ony. On Schedule D of the appellant’s
SF-2801 , his employing agency indicated that it had counseled the appellant
about the e ffect of not paying the deposit. Id. at 59 . However , the appellant
testified under oath that he received no counseling or help at the time of his
retirement save for one agency personnel official who, in response to the
appellant’s question “will my military service affect my annuity ,” told him that
“no, i t shouldn’t .” Hearing Compact Disc (HCD) (testimony of the appellant); ID
at 4. The Board has held that an appellant’s unrebutted, sworn testimony that his
former employing agency misinformed him regarding the amount of his annuity
reduction constituted preponderant evidence of administrative error because it
was based on his personal knowledge of the events at issue, was consistent, and
was not inherently improbable. Zimmerman v. Office of Personnel Management ,
80 M.S.P.R. 512 , ¶ 10 (1999).
¶8 The administrative judge discounted that testimony, find ing that, because
the agency provided the appellant with estimates showing that his annuity would
decrease by $912.00 without the deposit, it was “highly improbable that a
personnel specialist would have told him that failure to make a deposit would
probably have n o effect on his annuity.” ID at 5. However, we disagree with the
5
administrative judge’s interpretation of the evidence , in large part because the
record shows that the estimate was not prepared until after the appellant executed
his retirement paperwork , and it is not clear that his employing agency ever
provided him with this estimate . IAF, Tab 4 at 72 -79. Indeed, the chronology
indicates that the agency personnel specialist would not have possessed the
estimate , which reflects a date of November 12, 2013, when the appellant made
his election on OPM Form 1515 on October 28, 2013, and executed his retirement
application and associated paperwork by October 31, 2013. Id. at 55, 66, 72 -79.
The appellant testified below , and he maintains on review, that he did not rec eive
the estimate on which the administrative judge based that finding , noting that the
copy of it that OPM submitted is dated November 12, 2013, nine days after he left
Eglin Air Force Base for the last time, and that the estimate bears no in dicia that
he ever received it. HCD (testimony of the appellant); IAF, Tab 7 at 2 ; PFR File,
Tab 1 at 4-5.
¶9 Despite this contradictory evidence, t he administrative judge placed
decisive weight on the information contained in the OPM Form 1515 in finding
that the appellant had been properly informed of the requirement to make a
deposit and of the consequences of failing to make a deposit. ID at 4 -5.
Although the Board has found that the information contained in those two forms
may be sufficient to inform an individual of the need to make the dep osit and the
consequences of a failure to do so , the inquiry does not end there. See
Lancaster v. Office of Personnel Management , 112 M.S.P.R. 76 , ¶ 10 (2009). If
the appellant received misleading information from his employing agency, he still
may establish administrative error despite having completed these forms. Id.
¶10 The administrative judge found no evidence that the appellant asked any
questions that his employing agency or OPM either failed to answer or answer ed
incompletely or incorrect ly. Ho wever, he also cited the appellant’s sworn
testimony that an agency personnel specialist told him that a failure to make a
deposit “ would probably have no effect on his annuity.” ID at 4. In dismissing
6
this contention, the administrative judge noted the appellant’s failure to “state
precisely who told him” this, ID at 4-5, but the administrative judge does not
identify any precedential authorit y that requires such precision. Our reviewing
court has held that an agency commits administrative error when an individual
asks a question regarding the post -1956 military service credit deposit at the time
of the election and the agency’s response “ either misrepresents the dollar amount
in question or is so indirect, inaccurate, or incomplete as to confuse or misl ead
the employee as to the amount of the deposit or the effect of any failure to make
the deposit on the annuity recalculation.” McCrary v. Office of Personnel
Management , 459 F.3d 1344 , 1349 (Fed. Cir. 2006) . The cases do not require
that an appellant identify the precise individual who gave him that indirect,
inaccurate, or incomplete answer. See i d. at 1345 (finding administrative error
when “a government counselor” told the appellant the deposit would cost “a lot ”
without further explanation ); see also Lancaster , 112 M.S.P.R. 76, ¶¶ 4, 6, 11
(finding that the answer of an unnamed agency retirement counselor that the
appellant’s annuity would be reduced by a “fraction” was sufficiently vague to be
mislea ding when the evidence showed a m onthly reduction of $347.00).
¶11 Thus, given the appellant’s assertion below that , had he known that he
would be losing around $950.00 a month when he reached 62 , he would have paid
the $2,543.00 deposit using the payment he received for unused leave, HCD
(testimony of the appellant) ; IAF, Tab 7 at 2, we find that the appellant relied on
misinformation when he was told by a personnel specialist that a failure to make
the deposit “would prob ably have no effect on his annuity. ” Additionally, we
find that the forms included in the appellant’s retirement application package
contain errors , IAF, Tab 4 at 55, 66, 72 -79, and discrepancies that neither OPM
nor his employing agency appeared to investigate and resolve, despite their
obligation to do so before pro cessing the application, e.g., Lamb v. Office of
Personnel Management , 112 M.S.P.R. 335 , ¶ 10 (2009) . Accordingly , we find
that the appellant has established by preponderant evidence that his employing
7
agency committed an administrative error and that his failure to pay the deposit
was the product of that administrative error. See Lamb , 112 M.S.P.R. 335, ¶ 13.
We therefore find that the appellant is entitled to a make a post -separation deposit
in accordance with 5 C.F.R. § 831.2107 (a)(1). Id.
ORDER
¶12 We ORDER OPM to set a time limit under 5 C.F.R. § 831.2107 (a)(1) before
whic h the appellant may make the military deposit to his former employing
agency. See Kerr v. National Endowment for the Arts , 726 F.2d 730 (Fed. Ci r.
1984). OPM must complete this action no later than 20 days after the date of this
decision.
¶13 We further 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 ca rry out the Board’s Order. The appellant, if not notified, should ask OPM
about its progress. See 5 C.F.R. § 1201.181 (b).
¶14 No later than 30 days after OPM tells the appellant 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 fully 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
You may be entitled to be paid by the agency for your reasonable attorney
fees and costs. T o 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
8
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 th at issued
the initial decision on your appeal.
NOTICE OF APPEAL RIG HTS2
You may obtain review of this final decision. 5 U.S.C. § 7703 (a)(1). By
statute, the nature of your claims determines the t ime limit for seeking such
review and the appropriate forum with which to file. 5 U.S.C. § 7703 (b).
Although we offer the following summary of available appeal rights, the Merit
Systems Protectio n Board does not provide legal advice on which option is most
appropriate for your situation and the rights described below do not represent a
statement of how courts will rule regarding which cases fall within their
jurisdiction. If you wish to seek revi ew of this final decision, you should
immediately review the law applicable to your claims and carefully follow all
filing time limits and requirements. Failure to file within the applicable time
limit may result in the dismissal of your case by your chos en forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should co ntact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703 (b)(1)(A).
2 Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise which option is mos t appropriate in any matter.
9
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellant s before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This opt ion applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision —includi ng a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703 (b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. ____ , 137 S. Ct. 1975 (2017). If you have a
representative in this case, and your representative receives this decision before
you do, then you must file with the district court no later than 30 calendar days
after your representative receives this decisi on. If the action involves a claim of
10
discrimination based on race, color, religion, sex, national origin, or a disabling
condition, you may be entitled to representation by a court -appointed lawyer and
to waiver of any requirement of prepayment of fees, costs, or other security. See
42 U.S.C. § 2000e -5(f) and 29 U.S.C. § 794a .
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702 (b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702 (b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEO C via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302 (b)(8) or
11
other protect ed activities listed in 5 U.S.C. § 2302 (b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
disposition of allegations of a prohibited p ersonnel practice described in
section 2302(b) other than practices described in section 2302(b)(8), or
2302(b)(9)(A)(i), (B), (C), or (D),” then you may file a petition for judicial
review either with the U.S. Court of Appeals for the Federal Circuit or a ny court
of appeals of competent jurisdiction.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 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
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.
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/Cour tWebsites.aspx .
FOR THE BOARD:
Washington, D.C. /s/ for
Jennifer Everling
Acting Clerk of the Board | SPARKS_MARCUS_L_AT_0831_16_0677_I_1_FINAL_ORDER_1933761.pdf | 2022-06-15 | null | AT-0831-16-0677-I-1 | NP |
4,342 | https://www.mspb.gov/decisions/nonprecedential/WEISS_LINDA_W_NY_0707_16_0149_C_1_ORDER_1933781.pdf | UNITED STATES OF AME RICA
MERIT SYSTEMS PROTEC TION BOARD
LINDA W. WEISS,
Appellant,
v.
DEPARTMENT OF VETERA NS
AFFAIRS,
Agency.
DOCKET NUMBER
NY-0707 -16-0149 -C-1
DATE: June 15, 2022
THIS ORDER IS NONPRECEDENTIAL1
Conor D. Dirks , Debra L. Roth , Esquire, and James Garay Heelan , Esquire ,
Washington, D.C., for the appellant.
Kimberly Negley , Esquire, St. Louis, Missouri, for the agency.
Stephen F. Butera , Esquire, Clarksburg, West Virgini a, for the agency.
Xan DeMarinis , Esquire, Washington, D.C., for the agency.
BEFORE
Cathy A. Harris , Vice Chairman
Raymond A. Limon , Member
Tristan L. Leavitt , Member
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
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
ORDER
¶1 The agency has filed a petition for review of the compliance initial
decision, whic h granted the appellant’s petition for enforcement and found the
agency in noncompliance with : (1) a February 5, 2016 decision reversing the
appellant’s removal under the Veterans Access, Choice, and Accountability Act
of 2014 (the Choice Act), Pub. L. No. 113 -146, § 707, 128 Stat. 1754, 1798 ; and
(2) an order in a February 16, 2016 supplemental decision directing the agency to
cancel the appellant’s removal, reinstate her to her former position, and provide
her with back pay, interest on back pay, and b enefits. 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 e rroneous 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 e rror 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 c onclude that
the petitioner has not established any basis under section 1201.115 for granting
the petition for re view. Therefore, we DENY the petition for review. Except as
expressly MODIFIED to eliminate consideration during compliance proceedings
of the agency’s arguments regarding the decisions on the merits of the underlying
case, we AFFIRM the compliance initial decision.
BACKGROUND
¶2 Effective January 12, 2016, the agency removed the appellant from her
Senior Executive Service position as Director of the Albany, New York Veterans
Administration Medical Center pursuant to the Choice Act, based on a charge that
3
she failed to take timely action regarding information indicating that a Nursing
Assistant should not be involved in direct patient care. See Weiss v. Department
of Veterans Affairs , MSPB Docket No. NY-0707 -16-0149 -J-1, Appeal File (AF),
Tab 48 at 5 -6, 8-10, 23 -25. On January 16, 2016, the appellant filed a timely
Board appeal challenging her removal.2 AF, Tab 1.
¶3 The Choice Act, as codified at 38 U.S.C. § 713(e)3, provided for expedited
and limited review by the Board of the agency’s action. Specifically, 38 U.S.C.
§ 713(e)(1) provided that, in an appeal of a transfer or removal of a member of
the Senior Executive Service, an administrative judge “shall issue a decision not
later than 21 days after the date of the appeal.” The Choice Act further provide d
that an administra tive judge’s decision was final and was not subject to further
appeal, and that if an administrative judge failed to issue a decision within
21 days, the agency’s transfer or removal decision would be final. 38 U.S.C.
§ 713(e); see 5 C.F.R. § 1210.20 (b).
¶4 On February 5, 2016, 20 days after the appellant filed her Board appeal, the
Chief Administrative Judge for the Board’s New York Field Office issued a brief
decision, which reversed the appellant’s removal. AF, Tab 71, Decision. The
decision stated that the reasons for the reversal would be e xplained in a
subsequent separate formal decision.4 Decision at 2. On February 16, 2016,
31 days after the appellant filed her Board appeal, the Chief Administrative Judge
issued a supplemental decision, in which he concluded that the agency proved the
charge, finding that, although the appellant devoted efforts to reassigning the
2 Subsequently, the appellant waived her right to a hearing. AF, Tab 52 at 1.
3 In this order , we rely on the version of 38 U.S.C. § 713 in effect in 2016 , at the time
of the appellant’s removal an d when the underlying removal appeal was adjudicated.
4 The subsequently issued supplemental decision explained that the Chief
Administrative Judge did not set forth the reasons for reversing the appellant’s removal
in the February 5, 2016 decision due to “a major technical problem associated with the
preparation of this decision and an exhaustive review of the voluminous appeal f ile.”
AF, Tab 73 , Supplemental Decision at 1 n.1.
4
Nursing Assistant to a position that did not involve direct patient care, she failed
to exercise proper oversight and monitoring to ensure that the Nursing Assistant
was either removed from direct patient care or was subject to close supervision
while the reassignment was pending. AF, Tab 73, Supplemental Decision
at 10-15. The Chief Administrative Judge found that the appellant failed to prove
any of her affirmative defenses. Id. at 15 -20. However, he determined that the
penalty of removal was unreasonable under the circumstances, considering,
among other things, the appellant’s 42 years of service, lack of prior discipline,
the nature of the Nursing Assistant’s conduct at is sue, and the appellant’s
mistaken belief that the Nursing Assistant was under constant supervision during
the time period at issue in the charge. Id. at 20 -27. The Chief Administrative
Judge further noted that, days after the Deputy Secretary of the agen cy proposed
the appellant’s removal, he issued her a letter congratulating her on the
“remarkable achievement” of the Albany New York Veterans Administration
Medical Center being recognized as “one of the Highest Performing Hospitals in
Healthcare Quality for 2015.” Id. at 22; AF, Tab 10 at 18. Accordingly, the
Chief Administrative Judge reversed the appellant’s removal, ordered the agency
to cancel the removal, reinstate her to her former position, and provide her with
back pay, interest on back pay, and other benefits. Supplemental Decision.
¶5 On March 4, 2016, the appellant filed a petition for enforcement, in which
she alleged that the agency failed to restore her to duty or otherwise comply with
the decision. Weiss v. Department of Veterans Affairs , MSPB Docket
No. NY-0707 -16-0149 -C-1, Compliance File (CF), Tab 1.5 In response, the
agency argued that it was not required to comply because the February 5, 2016
decision was not a valid decision under the Choice Act, and the February 16,
5 With her petition for enforcement, the appellant submitted evidence that, in reliance
on the February 5, 2016 decision reversing her removal, she had withdrawn the
retirement application she submitted to the agency effective January 12, 2016. CF,
Tab 1 at 14, 25. Pursuant to 5 U.S.C. § 7701 (j), the appellant’s retirement status is not
taken into account in determining whether she had the right to appeal her removal.
5
2016 supplementa l decision, which the agency agreed would otherwise constitute
a valid decision, was issued after the 21 -day deadline set forth in 38 U.S.C.
§ 713(e)(1). CF, Tab 5 at 5 -11, Tab 10. Therefore, the agency contended that,
because the Chief Administrative Judge did not issue a valid final decision within
21 days, the agency’s removal action was final pursuant to 38 U.S.C. § 713 (e)(3).
CF, Tab 5 at 11, Tab 10 at 4, 12.
¶6 On May 26, 2016, the Chief Administrative Judge issued a compliance
initial decision gran ting the appellant’s petition for enforcement.6 CF, Tab 11,
Compliance Initial Decision (CID). He found that the February 5, 2016 decision
reversing the appellant’s removal was a valid decision under the Choice Act, and
that the agency was obligated to c omply with the order in the February 16, 2016
supplemental decision. CID at 5 -14. He further found that the agency was in
noncompliance with the February 5, 2016 decision and the order in the
February 16, 2016 supplemental decision. CID at 15.
¶7 The age ncy has filed a timely petition for review of the compliance initial
decision, and the appellant has responded in opposition to the petition for review.
Petition for Review (PFR) File, Tabs 1, 3.
DISCUSSION OF ARGUME NTS ON REVIEW
Portions of 5 U.S.C. § 713 have been ruled unconstitutional.
¶8 While this compliance matter was pending on review, the agency requested
that the Board st ay further proceedings until the U.S. Court of Appeals for the
Federal Circuit (Federal Circuit) issue d a decision in Helman v. Department of
Veterans Affairs , 856 F.3d 920 , 926 (Fed. Cir. 2017), an appeal in which the
Department of Justice (DOJ) argue d that 38 U.S.C. § 713 (e)(2), the provision of
the Choice Act prohibiting further review of an administrative judge’s decision,
6 On May 27, 2016 , and on June 7, 2016, the Chief Administrative Judge issued two
erratum orders correcting typographical errors in the compliance initial decision. CF,
Tabs 13, 15.
6
was unconstitutional.7 PFR File, Tab 1 at 7-8, 19 -20. The Board granted the
agency’s request in a December 1, 2016 Order . PFR File, Tab 4.
¶9 On May 9, 2017, the Federal Circuit issued its decision finding
unconstitutional the provision s of the Choice Act vesting the authority to make
final decisions with the Board’s administrative judges. Helman , 856 F.3d
at 929-30. The court reasoned that the significant authority to make final
administrative decisions in appeals under the Choice Act could only be made by
officers of the United States —individuals appointed by the President with the
advice and co nsent of the Senate —and not by “a lesser functionar y who is
subordinate to officers of the United States,” such as the Board’s administrative
judge. Id. at 927-30. Although it found the portion s of the Choice Act
precluding Board review of decision s by administrative judges unconstitutional,
the court did not invalidate other portions of the Act, including those requiring
expedited processing. Id. at 936. In sum, the court concluded that parties could
file petitions for review of administrative judges’ decisions made in cases brought
under the Cho ice Act, seeking review by the P residentially appointed and Senate
confirmed Board members.
The Board has authority to consider the agency’s petition for review of the
compliance initial decision .
¶10 As noted above, as enacted, an administrative judge’s decision regarding
the merits of a removal action under the Choice Act could not be challenged
before the Board through the petition for review process. That restrict ion was,
however, struck down by the Federal Circuit. Helman , 856 F.3d at 927 -30. Thus,
we discern no basis for limiting the agency’s ability to file a petition for review
7 DOJ further argue d that, due to the alleged unconstitutionality of section 713(e)(2),
the Federal Circuit should also sever and declare invalid section 713(e)(3), which
provides that a removal or tra nsfer under the Choice Act is final in any case in which an
administrative judge fails to issue a decision within the 21 -day deadline. The court
invalidated the portion of this provision that made the agency’s decision final in the
event an administrative judge was unable to render a decision in 21 days. See Helman ,
856 F.3d at 927, 929 -31 & n.4.
7
of the Chief Administrative Judge’s compliance initial decision. Furthermore,
even absent the Helman decision, the Board’s regulations applicable to the Choice
Act provide that the ordinary procedures for enforcement of final decision s and
orders set forth in 5 C.F.R. part 1201 apply to petitions for enforcement of
decisions under the Choice Act. 5 C.F.R. § 1210.20 (d)(1). Those procedures
include the right of a party to file a petition for review of a compliance initial
decision. 5 C.F.R. § 1201.183 (a)(6)(ii) .
The agency cannot reargue during the compliance proceedings the validity of the
Chief Administrative Judge’s decisions reversing the removal action.
¶11 In response to the appellant’s petition for enforcement, the agency argued
that, although the February 5, 2016 decision was issued within the 21 -day limit
set by 38 U.S.C. § 713(e), the decision did not constitute a proper decision. CF,
Tab 5 at 5 -11, Tab 10 at 4 -12. The agency also argued that the February 16, 2016
supplemental decision was invalid, as it was issued more than 21 days after the
appeal was filed. CF, T ab 5 at 6. In his May 26, 2016 compliance initial
decision, the Chief Administrative Judge considered the agency’s arguments and
found that his February 5, 2016 decision was a valid decision under the Choice
Act. CID at 3-14. The Chief Administrative Ju dge also found that the
February 16, 2016 supplemental decision was legally enforceable and that the
agency was required to comply with the decision. CID at 14. On petition for
review of the compliance initial decision, the agency essentially repeats its
arguments. PFR File, Tab 1 at 8-17.
¶12 If the agency disagreed with the Chief Administrative Judge’s February 5,
2016 decision or February 16, 2016 supplemental decision, it could have filed a
petition for review of those decisions after the Federal Circu it issued Helman on
May 9, 2017, ruling that the Choice Act’s provisions precluding that option were
unconstitutional. See Helman , 856 F.3d at 927 -30. Despite the court’s ruling , the
agency elected not to contest the Chief Administrative Judge’s merits d ecisions
8
through the petition for review process. The agency has offered no explanation
for its failure to do so.
¶13 Having opted not to file a petition for review of the merits decisions, the
agency cannot use the compliance proceeding to challenge the Chi ef
Administrative Judge’s findings on the merits of the action. The Board has long
held that it will not reconsider the merits of a case in a compliance proceeding.
E.g., Henry v. Department of Veterans Affairs , 108 M.S.P.R. 458, ¶ 24 (2008)
(stating that the purpose of an enforcement proceeding is to obtain compliance
with the Board ’s final order and not to revisit the merits of the case ); Coffey v.
U.S. Postal Service , 86 M.S.P.R. 632 , ¶ 2 (2000) (finding that the Board will not
reconsider the merits of a c ase in the context of a compliance action), aff’d ,
10 F. App’x 912 (Fed. Cir. 2001); Ben Espinoza v. Department of the Navy ,
69 M.S.P.R. 679 , 683 (1996) (determining that because a compliance matter is an
addendum to the decision on the merits, and not a reconsideration of the evidence
in a new light, it is not appropriate to reconsider the merits issues in a compliance
proceeding) ; Hocker v. Department of Transportation , 63 M.S.P.R. 497 , 505
(1994) (holding that the Board will not reconsider the merits of an ap peal in an
enforcement proceeding), aff’d , 64 F.3d 676 (Fed. Cir. 1995) (Table). To the
extent that the Chief Administrative Judge considered the agency’s arguments
concerning the merits of the appeal during the compliance proceedings, he should
not have done so.8
8 Even if we were to consider the agency’s arguments on review concerning the merits
decisions, they essentially constitute mere disagreement with the Chief Admi nistrative
Judge’s well -reasoned findings, and do not provide a basis to disturb the compliance
initial decision. See Yang v. U.S. Postal Service , 115 M.S.P.R. 112 , ¶ 12 (2010)
(finding that mere disagreement with the administrative judge’s findings is insufficient
to disturb the initial decision); Crosby v. U.S. Postal Service , 74 M.S.P.R. 98 , 106
(1997) (finding no reason to disturb an administrative judge’s findings when she
considered the evidence as a whole, drew appropriate inferences, and made reasoned
conclusio ns); Broughton v. Department of Health & Human Services , 33 M.S.P.R. 357 ,
359 (1987) (same).
9
The Chief Administrative Judge properly found the agency in noncompliance
with the February 5, 2016 decision and the order in the February 16, 2016
supplemental decision.
¶14 On review, the agency does not dispute that it failed to comply with the
February 5, 2016 decision or the order in the February 16, 2016 supplemental
decision. PFR File, Tab 1. Because we find that the agency was obligated to do
so, we affirm the Chief Administrative Judge ’s finding that the agency is in
noncompliance. Accord ingly, we affirm , as modified above, the compliance
initial decision granting the appella nt’s petition for enforcement.
¶15 Because we have found the agency in noncompliance, the agency is being
directed to file evidence of complia nce with the Clerk of the Board and the
appellant will be afforded the opportunity to respond to that evidence. The
appellant’s petition for enforcement will be referred to the MSPB’s Office of
General Counsel, and, depending on the nature of the submissions, an attorney
with the Office of General Counsel may contact the parties to further discuss the
compliance process. The parties are required to cooperate with that individual in
good faith. Because the purpose of the proceeding is to obtain compliance, when
appropriate, an Off ice of General Counsel attorney or paralegal may engage in ex
parte communications to, among other things, better understand the evidence of
compliance and/or any objections to that evidence. Thereafter, the Board will
issue a final decision fully address ing the agency’s petition for review of the
compliance initial decision9 and setting forth the appellant’s further appeal rights
and the right to attorney fees, if applicable.
ORDER
¶16 We ORDER the agency to submit to the Clerk of the Board, within 20 days
of the date of this Order, satisfactory evidence of compliance with this decision.
9 The subsequent decision may incorpora te the analysis and findings set forth in this
Order.
10
This evidence shall adhere to the requirements set forth in 5 C.F.R.
§ 1201.183 (a)(6)(i), including subm ission of evidence and a detailed narrative
explaining how the appellant’s back pay was calculated with an explanation of all
codes and abbreviations used. The agency’s submission shall demonstrate that it
properly returned the appellant to the status quo ante.
¶17 The Board will assign a new docket number to this matter, NY-0707-16-
0149-X-1. All subsequent filings should refer to the new docket number set forth
above and should be faxed to (202) 653 -7130 or mailed to the following address:
Clerk of the Boa rd
U.S. Merit Systems Protection Board
1615 M Street, N.W.
Washington, D.C. 20419
Submissions may also be made by electronic filing at the MSPB’s e -Appeal site
(https://e -appeal.mspb.gov) in accordance with the Board’s regulation at 5 C.F.R.
§ 1201.14 .
¶18 The appellant may respond to the agency’s evidence of compliance within
20 days of the date of service of the agency’s submission. 5 C.F.R.
§ 1201.183 (a)(8). If the appellant does not respond to the agency’s evidence of
compliance, the Board may assume that the appellant is satisfied with the
agency’s actions and dismiss the petition for enforcement .
¶19 The agency is reminded that, if it fails to provide adequate evidence of
compliance, the responsible agency official and the agency’s representative may
be required to appear before the General Counsel of the Merit Systems Protection
Board to show cause why the Board should not impose sanctions for the agency’s
noncompliance in this case. 5 C.F.R. § 1201.183 (c). The Board’s authority to
impose sanctions includes the authority to order that the responsible agency
official “shall not be entitled to receive payment for service as an employee
during any period that the order has not been complied with.” 5 U.S.C.
§ 1204 (e)(2)(A).
11
¶20 This Order does not constitute a final order and is therefore not subject to
judicial review under 5 U.S.C. § 7703 (a)(1). Upon the Board’s final resolution of
the remaining issues in this petition for enforcement , a final order shall be issued
which shall be subject to judicial review.
FOR THE BOARD:
Washington, D.C. /s/ for
Jennifer Everling
Acting Clerk of the Board | WEISS_LINDA_W_NY_0707_16_0149_C_1_ORDER_1933781.pdf | 2022-06-15 | null | NY-0707-16-0149-C-1 | NP |
4,343 | https://www.mspb.gov/decisions/nonprecedential/DOS_SANTOS_LUIZ_G_NY_315H_17_0094_I_1_FINAL_ORDER_1933853.pdf | UNITED STATES OF AME RICA
MERIT SYSTEMS PROTEC TION BOARD
LUIZ G. DOS SANTOS,
Appellant,
v.
DEPARTMENT OF STATE,
Agency.
DOCKET NUMBER
NY-315H -17-0094 -I-1
DATE: June 15, 2022
THIS FINAL ORDER IS NONPRECEDENTIAL1
Devon M. Overstreet , Brooklyn, New York, for the appellant.
Marianne Perciaccante , 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 simply states that he is requesting review of the initial decision.
Generally, we gr ant petitions such as this one only in the following
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
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
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 th e law to the facts of the case; the administrative
judge’s rulings during either the course of the appeal or the initial decision
were not consistent with required procedures or involved an abuse of discretion,
and the resulting error affected the outcome of the case; or new and material
evidence or legal argument is available that, despite the petitioner’s due
diligence, was not available when the record closed. Title 5 of the Code of
Federal Regulations, section 1201.115 ( 5 C.F.R. § 1201.115 ). After fully
considering the filings in this appeal, we conclude that the petitioner has not
established any basis under section 1201.115 for granting the petition for review.
Therefore, we DENY the petition for review and AFFIRM the initial decision,
which is now the Board’s final decision. 5 C.F.R. § 1201.113 (b).
NOTICE OF APPEAL RIGH TS2
You may obtain review of this final decision. 5 U.S.C. § 7703 (a)(1). By
statute, the nature of your claims determines the time limit for seeking such
review and the approp riate forum with which to file. 5 U.S.C. § 7703 (b).
Although we offer the following summary of available appeal rights, the Merit
Systems Protection Board does not provide legal advice on which o ption is most
appropriate for your situation and the rights described below do not represent a
statement of how courts will rule regarding which cases fall within their
jurisdiction. If you wish to seek review of this final decision, you should
immediatel y review the law applicable to your claims and carefully follow all
filing time limits and requirements. Failure to file within the applicable time
limit may result in the dismissal of your case by your chosen forum.
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
Please read carefully each of the th ree main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703 (b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the co urt at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.u scourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appe al to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
4
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision —including a disposition of you r discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703 (b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. ____ , 137 S. Ct. 1975 (2017) . If you have a
representative in this case, and your representative receives this decision before
you do, then you must file with the district court no later than 30 calendar days
after your representative receives this decision. If the action involves a claim of
discrimination based on race, color, religion, sex, national origin, or a disabling
condition, you may be entitled to representation by a court -appointed lawyer and
to waiver of any requirement of prepayment of fees, costs, or other security. See
42 U.S.C. § 2000e -5(f) and 29 U.S.C. § 794a .
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702 (b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702 (b)(1 ). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for rev iew to the EEOC by regular U.S. mail, the
address of the EEOC is:
5
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhan cement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302 (b)(8) or
other protected activities listed in 5 U.S.C. § 2302 (b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
disposition of allegations of a prohibited personnel practice described in
section 2302(b) other than practices described in section 2302(b)(8), or
2302(b)(9)(A)(i), (B), (C), or (D),” then you may file a petition for judicial
review either with the U.S. Court of Appeals for the Federal Circuit or any court
of appeals of competen t jurisdiction.3 The court of appeals must receive your
petition for review within 60 days of the date of issuance of this decision.
5 U.S.C. § 7703 (b)(1)(B).
3 The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial 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 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
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 | DOS_SANTOS_LUIZ_G_NY_315H_17_0094_I_1_FINAL_ORDER_1933853.pdf | 2022-06-15 | null | NY-315H-17-0094-I-1 | NP |
4,344 | https://www.mspb.gov/decisions/nonprecedential/TAYLOR_CARRIE_A_DA_844E_21_0056_I_1_FINAL_ORDER_1933955.pdf | UNITED STATES OF AME RICA
MERIT SYSTEMS PROTEC TION BOARD
CARRIE A. TAYLOR,
Appellant,
v.
OFFICE OF PERSONNEL
MANAGEMENT,
Agency.
DOCKET NUMBER
DA-844E -21-0056 -I-1
DATE: June 15, 2022
THIS FINAL ORDER IS NONPRECEDENTIAL1
Cody Carmichael , Esquire, and Ryan Aubrey , Esquire, Dallas, Texas, for
the appellant.
Jo Bell , Washington, D.C., for the agency.
BEFORE
Cathy A. Harris , Vice Chair man
Raymond A. Limon, Member
Tristan L. Leavitt, Membe r
FINAL ORDER
¶1 The Office of Personnel Management (OPM) has filed a petition for review
of the initial decision, which reversed its reconsideration decision denying the
appellant’s application for disability retirement benefits under the Federal
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or dis tinguish them in any fu ture decisions. In contrast,
a precedential decision issued as an Opinion and 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
Employees’ Retirement System. On petition for review, OPM argues that the
appellant failed to establish that her medical condition s were disabling and
expected to continue for at least 1 year from the date of her disability retirement
application . OPM also argues that the provided accommodation of full -time
telework allowed the appellant to adequately manage her migraine condition .
Generally, we grant petitions such as this one only in the following
circumstances: the initial decision contains erroneous findings of material fact;
the initial decision is based on an erroneous interpretation of statute or regulation
or the erroneous application of the law to the facts of the case; the administrative
judge’s rulings during either the course of the appeal or the initi al decision
were not consistent with required procedures or involved an abuse of discretion,
and the resulting error affected the outcome of the case; or new and material
evidence or legal argument is available that, despite the petitioner’s due
diligence, was not available when the record closed. Title 5 of the Code of
Federal Regulations, section 1201.115 ( 5 C.F.R. § 1201.115 ). After fully
considering the filings in this appeal, we co nclude that the petitioner has not
established any basis under section 1201.115 for granting the petition for review.
¶2 Regarding OPM’s argument that the Department of Veterans Affairs
assessed the appellant’s Post -Traumatic Stress Disorder (PTSD) and foun d that it
was not disabling, the records OPM cites are merely a diagnostic exam ination
summary and questionnaire and do not make any specific findings concerning
whether the appellant’s PTSD condition was disabling. Petition for Review
(PFR) File, Tab 1 a t 6-7; see Initial Appeal File (IAF), Tab 13 at 36-65. The
administrative judge ultimately concluded that the provided medical evidence
along with the appellant’s subjective evidence of disability demonstrate d that her
PTSD condition is disabling and incompatible with useful and efficient service or
retention in her V eterans Service Represent ative position , and we see no reason to
disturb that finding on review . See IAF, Tab 22, Initial Decision (ID) at 6 -10.
3
¶3 Regarding OPM’s argument that the admini strative judge improperly relied
on an independent medical examination that postdated the appellant’s disability
retirement application, as the administrative judge correctly noted, medical
evidence that postdates a disability retirement applicant’s separa tion may
nevertheless be probative of prior disability where there is a proximity in time or
other evidence that establishes a link to the relevant time period, as is the case
here. Reilly v. Office of Personnel Management , 571 F.3d 1372 , 1382 (Fed. Cir.
2009) ; see ID at 9 -10; IAF, Tab 13 at 4 -7. There is also no merit to OPM’s
assertion that the appellant’s conditions are not expected to contin ue for at least
1 year from the date of her disability retirement application. PFR File, Tab 1
at 6-7. As the administrative judge observed, the appellant filed for disability
retirement in August 2019, and two of her physicians recommended against her
continued employment at her former agency due to the effect it was having on her
conditions in May 2020 and October 2020 —more than 1 year after the date of the
appellant’s disability retirement application. See ID at 11; IAF, Tab 13 at 7 -8.
¶4 Finally, we a lso find no error in the administrative judge’s finding that
accommodation of the appellant’s conditions was unreasonable. See ID at 11 -12.
As the administrative judge observed, the provided accommodation of full -time
telework was ineffective because it did not change the nature of the appellant’s
job duties that triggered her PTSD and did not change the fact that she frequently
had to take time off work when she suffered from a migraine attack. See
ID at 11-12; IAF, Tab 14 at 56 -61. Additionally, OPM has not offered any
evidence to support its bare assertion that the full -time telework accommodation
permitted the appellant to manage her migraine condition, and the record belies
that assertion. PFR File, Tab 1 at 8; see IAF, Tab 20 at 17 -20 (appellant’s sworn
affidavit stating that her migraines occur “at least once a week,” and often more
frequently than that, and that they last “for around four to six hours, if not
longer,” during which she cannot perform her job duties); Tab 13 a t 7
4
(medical opinion findings from the appellant’s physician reflecting the same);
Tab 14 at 67-69.
¶5 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).
¶6 We ORDER OPM to grant the appellant’s application for disability
retirement benefits. OPM must complete this action no later than 20 days after
the date of this decision.
¶7 We also ORDER OPM to te ll the appellant promptly in writing when it
believes it has fully carried out the Board’s Order and of the actions it has taken
to carry out the Board’s Order. We ORDER the appellant to provide all necessary
information OPM requests to help it carry out the Board’s Order. The appellant,
if not notified, should ask OPM about its progress. See 5 C.F.R. § 1201.181 (b).
¶8 No later than 30 days after OPM tells the appellant it has fully carri ed out
the Board’s Order, the appellant may file a petition for enforcement with the
office that issued the initial decision on this appeal if the appellant believes that
OPM did not fully carry out the Board’s Order. The petition should contain
specific reasons why the appellant believes OPM has not fully carried out the
Board’s Order, and should include the dates and results of any communications
with OPM. See 5 C.F.R. § 1201.182 (a).
NOTICE TO THE APPELL ANT REGARDING
YOUR RIGHT TO REQUES T
ATTORNEY FEES AND CO STS
You may be entitled to be paid by the agency for your reasonable attorney
fees and costs. To be paid, you must meet the requirements set out at title 5 of
the United States Co de (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.
5
You must file your motion for attorney fees and costs with the office that issued
the initial decision on your appeal.
NOTICE OF APPEAL RIG 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
filing time limits and requirements. Failure to file within the applicable time
limit may result in the dismissal of your case by your chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to 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).
2 Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise which option is most appropriate in any matter.
6
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal 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
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
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 information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702 (b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702 (b)(1 ). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for rev iew to the EEOC by regular U.S. mail, the
address of the EEOC is:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302 (b)(8) or
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 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.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 j udicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional informa tion about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of P ractice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
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.
9
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
Contact information for the courts of appeals can be found at their
respective websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
FOR THE BOARD:
Washington, D.C. /s/ for
Jennifer Everling
Acting Clerk of the Board | TAYLOR_CARRIE_A_DA_844E_21_0056_I_1_FINAL_ORDER_1933955.pdf | 2022-06-15 | null | DA-844E-21-0056-I-1 | NP |
4,345 | https://www.mspb.gov/decisions/nonprecedential/CHECKLEY_THERESA_L_AT_1221_16_0454_W_1_FINAL_ORDER_1933369.pdf | UNITED STATES OF AME RICA
MERIT SYSTEMS PROTEC TION BOARD
THERESA L. CHECKLEY,
Appellant,
v.
DEPARTMENT OF VETERA NS
AFFAIRS,
Agency.
DOCKET NUMBER
AT-1221 -16-0454 -W-1
DATE: June 14, 2022
THIS FINAL ORDER IS NONPRECEDENTIAL1
Theresa L. Checkley , Pearl, Mississippi, pro se.
Johnston B. Walker , Jackson, Mississippi, for the agency.
BEFORE
Cathy A. Harris , Vice Chairman
Raymond A. Limon , Member
Tristan L. Leavitt , Member
FINAL ORDER
¶1 The appellant has filed a petition for review of the initial decision, which
dismissed her individual right of action (IRA) appeal as settled. Generally, we
grant petitions such as this one only in the following circumstances: the initial
decision contai ns erroneous findings of material fact; the initial decision is based
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
requ ired to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117 (c).
2
on an erroneous interpretation of statute or regulation or the erroneous application
of the law to the facts of the case; the administrative judge’s rulings during either
the course of t he appeal or the initial decision were not consistent with required
procedures or involved an abuse of discretion, and the resulting error affected the
outcome of the case; or new and material evidence or legal argument is available
that, despite the petit ioner’s due diligence, was not available when the record
closed. Title 5 of the Code of Federal Regulations, section 1201.115 ( 5 C.F.R.
§ 1201.115 ). After fully considering the filings in this appeal, we conclude that
the petitioner has not established any basis under section 1201.115 for granting
the petition for review. Therefore, we DENY the petition for review 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 allegations of agency
noncompliance with the settlement agreement to the Atlanta Regional Office for
docketing as a petition for enforcement.
DISCUSSION OF ARGUME NTS ON REVIEW
¶2 The appellant filed the instant IRA appeal alleging the agency retaliated
against her for making certain protected disclosure s. Initial Appeal File (IAF),
Tab 1. On November 9, 2016, the parties executed a settlement agreement
resolving the IRA appeal , which they submitted to the administrative judge to
enter into the record for enforcement purposes. IAF, Tab 34 at 4-8. Pursuant to
the settlement agreement, the appellant agr eed to withdraw her appeal, and the
agency agreed , among other things, to ensure that her ladder promotion was
correctly reflected on a Standard Form (SF) 50, that she would receive a
within -grade increase effective 1 year af ter her promotion, and that it would pay
her any resulting back pay with interest . Id. at 4-7.
¶3 In a November 10, 2016 initial decision, the administrative judge found that
the settlement agreement was lawful on its face and that it reflected that the
parties understood its terms and entered into it voluntarily. IAF, Tab 35, Initial
3
Decision (ID). She further found that the Board has jurisdiction over the
appellant’s appeal. ID at 2. Therefore, p ursuant to the parties’ request , the
administrative judge accepted the settl ement agreement into the record for
purposes of enforcement and d ismissed the appeal as settled. Id.
¶4 On November 30, 2016, the appellant filed a “Response to Request for
Reopening” asking the Board to vacate the settlement agreement on the basis of
alleged misrepresentations by the agency and arguing th at the agency failed to
correct her SF -50 and failed to pay her the appropriate amount of back pay and
interest . Petition for Review (PFR) File, Tab 1 at 3. The Clerk of the Board
docketed the appellant’ s submission as a petition for review of the initial
decision. PFR File, Tab 2. Several days later, the appellant submitted a
supplemental pleading , which the Clerk of the Board accepted into the record,
alleging that the administrative judge and the Off ice of Special Counsel (OSC)
misconstrued her disclosures and asserting again that the agency has not provided
her a corrected SF -50.2 PFR File, Tab 3 at 4 -5, Tab 4. The agency responded in
opposition to the appellant’s petition for review, and the appel lant replied . PFR
File, Tabs 5 -6. In her reply, the appellant argues that the agency breached the
settlement agreement and contends that she settled her appeal because the
administrative judge was “not properly reviewing all evidence” and excluded
“perti nent witness [sic] and involved parties from my case due to incorrect
disclosures she had before her.” PFR File, Tab 6 at 3, 5-6.
¶5 A settlement agreement is a contract between the parties and its terms are to
be interpreted as a question of contract law. Wofford v. Department of Justice ,
2 The appellant also submitted a December 10, 2012 letter from the Defense Finance
and Accounting Service regarding an overpayment it was seeking to collect. PFR File,
Tab 3 at 6 -10. Generally, the Board will not consider evidence submitted for the first
time on review absent a showing that it is both new and material. Okello v. Office of
Personnel Management , 112 M.S.P.R. 563 , ¶ 10 (2009) ; 5 C.F.R. § 1201.115 (d). Here,
although the overpayment letter is new, it is irrelevant to the validit y of the settlem ent
agreement. Therefore, we do not consider it.
4
115 M.S.P.R. 468 , ¶ 6 (2010). An appellant may challenge the validity of a
settlement agreement if she believes it was unlawful, involuntary, or the result of
fraud or mutual mistake. Id. Even if invalidity was not apparent a t the time of
settlement, the agreement must be set aside if it is subsequently shown by new
evidence that the agreement was tainted with invalidity by fraud or
misrepresentation . Id. However, the party challenging the validity of a
settlement agreement bears a heavy burden of showing a basis for invalidation.
Id.
¶6 Here, the appellant appears to allege that the settlement agreement is invalid
based on misrepresentation by the agency because it has not pr ovided her a
corrected SF -50 or the appropriate amou nt of back pay and interest pursuant to
the settlement agreement. PFR File, Tab 1 at 3, Tab 6 at 6. H owever, the
agency’s alleged noncompliance with the settlement agreement, even if true, is
insufficient on its own to establish that the agency made any misrepresentation in
the course of negotiating the settlement agreement . See Wofford , 115 M.S.P.R.
468, ¶ 8. Likewise, the appell ant’s allegations that OSC misconstrued h er
disclosures and that the administrative judge somehow erred in the handling of
her appeal have no bearing on the validi ty of the settlement agreement . Even if
true, these allegations do not suggest that the settlement agreement is unlawful,
involuntary, or the result of fraud or mutual mistake . Id. In sum, t here is no
evidence to support the appellant’ s bare assertions of invalidity, and we find no
basis to invalidate the agreement.
¶7 The appellant’s allegat ions that the agency failed to comply with the
settlement agreement must be raised in the first instance before the regional office
that accepted the agreement into the record. Harris v. U.S. Postal Service ,
59 M.S.P.R. 222 , 225 (1993). Therefore, we forward the appellant’s allegations
of noncompliance to the regional o ffice for adjudication as a petition for
enforcement. Id.; 5 C.F.R. § 1201.182 (a).
5
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
filing time limits and requirements. Failure to file within the applicable time
limit may result in the dismissal of your case by your chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703 (b)(1)(A).
If you submit a petition for 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.
6
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional informatio n about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Prac tice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Prote ction Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703 (b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. ____ , 137 S. Ct. 1975 (2017) . If you have a
representative in this case, and your representative receives this decision before
you do, then you must file with the district court no later than 30 calendar days
after your representative receives this decision. If the action involves a claim of
discrimination based on race, color, religion, sex, national origin, or a disabling
condition, you may be entitled to representation by a court -appointed lawyer and
7
to waiver of any requirement of prepayment of fees, costs, or other security. See
42 U.S.C. § 2000e -5(f) and 29 U.S.C. § 794a .
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702 (b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702 (b)(1 ). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for rev iew to the EEOC by regular U.S. mail, the
address of the EEOC is:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhan cement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302 (b)(8) or
other protected activities listed in 5 U.S.C. § 2302 (b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
8
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).
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D .C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
4 The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of a ppeals 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 | CHECKLEY_THERESA_L_AT_1221_16_0454_W_1_FINAL_ORDER_1933369.pdf | 2022-06-14 | null | AT-1221-16-0454-W-1 | NP |
4,346 | https://www.mspb.gov/decisions/nonprecedential/CHRISTMAN_CARRIE_M_NY_315H_17_0086_I_1_FINAL_ORDER_1933502.pdf | UNITED STATES OF AME RICA
MERIT SYSTEMS PROTEC TION BOARD
CARRIE M. CHRISTMAN,
Appellant,
v.
DEPARTMENT OF THE AR MY,
Agency.
DOCKET NUMBER
NY-315H -17-0086 -I-1
DATE: June 14, 2022
THIS FINAL ORDER IS NONPRECEDENTIAL1
Harvey P. Sanders , Esquire, Cheektowa ga, New York, for the appellant.
Daniel S. Lacy , North Chicago, Illinois, for the agency.
BEFORE
Cathy A. Harris , Vice Chairman
Raymond A. Limon , Member
Tristan L. Leavitt , Member
FINAL ORDER
¶1 The appellant has filed a petition for review of the initial de cision, which
dismissed her probationary termination appeal for lack of jurisdiction. Generally,
we grant petitions such as this one only in the following circumstances: the
initial decision contains erroneous findings of material fact; the initial decis ion is
1 A nonprecedenti al order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or d istinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117 (c).
2
based on an erroneous interpretation of statute or regulation or the erroneous
application of the law to the facts of the case; the administrative judge’s rulings
during either the course of the appeal or the initial decision were not consistent
with required procedures or involved an abuse of discretion, and the resulting
error affected the outcome of the case; or new and material evidence or legal
argument is available that, despite the petitioner’s due diligence, was not
available when the record closed. Title 5 of the Code of Federal Regulations,
section 1201.115 ( 5 C.F.R. § 1201.115 ). After fully considering the filings in this
appeal, we conclude that the petitioner has not established any basis under section
1201.115 for granting the petition for review. Therefore, we DENY the petition
for review and AFFIRM the initial decision, which is now the Board’s final
decision. 5 C.F.R. § 1201.113 (b).
BACKGROUND
¶2 Effective April 15, 2016 , the agency termi nated the appellant from her Test
Coordinator position during her probationary period. Initial Appeal File (I AF),
Tab 1 at 8. She filed a Board appeal alleg ing that her termination was due to
discrimination based on her age, perceived disability, reprisal, and “her political
claim.” Id. at 4. On February 27, 2017, the administrative judge issued an
acknowledgment order setting forth the law applicable to th e question of the
Board ’s jurisdiction and ordered the appellant to file evid ence and argument
showing that her appeal was within the Board’ s jurisdiction by March 14, 2017.
IAF, Tab 2 at 2 -5. The administrative judge also afforded the agency until
March 24, 2017 , to file a response on the jurisdictional issue. Id. at 5. The
appellant did not respond to the administrative judge’s order. On March 20,
2017, the agency submitted its response , arguing that the appellant failed to raise
nonfrivolous allegat ions of B oard jurisdiction. IAF, Tab 4 at 5 -7.
¶3 On March 28, 2017, w ithout holding the appellant’s requested hearing, the
administrative judge issued an initial decision, dismissing the appeal for lack of
3
jurisdiction. IAF, Tab 5, Initial Decision (ID). The administrative judge found
that the appellant conceded that she was terminated during her probationary
period and failed to raise a nonfrivolous allegation that her termination was due
to partisan political reasons or marital status discrimination or t hat h er
termination was based on pre appointment reasons and was not effected in
accordance with the procedural requirements of 5 C.F.R. § 315.805 . ID at 4 -5.
In particul ar, the adminis trative judge found that the appellant’s bare assertion
that she was discriminated against on the basis of her “political claim ,” without
more, failed to amount to a nonfrivolous allegation. ID at 5 n.5.
¶4 On March 29, 2017, one day after the issuance of th e initial decision, the
appellant submitted a response in which she argued that the initial decision was
prematurely issued and she should have been afforded 10 days to respond to the
agency’s March 20, 2017 motion to dismiss. IAF, Tab 7. She further arg ued that
she was not afforded an opportuni ty to address her allegation on her appeal form
that she was terminated based on partisan political reasons and submitted an
affidavit setting forth facts in support of such a claim. Id. Because the
appellant’s s ubmission was received after the initial decision was issued , the
administrative judge declined to consider it and informed the appellant that, if she
was dissatisfied with the initial decision, she could file a petition for review.
IAF, Tab 8.
¶5 The appell ant has filed a petition for review in which she argues that the
administrative judge erred in failing to consider her response. Petition for
Review (PFR) File, Tab 1. She maintains that she should have been afforded
10 days to respond to the agency’s mo tion and, thus, the initial decision was
prematurely issued prior to the deadline for her response . Id. We disagree and
find that the administrative judge did not err in issuing the initial decision on
March 28, 2017. The acknowledgment order afforded the appellant until
March 14, 2017, to submit evidence and argument establishing Board jurisdiction,
afforded the agency until March 24, 2017, to file a response on the jurisdictional
4
issue , and indicated that the final date for receipt of submission s by th e parties on
the jurisdictional issue was March 24, 2017.2 IAF, Tab 2 at 5. Thus, i n light of
the clear language in the acknowledgment order setting forth the applicable
deadlines, we find unpersuasive the appellant’s argument that she should have
had 10 days to respond to the agency’s motion to dismiss. Although the
acknowledgment order also indicated that, unless otherwise specified , a response
to a motion must be filed within 10 calendar days , here, the jurisdictiona l
deadlines were clearly and separa tely specified. Id. at 5, 7 . The appellant, who
was represented by counsel, simply failed to file a jurisdictional response within
the required deadline.
¶6 We similarly find unpersuasive the appellant’s argument that the
administrative judge should have c onsidered her untimely response pursuant to
5 C.F.R. § 1201.59 . PFR File, Tab 1 at 5. Under 5 C.F.R. § 1201.59 (c), once the
record closes, additional evidence or argument or dinarily will not be accepted
unless t he party submitting it shows that the evidence or argument was not readily
available before the record closed or it is in rebuttal to new evidence or argument
submitted by the other party just before the record closed. The appellant
contends that her response should have been considered because it was not clear
that her appeal would be dismissed for lack of jurisdiction and no argument was
raised in support of dismissal until the agency submitted its response. Id. at 5-6.
¶7 We disagree. The administrative judge’s order clearly informed the
appellant that her appeal would be dismissed unless she raised nonfrivolous
allegations of Board jurisdiction. IAF, Tab 2 at 5. The appellant does not allege
that the information contained in her untimely March 29, 2017 response
constitutes new and material evidence that was not readily available before the
record closed on March 24, 2017 . Additionally, we find that her March 29, 2017
2 The order also noted that, notwithstanding the close of the record, pursuant to 5 C.F.R.
§ 1201.59 (c), a party must be allowed to respond to n ew evidence or argument
submitted by the other party just before the close of the record. IAF, Tab 2 at 5.
5
response does not constitute a rebuttal to new or material evidence or argument
submitted by the agency. In its response, the agency simply summarized the
applicable law as set forth in the acknowledgment order and argued that the
appellant failed to meet her burden of raising nonfrivolous allegations of Board
jurisdiction. IAF, Tab 4 at 5 -7. The appellant’s March 29, 2017 response set
forth, for the first time, her arguments in support of her claim that her termination
was du e to partisan p olitical reasons. IAF, Tab 7. Thus, it constitutes an
untimely jurisdictional response that should have been filed by March 14, 2017.
For these reasons, we find that the administrative judge did not abuse her
discretion in declining to consider the appe llant’s untimely response. See Gavette
v. Department of the Treasury , 44 M.S.P.R. 166 , 174 (1990) (stating that the
deadline for clos ing the record is within the sound discretion of the administrative
judge so long as the procedures used comport with the basic requirements of
fairness and notice). Similarly, we decline to consider the appellant’s response
for the first time on review. See Banks v. Department of the Air Force ,
4 M.S.P.R. 268 , 271 (1980); Avansino v. U.S. Postal Service , 3 M.S.P.R. 211 , 214
(1980).
¶8 Accordingly, we affirm the initial decision, dismissing the appeal for lack
of jurisdiction.
NOTICE OF APPEAL RIG HTS3
You may obtain review of this final decisio n. 5 U.S.C. § 7703 (a)(1). By
statute, the nature of your claims determines the time limit for seeking such
review and the appropriate forum with which to file. 5 U.S.C. § 7703 (b).
Although we offer the following summary of available appeal rights, the Merit
Systems Protection Board does not provide legal advice on which option is most
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
appropriate for your situation and the rights descr ibed below do not represent a
statement of how courts will rule regarding which cases fall within their
jurisdiction. If you wish to seek review of this final decision, you should
immediately review the law applicable to your claims and carefully follow a ll
filing time limits and requirements. Failure to file within the applicable time
limit may result in the dismissal of your case by your chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one app lies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703 (b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the F ederal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
7
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants tha t
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court (not the
U.S. Court of Appeals for the Federal Circuit), within 30 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 cou rt no later than 30 calendar days
after your representative receives this decision. If the action involves a claim of
discrimination based on race, color, religion, sex, national origin, or a disabling
condition, you may be entitled to representation by a court -appointed lawyer and
to waiver of any requirement of prepayment of fees, costs, or other security. See
42 U.S.C. § 2000 e-5(f) and 29 U.S.C. § 794a .
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (E EOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702 (b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702 (b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
8
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302 (b)(8) or
other protected activities listed in 5 U.S.C. § 2302 (b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for revi ew “raises no challenge to the Board’s
disposition of allegations of a prohibited personne l practice described in
section 2302(b) other than practices described in section 2302(b)(8), or
2302(b)(9)(A)(i), (B), (C), or (D),” then you may file a petition for judicial
review either with the U.S. Court of Appeals for the Federal Circuit or any court
of appeals of competent jurisdiction.4 The court of appeals must receive your
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 Appea ls
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115 -195,
132 Stat. 1510.
9
petition for review within 60 days of the date of issuance of this decision.
5 U.S.C. § 7703 (b)(1)(B).
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for t he Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by an y 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 | CHRISTMAN_CARRIE_M_NY_315H_17_0086_I_1_FINAL_ORDER_1933502.pdf | 2022-06-14 | null | NY-315H-17-0086-I-1 | NP |
4,347 | https://www.mspb.gov/decisions/nonprecedential/BAILEY_DEFORREST_P_AT_844E_16_0231_I_2_FINAL_ORDER_1933551.pdf | UNITED STATES OF AME RICA
MERIT SYSTEMS PROTEC TION BOARD
DEFORREST P. BAILEY,
Appellant,
v.
OFFICE OF PERSONNEL
MANAGEMENT,
Agency.
DOCKET NUMBER
AT-844E -16-0231 -I-2
DATE: June 14, 2022
THIS FINAL ORDER IS NONPRECEDENTIAL1
Kevin A. Graham , Esquire, Liberty, Missouri, for the appellant.
Linnette Scott , 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
denying his disability retirement application under the Federal Employees’
Retirement System (FERS). Generally, we grant petitions such as this one only in
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
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 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 ap plication 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 affect ed the outcome of the case; or new and
material evidence or legal argument is available that, despite the petitioner’s due
diligence, was not available when the record closed. Title 5 of the Code of
Federal Regulations, section 1201.115 ( 5 C.F.R. § 1201.115 ). After fully
considering the filings in this appeal, we conclude that the petitioner has not
established any basis under section 1201.115 for granting the petition for review.2
2 Following the close of the record on review, the appellant filed a motion for leave to
submit additional documents, including a Social Security Administration (SSA)
determination granting the appellant disability benefits. Petition for Review (PFR) File,
Tab 5. The Board subsequently granted the appellant’s motion. PFR File, Tab 7. We
have considered the additional evidence filed by the appellant, and we find that it does
not provide a basis for disturbing the initial decision . PFR File, Tab 8. We
acknowledge that the Board must consider an award of Social Security disability
benefits in determining an individual’s eligibility for FERS disability retirement.
Trevan v. Office of Personnel Management , 69 F.3d 520 , 526 (Fed. Cir. 1995) . Here,
the SSA found t hat the appellant became disabled in March 2016, approximately
16 months after his 2014 resignation from t he Federal service. PFR File, Tab 8 at 19;
Initial Appeal File, Tab 6 at 96 -97. Thus, we find that the SSA’s award is not a
significant factor in determining whether the appellant met his burden of proving
entitlement to disability retirement under FERS. See Pettye v. Office of Personnel
Management , 83 M.S.P.R. 260 , ¶ 9 (1999) (finding that, because the SSA’s favorable
determination was limited to a period of time wh en the appellant was no longer
employed in a position subject to FERS, it was not a significant factor in determining
whether the appellant was entitled to disability retirement under FERS) . The
appellant’s medical documents filed with the SSA determinati on letter are also entitled
to little weight because they are dated 4 t o 5 years after the appellant’s resignation and
there is a lack of evidence linking the medical documentation to the appellant’s
condition while he was employed in a position subject to FERS. PFR File, Tab 8; see
Reilly v. Office of Personnel Management , 571 F.3d 1372 , 1382 (Fed. Cir. 2009)
(explaining that post -separation medical evidence may be probative of a prior disability
when proximity in time, lay testimony, or some other evidence provides the requisite
link to the relevant time period).
3
Therefore, we DENY the petition for review and AFFIRM the initial decision,
which is now the Board’s final decision. 5 C.F.R. § 1201.113 (b).
NOTICE OF APPEAL RIG HTS3
You may obtain r eview of this final decision. 5 U.S.C. § 7703 (a)(1). By
statute, the nature of your claims determines the time limit for seeking such
review and the appropriate forum with which to file. 5 U.S.C. § 7703 (b).
Although we offer the following summary of available appeal rights, the Merit
Systems Protection Board does not provide legal advice on which option is most
appropriate for your situa tion and the rights described below do not represent a
statement of how courts will rule regarding which cases fall within their
jurisdiction. If you wish to seek review of this final decision, you should
immediately review the law applicable to your clai ms and carefully follow all
filing time limits and requirements. Failure to file within the applicable time
limit may result in the dismissal of your case by your chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rul e, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703 (b)(1)(A).
3 Since the issuance of the initial decision in t his matter, the Board may have updated
the notice 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 t he court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Fe deral Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any att orney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision —including a disposition of you r discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703 (b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. ____ , 137 S. Ct. 1975 (2017). If you have a
representative in this case, and your 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
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 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:
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 Protectio n
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302 (b)(8) or
other protected activities listed in 5 U.S.C. § 2302 (b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
disposition of allegations of a prohibited personnel practice descri bed in section
2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i),
(B), (C), or (D),” then you may file a petition for judicial review either with the
U.S. Court of Appeals for the Federal Circuit or any court of appeals of
competent jurisdiction.4 The court of appeals must receive your petition for
review within 60 days of the date of issuance of this decision. 5 U.S.C.
§ 7703 (b)(1)(B).
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
4 The original statutory provision that provided for judici al review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for jud icial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court 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 | BAILEY_DEFORREST_P_AT_844E_16_0231_I_2_FINAL_ORDER_1933551.pdf | 2022-06-14 | null | AT-844E-16-0231-I-2 | NP |
4,348 | https://www.mspb.gov/decisions/nonprecedential/WATSON_ANDRE_DC_0752_16_0549_I_1_REMAND_ORDER_1932853.pdf | UNITED STATES OF AME RICA
MERIT SYSTEMS PROTEC TION BOARD
ANDRE WATSON,
Appellant,
v.
GENERAL SERVICES
ADMINISTRATION,
Agency.
DOCKET NUMBER
DC-0752 -16-0549 -I-1
DATE: June 13, 2022
THIS ORDER IS NONPRECEDENTIAL1
Victoria Williamson , Esquire, Washington, D.C., for the appellant.
Daniel D’Isidoro , 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 appeal as untimely filed by 1 day without good cause
shown . For the reasons discussed below, we GRANT the appellant’s petition for
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
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
review , REVERSE the initial decision, and REMAND the case to the regional
office for further adjudication in accordance with this Remand Order.
BACKGROUND
¶2 As described in the initial decision, the appellant was removed from his
Building Manager position for medical inability to p erform the duties of his
position , effective March 29, 2016 . Initial Appeal File (IAF), Tab 4 at 26,
Tab 12, Initial Decision (ID) at 2, 5.2 On March 25, 2016, t he agency delivered a
copy of its decision letter to the rehabilitation facility where the ap pellant was
living . ID at 3-4.3 The appellant filed a Board appeal of his removal on April 29,
2016. ID at 3, 5.
¶3 The agency moved to dismiss the appeal as untimely filed. IAF, Tab 4
at 4‑6. The administrative judge issued a timeliness order informing the
appellant that his appeal may be untimely filed, apprising him of his burden
regarding timeliness, and ordering him to file evidence and argument on the
timeliness issue . IAF, Tab 6. The appellant , through his attorney, responded that
his appeal was timely filed because he did not receive notice of his removal until
March 30, 2016, when his attorney informed him of the agency’s decision. IAF,
Tab 8 at 5‑6. The appellant explained that, although the decision letter was
delivered on March 2 5, 2016, he did not “actually receive” it because he is blind
and delivery was made only to the reception desk of the rehabilitation facility
where he was living. Id. He further argued that his limited ability to receive,
open, and read mailings due to h is blindness constitute s good cau se for any delay
in filing . Id. at 6-7. To support his arguments, t he appellant submitted an
2 The administrative judge made a typographical error in stating that the appellant’s
removal was effective March 24, 2016. ID at 1.
3 The agency also attempted to deliver copies of its decision let ter to the appellant’s
address of record and his attorney’s address on March 25, 2016. ID at 2, 4. However,
the appellant’s attorney did not receive the decision letter until March 30, 2016, when
the agency emailed her a copy. IAF, Tab 8 at 10, 15, Tab 9 at 6.
3
affidavit of his attorney , copies of a billing form and receipt for a mailing , the
agency’s email message to his attorney , and an unopened envelope that was
mailed to the appellant by the agency . Id. at 10-18.
¶4 Without holding the requested hearing, the administrative judge issued an
initial decision dismissing the appeal as untimely filed without good cause shown .
ID at 1 n.1, 2, 5-6. Specifically, the administrative judge found that the
appellant’s appeal was filed 1 -day late because he received the agency’s decision
on March 25, 2016, his removal was effective March 29, 2016, and he fil ed his
appeal on April 29, 2016 . ID at 5 -6. The administrative judge further found that
the appellant did not establish good cause to waive the filing time limit because
his refusal to collect and open his mail failed to demonstrate ordinary prudence or
due diligence. Id.
¶5 The appella nt has filed a petition for review arguing that, due to the
minimal length of delay and circumstances beyond his control that impaired his
receipt of the agency’s decision , such as his living situation at the rehabilitation
facility and his blindness, ther e is good cause to waive the filing time limit .
Petition for Review (PFR) File, Tab 1. The agency has filed a response , PFR
File, Tab 3, to which the appellant has replied , PFR File, Tab 4.
DISCUSSION OF ARGUME NTS ON REVIEW
The appellant has established good cause to waive the time limit for filing his
Board appeal .
¶6 The appellant bears the burden of proof regarding the timeliness of his
appeal , which must be established by a preponderance of the evidence. Smith v.
Office of Personnel Management , 117 M.S.P.R. 527 , ¶ 5 (2012); 5 C.F.R.
§ 1201.56 (b)(2)( i)(B). With exceptions not applicable here, an appeal must be
filed with the Board no later than 30 days after the effective date, if any, of the
action being appealed, or 30 days after the date of the appellant’s receipt of the
agency’ s decision, whichever is later. Smith , 117 M.S.P.R. 527 , ¶ 5; 5 C.F.R.
§ 1201.22 (b)(1).
4
¶7 As discussed above, the administrative judge foun d that the appellant’s
appeal was filed 1 -day late. ID at 5 -6. For the following reasons, we find that ,
even assuming that the appellant’s appeal was untimely filed , the preponderance
of the evidence shows that there is good cause to waive the filing time limit under
the particular circumstances of the case .
¶8 The Board may waive the time limit for filing an appeal if the appellant has
shown good cause for the delay. Smith, 117 M.S.P.R. 527 , ¶ 6; 5 C.F.R.
§ 1201.22 (c). To establish good cause for the untimely filing of an appeal, a
party must show that he exercised due diligence or ordinary prudence under the
particular circumstances of the case. Alonzo v. Department of the Air Force ,
4 M.S.P.R. 180 , 184 (1980). To determine whether an appellant has shown good
cause, the Board will consider the length of the delay, the reasonableness of his
excuse and his showing of due dilige nce, whether he is proceeding pro se, and
whether he has presented evidence of the existence of circumstances beyond his
control that affected his ability to comply with the time limits or of unavoidable
casualty or misfortune which similarly shows a causa l relationship to his inability
to timely file his appeal . Moorman v. Department of the Army , 68 M.S.P.R. 60 ,
62-63 (1995), aff’d , 79 F.3d 1167 (Fed. Cir. 1996) (Table).
¶9 Here, we find that the fact that the appellant is represented by an attorney is
outweighed by the other Moorman factors . In particular, the length of the 1 -day
delay is minimal ; the appellant reasonably claim ed as a blind individual that the
reception desk received, but did not promptly forward to him, the agency’s
decision letter ; and the record contains medical evidence of his permanent
blindness, which impaired his ability to collect, open, and read the agen cy’s
decision letter . PFR File, Tab 1 at 6 ; IAF, Tab 4 at 61 -62, Tab 8 at 7 ; see
Adams v. Office of Personnel Management , 98 M.S.P.R. 541 , ¶ 12 (2005) (finding
that the appellant ’s submission of medical evidence showing that she suffered
from depression and anxiety , and the minimal length of the 1 -day delay in filing
her petition for review , were factors in favor of finding good cause for the delay );
5
Coleman v. Department of the Treasury , 88 M.S.P.R. 266 , ¶¶ 7-8 (2001) (finding
that the appellant’s claim o f stress -related depression , substantiated in part by
medical evidence, and the minimal length of the 1 -day delay in filing her appeal ,
were factors in favor of finding good cause for the delay ); see also Lacy v.
Department of the Navy , 78 M.S.P.R. 434 , 437 (1998) ( establishing that the Board
will find good cause to waive its filing time limits when a party demonstrate s that
he suffered from an illness that affected his ability to file on time by identifying
the time period during which he suffered from the illness, submitting medical
evidence showing that he suffered from the alleged illness during that time
period, an d explaining how the illness prevented him from timely filing his
appeal or a request for an extension of time ). Thus , we find that , under the
particular circumstances of this case, the appellant exercised due diligence in
filing his appeal and the princi ples of justice and good conscience weigh in favor
of finding good cause for waiving the filing time limit . See Alonzo , 4 M.S.P.R.
at 183-84 (explaining that “good cause” is an elastic concept that entitles an
employee to the application of broad equitabl e principles) .
¶10 Moreover, the agency has presented no evidence or argument suggesting
that it would be prejudiced by a waiver of the filing time limit. See Moorman ,
68 M.S.P.R. at 63 (explaining that, once good cause has been demonstrated, the
Board must determine whether the agency has shown that it would be prejudiced
by a waiver of the time limit) .
¶11 Accordingly, w e reverse the initial decision and waive the filing time limit
for goo d cause shown .
6
ORDER
¶12 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 | WATSON_ANDRE_DC_0752_16_0549_I_1_REMAND_ORDER_1932853.pdf | 2022-06-13 | null | DC-0752-16-0549-I-1 | NP |
4,349 | https://www.mspb.gov/decisions/nonprecedential/BROWN_CYNTHIA_CH_844E_16_0273_I_1_REMAND_ORDER_1932948.pdf | UNITED STATES OF AME RICA
MERIT SYSTEMS PROTEC TION BOARD
CYNTHIA BROWN,
Appellant,
v.
OFFICE OF PERSONNEL
MANAGEMENT,
Agency.
DOCKET NUMBER
CH-844E -16-0273 -I-1
DATE: June 13, 2022
THIS ORDER IS NONPRECEDENTIAL1
Cynthia Brown , Chicago, Illinois, pro se.
Linnette L. Scott , 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 a January 28, 2016 reconsideration decision issued by the Office of
Personnel Management (OPM) denying as untimely filed her application for
disability retirement benefits under the Federal Employees’ Retirement System
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are 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
(FERS). For the reasons set forth her ein, we GRANT the appellant’s petition for
review , REVERSE the initial decision, and REMAND the matter to OPM for the
issuance of a new reconsideration decision on the merits of the appellant’s
disability retirement application.
BACKGROUND
¶2 It is undisputed that, on November 9, 2011, the appellant resigned from her
position with the Department of the Treasury. Initial Appeal File (IAF), Tab 1
at 7-8, Tab 4 at 4, 115. According to the appellant, she signed, dated, and mailed
a portion of her disability retirement application , i.e., the Standard Form 3112C
(SF-3112C), via regular U.S. mail on October 18, 2012. IAF, Tab 1 at 4, 8, Tab 4
at 57, Tab 21, Hearing Record (HR) (testimony of the appellant) . OPM claimed
to have received the appellant’s partial a pplication on December 18, 2012, and
ultimately issued a reconsideration decision disallowing the appellant’s
application on the basis that it was not timely filed within 1 year of her
separation. IAF, Tab 4 at 4 -5, Tab 14 at 4, Tab 19 at 5.
¶3 The appellant filed a Board appeal , claiming that she timely filed her
application with OPM, and, in any case, that the filing deadline should be waived
due to her mental incompetence. IAF, Tab 1 at 4, 8, Tab 7 at 1-2, Tab 13 at 2 -3.
After a telephonic evidentiary he aring , the administrative judge reasoned that,
although the appellant had “confidently” testified that she had signed and mailed
her SF -3112C on October 18, 2012, and presented the testimony of two “credible”
corroborating witnesses, i.e., her sister and a friend, it was “dubious that either
the appellant or her witnesses could truly recall such a seemingly unremarkable
date or event nearly four years after the fact.” IAF, Tab 22, Initial Decision (ID)
at 2, 6. Accordingly, he found that the appellant fai led to show by preponderant
evidence that she had timely filed her application for disability benefits. ID at 6.
He also concluded that the appellant had failed to show that she was entitled to a
waiver of the filing deadline on the basis of mental incom petence . ID at 7-8. The
3
appellant has filed a petition for review, which OPM has opposed. Petition for
Review File, Tabs 1, 3.
ANALYSIS
¶4 An application for disability retirement under FERS must be filed with an
employee’s employing agency before the employee separates from service or with
the former employing agency or OPM within 1 year after the employee’s
separation . 5 U.S.C. § 8453 ; 5 C.F.R. § 844.201 (a)(1). For purposes of the filing
deadline, OPM accepts applications that are “incompletely executed or submitted
in a letter or other form not prescribed by OPM .”2 5 C.F.R. § 844.201 (a)(3) . The
deadline may be waived if the emp loyee is mentally incompetent on the date of
separation or within 1 year thereafter and the application is filed with OPM
within 1 year from the date the employee is restored to competency or is
appointed a fiduciary, whichever is earlier. 5 U.S.C. § 8453 ; 5 C.F.R.
§ 844.201 (a)(4). The appellant has the burden of proving, by preponderant
evidence,3 that she either timely filed or has a right to have the deadline waived.
5 C.F.R. § 1201. 56(b)(2)(ii).
¶5 Here, the only evidence in the record indicating that the appellant did not
timely mail her application was a copy of the SF -3112C, which contained what
appeared to be two stamps in the lower -right hand corner of the document
indicating th at OPM received the form on December 18, 2012.4 IAF, Tab 4 at 57.
Because the date stamp(s) were out -of-court statements used to prove the truth of
the matter asserted, they constituted hearsay evidence. See United States ex rel.
2 Additionally, an application mailed to OPM with no legible postmark date is pr esumed
to have been mailed 5 days before its receipt, excluding days on which OPM is closed
for business. 5 C.F.R. § 844.201 (a)(2).
3 A preponderance of the evidence is the degree of rel evant evidence that a reasonable
person, considering the record as a whole, would accept as sufficient to find that a
contested fact is more likely to be true than untrue. 5 C.F.R. § 1201.4 (q).
4 OPM did not provide a copy of the envelope in which the form was mailed, which
presumably would have contained a postmark.
4
Davis v. District of Columbia , 34 F. Supp. 3d 30, 39 (D.D.C. 2014), rev’d on
other grounds , 793 F.3d 120 (D.C. Cir. 2015) . Under Federal Rule of
Evidence 803(6) , a bus iness record, such as the date stamp, is admissible hearsay
when, among other things, a custodian or other qualified witness testifies as to the
procedures by which the record is typically made.5 Id. Here, however, OPM
produced no such custodian to descr ibe its procedure for date stamping
applications received via U.S. mail .
¶6 The appellan t, by contrast, “confidently” testified that she both signed and
mailed her SF -3112C on October 18, 2012. ID at 6; HR (testimony of the
appellant). She also presented the testimony of two “credible” witnesses who
both testified that the appellant informed them that she had mailed a retirement
form on or about October 18, 2012. ID at 2, 6; HR ( testimony of D.B. and O.D.).
Moreover, the appellant testified that she beli eved that OPM could not have
received her application in the mail on December 18, 2012, because she had
undergone surgery on December 2, 2012, and “would not have been in a position
to mail any forms or do any day -to-day business during that time.” HR
(testimony of the appellant). Medical documentation in the agency’s file
5 Although the Board uses the Federal Rules of Evidence as nonbinding guidance,
Holton v. Department of the Navy , 123 M.S.P.R. 688 , ¶ 13 n.4 (2016), aff’d , 884 F.3d
1142 (Fed. Cir. 2018) , hearsay is admissible in Board proceedings, Vaughn v. U.S.
Postal Service , 109 M.S.P.R. 469 , ¶ 8 (2008), aff’d , 315 F. App’x 305 (Fed. Cir. 2009).
The determination of whether hearsay evidence is sufficient to prove the truth of a
contention depends upon the evidence’s reliability and trustworthiness, which is
evaluated pursuant to the factors set forth in Borninkhof v. Department of Justice ,
5 M.S.P.R. 77 , 87 (1981). Vaughn , 109 M.S.P.R. 469 , ¶ 9. Those factors a re the
following : (1) the availability of persons with firsthand knowledge to testify at the
hearing; (2) whether the statements of the out -of-court declarants were signed or in
affidavit form, and whether anyone witnessed the signing; (3) the agency’s ex planation
for failing to obtain signed or sworn statements; (4) whether declarants were
disinterested witnesses to the events, and whether the statements were routinely made;
(5) consistency of declarants’ accounts with other information in the case, inter nal
consistency, and their consistency with each other; (6) whether corroboration for the
statements can otherwise be found in the agency record; (7) the absence of
contradictory evidence; and (8) credibility of declarant when he made the statement
attribu ted to him. Id. (citing Borninkhof , 5 M.S.P.R. at 87).
5
substantiated that the appellant underwent surgery on December 2, 2012. E.g.,
IAF, Tab 4 at 8. The record also contained a n unsworn written statement from
the appellant’s friend dated June 27, 2016, which similarly indicated that,
following her December 2, 2012 surgery, the appellant was “in a recuperative
period for several months and was totally immobile to have handled any business
matters.” IAF, Tab 18 at 6 (grammar as in original ).
¶7 Although both parties relied, at least in part, on hearsay evidence, we find
the appellant’s evidence more probative regarding the timeliness issue . See
Borninkhof v. Department of Justice , 5 M.S.P.R. 77, 83-84 (1981) (stating that
the probative value of hearsay evidence necessarily depends on the circumstances
of each case). To this end, the appellant consistently maintained that she
submitted her application for disability retirement to OPM within 1 year of her
November 9, 2011 separation from service; indeed, the record contained a
November 12, 2013 letter written to an OPM employe e wherein the appellant
averred that her “request [for disability retirement] was submitted within a year of
[her] separation.” IAF, Tab 4 at 55. The partial application the appellant
testified she mailed reflects her signature and a date of October 18, 2012. Id.
at 36. Moreover, the appellant presented corroborating evidence. To this end, the
appellant’s friend specifically testified that she was able to recall that the
appellant had informed her that she mailed a retirement form in October 2012 ,
beca use she had lent the appellant money around this same time, which the
appellant had presumably used to mail her application.6 HR (testimony of O.D.).
6 Although the administrative judge’s found the appellant’s friend “credible,” he also
found her testimony regarding specifically recalling the appellant telling her about
mailing her application in O ctober 2012 , “dubious.” ID at 6. These two conclusions
are difficult to reconcile. In any event, t he Board may overturn demeanor -based
credibility determination s when , as here, the administrative judge’ s findings are
incomplete, inconsistent with the weight of the evidence, and do not reflect the record
as a whole. See Rapp v. Office of Personnel Management , 108 M.S.P.R. 674 , ¶ 13
(2008) .
6
Thus, we find that the weight of the evidence established that, more likely than
not, the appellant mail ed her application on October 18, 2012 .
¶8 Accordingly , we find that the appellant showed by preponderant evidence
that she timely submitted her application for disability retirement less than 1 year
after her November 9, 2011 separation from service and, therefore, that her
application was timely filed.7 See 5 C.F.R. § 844.201 (a)(3) .
ORDER
¶9 For the reasons discussed above, we remand this case to OPM . On remand,
OPM shall issue a d etermination on the merits of the appellant’s FERS disability
retirement application. OPM shall issue the new reconsideration decision within
60 calendar days from the date of this Remand Order and shall advise the
appellant of her right to file an appeal with the Board’s Central Regional Office if
she disagrees with that new decision. See Litzenberger v. Office of Personnel
Management , 88 M.S.P.R. 419 , 424 (2001).
¶10 We also O RDER OPM to tell the appellant promptly in writing when it
believes it has fully carried out the Board’ s Order and of the actions it has taken
to carry out the Board’ s Order. We ORDER the appellant to provide all necessary
information OPM requests to help it carry out the Board’ s Order. The appellant,
if not notified, should ask OPM about its progress. See 5 C.F.R. § 1201.181 (b).
¶11 No later than 30 days after OPM tells the appellant it has fully carried out
the Board’ s Order, the appellant may file a petition for enforcement with the
office that issued the initial decision on this appeal if the appellant believes that
OPM di d not ful ly carry out the Board’ s Order. The petition should contain
specific reasons why the appellant believes OPM has not fully carri ed out the
7 Because we so find, the appellant’s mental competence is not material to the outcome
of this appeal.
7
Board’ s Order, and should include the dates and results of any communications
with OPM. See 5 C.F.R. § 1201.182 (a).
FOR THE BOARD:
Washington, D.C. /s/ for
Jennifer Everling
Acting Clerk of the Board | BROWN_CYNTHIA_CH_844E_16_0273_I_1_REMAND_ORDER_1932948.pdf | 2022-06-13 | null | CH-844E-16-0273-I-1 | NP |
4,350 | https://www.mspb.gov/decisions/nonprecedential/HILBERT_STEVEN_T_DE_315H_18_0077_I_1_FINAL_ORDER_1932997.pdf | UNITED STATES OF AME RICA
MERIT SYSTEMS PROTEC TION BOARD
STEVEN T. HILBERT,
Appellant,
v.
DEPARTMENT OF THE AR MY,
Agency.
DOCKET NUMBER
DE-315H -18-0077 -I-1
DATE: June 13, 2022
THIS FINAL ORDER IS NONPRECEDENTIAL1
Steven T. Hilbert , Colorado Springs, Colorado, pro se.
Trina C. Hopkins , Esquire and Melody VanDyne , Fort Carson, 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
dismissed the appeal of his probationary termination for lack of jurisdiction. On
petition for review, the appellant argues that the initial decision is incorr ect, that
performance evaluation training and protocol were not followed, and that there
1 A nonprecedential order is one that the Board has determined does not add
significantly to the 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
were misstatements in the decision letter . 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. The administrative judge correctly found that the Board lacks
jurisdiction over the appellant’s probationary termination under 5 U.S.C.
§ 7511 (a)(1)(A)(ii), as amended, because he has not completed a 2-year
probationary period and otherwise lacks 2 years of current continuous service.
Bryant v. Department of the Army , 2022 MSPB 1 ; see 10 U.S.C. § 1599e (a),
(b)(1)(A), (d). 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
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 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
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 qu estions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must 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/prob ono for information regarding pro bono representation
4
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 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 rep resentative receives this decision. If the action involves a claim of
discrimination based on race, color, religion, sex, national origin, or a disabling
condition, you may be entitled to representation by a court -appointed lawyer and
to waiver of any req uirement of prepayment of fees, costs, or other security. See
42 U.S.C. § 2000e -5(f) and 29 U.S.C. § 794a .
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims onl y, excluding
all other issues . 5 U.S.C. § 7702 (b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702 (b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
5
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 2 0507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302 (b)(8) or
other protected activities listed in 5 U.S.C. § 2302 (b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
disposition of allegations of a prohibited personnel practice described in
section 2302(b) other than practices described in section 2302(b)(8), or
2302(b)(9)(A)(i), (B), (C), or (D),” then you may file a petition for judicial
review either with the U.S. Cour t of Appeals for the Federal Circuit or any court
of appeals of competent jurisdiction.3 The court of appeals must receive your
3 The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act , signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit co urt of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115 -195,
132 Stat. 1510.
6
petition for review within 60 days of the date of issuance of this decision.
5 U.S.C. § 7703 (b)(1)(B).
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitione rs and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our websi te at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney w ill accept representation in a given case.
Contact information for the courts of appeals can be found at their
respective websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
FOR THE BOARD:
Washington, D.C. /s/ for
Jennifer Everling
Acting Clerk of the Board | HILBERT_STEVEN_T_DE_315H_18_0077_I_1_FINAL_ORDER_1932997.pdf | 2022-06-13 | null | DE-315H-18-0077-I-1 | NP |
4,351 | https://www.mspb.gov/decisions/nonprecedential/USTARIZ_JEANETTE_AT_315H_17_0316_I_1_FINAL_ORDER_1932012.pdf | UNITED STATES OF AME RICA
MERIT SYSTEMS PROTEC TION BOARD
JEANETTE USTARIZ,
Appellant,
v.
DEPARTMENT OF THE TR EASURY,
Agency.
DOCKET NUMBER
AT-315H -17-0316 -I-1
DATE: June 9, 2022
THIS FINAL ORDER IS NONPRECEDENTIAL1
Jeanette Ustariz , Orange Park, Florida, pro se.
Andrew M. Greene , Atlanta, Georgia, 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
dismissed her termination appeal for lack of jurisdiction . Generally, we grant
petitions such as this one only in the following circumstances: the initial decision
contains erroneous findings of material fact; the initial decision is based on an
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or 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 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 . Except as
expressly MODIFIED by this Final Order to accept the agency’s untimely filed
“Response to Jurisdiction Order and Motion to Dismiss for Lack of Jurisdiction”
into the record below, we AFFIRM the initial decision .
BACKGROUND
¶2 The appellant, a competitive -service appointee, appealed her termination
during her probationary period to the Board and requested a hearing. Initial
Appeal File ( IAF), Tab 1. In an order on jurisdiction, the administrative judge
notified her of the applicable law and her burden of proof to establish the Board’s
jurisdiction over her appeal as a probationary employee in the competitive
service. IAF, Tab 3. The administrative judge directed the appellant to respond
within 1 5 days of the order and allowed the agency an opportunity to respond
before the close of the record on April 3, 2017. Id. at 4-5. The appellant did not
respond . On April 4, 2017 —1 day after the close of the record —the agency
submitted its response to the order on jurisdiction and moved to dismiss the
appeal for lack of jurisdiction.2 IAF, Tab 4. Later that same day, the
2 The agency did not submit the agency file pursuant to the administrati ve judge’s
acknowledgment order. IAF, Tab 2 at 6-7; see 5 C.F.R. § 1201.25 . However, its
untimely filed response to the jurisdictional order contains the S tandard Form (SF) 50s
3
administrative judge issued an initial decision dismissing the appeal for lack of
jurisdiction without holding the appellant’s requested hearing. IAF, Tab 5, Initial
Decision (ID).3
¶3 The appellant has filed a petition for review of the initial decision, th e
agency has responded in opposition, and the appellant has replied to the agency’s
response. Petition for Review (PFR) File, Tabs 1, 3 -4.4
documenting the appellant’s appointment and termination and the termination letter.
IAF, Tab 4 at 6-11.
3 In the initial decision, the administrative judge stated that he had not considered the
agency’s untimely filed jurisdictional response and motion to dismiss . ID at 4.
However, he cited the agency’s termination letter in the initial decision , which is not
produced in any other submission below. ID at 2; IAF, Tab 4 at 8 -10. Although the
administrative judge appeared to consider the agency’s submission without affording
the appellant an opportunity to respond to it, the appellant was not harmed by any
adjudicatory error in this regard because she has had the opportunity to address the
agency’s evidence and argument on review. See Karapinka v. Department of Energy ,
6 M.S.P.R. 124 , 127 (1 981) (stating that an administrative judge’s procedural error is of
no legal consequence unless it is shown to have adversely affected a party’s substantive
rights). In any event, under the unique circumstances of this case, wherein the agency’s
untimely filed submission contains the only copies of the relevant documents in the
record below and the administrative judge already relied on it, and because it was only
untimely filed by 1 day, we find it appropriate to accept the submission into the record
belo w. See Ackerly v. Department of Transportation , 16 M.S.P.R. 78, 82 (1983)
(finding no basis to disturb the presiding official’s acceptance of the agency’s brief
mailed 1 day after the close of the record absent any showing of prejudice to the
appellant or unfair advantage to the agency) ; 5 C.F.R. § 1201 .12. Accordingly, we
modify the initial decision to accept the agency’s untimely filed “Response to
Jurisdiction Order and Motion to Dism iss for Lack of Jurisdiction” into the record
below. IAF, Tab 4.
4 On review, the agency has again submitted the appointment and termination SF -50s
and termination letter. PFR File, Tab 3 at 4 -9. In addition, the appellant has submitted,
for the first time on review, a Designation of Beneficiary form dated October 14, 2016 .
PFR File, Tab 4 at 5. Under 5 C.F.R. § 1201.115 , the Board generally will not consider
evidence submitted for the first time with the petition for review absent a showing that
it was unavailable before the record was clos ed despite the party’ s due diligence.
Avansino v. U.S. Postal Service , 3 M.S.P.R. 211 , 214 (1980). Because we have
accepted the documents submitted by the agency into the record below, we need not
address whether it is appropriate to consider these documents sub mitted for the first
time o n review. See id. We do not consider the appellant’s Designation of Beneficiary
form submitted for the first time on review because she has not alleged, nor do we
4
DISCUSSION OF ARGUME NTS ON REVIEW
¶4 The Board’s jurisdiction is limited to those matters over which it has been
give n jurisdiction by law, rule, or regulation. Maddox v. Merit Systems
Protection Board , 759 F.2d 9 , 10 (Fed. Cir. 1985). Under 5 U.S.C. chapter 75,
subchapter II, an individual who meets th e definition of “employee” at 5 U.S.C.
§ 7511 (a)(1) generally has the right to challenge her removal from Federal service
by filing an appeal with the Boar d. Maibaum v. Department of Veterans Affairs ,
116 M.S.P.R. 234 , ¶ 9 (2011). To qualify as an “employe e” with appeal rights
under chapter 75, an individual in the competitive service, like the appellant,
must show that she either is not serving a probati onary period or has completed
1 year of current continuous service under an appointment other than a temporary
one limited to a year or less. 5 U.S.C. § 7511 (a)(1)(A); see McCormick v.
Department of the Air Force , 307 F.3d 1339 , 1341 -43 (Fed. Cir. 2002); Baggan v.
Department of State , 109 M.S.P.R. 572 , ¶ 5 (2008).
¶5 Here, t he administrative judge found that the appellant failed to
nonfrivolously allege that she was an employee with a statutory right to appeal
her termination to the Board because she acknowledged that she was serving a
probationary period at the time of her t ermination and did not allege that she had
1 year of current continuous service. ID at 3. The appellant has not challenged
this finding on review. PFR File, Tabs 1, 4. We have reviewed the record and
agree that the appellant has not nonfrivolously alle ged that she met the definition
of an “employee” under chapter 75 when , on February 24, 2017, the agency
terminated her from her competitive -service position during her probationary
period —approximately 4 months after her October 17, 201 6 appointment . IAF,
Tab 4 at 7-11.
¶6 A probationary employee in the competitive service who does not have a
statutory right of appeal may nonetheless have a regulatory right of appeal to the
discern any basis to find, that it was unavailable before the record closed below despite
her due diligence. See id.
5
Board if she makes a nonfrivolous allegation that the agency terminated her
because of discrimination based on marital status or for partisan political reasons,
or because of conditions arising before appointment to the position in question.
Harris v. Department of the Navy , 99 M.S.P.R. 355 , ¶ 6 (2005); 5 C.F.R.
§§ 315.805 -.806. The administrative judge found that the appellant failed to
nonfrivolously allege that she had a regulatory right to appeal her termination .
ID at 4. On review, the appellant does not challenge the administrative judge’s
finding s that her termination was not based on partisan political reasons or
preappointment c onditions , PFR File, Tabs 1, 4 , and we discern no basis to
disturb these finding s. For the first time on review, however, she argues that the
agency terminated her on the basis of marital status discrimination . PFR File,
Tab 1 at 6.
¶7 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). Here, the appellant did
not allege marital status discrimination in her initial appeal to the Board. IAF,
Tab 1. In addition, as n oted above, she failed to respond to the administrative
judge’s order on jurisdiction, which explicitly informed her that she could
establish Board jurisdiction by nonfrivolously alleging that her termination was
based on marital status discrimination . IA F, Tab 3 at 2. On review, the appellant
does not allege that she was unable to raise this argument below and does not
provide any explanation for her failure to do so. PFR File, Tabs 1, 4. Rather, she
alleges that the incident giving rise to her claim o ccurred in October 2016 —well
before the April 3, 2017 close of the record below. PFR File, Tab 1 at 4; IAF,
6
Tab 3 at 4 -5. Under these circumstances, we decline to consider the appellant’s
marital status discrimination claim for the first time on review .5
¶8 The appellant also argues on review, as she did below, that the agency
discriminated against her on the basis of age. PFR File, Tab 1 at 4. As the
administrative judge correctly determined, however, the Board lacks jurisdiction
over the allegations of age discrimination absent an otherwise appealable action .
ID at 4; 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). Similarly, even if we were to consider her other
argument, raised for the first time on review, that the agency discriminated
against her on the basis of her national origin, the Board lacks jurisdiction over
such a claim absent an ot herwise appealable action . See Wren , 2 M.S.P.R. at 2;
Banks , 4 M.S.P.R. at 271; PFR File, Tab 1 at 5.
¶9 In light of the foregoing, we find that the administrative judge correctly
dismissed the appellant’s termination appeal for lack of jurisdiction.
5 Even if we were to consider the appellant’s claim of marital status discrimination for
the first time on review, we would find that she failed to raise a nonfrivolous allegation.
To make a nonfrivolous allegation of mar ital st atus discrimination, an appellant “ may
allege facts to show that she was treated differently because of her marital status or that
go to the essence of her status as a mar ried, single or divorced person.” Smirne v.
Department of the Army , 115 M.S.P.R. 51 , ¶ 8 (2010 ). Her allegations must be more
than “mere conjecture ,” and she must provide supporting facts to show the allegat ions
are not merely pro forma. Id. Merely conclusory pleadings are insufficient. Stokes v.
Federal Aviation Administration , 761 F.2d 682 , 686 (Fed. Cir. 1985). Here, the
appellant alleges that, during a training class in late October 2016, the Acting Manager
displayed her Designation of Beneficiary form on the wall in front of the entire class,
which named her sister as her sole beneficiary. P FR File, Tab 1 at 4. According to the
appellant, because the Designation of Beneficiary form named her sister as her sole
beneficiary, it was “made obvious that [she] was either single or divorced.” Id. The
appellant’s allegation that the Acting Manager became aware that she was single or
divorced in October 2016 is insufficient to constitute a nonfrivolous allegation that
another agency official imposed her termination 4 months later on the basis of marital
status discrimination. See Smirne , 115 M.S.P.R. 51 , ¶ 8.
7
NOTICE OF APPEAL RIGHTS6
The initial decision, as supplemented by this Final Order, constitutes the
Board’s final decision in this matter. 5 C.F.R. § 1201.113 . You may obtain
review of this final decision. 5 U.S.C. § 7703 (a)(1). By statute, the nature of
your claims determines the time limit for seeking such review and the appropriate
forum with which to file. 5 U.S.C. § 7703 (b). Although we offer the following
summary of available appeal rights, the Merit Systems Protection Board does not
provide legal advice on which option is most appropri ate for your situation and
the rights described below do not represent a statement of how courts will rule
regarding which cases fall within their jurisdiction. If you wish to seek review of
this final decision, you should immediately review the law appli cable to your
claims and carefully follow all filing time limits and requirements. Failure to file
within the applicable time limit may result in the dismissal of your case by your
chosen forum.
Please read carefully each of the three main possible 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).
6 Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review rig hts included in final decisions. As indicated in the notice, the
Board cannot advise which option is most appropriate in any matter.
8
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particu lar
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services p rovided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703 (b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. ____ , 137 S. Ct. 1975 (2017). If you have a
representative in this case, and your representative rec eives this decision before
you do, then you must file with the district court no later than 30 calendar days
after your representative receives this decision. If the action involves a claim of
9
discrimination based on race, color, religion, sex, national o rigin, or a disabling
condition, you may be entitled to representation by a court -appointed lawyer and
to waiver of any requirement of prepayment of fees, costs, or other security. See
42 U.S.C. § 2000e -5(f) and 29 U.S.C. § 794a .
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebs ites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702 (b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702 (b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
addr ess of the EEOC is:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be ad dressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to yo u only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302 (b)(8) or
10
other protected activities listed in 5 U.S.C. § 2302 (b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
disposition of allegations of a prohibited personnel practice described in
section 2302(b) other than practices described in section 2302(b)(8), or
2302(b)(9)(A)(i), (B), (C), or (D),” then you may file a petition for judicial
review either with the U.S. Court of Appeals for the Federal Circuit or any court
of appeals of competent jurisdiction.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 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
7 The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appea ls of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisa l cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court 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/CourtWeb sites.aspx .
FOR THE BOARD:
Washington, D.C. /s/ for
Jennifer Everling
Acting Clerk of the Board | USTARIZ_JEANETTE_AT_315H_17_0316_I_1_FINAL_ORDER_1932012.pdf | 2022-06-09 | null | AT-315H-17-0316-I-1 | NP |
4,352 | https://www.mspb.gov/decisions/nonprecedential/MCCORKLE_VICHAEL_E_SF_0752_15_0828_X_1_FINAL_ORDER_1932013.pdf | UNITED STATES OF AME RICA
MERIT SYSTEMS PROTEC TION BOARD
VICHAEL E. MCCORKLE,
Appellant,
v.
UNITED STATES POSTAL SERVICE,
Agency.
DOCKET NUMBER
SF-0752 -15-0828 -X-1
DATE: June 9, 2022
THIS FINAL ORDER IS NONPRECEDENTIAL1
Hartley D. Alley , Esquire, San Antonio, Texas, for the appellant.
Catherine V. Meek and Philip R. Hsiao , Long Beach, California, for the
agency.
Christoph Riddle , San Francisco, California, for the agency.
BEFORE
Cathy A. Harris , Vice Chairman
Raymond A. Limon , Member
Tristan L. Leavitt , Member
FINAL ORDER
¶1 In a July 13 , 2016 compliance initial decision , the administrative judge
found the agency in noncompliance with a January 27, 2016 settlement
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117 (c).
2
agreement, which the Board had accepted into the record for purposes of
enforcement in a Feb ruary 8, 2016 initial decision . McCorkle v. U.S. Postal
Service , MSPB Docket No. SF -0752 -15-0828 -C-1, Compliance File (CF) , Tab 15,
Com pliance Initial Decision (CID); McCorkle v. U.S. Postal Service , MSP B
Docket No. SF -0752 -15-0828 -I-1, Initial Appeal Fil e (IAF), Tab 68, Tab 71,
Initial Decision (ID).
¶2 For the reasons discussed below, we find the agency in compliance and
DISMISS the petition for enforcement.
DISCUSSION OF ARGUME NTS AND EVIDENCE ON COMPLIANCE
¶3 During the pendency of the appellant’s underlying appeal, the parties
executed a written settlement agreement. IAF, Tab 68. The agreement was
entered into the record for enforcement purposes , and the case was dismissed as
settled. ID at 1 -2. The appellant subsequently filed a pe tition for enforcement
claiming that the agency brea ched the settlement agreement. CF, Tab 1 . On
July 13, 2016, t he administrative judge issued the compliance initial decision
granting the petition for enforcement in part . CID at 8-9.
¶4 In the compliance initial decision, the administrative judge found that the
agency had not taken all actions required to be in full compliance with the
settlement agreement . CID at 2-9. Specifically, the administrative judge found
that the agency had canceled or “released ” only part of the debt owed by the
appellant, rather than the entire debt, as requir ed by the settlement agreement.
CID at 3-8. Accordingly, the administrative judge ordered the agency to provide
evidence that it released the debt owed by the appellant as reflected in the
December 21, 2015 statement attached to the settlement as Exhibit A for the
remaining amount of $2,686.24, as well as any finance charges associated with
that amount . CID at 9.
¶5 The compliance initial decision informed the agency that, if it decided to
take the actions required by the decision, it must submit to the Clerk of the Board
3
a statement that it ha d taken the actions identified in the compliance initial
decision, along with evidence establishing that it had taken those actions. Id.
The compliance initial decision also informed the parties that they could file a
petition for review if they disagreed with the compliance initial decision. CID
at 10-15. Neither party filed a petition for review.
¶6 On September 7 , 2016, the agency submitted a statement of compliance
with the administrative judge’s order and proof that it had cance led the $2,686.24
debt in its entirety . McCorkle v. U.S. Postal Service , MSPB Docket No. SF -0752 -
15-0828 -X-1, Compliance Referral File (CRF), Tab 2. The appellant filed a
response on October 10 , 2016, stating that he “is satisfied that the agency has
complied” with the administrative judge’s order . CRF, Tab 4 at 4.
ANALYSIS
¶7 A settlement agreement is a contract, and the appellant, as the
non-breaching party, bears the burden to prove “material noncompliance” with a
term of the contract. Lutz v. U.S. Postal Service , 485 F.3d 1377 , 1381 (Fed. Cir.
2007). The agency must produce relevant and material evidence of its
compliance with the agreement. Haefele v. Department of the Air Force ,
108 M.S.P.R. 630 , ¶ 7 (2008).
¶8 We find that the agency has now submitted sufficient evidence to establish
its compliance with the Board’s ord er. As discussed above, the agency submitted
evidence indicating that it cance led the a ppellant’s prior debt of $2,686.24 . CRF,
Tab 2. The appellant agrees . CRF, Tab 4.
¶9 In light of the agency’s evidence of compliance, we find the agency in
compliance and dismiss the petition for enforcement. This is the final decision of
the Merit Systems Protection Board in this compliance proceeding. Title 5 of the
Code of Federal Regulations, sec tion 1201.183(c)(1) ( 5 C.F.R. § 1201.183 (c)(1)).
4
NOTICE TO THE APPELL ANT REGARDING
YOUR RIGHT TO REQUES T
ATTORNEY FEES AND CO STS
You may be entitled to be paid by the agency for your reasonable attorney
fees and costs. To be paid, you must meet the requirements set out at title 5 of
the United St ates 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, y ou must file a motion for attorney fees
and costs WITHIN 60 CALENDAR DAYS OF THE DATE OF THIS DECISION.
You must file your motion for attorney fees and costs with the office that issued
the initial decision on your appeal.
NOTICE OF APPEAL 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 applicab le to your claims and carefully follow all
filing time limits and requirements. Failure to file within the applicable time
limit may result in the dismissal of your case by your chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
2 Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise which option is most appropriate in any matter.
5
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703 (b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of par ticular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the servic es provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected b y an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
6
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, national origin, or a disabling
condition, you may be entitled to representation by a court -appointed lawyer and
to waiver of any requirement of prepayment of fees, costs, or other security. See
42 U.S.C. § 2000e -5(f) and 29 U.S.C. § 794a .
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Eq ual Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702 (b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702 (b)(1). If you have a representative in th is case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
7
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it mu st be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option appli es to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302 (b)(8) or
other protected activities listed in 5 U.S.C. § 2302 (b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
disposition of allegations of a prohibited personne l practice described in
section 2302(b) other than practices d escribed in section 2302(b)(8), or
2302(b)(9)(A)(i), (B), (C), or (D),” then you may file a petition for judicial
review either with the U.S. Court of Appeals for the Federal Circuit or any court
of appeals of competent jurisdiction.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 Appeal s for
the Federal Circuit, you must submit your petition to the court at the
following address:
3 The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction 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.
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 t he Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protecti on Board appellants before the 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 the ir
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 | MCCORKLE_VICHAEL_E_SF_0752_15_0828_X_1_FINAL_ORDER_1932013.pdf | 2022-06-09 | null | SF-0752-15-0828-X-1 | NP |
4,353 | https://www.mspb.gov/decisions/nonprecedential/SPAIN_ESTON_D_PH_315H_17_0448_I_1_FINAL_ORDER_1932058.pdf | UNITED STATES OF AME RICA
MERIT SYSTEMS PROTEC TION BOARD
ESTON D. SPAIN, JR.,
Appellant,
v.
DEPARTMENT OF HOMELA ND
SECURITY,
Agency.
DOCKET NUMBER
PH-315H -17-0448 -I-1
DATE: June 9, 2022
THIS FINAL ORDER IS NONPRECEDENTIAL1
Eston D. Spain, Jr. , Camden, New Jersey , pro se.
Andrew J. Hass , Washington, D.C., for the agency.
BEFORE
Cathy A. Harris , Vice Chairman
Raymond A. Limon , Member
Tristan L. Leavitt , Member
FINAL ORDER
¶1 The appella nt has filed a petition for review of the initial decision, which
dismissed his appeal as withdrawn. 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 Regulation s, 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 Boar d’s final decision. 5 C.F.R. § 1201.113 (b).
BACKGROUND
¶2 On November 27, 2016, the agency appointed the appellant to the
competitive -service position of Emergency Management Specialist (Geospatial)
with the agency’s Federal Emergency Management Agency (FEMA), Region III,
subject to a 1 -year probationary period. Initial Appeal File (IAF), Tab 5 at 74.2
On August 15, 2017, the agency issued a notification to the appellant that it was
terminating him during his probationary period for unacceptable performance and
absen ce without official leave , effective August 22, 2017. Id. at 15-20, 72. The
appellant timely filed an initial appeal of the termination. IAF, Tab 1. The
administrative judge notified the appellant of the elements and burdens of proof
to establish Board jurisdiction over a probationary termination and ordered him to
file evidence and argument establishing a nonfrivolous allegation of jurisdiction.
IAF, Tab 2 at 2-5. The agency filed a response to the order in which it asserted
that the Board lacked jurisdiction over the termination. IAF, Tab 6. The
2 Specifically, the agency converted the appellant’s prior temporary appointment in the
excepted service as a Geospatial Information System Specialist to a career -conditional
appointment. IAF, Tab 5 at 74, 82.
3
appellant did not file a response; rather, he filed a request to withdraw his appeal
because he was not asserting discrimination on the basis of partisan political
reasons or marital status and he did not have the resources to prepare a response
while he w as incarcerated. IAF, Tab 9. The administrative judge subsequently
issued an initial decision finding that the appellant’s withdrawal of his appeal was
clear, decisive, and unequivocal, and dismissed the appeal as withdrawn. IAF,
Tab 10, Initial Decisio n (ID).
¶3 The appellant has timely filed a petition for review requesting that the
Board permit him to rescind his request to withdraw his appeal. Petition for
Review (PFR) File , Tab 1. The agency has filed an opposition to the petition for
review. PFR File, Tab 3.
DISCUSSION OF ARGUME NTS ON REVIEW
¶4 On review, the appellant asserts that he wishes to proceed with his appeal
because of recently discovered evidence . PFR File, Tab 1 at 1. Specifically, he
alleges that he has learned of e -mail and other correspondence between the
district attorney’s office in the locale in which he is incarcerated and the regional
administrator ’s office in FEMA Region III regarding his incarceration ,
transmitted on or before July 14, 2017. Id. He requests review of thi s
correspondence to ensure that “no impropriety” occurred in his termination and to
explain the termination letter’s reference to his behavior . Id. at 3; IAF, Tab 5
at 18.
¶5 When an appellant directly petitions the full Board for review of an initial
decision dismissing an appeal as withdrawn, the Board will treat the petition as a
request to reopen his appeal. Lincoln v. U.S. Postal Service , 113 M.S.P.R. 486 ,
¶¶ 9-13 (2010). Ordinarily, an appellant’s withdrawal of an appeal is an act of
finality that removes the appeal fr om the Board’s jurisdiction. Id., ¶ 7. A
voluntary withdrawal must be clear, decisive, and unequivocal. Id. The
administrative judge found , and the appellant does not dispute, that the
4
appellant’s withdrawal of his appeal was clear, de cisive, and unequ ivocal. ID
at 2.
¶6 Absent unusual circumstances , such as misinformation or new and material
evidence, the Board will not reinstate an appeal once it has been withdrawn.
Lincoln , 113 M.S.P.R. 486 , ¶ 9. However, the Board may relieve an appellant of
the consequences of his decision to withdraw an appeal when the decision was
based on misleading or incorrect information provided by the Board or the
agency. Potter v. Department of Veterans Affairs , 116 M.S.P.R. 256 , ¶ 7 (2011).
The appellant has not alleged , nor do we find, that that he relied upon misleadin g
or incorrect information provided by the Board or the agency in deciding to
withdraw his appeal. Cf. id., ¶¶ 10-15 (excusing the appellant from the
consequences of his decision to withdraw his appeal b ased on misinformation
provided by the administrative judge regarding the scope of applicable Board
remedies).
¶7 We find not persuasive the appellant’s argument that the correspondence in
question constitute s new evidence . The appellant asserts that he rece ntly learned
of the correspondence but acknowledges that he has not seen it and does not
identify when or how he learned of it. PFR File, Tab 1 at 1. He acknowledged in
his initial appeal that , upon his incarceration, his computer, badge, and mobile
phon e were transmitted from the police to FEMA Region III on July 11, 2017,
3 days before the alleged ly new correspondence, and that his wife had notified his
supervisor about his upcoming hearing and anticipated release from incarceration .
IAF, Tab 1 at 27. The appellant evidently was aware before his request to
withdraw his appeal of communication to the agency regarding his incarceration
and has not articulate d how the additional correspondence he has discovered adds
new evidence to the instant appeal. Thus, we cannot conclude that the appellant
has shown that the information contained in the additional correspondence was
unavailable , despite his due diligence , at the time he requested to withdraw his
appeal. See Grassell v. Department of Transportation , 40 M.S.P .R. 554 , 564
5
(1989) (holding that, to constitute new evidence, the information contained in the
documents, not just the document s themselves, must have been unavailable
despite due diligence when the record closed); 5 C.F.R. § 1201.115 (d).
¶8 More over, the appellant’s assertion that the correspondence could r eveal
some impropriety in his termination is insufficient to show that the
correspondence is material either to the preliminary question of the Board’s
jurisdiction over his probationary termination or to the merits of the appeal .
Evidence is material to a proceeding only whe n it is of sufficient weight to
warrant a different outcome. Freeman v. Department of the Navy , 88 M.S.P.R.
659, ¶ 12 (2001) , aff’d , 28 F. App’x 956 (Fed. Cir. 2002) . A probationary
employee in the competitive service who has not completed 1 year of current
continuous service , such as the appellant, has no statutory right of appeal to the
Board. 5 U.S.C. § 7511 (a)(1)(A); Niemi v. Department of the Interior ,
114 M.S.P.R. 143 , ¶ 9 (2 010). However, a probationary employee in the
competitive service may appeal a termination if he alleges that it was based on
partisan political reasons or marital status, or that his termination for
preappointment conditions was procedurally deficient . Hurston v. Department of
the Army , 113 M.S.P.R. 34 , ¶ 8 (2010); 5 C.F.R. § 315.806 (a)-(c). Alternatively,
an individual, such as the appellant , can show tha t he qualifies as a
competitive -service “employee” with 5 U.S.C. chapter 75 appeal rights by
showing that he either was not serving a probationary period at the time of
termination or he had completed 1 year of current continuous service under an
appointment other than a temporary one limited to 1 year or less. 5 U.S.C.
§ 7511 (a)(1)(A); Hurston , 113 M.S.P.R. 34 , ¶ 9.
¶9 The appellant admitted that his termination was not based on partisan
political reasons or marital status and has not alleged that he was terminated for
preappointm ent reasons. IAF, Tab 9 at 1. Further, he has not articulated how the
correspondence in question might show that he qualified as an “employee” with
appeal rights under 5 U.S.C. chapter 75 at time of his termination. Even if he
6
were to establish the Board’s jurisdiction over his appeal, in the limited
circumstances that the Board would reach the merits of the termination, the
appellant has not shown that the correspondence is of sufficient weight to warrant
reversal of the termination.3 Accordingly, we find that the appellant has not
established any basis for reinstating his appeal, and 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 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
3 If an appellant establishes Board jurisdiction by proving that the agency based a
probationary termination on marital status or partisan political reasons , only then does
the Board proceed to the merits of the case. Burton v. Department of the Air Force ,
118 M.S.P.R. 210 , ¶¶ 8-11 (2012) ; 5 C.F.R. § 315.806 (b). In the event that an appellant
establishes jurisdiction over a termination for preappointment rea sons, the Board does
not reach the merits of the agency’s decision; rather, the Board’s jurisdiction is limited
to whether the agency failed to afford the appellant the procedural protections of
5 C.F.R. § 315.805 , and, if so, whether the procedural error was harmful, such that the
action must be set aside. West v. Department of Health & Human Services ,
122 M.S.P.R. 434 , ¶ 7 (2015). Finally , if an appellant establishes jurisdiction by
showing that he is an “employee” under 5 U.S.C. § 7511 (a)(1) , the Board will not reach
the merits of the termination unless the agency’s procedures for effecting the
termination afforded the appellant minimum due process of law, including prior notice
and an opportunity to respond. See Gadsden v. Department of State , 102 M.S.P.R. 79 ,
¶¶ 16-17 (2006) (reversing the agency’s removal action whe n the appellant established
that he met the definition of an “employee” with Board appeal rights, but the agency
failed to provide him minimum due process of law under Cleveland Board of Education
v. Loudermill , 470 U.S. 532 (1985)).
4 Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise which option is most appropriate in any matter.
7
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).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following addre ss:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particula r
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Ap peals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services pro vided by any attorney nor warrants that
any attorney will accept representation in a given case.
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 a ction that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action wi th an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703 (b)(2); see Perry v. Merit Sy stems
Protection Board , 582 U.S. ____ , 137 S. Ct. 1975 (2017). If you have a
representative in this case, and your representative receives this decision before
you do, then you must file with the district court no later than 30 calendar days
after your representative receives this decision. If the action involves a claim of
discrimination based on race, color, religion, sex, national origin, or a disabling
condition, you may be entitled to representation by a court -appointed lawyer and
to waiver of any requirement of prepayment of fees, costs, or other security. See
42 U.S.C. § 2000e -5(f) and 29 U.S.C. § 794a .
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702 (b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702 (b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for 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 revi ew pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302 (b)(8 ) or
other protected activities listed in 5 U.S.C. § 2302 (b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
disposition of allegations of a prohibited personnel practice described in
section 2302(b) other than practices described in section 2302(b)(8), or
2302(b)(9)(A)(i), (B), (C), or (D),” then you may file a petition for judicial
review either with the U.S. Court of Appeals for the Fe deral Circuit or any court
of appeals of competent jurisdiction.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, 201 8, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
The Al l Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115 -195,
132 Stat. 1510.
10
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” whic h is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.go v/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representatio n in a given case.
Contact information for the courts of appeals can be found at their
respective websites, which can be accessed through the link below:
http://www.uscourts.gov/C ourt_Locator/CourtWebsites.aspx .
FOR THE BOARD:
Washington, D.C. /s/ for
Jennifer Everling
Acting Clerk of the Board | SPAIN_ESTON_D_PH_315H_17_0448_I_1_FINAL_ORDER_1932058.pdf | 2022-06-09 | null | PH-315H-17-0448-I-1 | NP |
4,354 | https://www.mspb.gov/decisions/nonprecedential/HALLETT_BETTY_SF_0752_16_0233_I_1_REMAND_ORDER_1932060.pdf | UNITED STATES OF AME RICA
MERIT SYSTEMS PROTEC TION BOARD
BETTY HALLETT,
Appellant,
v.
DEPARTMENT OF AGRICU LTURE,
Agency.
DOCKET NUMBER
SF-0752 -16-0233 -I-1
DATE: June 9, 2022
THIS ORDER IS NONPRECEDENTIAL1
Betty Hallett , Bainbridge Island, Washington, pro se.
Joshua N. Rose , 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 file d a petition for review of the initial decision, which
dismissed her constructive suspension appeal for lack of jurisdiction. For the
reasons discussed below, we GRANT the appellant’s petition for review ,
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or dis tinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117 (c).
2
REVERSE the initial decision, and REMAND the case to the Western Regional
Office for further adjudication in accordance with this Remand Order.
BACKGROUND
¶2 The appellant , a GS -12 Supervisory Public Health Veterinarian with the
agency’s Food Safety and Inspection Service, filed this appeal in which she
alleged that her absence from work f rom September 8, 2014 , to March 30, 2015 ,
was a constructive suspension , arguing that the agency discriminated against her
on the basis of her medical noise restrictions and failed to grant her repeated
requests for a re asonable accommodation . Initial Appeal File (IAF), Tab 1 at 7.
She alleged that the agency failed to provide her a safe workplace, asserting that
the noise level at her first duty station in February 2010 , was excessive,
sometimes reaching 134 decibels ( dB), and she attributed her hearin g problems to
the proximity of the splitting saw s used at the meat processing plant s where she
performed her duties . Id. at 7-9. The appellant described conflicts that she had
with th e inspectors she worked with at the p rocessing plants and contended that
agency officials and employees engaged in a long and complicated series of
retaliatory actions against her . Id. at 7-19. She also filed an equal employment
opportunity (EEO) complaint in which she alleged that the agency constructively
suspended her due to her sex, race, color, national origin, and physical disability,
and engaged in reprisal for prior EEO activity . Id. at 176-207.2
¶3 As recounted by the administrative judge, primarily on the basis of the
testimony before her, the agency transferred the appellant to less noisy work
environments, but personnel shortages required the agency to occasionally
reassign her to noisier environ ments . IAF, Tab 53, Initial Decision (ID) at 3-4.
Additionally, complaints that the agency received about the appellant from one of
2 Because some of the pleadings in this appeal are of substantial length and are
unnumbered in the hard copy of the file, page number citations in those instances refer
to the electronic record.
3
her subordinates and from the management of one of the processing plants caused
the agency to detail the appellant away fr om one of the less noisy work
environments in accordance with agency policy regarding workplace violence.
Id.; IAF, Tab 12 at 101 , Tab 21 at 67 . The appellant filed a June 2014 claim with
the Office of Workers’ Compensation Programs (OWCP) and, after subsequently
experiencing increased symptoms of tinnitus , she provided the agency with
updated medical restrictions, first limiting her noise exposure to 100 dB, then to
60 dB, and ultimately limiting her to office work only with no noise exposure at
all. IAF, Tab 12 at 102, 109, 118-23, 128 -30; Tab 21 at 64 , 68, 107 -08; Tab 39
at 5-6.
¶4 The appellant requested reasonable accommodation , but the agency
determined that she was not disa bled and consequently denied her request , in
large part because he r physici an indicated that her hearing, despite some loss, was
still within normal limits . IAF, Tab 12 at 42, 107, 117. Upon her September 8,
2014 return from previously scheduled annual leave, the agency informed the
appellant that it had no work available withi n her medical restrictions. Id.
at 104-06. As such, t he appellant was absent from the workplace on leave
without pay (LWOP) from September 8, 2014 , to March 30, 2015 . Id. at 102-06.
In March 2015, OWCP denied the appellant’s injury claim and the agency
subsequently ordered her to return to duty or submit new medical documentation.
Id. at 118 -23. The agency placed the appellant on administrative leave effective
April 27, 2015 , id. at 125, 128-30, and subsequently allowed her to return to
work, but the record reflects some controversy as to the particular duty station, id.
at 131-35.
¶5 The agency issued a December 15, 2015 final agency decision on the
appellant’s EEO complaint finding no discrimination , and the appellant timely
filed the instant appeal. IAF, Tab 1 at 1-22, 176-207. The administrative judge
found that the appellant had made nonfrivolous allegations sufficient to warrant a
jurisdictional hearing on her constructive suspen sion claim. IAF, Tab 14 at 1 -2.
4
After holding the hearing , the administrative judge dismissed the appeal for lac k
of jurisdiction, finding that even though the appellant lack ed a meaningful choice
concerning her absence from work, she failed to demonstrate that any improper or
wrongful actions by the agency led to her lack of choice. ID at 8 -14 (citing Bean
v. U.S. Postal Service , 120 M.S.P.R. 397 , ¶ 7 (2013)) .
¶6 In her petition for review, the appellant argues that the agency suspended
her in retaliation for protected whistleblowing disclosures, reiterates her argument
that the agency failed to provide her with reasonable accommodation, claims that
she was denied due process, and generally contends that the administrative judge
erred in assess ing the facts. Petition for Review (PFR) File, Tab 3. The agency
has filed a response in oppo sition to the petition for review and the appellant has
filed a reply to the agency’s response. PFR File, Tabs 5 -6.
DISCUSSION OF ARGUME NTS ON REVIEW
¶7 The Board’s jurisdiction is limited to those matters over which it has been
given jurisdiction by law, ru le, 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). A constructive suspension appeal concerns leave that
appears to be voluntary, but actually was not. Bean , 120 M.S.P.R. 397 , ¶ 7. An
employee may establish jurisdiction if she can prove that she lacked a meaningful
choice in the matter and it was the agency’s wrongful actions that deprived her of
that choice. Id., ¶ 8. In contrast, an agency’s plac ing an employee on enforced
leave for more than 14 days constitutes an appealable suspension within the
Board’s jurisdiction, not a c onstructive suspension. Abbott v. U.S. Postal Service ,
121 M.S.P.R. 294 , ¶ 10 (2014).
¶8 In her petition for review, the appellant rea sserts her argument below that
the Board has jurisdiction over her appeal because the agency placed her on
enforced leave for more than 14 days. PFR File, Tab 3 at 5. For the following
5
reasons, we find that the administrative judge erroneously construed and analyzed
the appellant’s claim as a constructive suspension instead of an appealable
suspension . As noted above, t he record reflects that after the appellant returned
to work from previously scheduled annual leave, the agency told he r to leave
work be cause it could find no work within her medical restrictions. IAF, Tab 12
at 104 -06. Under such circumstances, the appellant’s absence does not appear
voluntary, but instead constitutes an appealable suspension within the Board’s
jurisdiction because the agency placed he r in an enforced leave status for more
than 14 days against her will. See, e.g., Abbott , 121 M.S.P.R. 294, ¶ 11.
¶9 Because a tenured Federal employee has a property interest in continued
employment, an agency is prohibited from placing an appellant on enforced leave
for more than 14 days without providing the due process required under the Fifth
Amendment. Cleveland Board of Education v. Loudermill , 470 U.S. 532 , 546
(1985) ; see Martin v. U.S. Postal Service , 123 M.S.P.R. 189 , ¶ 11 (2016). An
agency’s failure to provide a tenured public employee with proper notice and an
opportunity to present a response, either in person or in writing, to an appealable
agency action that deprives her of her property right in her employment
constitutes an abridgement of her constitutional right to minimum due process of
law, i.e., prior notice and an opportunity to respond. Id. Here, the agency did not
provide the appellant with notice of any proposed enforced leave or an
opportunity to be heard, either before or after it imposed the enforced leave , and
the record reflects that she was in an LWOP status for at least 400 hours . IAF,
Tab 12 at 128. Conse quently, we reverse the agency’s enforced leave action.
See, e.g., Martin , 123 M.S.P.R. 189 , ¶ 11 (reversing the agency’s suspensi on
action because it violated the appellant’s constitutional due process rights).
¶10 Given our finding that the appellant ’s suspension is an appealable action,
she is entitled to a decision on her claim that the agency ’s action constituted
reprisal for her pr ior EEO activity and on her discrimination claims. See 5 U.S.C.
§ 7702 (a)(1). The case therefore must be remanded to the regional office to
6
adjudicat e these claims. See Aldridge v. Department of Agriculture ,
111 M.S.P.R. 670, ¶ 23 (2009); Totten v. U.S. Postal Service , 68 M.S.P.R. 255 ,
257 (1995) . On remand, the administrative judge should , if necessary, hold a
hearing on the appellant’s affirmative defenses of discrimina tion based on sex,
race, color, physical disability, and national origin , and retaliation for protected
EEO activity .3 IAF, Tab 1 at 5 ; see Hess v. U.S. Postal Service , 123 M.S.P.R.
183, ¶¶ 9-10 (2016) (remanding the appellant’s discrimination claims for a
hearing because she raised a cognizable claim of discrimination in connection
with an otherwise appealable action and sought compensatory damages ).
¶11 The administrative judge also should allow the appellant to proceed with
her whistleblower reprisal claims to the extent they relate to her suspension . PFR
File, Tab 3 at 29; IAF, Tab 52 at 4. The appellant alleges other “retaliatory
actions ,” such as unfavorable work assignments, based on her protected
disclosures. Thus, the administrative judge should provide her with notice
regarding her burden of provi ng these possible whistleblowing allegations as an
affirmative defense to an otherwise appealable action (i.e., this appealable
suspension) or, alternatively, how to establish jurisdiction over such claims in
connection with any personnel actions that are not otherwise appe alable in an
3 In the initial decision, the administrative judge indicated that in the appellant’s EEO
complaint filed with the agency, she raised claims not only based on these protected
purviews, but also based on age discrimination. ID at 6 (citing IAF, Tab 1 at 176 -207).
The materials cited by the administrative judge do not support this conclusion. IAF,
Tab 1 at 176 -207. Further, the administrative judge did not list an age discrimination
claim in her prehearing conference summary and order among the issues to b e resolved
at hearing. IAF, Tab 47 at 2. The parties did not object to this summary and order
although the administrative judge invited them to do so, and the appellant did not raise
a claim of age discrimination in her written closing statement followin g the hearing.
IAF, Tab 4 7 at 7, Tab 52. In fact, in an affidavit in the record below, completed during
the agency’s investigation into her EEO complaint, the appellant stated that she was
“not claiming age discrimination, although it probably exists as well.” IAF, Tab 16
at 20, 86. In light of our remand, we find it unnecessary to resolve on review whether
the appellant raised a claim of age discrimination below. The administrative judge
should affirmatively indicate in the remand initial decision whe ther the appellant raised
such a claim and, if she did, adjudicate it.
7
individual right of action (IRA) appeal. See, e.g. , Corthell v. Department of
Homeland Security , 123 M.S.P.R. 417 , ¶¶ 13-14 (2016) (remanding an appeal for
the appellant to receive notice of the requirements for establishing jurisdiction
over his IRA appeal) ; PFR File, Tab 3 at 21.
ORDER
¶12 The initial decision is reversed , and the case is remanded to the Western
Regional Office for further adjudication.
FOR THE BOARD:
Washington, D.C. /s/ for
Jennifer Everling
Acting Clerk of the Board | HALLETT_BETTY_SF_0752_16_0233_I_1_REMAND_ORDER_1932060.pdf | 2022-06-09 | null | SF-0752-16-0233-I-1 | NP |
4,355 | https://www.mspb.gov/decisions/nonprecedential/AKINPELU_IRENE_U_DA_0714_17_0474_I_1_FINAL_ORDER_1932153.pdf | UNITED STATES OF AME RICA
MERIT SYSTEMS PROTEC TION BOARD
IRENE U. AKINPELU,
Appellant,
v.
DEPARTMENT OF VETERA NS
AFFAIRS,
Agency.
DOCKET NUMBER
DA-0714 -17-0474 -I-1
DATE: June 9, 2022
THIS FINAL ORDER IS NONPRECEDENTIAL1
Irene U. Akinpelu , Dallas, Texas, pro se.
Brittany Brignac , Oklahoma City, Oklahoma , for the agency.
Tijuana D. Griffin , Little Rock , Arkansas, 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 her removal . For the reasons discussed below, we GRANT the petition
1A nonprecedential order is one that the Board has d etermined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisi ons. In contrast, a
precedential decision issued as an Opinion and 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, REVERS E the initial decision, and DO NOT SUSTAIN the
appellant’s removal.
BACKGROUND
¶2 The appellant was a GS -05 Nursing Assistant with the Mental Health
Service of the agency’s North Texas Health Care System. Initial Appeal File
(IAF), Tab 5 at 8, 23. On July 25, 2017, the agency issued a notice proposing to
remove her for patient abuse under the authority of the Department of Veterans
Affairs Accountability and Whistleblower Protection Act of 2017
(VA Accountability Act), Pub. L. No. 115-41, § 202(a), 131 Stat. 862, 869 -73
(codified as amended at 38 U.S.C. § 714), which was enacted on June 23, 2017 .
Id. at 23 -25. In support of the charge, the agency alleged that on April 19, 2017,
the appellant agitated a patient by speaking to him very loudly, raised her hand to
the patient and blocked his walking path, moved briskly to the left while facing
the patient, and then hit the patient in the side of his body with the back of her
fisted right hand as she walked past him. Id. at 23. After the appellant replied to
the proposal orally an d in writing, id. at 16 -22, the deciding official issued a
decision sustaining the charge and finding removal warranted, id. at 11 -14.
The appellant was removed effective August 11, 2017. Id. at 8.
¶3 The appellant filed a Board appeal challenging her remov al. IAF, Tab 1.
She did not raise any affirmative defenses. Following a hearing, the
administrative judge issued an initial decision affirming the removal based on her
finding that the agency proved its charge by substantial evidence.2 IAF, Tab 16,
Initial Decision (ID) at 1, 7. The appellant has filed a petition for review of the
2 In a Board appeal of an action taken pursuant to 38 U.S.C. § 714, the agency bears the
burden of proving its charge by substantial evidence, which is a lower standard of proof
than preponderance of the evidence, i.e., the burden of proof in adverse actions taken
pursuant to 5 U.S.C. § 7513 . 38 U.S.C. § 714(d)(2)(A), (3)(B); 5 U.S.C.
§ 7701 (c)(1)(B); see 5 C.F.R. § 1201.4 (p), (q). If an agency meets this standard,
neither the administrative judge nor the Board may mitigate the penalty. 38 U.S.C.
§ 714(d)(2)(B), (3)(C).
3
initial decision, and the agency has filed a response in opposition to the petition.
Petition for Review (PFR) File, Tabs 1, 4.3
ANALYSIS
¶4 After the adminis trative judge issued the initial decision in th is appeal , the
U.S. Court of Appeals for the Federal Circuit issued its opinion in Sayers v.
Department of Veterans Affairs , 954 F.3d 1370 (Fed. Cir. 2020) . In that case, the
agency had removed Dr. Sayers from his Chief Pharmacist position under
38 U.S.C. § 714 for conduct that took place bef ore the law’s enactment.
Id. at 1372 -73. The court found that section 714 cannot be applied retroactively
because Congress did not authorize its retroactive application , and the statute’s
lowered substantial evidence standard of proof and elimination of the Board’s
authority to mitigate the penalty detrimentally affected Dr. Sayers’s property
right to continued employment. Id. at 1372, 1374, 1380 -82. The court
acknowledged the agency’s ar gument that the notice of proposed removal was not
issued until after the enactment of the VA Accountability Act, but it determined
that “[s]ection 714’s impermissible retroactive effect on Dr. Sayer’s substantive
employment right is not eliminated by the prospective application of § 714’s
procedures .” Id. at 1381. The court reasoned that Dr. Sayers “had a right to the
substantive civil service protections from improper or unjustified removal in
effect at the time of his alleged misconduct,” and that thos e protections remained
terms of his employment until Congress altered those terms when it passed the
3 With her petition for review, the appellant submits an investigative report issued by
agency police regarding the April 19, 2017 incident. PFR File, Tab 1 at 8 -10.
Because this document is in the record below, IAF, Tab 14 at 1 -3, it does not constitute
new evidence, and we have not considered it. See Meier v. Department of the Interior ,
3 M.S.P.R. 247 , 256 (1980).
On January 30, 2018, the appellant filed a reply to the agency’s December 27, 2017
response to her petition for review. PFR File, Tab 5. This reply is untimely and we
have not considered it. See 5 C.F.R. § 1201.114 (e) (providing that any 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).
4
VA Accountability Act. Id. Thus, the court vacated Dr. Sayers’s removal. Id.
at 1382 .
¶5 Here, as in Sayers , the agency removed the appellant under the VA
Accountability Act for conduct that predated its June 23, 2017 enactment.
IAF, Tab 5 at 11, 23. The agency contends on review that the applicability of
38 U.S.C. § 714 does not depend on the dates of the charged conduct and that
section 714 applies because the notice of proposed removal was issued following
the passage of the VA Accountability Act. PFR File, Tab 4 at 7. However , the
date of the notice of proposed rem oval is not di spositive in determining
section 714’s retroactive effect. Rather, p ursuant to Sayers , 38 U.S.C. § 714 may
not be applied to conduct that predates the passage of the VA Accountabilit y Act .
Sayers , 954 F.3d at 1380. Therefore, the agency’s charge is not sustained and the
appellant’s removal must be reversed.4 See id. at 1380 -82.
ORDER
¶6 We ORDER the agency to can cel the removal action and restore the
appellant effective August 11, 2017. See Kerr v. National Endowment for the
Arts, 726 F.2d 730 (Fed. Cir. 1984). The agency must complete this action no
later than 20 days after the date of this decision.
¶7 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
Managem ent’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
4 The reversal of the appellant’s removal on the grounds that 38 U.S.C. § 714 cannot be
applied retroactively does not preclude the agency from reinitiating a removal action
against the appellant for the same conduct under chapter 75. Cf. Jenkins v.
Environmental Protection Agency , 118 M.S.P.R. 161 , ¶ 14 (2012) (holding that the
reversal of the appellant’s removal on due process grou nds d id not pre clude the agency
from reinitiating the action based on the same charges in a constitutionally correct
proceeding ).
5
provide all necessary info rmation 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 afte r the date of this decision.
¶8 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).
¶9 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 appell ant 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).
¶10 For age ncies 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 adjustme nts resulting from a Board decision
are attached. The agency is ORDERED to timely provide DFAS or NFC with all
documentation necessary to process payments and adjustments resulting from the
Board’s decision in accordance with the attached lists so that pa yment 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 mee t 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
6
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 d ecision on your appeal.
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 s uch
review and the appropriate forum with which to file. 5 U.S.C. § 7703 (b).
Although we offer the following summary of available appeal rights, the Merit
Systems Protection Board does not provid e legal advice on which option is most
appropriate for your situation and the rights described below do not represent a
statement of how courts will rule regarding which cases fall within their
jurisdiction. If you wish to seek review of this final decisi on, you should
immediately review the law applicable to your claims and carefully follow all
filing time limits and requirements. Failure to file within the applicable time
limit may result in the dismissal of your case by your chosen forum.
Please read c arefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
5 Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise which option is most appropriate in any matter.
7
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703 (b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must su bmit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 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
8
representative in this case, and your rep resentative receives this decision before
you do, then you must file with the district court no later than 30 calendar days
after your representative receives this decision. If the action involves a claim of
discrimination based on race, color, religion, sex, national origin, or a disabling
condition, you may be entitled to representation by a court -appointed lawyer and
to waiver of any requirement of prepayment of fees, costs, or other security. See
42 U.S.C. § 2000e -5(f) and 29 U.S.C. § 794a .
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebs ites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702 (b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702 (b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
addr ess of the EEOC is:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be ad dressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
9
(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 personne l practice described in
section 2302(b) other than practices described in section 2302(b)(8), or
2302(b)(9)(A)(i), (B), (C), or (D),” then you may file a petition for judicial
review either with the U.S. Court of Appeals for the Federal Circuit or any court
of appeals of competent jurisdiction.6 The court of appeals must receive your
petition for review within 60 days of the date of issuance of this decision.
5 U.S.C. § 7703 (b)(1)(B).
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the 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.
6 The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of compet ent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court 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 are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for 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
respec tive websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
FOR THE BOARD:
Washington, D.C. /s/ for
Jennifer Everling
Acting Clerk of the Board
DEFENSE FINANCE AND ACCOUNTING SERVICE
Civilian Pay Operations
DFAS BACK PAY CHECKLIST
The following documentation is required by DFAS Civilian Pay to compute and pay back pay
pursuant to 5 CFR § 550.805. Human resources/local payroll offices should use the following
checklist to ensure a request for payment of back pay is complete. Missin g documentation may
substantially delay the processing of a back pay award. More information may be found at:
https://wss.apan.org/public/DFASPayroll/Back%20Pay%20Process/Forms/AllItems.aspx .
NOTE: Attorneys’ fees or other non -wage payments (such as damages) are paid by
vendor pay, not DFAS Civilian Pay.
☐ 1) Submit a “SETTLEMENT INQUIRY - Submission” Remedy Ti cket. 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) Sett lement 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 doc umentation. Include record of all amounts earned by the employee
in a job undertaken during the back pay period to replace federal employment.
Documentation includes W -2 or 1099 statements, payroll documents/records, etc. Also,
include record of any une mployment 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 rever sed, 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 bac k pay award. The
annual leave will be restored to the employee. Annual leave that exceeds the annual leave
ceiling will be restored to a separate leave account pursuant to 5 CFR § 550.805(g).
NATIONAL FINANCE CEN TER CHECKLIST FOR BA CK PAY CASES
Below is the information/documentation required by National Finance Center to process
payments/adjustments agreed on in Back Pay Cases (settlements, restorations) or as ordered by
the Merit Systems Protection Board, EEOC, and courts .
1. Initiate and submit AD -343 (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 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. | AKINPELU_IRENE_U_DA_0714_17_0474_I_1_FINAL_ORDER_1932153.pdf | 2022-06-09 | null | DA-0714-17-0474-I-1 | NP |
4,356 | https://www.mspb.gov/decisions/nonprecedential/JOYCE_JAMES_C_CH_315H_17_0060_I_1_FINAL_ORDER_1931623.pdf | UNITED STATES OF AME RICA
MERIT SYSTEMS PROTEC TION BOARD
JAMES C. JOYCE,
Appellant,
v.
DEPARTMENT OF THE AR MY,
Agency.
DOCKET NUMBER
CH-315H -17-0060 -I-1
DATE: June 8, 2022
THIS FINAL ORDER IS NONPRECEDENTIAL1
James C. Joyce , Sparta, Wisconsin, pro se.
Eric J. Teegarden , Esquire, Fort McCoy, Wisconsin, for the agency.
BEFORE
Cathy A. Harris , Vice Chairman
Raymond A. Limon , Member
Tristan L. Leavitt , Member
FINAL ORDER
¶1 The appella nt 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 contests the merits of his termination and argues
that the administrative judge misstated his military service and his service
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
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
computation date. Petition for Review (PFR) File, Tab 1 at 3. He also claims
that he raised the issue below that h is termination was based on pre appointment
conditio ns despite the administrative judge’s statement to the contrary . Id.
Generally, we grant petitions such as this one only in the following
circumstances: the initial decision contains erroneous findings of material fact;
the initial decision is based on an erroneous interpretation of statute or regulation
or the erroneous application of the law to the facts of the case; the administrative
judge’s rulings during either the course of the appeal or the initial decision
were not consistent with required proce dures or involved an abuse of discretion,
and the resulting error affected the outcome of the case; or new and material
evidence or legal argument is available that, despite the petitioner’s due
diligence, was not available when the record closed. Title 5 of the Code of
Federal Regulations, section 1201.115 ( 5 C.F.R. § 1201.115 ). After fully
considering the filings in this appeal, we conclude that the petitioner has not
established any basis under section 1201.115 for granting the petition for review.
Therefore, we DENY the petition for review and AFFIRM the initial decision,
which is now the Board’s final decision.2 5 C.F.R. § 1201.113 .
NOTICE OF APPEAL RIGHTS3
You may obtain review of this final decision. 5 U.S.C. § 7703 (a)(1). By
statute, the nature of your claims determines the time limit for seeking such
2 The appellant alleged below and on review that his termination was a result of
representing a coworker during a counseling session in a union steward capacity. Initial
Appeal File (IAF), Tab 1 at 5; PFR File, Tab 1 at 7. He referenced 5 U.S.C. § 2302 , yet
indicated that he had not filed a complaint with the Office of Special Counsel (OSC) .
IAF, Tab 1 at 4-5. If the appellant believe s that he was subjected to a prohibited
personnel practice, he may file a complaint with OSC , 5 U.S.C. § 1214 (a)(1)(A) ,
followed by an appeal seeking corrective action from the Board , 5 U.S.C.
§§ 1214 (a)(3), 1221(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
Boar d cannot advise which option is most appropriate in any matter.
3
review and the appropriate forum with which to file. 5 U.S.C. § 7703 (b).
Although we offer the following summary of available appeal rights, the Merit
Systems Protection Board does not provi de legal advice on which option is most
appropriate for your situation and the rights described below do not represent a
statement of how courts will rule regarding which cases fall within their
jurisdiction. If you wish to seek review of this final decis ion, you should
immediately review the law applicable to your claims and carefully follow all
filing time limits and requirements. Failure to file within the applicable time
limit may result in the dismissal of your case by your chosen forum.
Please rea d carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for m ore information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703 (b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit , you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
4
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful 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 claims only, excluding
all other issues . 5 U.S.C. § 7702 (b)(1). You must file any such request 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 receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review t o the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursua nt to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302 (b)(8) or
other protected activities listed in 5 U.S.C. § 2302 (b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
disposition of allegations of a pro hibited personnel practice described in
section 2302(b) other than practices described in section 2302(b)(8), or
2302(b)(9)(A)(i), (B), (C), or (D),” then you may file a petition for judicial
review either with the U.S. Court of Appeals for the Federal Cir cuit or any court
of appeals of competent jurisdiction.4 The court of appeals must receive your
4 The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
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.
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.
July 7, 201 8, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
The Al l Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115 -195,
132 Stat. 1510.
7
Contact information for the courts of appeals can be 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 | JOYCE_JAMES_C_CH_315H_17_0060_I_1_FINAL_ORDER_1931623.pdf | 2022-06-08 | null | CH-315H-17-0060-I-1 | NP |
4,357 | https://www.mspb.gov/decisions/nonprecedential/GORDON_SAMUEL_VONZELL_CH_315H_17_0418_I_1_FINAL_ORDER_1931342.pdf | UNITED STATES OF AME RICA
MERIT SYSTEMS PROTEC TION BOARD
SAMUEL VONZELL GORDO N,
Appellant,
v.
UNITED STATES POSTAL SERVICE,
Agency.
DOCKET NUMBER
CH-315H -17-0418 -I-1
DATE: June 7, 2022
THIS FINAL ORDER IS NONPRECEDENTIAL1
Samuel Vonzell Gordon , South Holland, Illinois, pro se.
Rebecca Heeter , Esquire, Chicago , Illinois, for the agency.
BEFORE
Cathy A. Harris , Vice Chairman
Raymond A. Limon , Member
Tristan L. Leavitt , Member
FINAL ORDER
¶1 The appellant has filed a petition for review of the initial decision , which
dismissed his termination appeal for lack of jurisdiction . Generally, we grant
petitions such as this one only in the following circumstances: the initial decision
contains erroneous findings of material fact; the initial decision is based on an
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
require d to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117 (c).
2
erroneous interpretation of statute or regulation or the erroneous 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. The refore, we DENY the petition for review and
AFFIRM the initial decision, which is now the Board’s final decision. 5 C.F.R.
§ 1201.113 (b).
¶2 On petition for review , the appellant contends for the first time that the
agency ’s termination was based on partisan political reasons . He also reargues
that the agency ’s decision to terminate him was unjustified and that the agen cy
committed harmful error in terminating him. In addition, he challenges his
separate appeal of the annuity overpayment decision of the Office of Personnel
Management (OPM). Petition for Review (PFR) File, Tab 2.
¶3 The appellant cites 5 C.F.R. § 315.806 (b) and asserts, for the first time, that
his termination was motivated by “discriminat ion due to partisan politics.” Id.
at 7-8. As an initial matter, t he Board generally w ill 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 desp ite the party’s due
diligence. Clay v. Department of the Army , 123 M.S.P.R. 245, ¶ 6 (2016) ; Banks
v. Department of the Air Force , 4 M.S.P.R. 268 , 271 (1980). T he appellant has
not ex plained why this argument could not have been raised before the
administrative judge, a nd thus we need not consider it. Additionally, it appears
that t he appellant misunderstands the mean ing of the phrase “partisan political
reasons” as defined in 5 C.F.R. § 315.806 (b). “Partisan political reasons” means
3
“discrimination based on affiliation with any political party or ca ndidate.”
Mastriano v. Federal Aviation Administration , 714 F.2d 1152 , 1155 -56 (Fed. Cir.
1983) . The appellant does not allege that he suffere d any discrimination based on
his affiliation with any political party or candidate.
¶4 The appellant , moreover, contests the administrative judge ’s finding that the
agency ’s action terminating him was justified and states that the agency
committed harmful error in effectuat ing the action. We disagree. A s the
administrative judge correctly noted in addressing the appellant’s claim under
5 C.F.R. § 315.806 (c), the Board only has jurisdicti on over a claim under
section 315.806 for employees in the competitive service. See Ramirez -Evans v.
Department of Veterans Affairs , 113 M.S.P.R. 297 , ¶ 10 (2010) . Postal Service
employees have not been part of the competitive service since the enactment of
the Postal Reorganization Act of 1970. Daisy v. U.S. Postal Service , 68 M.S.P.R.
15, 19 (1995). Therefore, Postal Service employees, like the appellant, cannot
establish Board jurisdiction under 5 C.F.R. § 315.806 (c). Herbert v. U.S. Postal
Service , 86 M.S.P.R. 80 , ¶ 12 (2000). Thus, we find that the termination action
was warranted and that the appellant has failed to show that the agency , in taking
the termin ation action, committed harmful error .
¶5 Regarding the appellant’s arguments concerning his appeal of OPM’s
overpayment r econsideration decision, that appeal already has been fully
adjudicated by the U.S. Court of Appeals for the Federal Circuit and has no
connection to the instant appeal. See Gordon v. Office of Personnel Management ,
689 F. App’x 977 (Fed. Cir. 2017); Gord on v. Office of Personnel Management ,
MSPB Docket No. CH-0845 -16-0204 -I-1, Final Order (Sept. 9, 2016).
Consequently, the Board has no authority to reconsider that matter.
¶6 Finally, the appellant argues that the agency terminated him due to his “VA
service connected disability .” PFR File, Tab 2 at 14-15. To the extent the
appellant believes that the agency has discriminated aga inst him based on his
service in a uniformed service, he may file an appeal under the Uniformed
4
Services Employment and Reemployment Rights Act of 1994 directly with the
Board, or file a complaint with the Secretary of Labor under 38 U.S.C. § 4322 .
5 C.F.R. §§ 1208.12 , 1208.11(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 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).
2 Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise which option is most appropriate in any matter.
5
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particu lar
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services p rovided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703 (b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. ____ , 137 S. Ct. 1975 (2017) . If you have a
representative in this case, and your representative receives this decision before
you do, then you must 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 below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702 (b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702 (b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative 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
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 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 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 is suance of this decision.
5 U.S.C. § 7703 (b)(1)(B).
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court a t the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscour ts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
3 The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act , signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit co urt of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115 -195,
132 Stat. 1510.
8
Board neither endo rses 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 | GORDON_SAMUEL_VONZELL_CH_315H_17_0418_I_1_FINAL_ORDER_1931342.pdf | 2022-06-07 | null | CH-315H-17-0418-I-1 | NP |
4,358 | https://www.mspb.gov/decisions/nonprecedential/ONORATO_EDITH_AT_315H_16_0645_I_1_REMAND_ORDER_1931366.pdf | UNITED STATES OF AME RICA
MERIT SYSTEMS PROTEC TION BOARD
EDITH ONORATO,
Appellant,
v.
DEPARTMENT OF DEFENS E,
Agency.
DOCKET NUMBER
AT-315H -16-0645 -I-1
DATE: June 7, 2022
THIS ORDER IS NONPRECEDENTIAL1
Mark Wonders , Ozark, Alabama, for the appellant.
Sally R. Bacon , Esquire, Fort Lee, Virginia, for the agency.
BEFORE
Cathy A. Harris, Vice Chairman
Raymond A. Limon, Member
Tristan L. Leavitt, Member
REMAND ORDER
¶1 The appellant has filed a petition for review of the initial decision, which
dismissed her probationary termination appeal for lack of jurisdiction . For the
reasons discussed below, we GRANT the appellant’s petition for review,
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or 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
VACATE the initial decision in part , and REMAND the case to the Atlanta
Regional Office for further adjudication in ac cordance with this Remand Order.
BACKGROUND
¶2 The Department of Veterans Affairs has recognized the appellant as having
a service -connected disability with a disability rating of 100%. Initial Appeal
File (IAF), Tab 6 at 5 -6. The agency appointed her to a competitive -service
position on June 1, 2015 , subject to a 1 -year probationary period. IAF, Tab 11
at 4. The Standard Form 50 documenting her appointment reflects that she was
preference eligible and had 3 years and 3 days of creditable military se rvice. Id.
at 6. On May 16, 2016, the appellant reported to agency police that the previous
day, her supervisor “swung a sheet of paper with a closed fist at [the appellant’s]
face causing her to have to lean back to avoid being struck. ” IAF, Tab 6 at 8 . On
May 29, 2016 , the agency terminated her on the basis of her absence without
leave (AWOL) . IAF, Tab 10 at 17. The termination notice advised the appellant
of her options for obtaining review of the agency’s decision, including her option
to seek cor rective action from the Office of Special Counsel (OSC) , followed by
an appeal to the Board . Id. at 17-18. The notice also stated that, alternatively,
she could file a whistleblower reprisal appeal directly with the Board. Id. at 18.
Nothing in the rec ord suggests the appellant sought corrective action from OSC ,
and her appeal form indicates she did not file a whistleblower complaint with
OSC. IAF, Tab 1 at 5.
¶3 The appellant filed this appeal, in which she allege d that the agency
wrongfully terminated her because of her service -connected disability of Post
Traumatic Stress Disorder . IAF, Tab 1 at 4-6, Tab 7 at 4 -7. The administrative
judge issued an order that notif ied the appellant of her jurisdictional burden .
IAF, Tab 3. In particular, the administrative judge explained that to be entitled to
a hearing on jurisdiction, the appellant was required to make nonfrivolous
allegations that she was an “employee” with chapter 75 adverse action appeal
3
rights, the action was due to p artisan political reasons or her marital status, or the
agency took the action for preappointment reasons without complying with
certain mandated procedures. Id. In response, t he appellant alleg ed that the
Board had jurisdiction over her appeal because: (1) she advised the agency of her
preexisting service -connected disability when she was appointed, and that
condition precipitated her AWOL; and (2) during her probationary period, s he
was denied an accommodation, assaulted by her supervisor, and the agen cy
“seemingly retaliated against” her by denying her request for sick leave for the
absences in question “a mere 10 days after [her] first -line supervisor assaulted
her.” IAF, Tab 7 . The agency filed a motion to dismiss the appeal for lack of
jurisdictio n, arguing that the appellant was terminated for her conduct during the
probationary period , and no t for a preappointment reason . IAF, Tab 9.
¶4 The administrative judge issued an initial decision dismissing the appeal for
lack of jurisdiction without hold ing the appellant’s requested hearing . IAF, Tab 1
at 2, Tab 12, Initial Decision (ID) at 1. She reasoned that the parties did not
dispute that the appellant was terminated during her probationary period. ID at 2.
Further, the administrative judge deter mined that the appellant failed to
nonfrivolously allege that she was terminated based on marital status
discrimination or partisan political affiliation, or for conditions arising before her
appointment. ID at 2 -3. The appellant has filed a timely petit ion for review, to
which the agency has not responded. Petition for Review (PFR) File, Tab 1.
¶5 On review, the appellant reiterates her position that the Board has
jurisdiction over her appeal because she was terminated for absences precipitated
by her preexisting medical condition. Id. at 4, 11. She now argues that the
agency should have designated her absences as protected under the Family and
Medical Leave Act of 1993 (FMLA). Id. at 6-11. She also asserts for the first
time on review that she “filed a police report on her supervisor for assaulting her”
and reprisal for that report was “the [l]one factor in [the] [t]ermination
[d]ecision.” Id. at 5.
4
DISCUSSION OF ARGUME NTS ON REVIEW
The administrative judge properly found that the Board lacks jurisdic tion under
chapter 75 and Office of Personnel Management (OPM) regulations over the
appellant’s probationary termination.
¶6 To establish Board jurisdiction under 5 U.S.C. chapter 75, an appellant must
show , among other things, that she satisfies one of the d efinitions of “employee”
in 5 U.S.C. § 7511 (a)(1). See 5 U.S.C. §§ 7512 , 7513(d); Sosa v. Department of
Defense , 102 M.S.P.R. 252 , ¶ 6 (2006) (explaining that an “employee” within the
meaning of 5 U.S.C. § 7511 (a)(1) has appeal rights from certain agency actions,
such as a removal for cause) . For an employee in the competitive service, this
generally means she must either not be serving a probationary peri od under an
initial appointment or h ave completed 1 year of current continuous service under
other than a temporary appointment of 1 year or less.2 5 U.S.C. § 7511 (a)(1)(A) ;
McCormick v. Department of the Air Force , 307 F.3d 1339 , 1341 -43 (Fed. Cir.
2002) . However, an employee in the competitive service who do es not satisfy
either definition may nevertheless establish Boar d jurisdiction under OPM
regulations if she shows she was discriminated against based on her marital status
or for partisan political reasons when terminated, or that her termination was
based on preappointment reasons. Tarr v. Department of Veterans Affairs ,
115 M.S.P.R. 216 , ¶ 10 (2010) ; 5 C.F.R. §§ 315.805 -315.806.
¶7 It is undisputed that , at the time of h er termination, the appellant did not
meet the statutory definition of “employee” with Board appeal rights under
chapter 75. ID at 2 . Further, the appellant has not challenged the adm inistrative
judge ’s finding that she failed to nonfrivolously allege discrimination based on
marital status or for partisan political reasons , and we discern no reason to disturb
2 Effective November 25, 2015, 10 U.S.C. § 1599e (a), along with statutory amendments
to 5 U.S.C. § 7511 (a)(1)(A)(ii) , outline that individuals appointed to a permanent
competitive -service position at the Department of Defense must serve a 2-year
probationary period . However, the appellant’s appointment began before these
statutory changes. IAF, Tab 11 at 4.
5
that finding on review. PFR File, Tab 1. Rather, she raises an FMLA claim. Id.
at 4, 11. The Board, however, distinguishes a preexisting condition and the effect
a preexisting condition has on an employee’s performance or conduct during the
probationary period. See West v. Department of Health & Human Services ,
122 M.S.P.R. 434 , ¶ 10 (2015). The appellant’s AWOL during her probationary
period, even if necessitated by her preexisting medical condition, cannot qualify
as a preappointment reason for her termination. See Holloman v. Department of
the Navy , 31 M.S.P.R. 107 , 110 (1986) (fin ding that the Board lacked jurisdiction
over a probationary appellant’s attendance -based termination even if his absences
were caused by a preexisting medical condition ).3
¶8 The appellant also reiterates her allegations that, during her probationary
period, she was denied an accommodation and subjected to retaliation . PFR File,
Tab 1 at 5; IAF, Tab 10 at 48 -49. The administrative judge correctly found that
neither the appellant’s failure -to-accommodate claim nor her retaliation claim, as
raised below, provided an independent basis for Board jurisdiction. ID at 3; see
Penna v. U.S. Postal Service , 118 M.S.P.R. 355 , ¶ 13 (2012) (find ing that, in the
absence of an otherwise appealable action, the Board lacks jurisdiction over a
claim of discrimination based on a disability ); Jafri v. Department of the
Treasury , 68 M.S.P.R. 216 , 219 -21 (1995) (observing that an allegation of
postappointment retaliation based on an equal employment opportunity claim
3 Absent an otherwise appealable action , we are without authority to adjudicate the
appellant’s FMLA claim , even if the Board ultimately has jurisdiction over a potential
individual right of action (IRA) appeal under the Whistleblower Protect ion
Enhancement Act of 2012, or a discrimination claim under the Uniformed Services
Employment and Reemployment Rights Act of 1994 (codified as amended at 38 U.S.C.
§§ 4301 -4335) (USERRA) , as desc ribed below . See Lua v. U.S. Postal Service ,
87 M.S.P.R. 647 , ¶ 12 (2001) (declining to adjudicate an appellant’s FMLA claim in the
absence of chapter 75 jurisdiction) ; Wren v. Department of the Army , 2 M.S.P.R. 1 , 2
(1980) (providing that prohibited personnel practices under 5 U.S.C. § 2302 (b) are not
independent sources of Board jurisdiction), aff’d , 681 F.2d 867 , 871 -73 (D.C. Cir.
1982) .
6
filed prior to the appointment cannot supply jurisdiction), aff’d , 78 F.3d 604
(Fed. Cir. 1996) (Table).
We remand for further proceedings because the appellant did not receive explicit
notice of what is required to establish Board jurisdiction based on her allegations.
¶9 We find that the instant appeal needs to be remanded for further
proceedings, because it appears that the appellant may be attempting to raise an
individual right of action (IRA) appeal under the Whistleblower Protection
Enhancement Act of 2012, or a discrimination claim under the Uniformed
Services Employm ent and Reemployment Rights Act of 1994 (codified as
amended at 38 U.S.C. §§ 4301 -4335) (USERRA) .4
¶10 An appellant must receive explicit information on what is required to
establish Board jurisdictio n. Burgess v. Merit Systems Protection Board ,
758 F.2d 641 , 643 -44 (Fed. Cir. 1985); Burwell v. Department of the Army ,
78 M.S.P.R. 645 , ¶¶ 8-9 (1998) (remanding appeal due to the administrative
judge ’s failure to advise the appellant what was required to establish Board
jurisdiction over an IRA appeal). The administrative judge’s orders, initial
decision, and agency’s submissions did not provide the appellant with notice on
the jurisdictional require ments of an IRA appeal. IAF, Tabs 3, 9; ID at 2-3; see
Harris v. U.S. Postal Service , 112 M.S.P.R. 186 , ¶ 9 (2009) (stating that an
administrative judge’s failure to provide an appellant with proper Burgess notice
can be cured if the agency’s pleadings or the initial decision contain the notice
that was otherwise lacking). Although her appeal form indicates she did not file a
whistlebl owing complaint with OSC, the appellant may have been under the
impression that she was not required to exhaust her OSC remedy due to the
agency’s notice of termination, which suggested she could file an IRA appeal in
4 The Board’s jurisdicti on over a USERRA claim is not dependent on an appellant
invoking USERRA. Yates v. Merit Systems Protection Board , 145 F.3d 1480 , 1485
(Fed. Cir . 1998). USERRA claims are broadly and liberally construed. Tindall v.
Department of the Army , 84 M.S.P.R. 230, ¶¶ 6-7 (1999).
7
the first instance with the Board. IA F, Tab 1 at 5, Tab 10 at 18. This guidance
was in error, because an individual seeking corrective action for whistleblower
reprisal under 5 U.S.C. § 1221 is required to seek corrective action from OSC
before seeking corrective action from the Board in an IRA appeal. Edwards v.
Department of the Air Force , 120 M.S.P.R. 307 , ¶ 15 (2013). The appellant has
alleged that the agency retaliated against her after she filed a report with agency
police that her supervisor assaulted her . IAF, Tab 7 at 5 -6; PFR File Tab 1 at 5 -6.
Because it appears the appellant participated in an inv estigation into the assault
incident by agency police, she may have engaged in protected activity by
“cooperating with or disclosing information to . . . [an agency] component
responsible for internal investigation or review. ” IAF, Tab 6 at 8 -9; 5 U.S.C.
§ 2302 (b)(9)(C). Further, a claim of assault may be a protected disclosure of a
violation of law, rule, or regulation. 5 U.S.C. § 2302 (b)(8)(A)(i); see Lewis v.
Department of Commerce , 101 M.S.P.R. 6, ¶ 11 (2005) (determining that the
disclosure of an assault is a disclo sure of a violation of law, rule, or regulation).
¶11 The appellant needs to be advised that to establish Board jurisdiction over
an IRA appeal, she must show that she exhausted her administrative remedies
before OSC and make nonfrivolous allegations of the following: she made a
protected disclosure described under 5 U.S.C. § 2302 (b)(8) or engaged in
protected activity as specified in 5 U.S. C. § 2302 (b)(9)(A)(i), (B), (C), or (D);
and (2) the disclosure or protected activity was a contributing factor in the
agency’s decision to take or fail to take a personnel action as defined by 5 U.S.C.
§ 2302 (a)(2)(A). 5 U.S.C. §§ 1214 (a)(3), 1221(a), (e)(1); Salerno v. Department
of the Interior , 123 M.S.P.R. 230 , ¶ 5 (2016). Because the appellant was not so
informed, it is necessary to remand this appeal to the regional office to provide
her with an adequate opportunity to establish jurisdiction. Burwell , 78 M.S.P.R.
645, ¶ 9.
¶12 Regarding her possible USERRA claim, the appellant stated that she is a
decorated disabled veteran and provided evidence that she has a 100% disability
8
rating. IAF, Tab 6 at 5 -6, Tab 7 at 4 -5. She may have been attempting to raise a
claim that the agency discriminated against her due to her service -connected
disability. IAF, Tab 7 at 4 -6. If the fact that the ap pellant incurred the injury
during military service is incidental to her claim of disability discrimination, then
it does not, on its own, make her claim a USERRA claim. McBride v. U.S. Postal
Service , 78 M.S.P.R. 411 , 415 (1998). Conversely, if the appellant is alleging the
agency’s actions, culminating in and including her termination, were motivated
by her status as a disabled v eteran, the Board may have jurisdiction over her
claim. Lazard v. U.S. Postal Service , 93 M.S.P.R. 337 , ¶ 8 (2003). Neither the
administrative judge nor the agency’s submission provided the appellant with
notice on the jurisdictional requirements of a USERRA claim. IAF, Tabs 3, 9; ID
at 2-3.
¶13 Therefore, the appellant also needs to be advised that to establish Board
jurisdiction over a USERRA discrimination claim under 38 U.S.C. § 4311 (a), she
must nonfrivolously allege that: (1) she performed duty or has an obligation to
perform duty in a uniformed service of the United State s; (2) the agency denied
her initial employment, reemployment, retention, promotion, or any benefit of
employment; and (3) the performance of duty or obligation to perform duty in the
uniformed service was a substantial or motivating factor in the denial. Hau v.
Department of Homeland Security , 123 M.S.P.R. 620 , ¶ 11 (2016), aff’d sub nom.
Bryant v. Merit Systems Protection Board , 878 F.3d 1320 (Fed. Cir. 2017); see
Bryant , 878 F.3d at 1325 -26 (articulating the “substantial or motivating factor”
standard) (citation omitted).
ORDER
¶14 For the reasons discussed above, we remand this case to the Atlanta
Regional Office for further adjudication in accordance with this Remand Order.
The administrative judge may adopt her prior findings regarding the Board’s lack
9
of jurisdiction over the appellant’s termination under chapter 75 and 5 C.F.R.
§§ 315.805 -.806 in her remand initial decision.
FOR THE BOARD:
Washington, D.C. /s/ for
Jennifer Everling
Acting Clerk of the Board | ONORATO_EDITH_AT_315H_16_0645_I_1_REMAND_ORDER_1931366.pdf | 2022-06-07 | null | AT-315H-16-0645-I-1 | NP |
4,359 | https://www.mspb.gov/decisions/nonprecedential/FITZPATRICK_RICHARD_CURTIS_AT_0752_20_0601_I_1_FINAL_ORDER_1931370.pdf | UNITED STATES OF AME RICA
MERIT SYSTEMS PROTEC TION BOARD
RICHARD CURTIS FITZP ATRICK,
Appellant,
v.
DEPARTMENT OF VETERA NS
AFFAIRS,
Agency.
DOCKET NUMBER
AT-0752 -20-0601 -I-1
DATE: June 7, 2022
THIS FINAL ORDER IS NONPRECEDENTIAL1
Richard Curtis Fitzpatrick , Summerfield, Florida, pro se.
Heather G. Blackmon , Esquire, Tampa, Florida, 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 21, 2020 initial decision
in this appeal. Initial Appeal File, Tab 12 , Initial Decision ; Petition for Review
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or dis tinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board's case law. See 5 C.F.R. § 1201.117 (c).
2
(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 agency submitted a document
entitled “SETTLEMENT AGREEMENT” signed and dated on May 6, 2021. PFR
File, Tab 5. The document provides, among other things, that the appellant
voluntarily withdr aws his appeal pursuant to the settlement agreement . Id. at 4.
¶3 Before dismissing a matter as settled, the Board must decide whether the
parties have entered into a settlement agreement, whether they understand its
terms, and whether they intend to have th e agreement entered into the record for
enforcement by the Board. See Mahoney v. U.S. Postal Service , 37 M.S.P.R.
146, 149 (1988). In a ddition, before accepting a settlement agreement into the
record for enforcement purposes, the Board must determine whether the
agreement is lawful on its face and whether the parties freely entered into it . See
Massey v. Office of Personnel Management , 91 M.S.P.R. 289 , ¶ 4 (2002) ,
overruled on other grounds by Delorme v. Department of the Interior ,
124 M.S.P.R. 123 , ¶¶ 11 -21 (2017) ( holding that the Board may enforce
settlement agreements that have been entered into the record, independent of any
prior finding of Board jurisdiction over the underlying matter being settled).
¶4 Here, the settlement provides for enforcement by and under the regulations
of the Equal Employment Opportunity Commission. PFR File, Tab 5 at 6. W e
therefor e 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. As the parties do not intend for the Board
to enforce the settlement ag reement, we need not address the additional
considerations regarding enforcement and do not enter the settlement agreement
into the record for enforcement by the Board.
¶5 Accordingly, we find that dismissing the appeal with prejudice to refiling
(i.e., the p arties normally may not refile this appeal) is appropriate under these
circumstances. This is the final decision of the Merit Systems Protection Board
3
in this appeal. Title 5 of the Code of Federal Regulations, section 1201.113
(5 C.F.R. § 1201.113 ).
NOTICE OF APPEAL RIG HTS2
You may obtain review of this final decision. 5 U.S.C. § 7703 (a)(1). By
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
Systems Protection Board does not provide legal advice on which option is most
appropriate for your situation and the rights described below do not represent a
statement of how courts will rule regarding which cases fall within their
jurisdiction. If you wish to seek review of this final decision, you should
immediately review 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 appro priate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of App eals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703 (b)(1)(A).
2 Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise which option is mos t 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 receiv es 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 prepay ment of fees, costs, or other security. See
42 U.S.C. § 2000e -5(f) and 29 U.S.C. § 794a .
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702 (b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702 (b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C . 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302 (b)(8) or
6
other protected activities listed in 5 U.S.C. § 2302 (b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial 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
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
3 The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 201 8, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
The Al l Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115 -195,
132 Stat. 1510.
7
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any 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 | FITZPATRICK_RICHARD_CURTIS_AT_0752_20_0601_I_1_FINAL_ORDER_1931370.pdf | 2022-06-07 | null | AT-0752-20-0601-I-1 | NP |
4,360 | https://www.mspb.gov/decisions/nonprecedential/CYNOR_KATHY_S_CH_0752_20_0574_I_1_REMAND_ORDER_1928889.pdf | UNITED STATES OF AME RICA
MERIT SYSTEMS PROTEC TION BOARD
KATHY S. CYNOR,
Appellant,
v.
DEPARTMENT OF AGRICU LTURE,
Agency.
DOCKET NUMBER
CH-0752 -20-0574 -I-1
DATE: May 31, 2022
THIS ORDER IS NONPRECEDENTIAL1
Thomas J. Cynor , Esquire, Woodstock, Illinois, for the appellant.
Joshua N. Rose , Washington, D.C., for the agency.
BEFORE
Raymond A. Li mon, Vice Chair
Tristan L. Leavitt , Member
REMAND 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 reversed the agency action
finding that the agency violated the appellant’s constitutional due process rights .
For the reasons discussed below, we GRANT the petition for review, GRANT the
cross petition for review, VACATE the initial decision , and REMAND the case 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
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 Central Regional Office for further adjudication in accordance with this
Remand Order.
BACKGROUND
¶2 The appellant is employed as a GS -12 Supervisory Veterinary Medical
Officer. Initial Appeal File (IAF), Tab 4 at 17. On May 12, 2020, the agency
issued the appellant a notice of proposed removal, charging her with (1) failure
to enforce safety and health regulations, and ( 2) neglect of duty.
IAF, Tab 5 at 16-26. The proposal notice included an explanation of the
appellant’s rights, including her right to respond either orally, in writing, or both,
and explaining that she “may cite extenuating circumstances, make any other
representations [she] consider[s] appropriate, and/or submit affidavits or other
evidence” in support of her reply. Id. at 24. The notice directed the appellant to
submit her written reply to a Human Resources (HR) Specialist , providing both
a physical address at the agency’s office in Minneapolis, and an email address .
Id.
¶3 The appell ant submitted a written response , consisting of 7 parts, 1 of
which was a supplemental exhibit file , roughly 91 pages in length , containing
exhibits supporting her claims and statement s. IAF, Tab 4 at 62 -86, Tab 5
at 4-13. She sent the documents to the agency via email, except for the
supplemental exhibit file , which she sent via Federal Express to the Minneapolis
office. IAF, Tab 4 at 62 -64. The appellant also participated in an oral reply,
during which the deciding official took detailed notes that w ere provided to the
appellant, and to which she submit ted corrections. IAF, Tab 4 at 27-61.
Regarding the exhibits sent to the agency’s Minneapolis office, because of the
COVID -19 pandemic , the agency had limited staffing in the office, and the HR
specia list, who the supplemental exhibit file was sent to, was not physically
present in the office and did not retrieve the supplemental exhibit file until
October 2020, after the appellant had been removed. IAF, Tab 18 at 8 -9.
3
¶4 After reviewing the other 6 parts of the appellant’s written reply, as well as
the information provided during the oral reply, the deciding official issued a
decision on August 13, 2020, mitigating the proposed removal to a 30 -day
suspension. Id. at 21 -26. The appellant filed a timely Board appeal, and during a
status conference, it came to light that the deciding official had not reviewed the
appellant’s supplemental exhibit file prior to issuing the agency decision .
IAF, Tab 10. Because due process is a threshold issue, the adminis trative judge
bifurcated the appeal to address the potential due process violation first , and the
parties submitted briefing on that issue . IAF, Tabs 13 -14, 16, 18, 21. After
reviewing the parties’ submission s, the administrative judge issued an initial
decision reversing the agency action, finding that the deciding official’s failure to
consider the appellant’s supplemental exhibit file deprived her of a meaningful
opportunity to be heard and therefore constituted a due process violation .
IAF, Tab 23, I nitial Decision (ID) at 9 -11.
¶5 The agency filed a p etition for review, asserting that the administrative
judge erred in finding a constitutional due process violation because : (1) he
failed to apply the proper analysis which requires a balancing of the employee ’s
interests, the government interests, and the actual pro cedural protections
provided; (2 ) under that three -part balancing test, the agency provided the
appellant with constitutional due process; and (3) the obligation to review the
supplemental e xhibit file is procedural and governed by the harmful error
standard, which the appellant did not meet because she did not establish that
reviewing the document would have changed the agency’s decision. Petition for
Review (PFR) File, Tab 1 at 7 -16. The appellant responded, opposing the
agency’s petition for review, and filing a cross petition for review arguing that
the appeal should be remanded because the administrative judge did not allow her
4
to pursue her affirmative defense of whistleblower retaliat ion.2 PFR File, Tab 11 .
The agency replied in opposition to the appellant’s response and cross petition for
review. PFR File, Tab 13.
DISCUSSION OF ARGUME NTS ON REVIEW
The agency did not violate the appellant’s constitutional due process rights.
¶6 In finding a constitutional due process violation, the administrative judge
reasoned that the appellant did not receive a meaningful opportunity to respond
because the deciding official failed to consider her supplemental exhibit file ,
which contained “highly re levant” documents “intended to bolster what would
otherwise be naked allegations.” ID at 8 -9. He also explicitly rejected the
agency’s argument that it satisfied due process requirements because it
considered all of her other submissions , both oral and written , noting that in the
proposal notice the agency invited the appellant to present documentary evidence,
and thus the appellant was “entitled to have that evidence considered and afforded
the proper weigh t in the deciding official’s deliberations befo re a decision is
rendered.” ID at 10 (emphasis omitted) .
¶7 The administrative judge ’s reasoning is flawed. An agency’ s failure to
provide a tenured public employee with an opp ortunity to present a response to an
agency action that deprives her of a prope rty right in employment constitutes an
abridgement of her constitutional right to minimum due process of law, i.e., prior
notice and an opportunity to respond . Cleveland Board of Education v.
Loudermill , 470 U.S. 532 , 546 (1985). However, constitutional due process , as
articulated in Loundermill , does not require that an employee have an opportunity
2 The appellant also requested that the Board strike the agency’s petition for review,
arguing that it was nonconforming with the Board’s regulations because the agency
submitted exhibits which address the merits of t he charges in an attempt to establish
that the appellant failed to show that any error was harmful . PFR File, Tab 1 at 16,
Tabs 2 -9, Tab 11 at 6 -9. Because we are remanding this matter for further adjudication,
the parties will have an opportunity to submit and respond to evidence regarding
whether the appellant established harmful error .
5
to respond in writing and orally —it requires on e or the other. In other words, due
process requires that an employee have “[t]he opportunity to present reasons,
either in person or in writing, why proposed action , should not be taken is a
fundamental due process requirement.” Id. (emphasis supplied).
¶8 The Board has interpreted minimum due process to require an opportunity
to respond either orally or in writing . For instance, in Kinsey v. Department of
the Navy , 59 M.S.P.R. 226 , 229 (1993), the appellant sent his written reply, which
contained a request for an oral reply, before the expiration of t he reply period, but
it was received by the agency after the reply period had ended. The deciding
official considered the appellant’s written reply, but did not afford him the
opportunity to present an oral reply as he requested . Id. The Board determine d
that any error by the agency in failing to provide the appellant with an oral
response was a procedural error, subject to the har mful error standard, and not
an “error[] of a constitutional dimension warranting reversal of the action for
failure to provi de the appellant with minimum due process.” Id. Thereafter, the
Board has relied on Kinsey for the proposition that, whe n an agency has provided
an employee with an opportunity to make a written reply to a notice of proposed
adverse action, its failure t o afford her with an opportunity to make an oral reply
does not violate her right to minimum due process . Ronso v. Department of the
Navy , 122 M.S.P.R. 391, ¶ 13 (2015) (relying on Kinsey for the stated
proposition); Hamilton v. U.S. Postal Service , 84 M.S.P.R. 635 ¶ 13 (1999)
(same).
¶9 Thus, minimum due process is satisfied when an employee is afforded with
an opportunity to present either a written response or an oral response —it does
not require both. Here, it is undisputed that the appellant presented an o ral reply,
which was considered by the deciding official. IAF, Tab 4 at 27 -61,
Tab 18 at 8-9. Therefore , regardless of any errors in the agency’s consideration
of her written reply, the agency met minimum due process requirements because
it provided the appellant with an oral reply. Accordingly, the administrative
6
judge erred in finding that the agency violated the appellant’s due process rights.
ID at 10.
On remand, the administrative judge should consider whether the agency’s failure
to review the supplemental exhibit file constitutes harmful procedural error .
¶10 While the deciding official ’s failure to review the supplemental exhibit file
does not constitute a violation of due process, it may constitute harmful
procedural error. See Kinsey , 59 M.S.P.R. 226 , 229-30 (applying the harmful
error standard when the agency denied the appellant an oral reply but offered him
an opportu nity to submit a written reply). Under 5 U.S.C. § 7701 (c)(2)(A), the
Board cannot sustain an agency’s decision if the employee “shows harmful error
in the application of the agency’s procedures in arriving at such decision.”
Stephen v. Department of the Air Force , 47 M.S.P.R. 672 , 681 (1991) . Reversal
of an action for harmful erro r is warranted where the procedural error, whether
regulatory or statutory, likely had a harmful effect upon the outcome of the case
before the agency. Id.
¶11 Because the record has not been fully developed on this issue, remand is
required. On remand, th e administrative judge should determine whether the
deciding official’s failure to consider the supplemental exhibit file constitutes
harmful error. In order to prove harmful error under the statute and the Board’s
regulations, an appellant must “prove th at any procedural errors substantially
prejudiced [her] rights by possibly affecting the agency’s decision.” Id. (quoting
Cornelius v. Nutt , 472 U.S. 648 , 661 (1985) ). Harmful error cannot be presumed
and the appellant bears the burden of showing that the procedural error was likely
to have caused the agency to reach a conclusion different from the one it would
have reached in the absence of t he error. Mattison v. Department of Veterans
Affairs , 123 M.S.P.R. 492 , ¶ 14 (2016) .
7
The administrative judge should have all owed the appellant to pursue her
affirmative defense of whistleblower retaliation notwithstanding his finding of a
due process violation .
¶12 The appellant argues in her cross petition for review that the administrative
judge should have allowed her to pursue her affirmative defense of whistleblower
retaliation even after reversing the agency action . PFR File, Tab 11 at 17 -18. We
agree. Notwithstanding the administrative judge’s reversal of the agency’s
action, the appellant could have been entitled to addit ional relief if she succeeded
in proving her allegation that the agency’s action constituted retaliation for
whistleblowing. Jenkins v. Environmental Protection Agency , 118 M.S.P.R. 161,
¶ 13 (2012). If the appellant established her affirmative defense that the agency’s
action constituted a violation of her rights under 5 U.S.C. § 2302 (b)(8), she could
have been entitled to further corrective action, such as attorney fees and
consequential damages. Id. Thus, the appellant’s affirmative defense was not
rendered moot by the administrative judge’s determination that she was deprived
of minimum due process, and the appellant should have been allowed to pursue
the claim. See i d., ¶ 14; see also Walton v. Department of Agriculture ,
78 M.S.P.R. 401, 403 -04 (1998) (finding that an individual right of action appeal
is not rendered moot when the agency completely rescinds the person nel action at
issue if the appellant still has outstanding claims for consequential damages and
corrective action).
¶13 Because we have reversed the administrative judge’s finding of a violation
of the appellant’s constitutional due process rights, this matter is being remanded
back to the regional o ffice for further adjudication consistent with the decision .
Regardless of whether the administrative judge determines that the agency
committed harmful procedural error , he should allo w the appellant to pursue her
affirmative defense of whistleblower retaliation . Furthermore, he should issue
an initial decision that identifies all material issues of fact and law, summarize s
the evidence, resolve s issues of credibility, and include s the administrative
8
judge’s concl usions of law and his legal reasoning, as well as the authorities on
which that reasoning rests . Spithaler v. Office of Personnel Management ,
1 M.S.P.R. 587 , 589 (1980) (explaining that an initial decision must identify all
material issues of fact and law, summarize the evidence, resolve issues of
credibility, and include the administrative judge’s conclusions of law and his
legal reasoning, as well as the authorities o n which that reasoning rests).
ORDER
¶14 For the reasons discussed abo ve, we remand this case to the Central
Regional O ffice for further adjudication in accordance with this Remand Order.
FOR THE BOARD:
Washington, D.C. /s/ for
Jennifer Everling
Acting Clerk of the Board | CYNOR_KATHY_S_CH_0752_20_0574_I_1_REMAND_ORDER_1928889.pdf | 2022-05-31 | null | CH-0752-20-0574-I-1 | NP |
4,361 | https://www.mspb.gov/decisions/nonprecedential/HOWELL_AALIYAH_CH_0752_22_0077_I_1_FINAL_ORDER_1928920.pdf | UNITED STATES OF AME RICA
MERIT SYSTEMS PROTEC TION BOARD
AALIYAH HOWELL,
Appellant,
v.
UNITED STATES POSTAL SERVICE,
Agency.
DOCKET NUMBER
CH-0752 -22-0077 -I-1
DATE: May 31 , 2022
THIS FINAL ORDER IS NONPRECEDENTIAL1
Aaliyah Howell , Chicago, Illinois, pro se.
Brandon Truman , St. Louis, Missouri, for the agency.
BEFORE
Raymond A. Limon, Vice Chair
Tristan L. Leavitt, Member
FINAL ORDER
¶1 The appellant has filed a petition for review o f the initial decision,
which dismissed the appeal of her termination for lack of jurisdiction , finding
that she did not establish that she was a Postal Service employee with Board
appeal rights . On petition f or review, the appellant argues , in part, that the
agency retaliated against her for filing an Office of Workers’ Compensation
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case 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 fu ture decisions. In contrast,
a precedential decision issued as an Opinion and 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
Programs claim and for reporting har assment, requesting that the Board apply the
Whistleblower Pr otection Enhancement Act to her appeal .2 Generally, we grant
petitions such as this one only in the following circumstances: the initial decision
contains erroneous findings of material fact; the initial decision is based on an
erroneous interpretation of statute or regulation or the erroneous application of
the law to the facts of the case; the administrative judge’s rulings during either
the course of the appeal or the initial decision were not consistent with required
procedures or involved an abuse of discretion, and the resulting error affected the
outcome o f 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 and
AFFIRM the initial decision, which is now the Board’s final decision. 5 C.F.R.
§ 1201.113 (b).
NOTICE OF APPEAL RIG HTS3
You may obtain review of this final decisi on. 5 U.S.C. § 7703 (a)(1).
By statute, the nature of your claims determines the time limit for seeking such
2 Postal Service employees are not covered by the whistleblower protection statute s and
thus are not entitled to seek corrective action under those statues . Hess v. U.S. Postal
Service , 123 M.S.P.R. 183 , ¶ 8 (2016) (finding that , as a Postal Service employee, the
appellant was not entitled to an award of attorney fees or damages for alleged
whistleblower reprisal under 5 U.S.C. § 1221 , one of the provisions authorizing
corrective action); Mack v. U.S. Postal Service , 48 M.S.P.R. 617 , 621 (1991) (finding
that Postal Service employees are not entitled to seek corrective action under 5 U.S.C.
§ 1221 in connection with their whistleblow er reprisal claims); see Booker v. Merit
Systems Protection Board , 982 F.2d 517 , 519 (Fed. Cir. 1992) (finding that Postal
Service employees cannot seek corrective action under 5 U.S.C. § 1221 ).
3 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.
3
review and the appropriate forum with which to file. 5 U.S.C. § 7703 (b).
Although we offer the following summary of available 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 regardin g which cases fall within
their jurisdiction. If you wish to seek review of this final decision, you should
immediately review the law applicable to your claims and carefully follow all
filing tim e limits and requirements. Failure to file within the applicable time
limit may result in the dismissal of your case by your chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your pa rticular 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 revie w of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision.
5 U.S. C. § 7703 (b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is t he court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
4
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Fe deral Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants b efore the Federal Circuit.
The Board neither endorses the services provided by any att orney nor warrants
that any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is ap pealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriat e U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 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 w ith the district court no later than 30 calendar days
after your representative receives this decision. If the action involves a claim of
discrimination based on race, color, religion, sex, national origin, or a disabling
condition, you may be entitled to representation by a court -appointed lawyer and
to waiver of any requirement of prepayment of fees, costs, or other security.
See 42 U.S.C. § 2000e -5(f) and 29 U.S.C. § 794a .
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702 (b)(1). You must file any such request 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 receives this decision before you do, then 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 b y
a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enha ncement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302 (b)(8) or
other protected activities listed in 5 U.S.C. § 2302 (b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
disposition of allegations of a prohibited personne l practice described in
section 2302(b) other than practices described in section 2302(b)(8), or
2302(b)(9)(A)(i), (B), (C), or (D),” then you may file a petition for judicial
review either with the U.S. Court of Appeals for the Federal Circuit or any court
of appeals of compete nt jurisdiction.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
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 b efore the 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 o f 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 | HOWELL_AALIYAH_CH_0752_22_0077_I_1_FINAL_ORDER_1928920.pdf | Date not found | null | CH-0752-22-0077-I-1 | NP |
4,362 | https://www.mspb.gov/decisions/nonprecedential/SKRETTAS_GEORGE_D_CH_1221_20_0549_W_1_FINAL_ORDER_1929062.pdf | UNITED STATES OF AME RICA
MERIT SYSTEMS PROTEC TION BOARD
GEORGE D. SKRETTAS,
Appellant,
v.
DEPARTMENT OF VETERA NS
AFFAIRS,
Agency.
DOCKET NUMBER
CH-1221 -20-0549 -W-1
DATE: May 31, 2022
THIS FINAL ORDER IS NONPRECEDENTIAL1
George D. Skrettas , Ann Arbor, Michigan, pro se.
Amy C. Slameka , Esquire, and Lauren Russo Ciucci , Esquire, Detroit,
Michigan, for the agency.
BEFORE
Raymond A. Limon , Vice Chair
Tristan L. Leavitt, Member
FINAL ORDER
¶1 The appellant has filed a petition for review of the initial decision, which
granted in part and denied in part his request for corrective action in his
individual right of action (IRA) appeal . Generally, we grant petitions such as this
one only in the following circumstances: the initial decision contains erroneous
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or dis tinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117 (c).
2
findings of material fact; the initial decision is based on an erroneous
interpretation of statute or regulation or the erroneous 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. The refore, we DENY the petition for review. Except as expressly
MODIFIED to find that the appellant made a protected disclosure when he
disclosed tha t a former Respiratory Therapist did not have the proper credentials,
we AFFIRM the initial decision.
BAC KGROUND
¶2 The appellant is a GS -08 Registered Respiratory Therapist in Detroit ,
Michigan, who engaged in the following whistleblowing activities: (1) reporting
to the Department of Veterans Affairs (VA) Secretary in July 2017 that an
individual who was not properly licensed had be en employed by the agency as a
Respiratory Therapist , and the Respiratory Care Service lacked adequate policies
and procedures, and (2) filing a complaint with the Inspector General (IG) in July
2018 reiterating the same disclosure , as well as disclosing that employees were
issuing medication without entering it into the Bar Code Medication
Administration System (BCMA). Initial Appeal Fil e (IAF), Tab 2 at 4 , Tab 9
at 68; Hearing Transcript (HT) (testimony of the appellant). The app ellant was
subjected to several personnel actions taken by his first - and second -line
supervisor s, to include a 10 -day suspension, removal of his patient -care duties, a
July 9, 2018 detail to the Social Work Service , and an unacceptable performance
3
evaluat ion issued on December 3, 2018. IAF, Tab 9 at 52, Tab 36 at 4, 27,
Tab 77 at 10 -16; HT (testimony of the appellant).
¶3 On January 15, 2019, the appellant filed a complaint with the Office of
Special Counsel (OSC), alleging that the agency had retaliated against him for his
protected disclosures and activities. IAF, Tab 6 at 26 -34. After OSC closed its
investigation , the appellant filed a tim ely IRA appeal, and after notifying him of
the proper legal standards, the administrative judge determined the Board had
jurisdiction over his appeal. IAF, Tabs 1, 4, 11. A hearing was held, and the
administrative judge issued an initial decision finding that the appellant made a
protected disclosure when he disclosed that the Respiratory Care Service lacked
adequate procedures and policies, and engaged in a protected activity when he
filed an IG complaint. IAF, Tab 89, Initial Decision (ID) at 10 -11. After finding
that the appellant met the contributing factor standard, the administrative judge
found that the agency established by clear and convincing evidence that it would
have suspended the appellant, removed his patient -care duties, and detailed him
absent his whistleblowing, but faile d to establish that it would have issued him an
unacceptable performance rating absent whistleblowing . ID at 11 -29. Thus, the
administrative judge granted the appellant’s request for corrective action in part,
and denied the request in part. ID at 29.
¶4 The appellant has filed a petition for review reiterating his argument that
the unlicensed Respiratory Therapist had unlawful ly performed her duties because
she did not have the proper credentials . Petition for Review (PFR) File, Tab 1
at 7, 12 . The agenc y has responded in opposition to the petition for review , but
does not challenge the finding of reprisal for whistleblowing . PFR File, Tab 3.
4
DISCUSSION OF ARGUME NTS ON REVIEW
Contrary to the administrative judge’s findings , the appellant established by
preponderant evidence that he made a protected disclosure when he disclosed that
an employee did not have the proper licensing to be a Respiratory Therapist .
¶5 In the initial decision, the administrative judge found that the appella nt’s
disclosure that the agency employed a Respiratory Therapist lacking proper
credentials was not protected because he had not established that he had a
reasonable belief that the disclosure evidenced a violation of law, rule, or
regulation.2 ID at 9. Specifically, the administrative judge found the employee ,
who had retired in December 2015, was not employed as a Registered Respiratory
Therapist , but instead was employed as a lower grade Respiratory Therapist . ID
at 8-9. The administrative judge also found that her duties were appropriate for
her credentials , and there was no evidence that this employee acted outside of the
scope of her position. Id. On review, the appellant claims that he witnessed this
employee “perform all the duties of a Respira tory Therapist despite not having
any credentials as a Respiratory Therapist ” which he asserts is illegal in the state
of Michigan . PFR File, Tab 1 at 7, 12.
¶6 Under the Whistleblower Protection Enhancement Act of 2012 (WPEA),
after the appellant makes a nonfrivolous allegation of jurisdiction, he must prove
by preponderant evidence that (1) he made a protected disclosure described under
5 U.S.C. § 2302 (b)(8) or engaged in protected activity descri bed 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 a s defined by 5 U.S.C. § 2302 (a). Salerno v. Department of the
2 We agree with the administrative judge’s finding that the appellant did not hold a
reasonable belief that such disclosure evidenced a substantial and specific danger to
public health or safety, because the individual was no longer employed by the agency,
and thus the danger was neither substantial nor specific. See Miller v. Department of
Homeland Security , 111 M.S.P.R. 312, ¶ 6 (2009) (stating that disclosures regarding
danger to the public must be both substantial and specific to be protected and mere
speculative danger is not protected); ID at 9.
5
Interior , 123 M.S.P.R. 230, ¶ 5 (2016). Whether an employee has a reasonable
belief is determined by an objective test: whether a disinterested observer with
knowledge of the essential facts known to and readily ascertainable by the
employee could reasonably conc lude that the matters disclosed show one of the
categories of wrongdoing set out in the statute. Id., ¶ 6. The appellant does not
have to prove that the matter disclosed actually violated a law, rule , or regulation;
rather, the appellant must show that t he matter disclosed was one which a
reasonable person in his position would believe evidenced such a violation.
Webb v. Department of the Interior , 122 M.S.P.R. 248 , ¶ 6 (2015) .
¶7 We find that the appellant held a reasonable belief that the employee
discussed above did not have the licensing required to be a Respiratory Therapist
in violation of law, rule, or regulation . According to the American Association
for Respiratory Care (AARC), a respiratory t herapist , whether a certified
respiratory t herapist (CRT) or a registered respiratory t herapist (RRT) , must have
“an associate degree, bachelor’s degree, or a master’s degree from [an accredited]
respiratory therapy education program.” What is an RT ? Credentials —CRT and
RRT , AARC. ORG, https://www.aarc.org/careers/what -is-an-rt/requirements/ (last
visited May 31 , 2022) . Further, Michigan’s Public Health Code provides : “[a]n
individual shall not engage in the practice of respiratory care or provide or offer
to provide respiratory care services unless licensed under this part.” Mich. Pub.
Health Code § 333.18707 (1). While the statute allows for individuals without a
license to practice respiratory care under certain circumstances, these exceptions
prohibit these individuals from using specific titles, to include “ respiratory
therapist .” Mich. Pub. Health Code §§ 333.18707, 333.18703 .
¶8 The employee at issue had a certificate from a hospital respiratory program
from 1963 , but had never completed her schooling, and thus, did not have a
degree. HT (testimony of the second -line supervisor, testimon y of the
Administrative Officer); IAF, Tab 36 at 22 . Based upon the plain language of
AARC’s guidelines , because she did not have a degree , she could not be licensed
6
as respiratory t herapist , either a CRT or RRT. However, she was employed as a
Respirator y Therapist by the agency, which appears to be contrary to the state’s
public health code. Mich. Pub. Health Code §§ 333.18707, 333.18703 ; IAF,
Tab 34 at 94 . Thus, although this employee may have been able to operate as a
non-credentialed Respiratory The rapist , we nevertheless find that there is
sufficient evidence that would lead a reasonable person in the appellant’s position
to believe that her employment violated law, rule, or regulation. Accordingly, we
modify the initial decision to reflect that th is disclosure is protected.
The additional protected disclosure does not affect the remainder of the
administrative judge’s analysis.
¶9 Despite the administrative judge’s erroneous finding regarding the
appellant’s disclosure about the respiratory therapist, that error does not affect the
outcome of this appeal . As discussed above, t he administrative judge found that
the appellant establi shed that his protected disclosure and activity contributed to
the personnel actions, and the inclusion of the additional disclosure does not
impact that analysis. ID at 13-14.
¶10 If the appellant proves that his protected disclosure or activity was a
contributing factor in a personnel action taken against him, the agency is given
the opportunity to prove, by clear and convincing evidence, that it would have
taken the same personnel action in the absence of the protected disclosure.
Salerno , 123 M.S.P.R. 230 , ¶ 5. In determining whether an agency has met its
burden, the Board will consider all relevant factors, including the following:
(1) the strength of the agency’s evidence in support of its action; (2) the existence
and strength of any motive to retaliate on the part of the agency officials who
were involved in the decision; and (3) any evidence that the agency takes similar
actions against employees who do not engage in such protected activity, but who
are otherwise similarly situated. Carr v. Social Security Administration , 185 F.3d
1318 , 1323 (Fed. Cir. 1999).
7
¶11 As for the analysis of the agency’s burden to show by clear and convincing
evidence that it would have taken the same personnel actions absent the protected
disclosures and activity, the additional d isclosure regarding the unlicensed
Respiratory Therapist has at most a negligible impact on only one of the Carr
factors, i.e., the agency’s motive to retaliate . The underlying allegation was not
significant, as the employee had retired over a year prior to the disclosure , and
the agency explained that the employee had been “grandfathered” in and was able
to operate as a non -credentialed Respiratory Therapist at the GS -06 level.
HT (testimony of the Administrative Officer). This appeared to have been the
general understanding at the agency , as several members of the Respiratory Care
Service staff testified that this was their understanding of the situation . HT
(testimony of the Associate Director of Patient Care Services, testimony of a
Registered Respiratory Therapist , testimony of the first -line supervisor, testimony
of the second -line supervisor). Furthermore, there is no evidence that anyone at
the agency suffered negative consequences as a result of this disclosure. Thus,
while an additional protected disclosure or activity may arguably add to an
agency’s motive to retaliate, given the circumstances present here, we find that an
additional disclosure had at most a negligible effect on the motive to retaliate .3
3 The agency failed to present evidence of the third Carr factor. ID at 20 -21, 26 -28.
We reiterate that it is the agency’s burden to establish that it met the clear and
convincing standard. Whitmore v. Depa rtment of Labor , 680 F.3d 1353 , 1374 (Fed. Cir.
2012). Because it is the agency’s burden of proof, when the agency fails to introduce
relevant comparator evidence, the third Carr factor cannot weigh in favor of the
agency. Smith v. General Services Administration , 930 F.3d 1359 , 1367 ( Fed. Cir.
2019); Siler v. Environmental Protection Agency , 908 F.3d 1291 , 1299 (Fed. Cir. 2018).
Here, the agency did not present comparator ev idence . Under the circumstances, the
third Carr factor does not weigh in the agency’s favor. Soto v. Department of Veterans
Affairs , 2022 MSPB 6 , ¶ 18. However, even if the third Carr factor does not weigh in
favor of the agency or even cuts slightly against it, it has no impact on the
administrative judge’s determination that the agency met its burden of proof or the
outcome of this case because the other factors outweigh the lack of comparator
evidence. See Rickel v. Department of the Navy , 31 F.4th 1358 (Fed. Cir. 2022) (noting
that the absence of ev idence on Carr factor three “will not necessarily ” prevent the
agency from meeting its burden) ; see also Panter v. Department of the Air Force ,
8
¶12 In conclusion, because the administr ative judge’s remaining findings in the
initial decision are well -reasoned, detailed, and supported by the record, we
discern no basis for disturbing them, except as expressly modified above .4
Crosby v. U.S. Postal Service , 74 M.S.P.R. 98 , 106 (1997) (declining to disturb
the administrative judge’s findings where she considered the evidence as a whole,
drew appropriate inferences, an d made reasoned conclusions); Broughton v.
Department of Health & Human Services , 33 M.S.P.R. 357 , 359 (1987) (same) .
ORDER
¶13 We ORDER the agency to rescind the December 3, 2018, unacceptable
performance appraisal and reissue the performance appraisal rating the appellant
22 M.S.P.R. 281 , 282 (1984) (stating that an adjudicatory error that is not prejudicial to
a party’s substantive rights provides no basis for reversal of an initial decision).
4 On review, the appellant disputes the administrative judge’s finding that the agency’s
investigation into an allegation that he tampered with a patient ’s ventilator was not a
covered personnel action because a qualifying personnel action was not taken in
conjunction with the retaliatory in vestigation. ID at 12; PFR File, Tab 1 at 9-13.
Specifically, he argues that his second -line supervisor “authored a letter which
proposed that [he] be terminated ” as a result of the investigation. PFR File, Tab 1
at 12. This letter, addressed “to whom it may concern,” summarizes the second -line
supervisor’s findings of the investigation and concludes that the appellant should be
removed , but there is no evidence in the record that indi cates where this letter was sent,
whether it was provided to the appe llant before litigation, or if any agency officials
involved in the personnel actions at issue viewed this letter. IAF, Tab 36 at 5 -6.
Furthermore, t his is the first time the appellant has articulated an argument that this
letter was connected to the inv estigation. He failed to raise such an argument with the
administrative judge, despite having ample opportunity to do so . Indeed, the appellant
objected to the administrative judge’s prehearing order excluding this investigation and
failed to raise any argument about this letter despite it being in the record at that time .
IAF, Tab 79 at 5 -6. Further, the appellant was aware that this letter was in the record,
because he asked his second -line supervisor during the hearing if he had ever authored a
lette r proposing his removal. HT (testimony of the second -line supervisor). 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 avai lable
despite the party’s due diligence. Clay v. Department of the Army , 123 M.S.P.R. 245 ,
¶ 6 (2016). Accordingly, because this e vidence was in the record , the appellant knew of
its existence, and he still failed to raise the argument before the administrative judge,
we de cline to consider the argument for the first time on review .
9
as fully successful in all elements. The agency must complete this action no later
than 20 days after the date of th is decision.
¶14 We further ORDER the agency to tell the appellant promptly in writing
when it believes it has fully carried out the Board’s Order and of the actions it has
taken to carry out the Board’s Order. The appellant, if not notified, should ask
the a gency about its progress. See 5 C.F.R. § 1201.181 (b).
¶15 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 th at 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 attorney
fees and costs. To be paid, you must meet the requirements set forth at title 5 of
the United States Code (5 U.S.C.), secti ons 7701(g), 1221(g), or 1214(g). The
regulations may be found at 5 C.F.R. §§ 1201.201 , 1201.202, and 1201.203. If
you believe you meet these requirements, you must file a motion for a ttorney fees
and costs WITHIN 60 CALENDAR DAYS OF THE DATE OF THIS DECISION.
You must file your motion for attorney fees and costs with the office that issued
the initial decision on your appeal.
NOTICE TO THE APPELL ANT REGARDING
YOUR RIGHT TO REQUES T CO NSEQUENTIAL 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
10
reasonable and foreseeable consequential damages. To be paid, you must me et
the requirements set out at 5 U.S.C. §§ 1214 (g) or 1221(g). The regulations may
be found at 5 C.F.R. §§ 1201.201 , 1201.202 and 1201.204.
In addition, the Whistleblower Protection Enhancement Act of 2012
authorized the award of compensatory damages including interest, reasonable
expert witness fees, and costs, 5 U.S.C. § 1214 (g)(2), which you may be entitled
to receive.
If you believe you are entitled to these damages, you must file a motion for
consequential damages and/or compensatory damages WITHIN 60 CALENDAR
DAYS OF THE DATE OF THIS DECISION. You must file your m otion with the
office that issued the initial decision on your appeal.
NOTICE TO THE PARTIE S
A copy of the decision will then be referred to the Special Counsel “to
investigate and take appropriate action under [5 U.S.C.] section 1215,” based on
the determ ination that “there is reason to believe that a current employee may
have committed a prohibited personnel practice” under 5 U.S.C. § 2302 (b)(8) or
section 2302(b)(9)(A)(i), (B), (C), or (D). 5 U.S.C. § 1221 (f)(3). Please note
that while any Special Counsel investigation related to this decision is pending,
“no disciplinary action shall be taken against any employee for any alleged
prohibi ted activity under investigation or for any related activity without the
approval of the Special Counsel.” 5 U.S.C. § 1214 (f).
NOTICE OF APPEAL RIG HTS5
The initial decision, as supplemented by t his 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
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.
11
your claims determines the time limit for seeking such review and the appropriate
forum with which to file. 5 U.S.C. § 7703 (b). Although we offer the following
summary of available appeal rights, the Merit Systems Protection Board does not
provide legal advice on which option is most appropriate for your situation and
the rights described b elow do not represent a statement of how courts will rule
regarding which cases fall within their jurisdiction. If you wish to seek review of
this final decision, you should immediately review the law applicable to your
claims and carefully follow all fil ing time limits and requirements. Failure to file
within the applicable time limit may result in the dismissal of your case by your
chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicia l review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703 (b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
12
relevance is the court’s “G uide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit , you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor war rants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to t he Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. distri ct court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703 (b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. ____ , 137 S. Ct. 1975 (2017) . If you have a
representative in this case, and your representative receives this decision before
you do, then you must file with the district court no later than 30 calendar days
after your representative receives this decision. If the action involves a claim of
discrimination based on race, color, religion, sex, national origin, or a disabling
condition, you may be entitled to representation by a court -appointed lawyer and
to waiver of any requirement of prepayment of fees, costs, or other security. See
42 U.S.C. § 2000e -5(f) and 29 U.S.C. § 794a .
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
13
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702 (b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702 (b)(1 ). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for rev iew to the EEOC by regular U.S. mail, the
address of the EEOC is:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302 (b)(8) or
other protected activities listed in 5 U.S.C. § 2302 (b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
disposition of allegations of a prohibited personnel practice describe d in
section 2302(b) other than practices described in section 2302(b)(8), or
2302(b)(9)(A)(i), (B), (C), or (D),” then you may file a petition for judicial
review either with the U.S. Court of Appeals for the Federal Circuit or any court
14
of appeals of com petent jurisdiction.6 The court of appeals must receive your
petition for review within 60 days of the date of issuance of this decision.
5 U.S.C. § 7703 (b)(1)(B).
If you submit a petition for j udicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional informa tion about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of P ractice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
6 The origi nal statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permane ntly allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115 -195,
132 Stat. 1510.
15
Contact information fo r the courts of appeals can be 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 | SKRETTAS_GEORGE_D_CH_1221_20_0549_W_1_FINAL_ORDER_1929062.pdf | 2022-05-31 | null | CH-1221-20-0549-W-1 | NP |
4,363 | https://www.mspb.gov/decisions/nonprecedential/KENNEDY_MATTHEW_J_SF_315H_16_0767_I_1_FINAL_ORDER_1929065.pdf | UNITED STATES OF AME RICA
MERIT SYSTEMS PROTEC TION BOARD
MATTHEW J. KENNEDY,
Appellant,
v.
DEPARTMENT OF THE AR MY,
Agency.
DOCKET NUMBER
SF-315H -16-0767 -I-1
DATE: May 31, 2022
THIS FINAL ORDER IS NONPRECEDENTIAL1
Matthew J. Kennedy , Honolulu, Hawaii, pro se.
Dawn Dobbs , Esq uire, and James L. Paul , Schofield Barracks,
Hawaii, for the agency.
BEFORE
Raymond A. Limon , Vice Chair
Tristan L. Leavitt , Member
FINAL ORDER
¶1 The appellant has filed a petition for review of the initial decision, which
dismissed the appeal of his probationary termination for lack of Board
jurisdiction. For the reasons set forth below, the appellant’s petition for review is
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117 (c).
2
DISMISSED as untimely filed without go od c ause shown. 5 C.F.R.
§ 1201.114 (e), (g).
BACKGROUND
¶2 Effective September 7, 2015, t he agency terminated the appellant from the
GS-5 Medical Support Assistant position during his probationary period. Initial
Appeal File (IAF), Tab 9 at 9 -11. The appellant timely appealed the agency’s
action . IAF, Tab 1. The administrative judge found that the appellant failed to
make a nonfrivolous allegation that, despite his status as a probationary
employee , the Board had jurisdiction over his appeal because he was a n employee
within the meaning of 5 U.S.C. § 7511 (a)(1)(A) , because his termination was
based on partisan poli tical reasons or marital status, or because the termination
was based in whole , or in part , on conditions arising before his appointment and
did not comport with proper procedures . IAF, Tab 10, Initial Decision (ID)
at 6-10. The administrative judge dism issed the appeal for lack of jurisdiction in
an October 17, 2016 initial decision . ID at 1, 11. The initial decision notified the
appellant of his further review rights, including the deadline for filing a petition
for review —November 21, 2016. ID at 11.
¶3 On December 5, 2016, the appellant electronically filed a petition f or
review through the Board’s e -Appeal Online S ystem , asking the Board to
reconsider the initial decision . Petition for Review (PFR) File, Tab 1. In his
petition for review, the appellant did not address the timeliness of his submission.
Id. The agency responded to the petition, moving that it be dismissed as untimely
filed . PFR File, Tab 3.
¶4 The Office of the Clerk of the Board, by notice dated December 6, 2016 ,
acknowledg ed the appellant’s petition for review . PFR File , Tab 2. The Clerk
informed the appellant that his petition was untimely filed because it was not
postmarked or received in the Clerk’s office on , or before , November 21, 2016.
3
Id. at 2. The Clerk further informed the appellant that the Board may dismiss his
petition for review as untimely filed unless he filed a motion, including a
statement, signed under penalty of perjury, or an affidavit, showing that his
petition for review was timely filed or that good cause existed for the filing delay.
Id. The Clerk enclosed with the notice a “Motion to Accept Filing as Timely or
to Waive Time Limit.” Id. at 7-8. The Clerk ’s notice afforded th e appellant until
December 21, 2016 , to file t hat motion. Id. at 2. The appellant did not respond
to the Clerk ’s notice.
DISCUSSION OF ARGUME NTS ON REVIEW
¶5 The Board ’s regulations provide that a petition for review must be filed
within 35 days of the issuance of the initial decision or, if the appell ant shows
that he received the initial decision more than 5 days after it was issued, within
30 days after the date that he received the initial decision. 5 C.F.R.
§ 1201.114 (e). The i nitial decision was issued on October 17, 2016 , and was sent
to the appellant, who was a registered e -filer, the same day. ID at 1; IAF, Tab 11.
Board documents served electronically on registered e -filers are deemed received
on the date of the electronic submission. 5 C.F.R. § 1201.14 (m)(2). Thus, as the
initial decision set s forth, the appellant ’s petition for review was due on , or
before , November 21, 2016 , and his December 5, 2016 petition for review was
untimely filed by 14 days .
¶6 The Board will waive the time limit for filing a petition for review only on
a showing of good c ause for the delay in filing. 5 C.F.R. § 1201.114 (g). To
establish good cause for the untimely filing, a party must show that he exercised
due diligence or ordinary prudence under the particular circumstances of the case.
Harrison v. Office of Personnel Management , 114 M.S.P.R. 453 , ¶ 5 (2010)
(citing Alonzo v. Department of the Air Force , 4 M.S.P.R. 180 , 184 (1980)).
Here, the appellant filed his petition for review 14 days after the filing deadline ,
4
and despite the Clerk of the Board’s notice, he has not offered any explanation 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. The initial decision remains the final decision of the
Board rega rding the appellant’s termination .
NOTICE OF APPEAL RIG HTS2
You may obtain review of this final decision. 5 U.S.C. § 7703 (a)(1). By
statute, the nature of your claims determines the time limit for seeking such
review and the appropriate forum with which to file. 5 U.S.C. § 7703 (b).
Although we offer the following summary of available appeal rights, the Merit
Systems Protection Board does not provide legal advice on which option is most
appropriate for your situation and the rights described b elow do not represent a
statement of how courts will rule regarding which cases fall within their
jurisdiction. If you wish to seek review of this final decision, you should
immediately review the law applicable to your claims and carefully follow all
filing time limits and requirements. Failure to file within the applicable time
limit may result in the dismissal of your case by your chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicia l review of a final Board order must file a petition for review with the U.S.
2 Since the issuance of the initial decision in this matter, the Board may have updated
the not ice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise which option is most appropriate in any matter.
5
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703 (b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal 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.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703 (b)(2); see Perry v. Merit Systems
6
Protection Board , 582 U.S. ____ , 137 S. Ct. 1975 (2017). If you have a
representative in this case, and your representative receives this decision before
you do, then you must file with the district court no later than 30 calendar days
after your representative receives this decision. If the action involves a claim of
discrimination based on race, color, religion, sex, national origin, or a disabling
condition, you may be entitled to representation by a court -appointed lawyer and
to waiver of any requirement of prepayment of fees, costs, or other security. See
42 U.S.C. § 2000e -5(f) and 29 U.S.C. § 794a .
Contact information for U.S. district courts can be found at their resp ective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702 (b)(1). You must file an y such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702 (b)(1). If you have a representative in this case,
and your rep resentative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EE OC is:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via 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 Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302 (b)(8) or
other protected activities listed in 5 U.S.C. § 2302 (b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
disposition of allegations of a prohibited personnel practice described in section
2302(b) other than practices described in section 23 02(b)(8), or 2302(b)(9)(A)(i),
(B), (C), or (D),” then you may file a 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 F ederal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
3 The original statutory provision that provided for judicial review of certain
whistleblower claims by a ny court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whis tleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115 -195,
132 Stat. 1510.
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 int erested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board ap pellants before the 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
respecti ve 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 | KENNEDY_MATTHEW_J_SF_315H_16_0767_I_1_FINAL_ORDER_1929065.pdf | 2022-05-31 | null | SF-315H-16-0767-I-1 | NP |
4,364 | https://www.mspb.gov/decisions/nonprecedential/GARCIA_TEODORA_DA_315H_16_0512_I_1_FINAL_ORDER_1929070.pdf | UNITED STATES OF AME RICA
MERIT SYSTEMS PROTEC TION BOARD
TEODORA GARCIA,
Appellant,
v.
DEPARTMENT OF THE TR EASURY,
Agency.
DOCKET NUMBER
DA-315H -16-0512 -I-1
DATE: May 31, 2022
THIS FINAL ORDER IS NONPRECEDENTIAL1
Teodora Garcia , Austin, Texas, pro se.
Bridgette M. Gibson , Esquire, and Michael L. Salyards , Esquire, Dallas,
Texas, for the agency.
BEFORE
Raymond A. Limon , Vice Chair
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
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 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 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 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 thi s 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 decision. 5 C.F.R.
§ 1201.113 (b).
BACKGROUND
¶2 The agency terminated the appellant from her competitive -service position
as a GS -4 Data Transcriber during her probationary period. Initial Appeal File
(IAF), Tab 7 at 18, 20 -22. She timely appealed her termination to the Board.
IAF, Tab 1. The administrative judge issued an order explaining that the
appellant has the burden of proving that the action was within the Board’s
jurisdiction , providing expl icit information on what was required to establish an
appealable jurisdictional issue, and direct ing her to file evidence and argument
proving jurisdiction. IAF, Tab 2; see Burgess v. Merit Systems Protection Board ,
758 F.2d 641 , 643 -44 (Fed. Cir. 1985).
¶3 After receiving the parties ’ submissions, the administrative judge issued an
initial decision dismissing the appeal for lack of jurisdict ion wi thout holding the
requested hearing. IAF, Tab 8, Initial Decision (ID). The appellant has filed a
petition for review of the initial decision, and the agency has responded in
opposition. Petition for Review (PFR) File , Tabs 1, 3.
3
DISCUSSION OF ARGUMENTS ON REVIEW
¶4 Generally, the Board lacks jurisdiction over a probationary employee ’s
appeal from a termination during the probationary period. Hurston v. Department
of the Army , 113 M.S.P.R. 34 , ¶ 8 (2010). To establish Board jurisdiction under
5 U.S.C. chapter 75, an individual must, among other things, show that she
satisfies one of the definitions of “employee” in 5 U.S.C. § 7511 (a)(1). 5 U.S.C.
§ 7513 (d); see Walker v. Department of the Army , 119 M.S.P.R. 391 , ¶ 5 (2013).
For an individual in the competitive service, like the appellant, this means that
she must eith er: (1) not be serving a probationary or trial period under an initial
appointment ; or (2) have completed 1 year of current , continuous service under
other than a temporary appointment limited to 1 year or less. 5 U.S.C.
§ 7511 (a)(1)(A). Individuals in the competitive service who do not satisfy either
definition may nevertheless have a regulatory right to appeal a termination to the
Board wh en: (1) the employee was discriminated against based on her marital
status; (2) the agency action was based on partisan political reasons; or (3) the
agency action was based (in whole or in part) on preappointment reasons , and the
agency did not follow the procedures of 5 C.F.R. § 315.805 . 5 C.F.R.
§ 315.806 (a)-(c); see Walker , 119 M.S.P.R. 391 , ¶ 5. Absent a nonfrivolous
allegation of jurisdiction by an appellant, there is no right to a hearing on the
threshold issue of jurisdiction. See Campion v. Merit Systems Protection Board ,
326 F.3d 12 10, 1215 (Fed. Cir. 2003).
¶5 On review, the appellant does not challenge the administrative judge ’s
determination s that she was not an “employee” within the meaning of 5 U.S.C.
§ 7511 (a)(1) and that she did not nonfrivolously allege or show that the
termination was based on partisan political reasons, marital status discrimination,
or conditions arising before her appointment. PFR File, Tab 1; see ID at 2 -5.
Rather, the appellant challenges on review the merits of her termination and
alleges that her Individual Performance Report , explaining her scores during her
probationary period , was overlooked. PFR File, Tab 1. She submits for the first
4
time on review several documents supporting these a rguments. Id. at 6 -12.
However , none of the appellant ’s arguments constitute a nonfrivolous allegation
of any of the exceptions to th e general rule discussed above , and she has not
shown that the evidence she submits on review was unavailable before the record
closed despite her due diligence and was material to the jurisdictional issues in
this case. See 5 C.F.R. § 1201.115 (d). Thus , even if true, nothing the appellant
alleges on review would establish Board jurisdiction ove r her probationary
termination.
¶6 Accordingly, we affirm the administrative judge’ s initial decision
dismissing this appeal for lack of jurisdiction .
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 seekin g such
review and the appropriate forum with which to file. 5 U.S.C. § 7703 (b).
Although we offer the following summary of available appeal rights, the Merit
Systems Protection Board does not pro vide legal advice on which option is most
appropriate for your situation and the rights described below do not represent a
statement of how courts will rule regarding which cases fall within their
jurisdiction. If you wish to seek review of this final dec ision, you should
immediately review the law applicable to your claims and carefully follow all
filing time limits and requirements. Failure to file within the applicable time
limit may result in the dismissal of your case by your chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
2 Since the issuance of the initial decision in this matter, the Board may have been
updated the notice of review rights included in final decisions. As indicated in the
notice, the Board cannot advise which option i s most appropriate in any matter.
5
about whether a particular forum is the appropriate one to review your case, you
should contact that f orum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703 (b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit , you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is ava ilable at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in sec uring pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants befor e the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option app lies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
6
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
to waiver of any requirement of prepayment of fees, costs, or other security. See
42 U.S.C. § 2000e -5(f) and 29 U.S.C. § 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
7
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.3 The court of appeals must receive your petition for
review within 60 days of the date of issuance of this decision. 5 U.S.C.
§ 7703 (b)(1)( B).
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
3 The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115 -195,
132 Stat. 1510.
8
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/prob ono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the 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_L ocator/CourtWebsites.aspx .
FOR THE BOARD:
Washington, D.C. /s/ for
Jennifer Everling
Acting Clerk of the Board | GARCIA_TEODORA_DA_315H_16_0512_I_1_FINAL_ORDER_1929070.pdf | 2022-05-31 | null | DA-315H-16-0512-I-1 | NP |
4,365 | https://www.mspb.gov/decisions/nonprecedential/WEBB_KATHY_P_DA_844E_16_0084_I_1_FINAL_ORDER_1929088.pdf | UNITED STATES OF AME RICA
MERIT SYSTEMS PROTEC TION BOARD
KATHY P. WEBB,
Appellant,
v.
OFFICE OF PERSONNEL
MANAGEMENT,
Agency.
DOCKET NUMBER
DA-844E -16-0084 -I-1
DATE: May 31, 2022
THIS FINAL ORDER IS NONPRECEDENTIAL1
Kathy P. Webb , Pine Bluff, Arkansas, pro se.
Linnette Scott , Washington, D.C., for the agency.
BEFORE
Raymond A. Limon , Vice Chair
Tristan L. Leavitt , Member
FINAL ORDER
¶1 The appellant has filed a petition for review of the initial decision, which
affirmed the final decision of the Office of Personnel Management (OPM )
disallowing her disability retirement application because it was untimely filed.
Generally, we grant petitions such as this one only in the following
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
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
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 ar gument 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. § 1201.11 5). 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 decisi on,
which is now the Board’s final decision. 5 C.F.R. § 1201.113 .
BACKGROUND
¶2 The Department of the Army separated the appellant from her Security
Guard position at the end of a term appointment on August 3, 2006. Initial
Appeal File (IAF), Tab 1 at 2, Tab 4 at 213 . On May 20, 2014, she applied for
disability retirement under the Federal Employees’ Retirement System (FERS) .
IAF, Tab 4 at 207 -16. In a final decision dated October 26 , 2015, OPM
disallowed her application because it was not timely filed , and she appealed that
determination to the Board. IAF, Tab 1 at 1, Tab 4 at 4 -5.
¶3 The administrative judge issued an order advising the appellant of her
burden of proving either that h er disability retirement application was timely filed
or that she was entitled to a waiver of the time limit for filing because she was
mentally incompetent during the filing period . IAF, Tab 7. The appellant did not
respond. In an initial decision issu ed without holding the requested hearing, the
administrative judge affirmed OPM’s final decision. IAF, Tab 1 at 1, Tab 8,
Initia l Decision (ID). He found that her disability retirement application was
3
untimely filed and that she was not entitled to a waiver of the time limit for filing
because she did not claim that she was prevented by mental incompetence from
timely filing her application. ID at 3.
¶4 The appellant has filed a petition for review, Petition for Review (PFR)
File, Tab 1, and the agency h as responded in opposition, PFR File, Tab 3.
DISCUSSION OF ARGUME NTS ON REVIEW
¶5 An application for disability retirement under FERS must be filed with an
employee’ s employing agency before the employee separates from service or with
the former employing age ncy or OPM within 1 year of the employee’s separation.
See Bruce v. Office of Personnel Management , 119 M.S.P.R. 617 , ¶ 7 (2013) .
The 1 -year filing period may be waived if the employee is mentally incompetent
at the date of separation or became mentally incompetent within 1 year of
separation and the application is filed with OPM within 1 year from the date the
employee is restore d to competency or is appointed a fiduciary, whichever is
earlier. Id. It is the employee’ s burden to prove by preponderant evidence that
she was mentally incompetent during the relevant filing period. Chapman v.
Office of Personnel Management , 110 M.S.P.R. 423 , ¶ 9 (2009).
¶6 Here, it is undisputed that the appellant applied for disability retirement on
May 20, 2014, almost 7 years after the 1 -year filing period expired on August 3,
2007. IAF, Tab 4 at 207 -16. Thus, the issue in this case is whether the appellant
showed that she was mentally incompetent during the filing period . In
determining whether an applicant was mentally incompetent for purposes of
waiving the time limit, the Board requires medical evidence supporting subjective
opinions of mental incompetence. Arizpe v. Office of Personnel Management ,
88 M.S.P.R. 463 , ¶ 9 (2001).
¶7 On review, the appellant claims , without more, that she was “diagnosed
with a medical condition and [is] disable[d].” PFR File, Tab 1 at 2. However,
she does not claim —either below or on review —that she was mentally
4
incompetent during the relevant filing period. Moreover, we have reviewed the
medical documentation contained in the record and there is no indication that the
appellant has ever been diagnosed with any condition that would render her
mentally incompetent . Therefore, the administrative judge properly found that
the appellant is not entitled to a waive r of the time limit for filing . ID at 3.
¶8 Because the appellant failed to file h er application within the statutory
1-year time limit or show that a waiver of the time limit is warranted, we find
that OPM p roperly disallowed her disability retirement application as untimely
filed . Accordingly, we affirm the initial decision.
NOTICE OF APPEAL RIGHTS2
You may obtain review of this final decision. 5 U.S.C. § 7703 (a)(1) . By
statute, the nature of your claims determines the time limit for seeking such
review and the appropriate forum with which to file. 5 U.S.C. § 7703 (b).
Although we offer the following 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.
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 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
6
receive this decision. 5 U.S.C. § 7703 (b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. ____ , 137 S. Ct. 1975 (2017). If you have a
representative in this case, and your representative receives this decision before
you do, then you must file with the district court no later than 30 calendar days
after your representative receives this decision. If the action involves a claim of
discrimination based on race, color, religion, sex, national origin, or a disabling
condition, you may be entitled to representation by a court -appointed lawyer and
to waiver of any requirement of prepayment of fees, costs, or other security. See
42 U.S.C. § 2000e -5(f) and 29 U.S.C. § 794a .
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702 (b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702 (b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative 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:
7
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial revi ew pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302 (b)(8 ) or
other protected activities listed in 5 U.S.C. § 2302 (b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
disposition of allegations of a prohibited personne l practice described in
section 2302(b) other than practices described in section 2302(b)(8), or
2302(b)(9)(A)(i), (B), (C), or (D),” then you may file a petition for judicial
review either with the U.S. Court of Appeals for the Fe deral Circuit or any court
of appeals of competent jurisdiction.3 The court of appeals must receive your
petition for review within 60 days of the date of issuance of this decision.
5 U.S.C. § 7703 (b)(1)(B).
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
3 The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit cou rt of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115 -195,
132 Stat. 1510.
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,” whi ch is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.g ov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representati on in a given case.
Contact information for the courts of appeals can be found at their
respective websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
FOR THE BOARD:
Washington, D.C. /s/ for
Jennifer Everling
Acting Clerk of the Board | WEBB_KATHY_P_DA_844E_16_0084_I_1_FINAL_ORDER_1929088.pdf | 2022-05-31 | null | DA-844E-16-0084-I-1 | NP |
4,366 | https://www.mspb.gov/decisions/nonprecedential/MARQUEZ_LUIS_R_SF_315H_16_0521_I_1_REMAND_ORDER_1928437.pdf | UNITED STATES OF AME RICA
MERIT SYSTEMS PROTEC TION BOARD
LUIS R. MARQUEZ,
Appellant,
v.
DEPARTMENT OF LABOR,
Agency.
DOCKET NUMBER
SF-315H -16-0521 -I-1
DATE: May 27, 2022
THIS ORDER IS NONPRECEDENTIAL1
Jim Dougherty , Esquire , Walnut Creek, California, f or the appellant.
David M. Kahn , Esquire, San Francisco, California, for the agency.
BEFORE
Raymond A. Limon , Vice Chair
Tristan L. Leavitt , Member
REMAND ORDER
¶1 The appellant has filed a petition for review of the initial decision, which
dismissed the prob ationary termination a ppeal for lack of jurisdiction . For the
reasons discussed below, we GRANT the appellant’s petition for review and
REMAND his Uniformed Services Employment and Reemployment Rights Act of
1994 (USERRA) claim to the Western Regional O ffice for further adjudication in
accordance with this Order.
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no prece dential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing t o the Board’s case law. See 5 C.F.R. § 1201.117 (c).
2
BACKGROUND
¶2 Effective May 13, 2016, the agency terminated the appellant ’s employment
during his 1-year probationary period for unacceptable performance.2 Initial
Appeal File (IAF), Tab 1 at 12. T he termination letter specified the deficiencies
in his performance and advised him of his Board appeal rights. Id. at 12 -13.
¶3 The appellant filed an appeal, challenging the merits of his termination and
alleging that he was terminated due to his disabilit y, race, color, national origin,
sex, and age , and for unspecified , preappointment reasons. IAF, Tab 1 at 7,
Tab 10 at 51 -55, Tab 12 at 4. He claimed that he had 15 years and 3 months of
Federal service, including 6 years of prior employment with a diffe rent agency ,
and that a probationary period was “not applicable” to his situation. IAF, Tab 1
at 3, 62. He also argued that the agency terminated him without providing
“notice, a right to answer, and then a final decision.” IAF, Tab 12 at 4. He
further alleged that by terminating him, the agency violated his USERRA rights
under 38 U.S.C. § 4311 and obstructed his right to compete for employment in
violation of 5 U.S.C. § 2302 (b)(4). Id. at 4, 18 -20.
¶4 The administrative judge notified the appellant that the Board may lack
jurisdiction over his termination, informed him of his burden of establishing that
he was an employee with statutor y appeal rights under 5 U.S.C. c hapter 75 or a
probationer with regulatory appeal rights under 5 C.F.R. § 315.806 , and afforded
him an opportunity to respond. IAF, Tab 2 at 2 -5. The adm inistrative judge also
granted the agency’s motion to stay discovery pending a rul ing on the
jurisdictional issue . IAF, Tabs 5, 7, 11. Although the appellant agreed to the
extension, he later submitted a pleading reflecting that he wished to engage in
discovery. IAF Tab 5 at 2, Tab 9 at 5.
2 Although neither party supplied documentation reflecting the nature of the appellant’s
appointment, it appears that it was in the competitive service. I nitial Appeal File, Tab 1
at 12 -13; see 5 C.F.R. § 315.201 (a) (discussing a career -conditional appointment, like
the appellant’s, as a type of competitive -service appointment).
3
¶5 The administrative judge issued an initial decision dismissing the appeal for
lack of jurisdiction, without holding the requested hearing. IAF, Tab 1 at 4 ;
Tab 15, Initial Decision (ID) at 1, 3. He found that the app ellant was a
probationary employee. ID at 1. He also found that the appellant failed to allege
a preappointment reason for his termination and, thus, was not entitled to the
procedural protections under 5 C.F.R. § 315.805 . ID at 3. He further found that
the appellant did not allege any other basis for Board jurisdiction over his
termination. Id. He therefore found that the Board also lacked jurisdiction over
the appellant’s prohibit ed personnel practice claims. Id. The administrative
judge received the appellant’s additional jurisdictional response after the initial
decision’s issuance and therefore r ejected it. IAF, Tab 17 ; see 5 C.F.R.
§ 1201.112 (a) (explaining that after the initial decision is issued, the
administrative judge retains only limited jurisdiction over the case).
¶6 The appellant has filed a petition for review. Petition for Review (PFR)
File, Tabs 1, 3. The agency has filed a response, to which the appellant has
replied.3 PFR File, Tabs 4, 7.
DISCUSSION OF ARGUME NTS ON REVIEW
¶7 The appellant alleges that the administrative judge erred by rejecting his
additional jurisdictional response as untimely, denying his right to discovery, and
failing to adjudicate his discrimination claims. PFR File, Tab 1 at 4, Tab 7 at 4 -9.
He also claims that the administrative judge erroneously found that he was
3 We deny the appellant’s motion for leave to file additional pleadings on the timeliness
of his July 12, 2016 jurisdictional response. PFR File, Tab 10. As discussed below , we
find his response to be timely filed, and we consider it on r eview. The appellant also
filed a motion for leave to submit a list of six Board decisions he argues are “relevant”
to his timeliness claim. PFR File, Tab 12. To the extent these decisions would
constitute new and material evidence, an adjudicatory body is presumed to be “aware of
relevant precedent in [its jurisdiction].” Boyer v. United States , 84 Fed. Cl. 751, 756
(2008). Therefore, the appellant’s motion for leave is denied.
4
terminated for postappointment reasons and was not entitl ed to the process es
afforded by 5 U.S.C. § 7513 (b) or 5 C.F.R. § 315.805 . PFR File, Tab 7 at 9-11.
The appellant failed to no nfrivolously allege Board jurisdiction over his
probationary termination.
¶8 During a June 28, 2016 telephonic conference with the parties, the appellant
requested an extension of time to file his jurisdiction al response, which the
administrative judge grante d. PFR File, Tab 4 at 9, Tab 7 at 6. He ordered the
appellant to file his response on or before July 12, 2016.4 Id. The appellant
submitted a copy of the tracking information and the envelope showing that his
response was mailed on July 12, 2016. PFR File, Tab 3, Subtab 4 at 3, Subtab 15.
The date of filing by mail is determined by the postmark date. 5 C.F.R.
§ 1201.4 (l). Accordingly, we find that his July 12, 2016 response was tim ely
filed, even though the administrative judge did not receive it until July 13, 2016.
Thus, we consider his response on review. PFR File, Tab 3 . Nonetheless, we
find that these additional arguments do not provide a basis for altering the
administrativ e judge’s finding that the Board lacks jurisdiction over the
appellant’s probationary termination.
¶9 The appellant bears the burden of proving jurisdiction by preponderant
evidence. 5 C.F. R. § 1201.56 (b)(2)(i)(A). To have Board appeal rights under
5 U.S.C. chapter 75, an appellant must, among other things, show that he satisfied
one of the definitions of “employee” in 5 U.S.C. § 7511(a)(1). 5 U.S.C.
§ 7513 (d). If he fails to satisfy the definition of “employee, ” he nevertheless may
have the right to appeal his termination to the Board under 5 C.F.R. § 315.806 . In
relevant part, u nder 5 C.F.R. § 315.806 (c), a probationary employee whose
termination was based in whole or in part on co nditions arising before his
4 The administrative judge apparently did not issue a written order on the appellant’s
request for an extension of time to file. While the parties disagree as to whether the
appellant’s jurisdictional response was timely filed, both acknowledge that the
administrative judge ordered the appellant “to file” his jurisdictional res ponse on or
before July 12, 2016. PFR File, Tab 4 at 7, Tab 7 at 6.
5
appointment may appeal his termination on the ground that it was not effected in
accordance with the procedure s set forth in 5 C.F.R. § 315.805 .5
¶10 Although the appellant claims entitlement to appeal rights under 5 U.S.C.
chapter 75, he does not challenge the administrative judge’s finding that he was a
probationary employee at the time of his termination. ID at 3 . Moreover,
according to the appellant’s additio nal evidence, he has no prior Federal civilian
service. PFR File, Tab 3, Subtab 27 at 46 -48, 57. Apparently, his 15 years of
prior Federal service was military service , and h is other prior G overnment service
was with the State of California. Id. Thus, the appellant failed to nonfrivolously
allege that he was an employee with Board appeal rights under 5 U.S.C.
chapter 75. See Baggan v. Department of State , 109 M.S.P.R. 572 , ¶ 5 (2008)
(finding that a competitive -service appointee can tack certain prior service in the
same agency onto his current appointment to comp lete his probationary period).
¶11 The appellant also argues in his add itional jurisdictional response that the
agency terminated him due to his preexisting disability, race, and national origin.
PFR File, Tab 3, Subtab 2 at 1 -4. The procedural safeguards of 5 C.F.R.
§ 315.805 do not apply to physical conditions predating emplo yment that affect
an employee’ s performance. Holloman v. Department of the Navy , 31 M.S.P.R.
107, 110 (1986). Rather, the y are required if the separation of the employee was
proposed for reasons other than performance deficiencies. Id. Thus, his medical
condition , race, and accent , although preexisting, are not preappointment
condition s within the meaning of 5 C.F.R. § 315.805 . Id. We therefore find that
he was not entitled to the process afforded by that provision and failed to allege a
basis for jurisdiction under 5 C.F.R. § 315.806 .
5 The appellant has not challenged, and we discern no error with, the administrative
judge’s finding that the appellant made no claims that his termination was based on
partisan political reasons or marital status discrimination under 5 C.F.R. § 315.806 (b).
ID at 3.
6
¶12 In the absence of an otherwise appealable action, the Board may not
adjudicate the appellant’s nonUSERRA -related discrimination, due proces s, and
prohibited personnel practice claims . See Garcia v. Department of Homeland
Security , 437 F.3d 132 2, 1342 -43 (2006) (reaffirming that the Board may not
decide issues within its pendent or ancillary jurisdiction in the absence of an
otherwise appealable action), super seded by regulation on other grounds , as
stated in King sley v. U.S. Postal Servic e, 123 M.S.P.R. 365 , ¶ 10 (2016).
The appellant’s remaining challenges to the administrative judge’s finding that
the Board lacks jurisdiction over his probationary terminat ion do not state a basis
for review.
¶13 The appellant contends that the administrative judge erroneously denied
him his right to discovery. PFR File, Tab 7 at 8; IAF, Tab 14 . An appellant is
entitled to request discovery of relevant materials to assist him in meeting his
burden of establishing Board jurisdiction . See Russo v. Department of the Navy ,
85 M.S.P.R. 12 , ¶ 8 (1999). However, here, the appellant admitted that the
purpose of his discovery requests was to obtain information on the merits of his
termination and his pendant discrimination claims, which do not affect Board
jurisdiction in this matter. IAF, Tab 8 at 14-15. He ther efore has not shown that
the administrative judge’s order to stay discovery prejudiced his ability to meet
his jurisdictional burden. See Karapinka v. Department of Energy , 6 M.S.P.R.
124, 127 (1981) (finding that an administrative judge’s procedural error is of no
legal consequence unless it is shown to have adversely affected a party’s
substantive rights).
¶14 We also find no merit to the appella nt’s claim that the administrative judge
exhibited bias warranting recusal by issuing the initial decision without
considering his July 12, 2016 jurisdictional response and by denying his request
for discovery. PFR File, Tab 7 at 6, 8. It is well settled that an administrative
judge’s case -related rulings, even if erroneous, are insufficient to establish bias
7
and that claims of perceived adjudicatory errors simply do not provide a basis for
recusal. Hay v. U.S. Postal Service , 106 M.S.P.R. 151 , ¶ 18 (2007).
The administrative judge did not notify the appellant of his jurisdictional burden
concerning his USERRA claim.
¶15 The appellant, wh ose veteran status is undisputed, reasserts on review his
claim that the agency violated 38 U.S.C. § 4311 by terminating him. PFR File,
Tab 3, Subtab 27, Exhibit 600 at 1, 17. The administrativ e judge, however, did
not notify him of how to establish jurisdiction over his USERRA claims, and the
agency’s responses below did not cure this error. Thus, we must remand the
appeal to ensure that the appellant receives notice of the jurisdictional burd en
regarding his USERRA claim.6 See Burgess v. Merit Systems Protection Board ,
758 F.2d 641 , 643 -44 (Fed. Cir. 1985) (finding that an appellant m ust receive
explicit information on what is required to establish an appealable jurisdictional
issue).
ORDER
For the reasons discussed above, we remand the USERRA claims to the
Western Regional Office for further adjudication in accordance with this Remand
Order. The administrative judge should provide the appellant with the following
as to his USERRA jurisdictional burden: specific notice , an
6 The appellant’s USERRA claims do not provide a basis for conferring Board
jurisdiction over his due pro cess, nonUSERRA discrimination, or prohibited personnel
practice claims. See Metzenbaum v. Department of Justice , 89 M.S.P.R. 285 , ¶ 15
(2001) (reaffirming that the Board’s authority to review USERRA claims does not
provide a basis for reviewing other claims of prohibited discrimination).
8
opportunity to conduct discovery, and an opportunity to present evidence and
argument.
FOR THE BOARD:
Washingt on, D.C. /s/ for
Jennifer Everling
Acting Clerk of the Board | MARQUEZ_LUIS_R_SF_315H_16_0521_I_1_REMAND_ORDER_1928437.pdf | 2022-05-27 | null | SF-315H-16-0521-I-1 | NP |
4,367 | https://www.mspb.gov/decisions/nonprecedential/MAYNES_DIONISIO_M_SF_0831_05_0447_I_1_FINAL_ORDER_1928440.pdf | UNITED STATES OF AME RICA
MERIT SYSTEMS PROTEC TION BOARD
DIONISIO M. MAYNES,
Appellant,
v.
OFFICE OF PERSONNEL
MANAGEMENT,
Agency.
DOCKET NUMBER
SF-0831 -05-0447 -I-1
DATE: May 27, 2022
THIS FINAL ORDER IS NONPRECEDENTIAL1
Dionisio M. Maynes , La Union, Philippines, pro se.
Natalio M. Maynes , La Union, Philippines, pro se.2
Gregory Stewart , Washington, D.C., for the agency.
BEFORE
Raymond A. Limon , Vice Chair
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 Because Natalio M. Maynes alleges that he is the deceased appellant’s son , but he has
not filed a motion to substitute in this matter, we refer to all his submi ssions and
arguments as from “the petitioner.”
2
FINAL ORDER
¶1 The petitioner has filed a petition for review of the initial decision that
denied the appellant’s request for a deferred annuity under the Civil Service
Retirement System (CSRS). For the reasons set forth below, the petition for
revie w is DISMISSED.
¶2 The petitioner represents that the appellant is now deceased. Petition for
Review (PFR) File, Tab 1. In Februa ry 2005, the appellant filed a Board appeal
of the decision of the Office of Personnel Management (OPM), which dismissed,
as unt imely filed, his request for re consideration of OPM’s d ecision denying his
application for a deferred annuity under CSRS. Initial Appeal File (IAF), Tab 1
at 3-4, Tab 7, Subtab 2. In August 2005, the administrative judge issued an initial
decision findin g that OPM abused its discretion by not extending the appellant’s
time limit for requesting reconsideration. IAF, Ta b 8, Initial Decision (ID)
at 4-5. Nonetheless, the administrative judge found that the claim was without
merit because the appellant fail ed to prove his entitlement to a CSRS annuity. ID
at 6-8.
¶3 Eleven years later, in September 2016, the petitioner filed a letter with the
Clerk of the Board. PFR File, Tab 1. The letter suggested that the petitioner was
seeking either a review of the init ial decision on behalf of the appellant or
survivor’s benefits on his own behalf. Id. The Clerk: (1) informed the petitioner
that, to litigate on the appellant’s behalf, the petitioner had to file a motion for
substitution within 90 days after the appel lant’s death or show good cause for the
delay in filing; and (2) invited the petitioner to file such a motion. PFR File,
Tab 2 at 1 (citing 5 C.F.R. § 1201.35 ). In addition, the Clerk n otified the
petitioner that, if his letter was meant to operate as a petition for review of the
initial decision, then it was untimely filed. Id. at 2. The Clerk invited the
petitioner to file a motion to accept the filing as timely or to waive the time
limits. Id. at 2, 7-8. The petitioner did not file either motion.
3
¶4 If an appellant dies or is otherwise unable to pursue the appeal, the
processing of the appeal will only be completed upon substitution of a proper
party. 5 C.F.R. § 1201.35 (a). Given that the petitioner seeks to litigate the
petition for review on behalf of the appellant , but he has not established that he is
entitled to substitute for the appellant, the petition for re view will be dismissed
on this ground.
¶5 Notwithstanding , the petition for review is untimely filed without good
cause. To be timely, a petition for review must be filed within 35 days of the date
of the initial decision’s issuance or, if the decision was r eceived more than 5 days
after the date of issuance, within 30 days after receipt. 5 C.F.R. § 1201.114 (e).
Because the petitioner has not alleged that the initial decision was received more
than 5 days after the date of issuance, the petition for review had to be filed by
September 9, 2005. ID at 9. Because it was mailed on September 27, 2016, it is
untimely by more than 11 years. PFR File, Tab 1; see 5 C.F.R. § 1201.4 (l)
(reflecting that the date of filing a document by mail is the postmark date).
¶6 The Board will waive its filing deadline only upon a showing of good cause
for the delay. 5 C.F.R. §§ 1201.12 , 1201.114(g). To establish good cause, a
party must show that he exercised due diligence or ordinary prudence under the
circum stances of his case. Gaetos v. Department of Veterans Affairs ,
121 M.S.P.R. 201 , ¶ 5 (2014). The petitioner has not shown good caus e, and
therefore the petition for review also will be dismissed as untimely filed.
¶7 Finally, because the petitioner seeks to “rescue the un paid [l]ump sum of
late father ,” the petitioner’s letter could be read as an application for survivor’s
benefits rathe r than a petition for review. PFR File, Tab 1. Generally, the Board
has jurisdiction over determinations affecting an appellant’s rights or interests
under the retirement system only after OPM has issued a final or reconsideration
decision. Johnson v. O ffice of Personnel Management , 97 M.S.P.R. 193 , ¶ 6
(2004) ; 5 C.F. R. § 831.110 . While the Board may take jurisdiction over a
retirement appeal in the absence of an OPM reconsideration decision if an
4
appellant requested such a decision and the evidence indicates that OPM does not
intend to issue a final decision, Johnson , 97 M.S.P.R. 193 , ¶ 6, the petitioner’s
letter does not suggest that he ever attempted to raise a survivor’s benefits claim
before OPM. Instead, he only references OPM’s denial of his father’s deferred
annuity. PFR File, Tab 1.
¶8 Accordingly, we dismiss the petition for review. 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 deferred annuity.
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 off er the following summary of available appeal rights, the Merit
Systems Protection Board does not provide legal advice on which option is most
appropriate for your situation and the rights described below do not represent a
statement of how courts will rule regarding which cases fall within their
jurisdiction. If you wish to seek review of this final decision, you should
immediately review the law applicable to your claims and carefully follow all
filing time limits and requirements. Failure to file within the applicable time
limit may result in the dismissal of your case by your chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whethe r a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
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 opt ion 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 available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
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
6
receive this decision. 5 U.S.C. § 7703 (b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. ____ , 137 S. Ct. 1975 (2017). If you have a
representative in this case, and your representative receives this decision before
you do, then you must file with the district court no later than 30 calendar days
after your representative receives this decision. If the action involves a claim of
discrimination based on race, color, religion, sex, national origin, or a disabling
condition, you may be entitled to representation by a court -appointed lawyer and
to waiver of any requirement of prepayment of fees, costs, or other security. See
42 U.S.C. § 2000e -5(f) and 29 U.S.C. § 794a .
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link 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:
7
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302 (b)(8) or
other protected activities listed in 5 U.S.C. § 2302 (b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the 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
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 ap peals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115 -195,
132 Stat. 1510.
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 “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 | MAYNES_DIONISIO_M_SF_0831_05_0447_I_1_FINAL_ORDER_1928440.pdf | 2022-05-27 | null | SF-0831-05-0447-I-1 | NP |
4,368 | https://www.mspb.gov/decisions/nonprecedential/COOPERMAN_LEONARD_CB_7521_16_0001_T_1_FINAL_ORDER_1928459.pdf | UNITED STATES OF AME RICA
MERIT SYSTEMS PROTEC TION BOARD
SOCIAL SECURITY
ADMINISTRATION,
Petitioner,
v.
LEONARD COOPERMAN,
Respondent.
DOCKET NUMBER
CB-7521 -16-0001 -T-1
DATE: May 27, 2022
THIS FINAL ORDER IS NONPRECEDENTIAL1
Leonard Cooperman , Feeding Hills, Massachusetts, pro se.
Sharese M. Reyes , Esquire, Atlanta, Georgia , for the petitioner.
Kathryn A. Miller , Esquire, and Meeka S. Drayton , Esquire, Seattle ,
Washington , for the petitioner .
Patrick W. Carlson , Chicago, Illinois, for the petitioner .
BEFORE
Raymond A. Limon, Vice Chair
Tristan L. Leavitt, Member
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or dis tinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117 (c).
2
FINAL ORDER
¶1 The respondent has filed a petition for review, and the Social Security
Administration (SSA) has filed a cross petition for review of the initial decision,
which sustained charges of neglect of duties and conduct unbecoming, concluded
that the respondent d id not make whistleblowing disclosures, found good cause
under 5 U.S.C. § 7521 to suspend the respondent for 180 days, and denied SSA’s
request to suspend the respondent from the date of the compla int through the
Board’s final decision in this matter . This case was assigned to an administrative
law judge (ALJ) for adjudication. 5 C.F.R. § 1201.140 (a)(1). We DENY the
respondent’s petition for review and GRANT SSA’s cross petition for review.
We MODIFY the initial decision to additionally sustain specification 15 of the
conduct unbecoming charge , but we agree with the ALJ that SSA proved the
neglect of duties and condu ct unbecoming charges as set forth herein. We
FURTHER MODIFY the initial decision to find that the respondent’s
November 15, 2012 correspondence to the Office of Inspector General (OIG)
constituted activity protected by 5 U.S.C. § 2302 (b)(9)(C) but that he did not
prove the correspondence was a contributing factor in SSA’s decision to file the
complaint against him . We FIND that SSA has shown good cause to remove the
respondent. We DENY SSA’s req uest to suspend the respondent from the date
the complaint was filed through the issuance date of this Order.
BACKGROUND
¶2 The following facts, as recited in the initial decision, are generally
undisputed. Initial Appeal File (IAF), Tab 149, Initial Decision (ID). The
respondent has held the position of an SSA ALJ since June 2005. ID at 7; IAF,
Tab 96 at 20. On October 2, 2015, SSA filed a complaint that sought to remove
the respondent based on charges of neglect of duties (8 specifications) and
conduct unbecoming (16 specification s) and to suspend the respondent from the
date of the complaint through the date of the Board’s final decision in this matter .
3
ID at 1, 54 -55; IAF, Tab 1. The respondent raised a claim of reprisal for
whistleblowing disc losures. ID at 2; IAF, Tab 84 at 5, 14 -18. A multiple -day
hearing was held. ID at 3; Hearing Transcripts (HTs) 1-7. The ALJ issued a
150-page initial decision , which included 338 findings of fact. ID at 7-57. T he
ALJ sustained both charges, including 6 of 8 specification s of the neglect of
duties charge and 12 of 16 specification s of the conduct unbecoming charge .
ID at 58-115. The ALJ found that the respondent did not make any
whistleblowing disclosures. ID at 120-29. The ALJ also determined that there
was good cause to suspend the respondent for 180 days , but he denied SSA’s
request to suspend the respondent from the date of the complaint through the date
of the Board’s final decision in this matter . ID at 130-44.
¶3 The r espondent has filed a petition for review, SSA has filed a response,
and the respondent has filed a reply. Petit ion for Review (PFR) File, Tabs 1,
20-21. On petition for review, the respondent challenges the ALJ’s decision to
sustain specifications 1-6 of the neglect of duties charge and to sustain
specifications 1, 3 -12, and 14 of the conduct un becoming charge. PFR File,
Tab 1.
¶4 SSA has filed a cross petition for review, and the respondent has filed a
response. PFR File, Tabs 5, 15. In its cross peti tion for review, SSA argues it
proved specifications 7 and 8 of the neglect of duties charge ; it proved
specifications 2, 13, and 15 of the conduct unbecoming charge ; and removal is the
appropriate penalty. PFR File, Tab 5. SSA also reiterates its request to suspend
the respondent from the date the complaint was filed through the Board’s final
decision in this matter . Id. at 29-32.
¶5 The respondent also has filed a motion for oral argument , and SSA has filed
a response . PF R File, Tab s 2, 9. The regulation at 5 C.F.R. § 1201.117 (a)(2)
states that the Board “may” hear oral arguments in any case. We find that oral
argument will not assist the Board signifi cantly in deciding the petition for
4
review and cross petition for review, and we deny the respondent’s request.
Special Cou nsel v. Environmental Protection Agency , 70 M.S.P.R. 41, 49 (1996).
¶6 Additionally, the respondent has filed several motions for leave to file an
addit ional pleading. PFR File, Tabs 11, 18 , 22, 24, 26, 29 , 31. The Board’s
regulations do not provide for pleadings other than a petition for review , a cross
petition for review , a response to a petition for review , a response to a cross
petition for review , and a reply to a response to a petition for review . 5 C.F.R.
§ 1201.114 (a)(5). Once the record closes on review, the Board will not accept
any additional evidence or argument un less it is new and material. 5 C.F.R.
§ 1201.114 (k). The respondent has made no such showing in his submissions .
We therefore deny his motions .
¶7 The Association of A dministrative Law Judges also has filed two separate
request s to file an amicus curia e brief. PFR File, Tab s 34, 37. We deny these
request s because an amicus curia e brief will not contribute materially to the
disposition of this matter. 5 C.F.R. § 1201.34 (e). Additionally, the respondent
has file d a motion to supplement the record. PFR File, Tab 43. He has not
persuaded us that the proffered evidenc e, even if new, is material. 5 C.F.R.
§ 1201.114 (k). We therefore deny this request.
DISCUSSION OF ARGUME NTS ON REVIEW
Standard of Review
¶8 The Board has original jurisdiction to adjudicate actions against ALJs.
Social Security Administration v. Long , 113 M.S.P.R. 190, ¶ 12 (2010), aff’d ,
635 F.3d 526 (Fed. Cir. 2011). An agency may take an action aga inst an ALJ
only for “good cause ,” as determined after a hearing by the Board. 5 U.S.C.
§ 7521 (a). SSA must prove go od cause by preponderant evidence. Long ,
113 M.S.P.R. 190, ¶ 12. Congress has not defined the term “good cause” for
purposes of section 7521. Id. The Board, however, has adopted a flexible
approach in which good cause is defined according to the individual
5
circumstances of each case. Department of Labor v. Avery , 120 M.S.P.R. 150, ¶ 5
(2013), aff’d sub nom. , Berlin v. Department of Labor , 772 F.3d 890 (Fed. Cir.
2014).
SSA pr oved the neglect of duties charge.
¶9 In specifications 1 and 2 of the neglect of duties charge, SSA alleged th at
the respondent had a duty to comply with agency regulations and policy when
issuing decision s for a closed period of disability2 (CPOD) and he breached that
duty in fiscal years 2013 and 2014. IAF, Tab 1 at 11. In the initial decision, the
ALJ found t hat SSA proved these specifications because the respondent did not
explain his findings of medical improvement or support his findings with medical
evidence . ID at 60-78.
¶10 On review, the respondent asserts that, contrary to the initial decision, he
was authorized to decide a CPOD based only on a claimant’s statement regarding
his/her symptoms. PFR File, Tab 1 at 8-17. He asserts that this contention was
supported by the regulation that defines “medical improvement ” as “‘any
decrease in the medi cal severity of [a ] claimant’s impairments []’” and provides
that “‘[a] determination that there has been a [medical improvement] must be
based on changes ( improvement ) in the symptoms, signs and/or laboratory
findings associated with [the] impairment (s).’” Id. at 9; 20 C.F.R.
§ 404.1594 (b)(1) (emphasis in original ). He further asserts that the ALJ’s
decision contr adicted the relevant regulation and case law from the appellate
courts and ignored SSA’s P rogram Operations Manual System . PFR File, Tab 1
at 9-17.
¶11 Although the regulation uses the disjunctive “and/or,” the ALJ concluded —
and the record reflect s—that SSA’s policy require d more evidence than a
2 A closed period of disability occurs when a claimant, who was found to be disabled and entitled
to disability benefits, subsequently experiences medical improvement related to the ability to
work such that the cla imant can engage in substantial gainful activity, the claimant is deemed to
be no longer disabled, and disability benefits cease. ID at 60; see 42 U.S.C. § 423(f)(1).
6
claimant’s subjective statemen ts to find medical improvement for a CPOD .
ID at 13, 63; HT 1 at 219-22, 243 ( testimony of the Hearing Office Chief ALJ
(CALJ ), who was also the respondent’s first-line supervisor ); HT 2 at 220-22,
227-28 ( testimony of the Regional CALJ, who was also the respondent’s
second -line supervisor ); HT 5 at 95-96 ( testimony of the Associate CALJ),
287-88 (testimony of the CALJ ); IAF, Tab 94 at 14-15 (explaining in HALLEX
I-2-8-253 that any “decision will provide the rationale for the ALJ’s findings of
fact and conclusions of law by including . . . [a]n explanation of the finding(s) on
each issue that leads to the ultimate conclusion, including citing and discussing
supporting evide nce” and a “discussion of the weigh t assigned to various pieces
of evidence . . .”).
¶12 Moreover, the record reflects that the respondent was advised by multiple
agency officials of SSA’s policy regarding the analysis required for CPOD
decisions . For insta nce, in a September 7, 2010 email, the respondent’s first -line
supervisor advised him “to fully rationalize any cessation, no matter what the
claimant agrees to do.” IAF, Tab 102 at 74 (emphasis in original) . In a
June 2011 retraining with a senior ALJ, he was provided the following guidance:
“[A]ny [residual functional capacity (RFC) assessment] , regardless of the
[claimant’s] agreement as to medical improvement[,] must be married to
corresponding medical evidence.”4 IAF, Tab 93 at 5-6 (emphasis in original ).
The senior ALJ explained that a decision “should include a discussion of medical
improvement showing how the signs, symptoms and objective testing show
[i]mprovement under the medi cal improvement standard a t the time the period
3 The ALJ found in the initia l decision that HALLEX, the Hearing Appeals and Litigation Law
Manual, was designed to amplify and provide more specificity regarding regulations and rulings,
it constituted written agency policy, and it was binding on ALJs. ID at 10.
4 An individual’s RF C is “the most [s/he] can still do despite [his/her] limitations” and
will be assessed “based on all the relevant evidence in [the individual’s] case record.”
20 C.F.R. § 416.945 (a)(1).
7
closes.” Id. (emphasis in original ). In an August 3, 2011 meeting , the respondent
stated to an Associate CALJ that he did not “see a need to corroborate” a “lucid”
claimant’s statement that s/he wants a CPOD , and he was advised that there still
needed to be a second RFC assessment . IAF, Tab 105 at 48.
¶13 Most significantly, in a Dece mber 5, 2011 directive , the respondent’s
first-line supervisor noted that the respondent’s decisions “contain analytical
deficiencies includ ing a lack of analysis to support a non -disability RFC and a
lack of analysis to support a finding of medical improvement beyond the
claimant’s agreement to a closed period. . . . ” IAF, Tab 93 at 21-22. The
respondent was explicitly directed to determine wh ether the re had been medical
improvement by comparing prior and current medical evidence and by illustrating
any improvement in the signs, symptoms, or laboratory findings. Id. at 22. The
respondent’s first -line supervisor subsequently advised him that he should “pick
and cho[o]se some items from the record, aside from the claimant’s statement” to
document medical improvement. IAF, Tab 108 at 5; see HT 1 at 241‑42, HT 2
at 60 (testimony of the first -line supervisor). Because the respondent was on
notice that, during the relevant time period , SSA policy required more than a
claimant’s statement alone to support a finding of medical improvement, and the
respondent did not comply with SSA policy , we agree with the ALJ that SSA
proved these specifications .
¶14 We have considered the respondent’s reliance on the U.S. Court of Appeals
for the Tenth Circuit’s decision in Newbold v. Colvin , 718 F.3d 1257 , 1263 -64
(10th Cir. 2013), which stated that a finding of medical improvement may be
based on symptoms alone . PFR File, Tab 15 at 10-13. The respondent’s citation
to Newbold does not warrant a different outcome because the court’s decision
is not binding on the Board or SSA. Importantly, as pertaining to the merits of
the charge, decisions of the U.S. Court of Appeals for the Federal Circuit are
controlling authority for the Board, whereas other circuit courts ’ decisions are
8
persuasive, but not controlli ng, authority . Fairall v. Veterans Administration ,
33 M.S.P.R. 33 , 39, aff’d, 844 F.2d 775 (Fed. Cir. 1987). Additionally , the ALJ
made findings of fact that SSA ALJs have a duty to comply with the Social
Security Act, regul ations, rulings, agency policies, HALLEX, and Acquiescence
Rulings.5 ID at 10-11. There is no evidence that SSA issued an Acquiescence
Ruling after Newbold , and thus, SSA and its ALJs did not have to follow the
court’s decision .
¶15 Finally, we have considered the respondent’s contention that Program
Operations Manual System provision 28010.015(A)(2) controls this issue because
it advises adjudicators that improvement in symptoms alone , without associated
changes in signs or laboratory findings , “may support ” a medi cal improvement
determination. PFR File, Tab 1 at 15-17. This argument is unavailing. Notably,
the ALJ relied on the testimony of various SSA officials and found that the
Operations Manual is not a prime source of policy at the Offic e of Disability
Adjudication Review ( ODAR ) because it sets forth internal policies for
proceedings at the district office level, not for hearing operations. ID at 10-11.
The respondent’s reference to Draper v. Colvin , 779 F.3d 556 (8th Cir. 2015) —
which affirmed a district court decision that deferred to an Operations Manual
provision regarding liens, adjustments and recoveries, and transfers of assets —
does not warrant a different outcome because SSA did not issue an Acquiescence
Ruling as to that matter . PFR File, Tab 1 at 16-17.
¶16 In his reply brief, the respondent contends that he complied with the
position description that was in place until December 2013 , which authorized him
to “take [] into account all applicable Federal, State, and foreign law [s], statutes,
5 An Acquiescence Ruling is issued when a circuit court has issued a decision contrary
to SSA policy but SSA agrees to acquiesce to the circuit law. HT 1 at 202 (testimony
of the first -line supervisor); HT 3 at 78 (testimony of the second -line super visor); HT 4
at 225-29 (testimony of the CALJ); HT 5 at 65-66 (testimony of the Associate CALJ);
IAF, Tab 93 at 12-13; 20 C.F.R. § 404.985 .
9
regulations, rulings, and decisions of the Federal court .”6 PFR File, Tab 21
at 14-15 (emphasis in original ); IAF, Tab 93 at 62-67. The respondent a rgues
that, until this date, he could “expressly . . . take Federal court decisions from
whatever jurisdiction into account, and after that date[,] [he] was not prohibited
from doing so as long as the Federal Court decision did not conflict with [SSA]
policy.” PFR File, Tab 21 at 15. This argument is unavailing. Indeed, in the
absence of any evidence that SSA issued an Acquiescence Ruling regarding
Newbold , Draper , or any circuit court decision that was inconsistent with SSA
policy , such decisions could not constitute “applicable” decisions , as de scribed in
the earlier position description .
¶17 In specifications 3 and 4, SSA alleged that the respondent had a duty to
“make a complete record of hearings proceedings ,” and he breached this duty in
fiscal years 2013 and 2014. IAF, Tab 1 at 11. In the initial decision, the ALJ
relied on the relevant regulations, HALLEX I-2-6-40, a June 2011 retraining, an
August 3, 2011 meeting with the respondent, a September 1, 2011 memorandum
to all ALJs from the CALJ , a December 5, 2011 directive, and testimony
regarding hearing records from five of the respondent’s cases ; the ALJ concluded
that SSA proved that the respondent had a duty to make a complete record, which
included a summary of the conten t and conclusion of any off -the-record
discussions, and the respondent failed to do so . ID at 14-15, 78-83; IAF, Tab 93
at 7, 21 -23, Tab 94 at 10-11. On review, the respondent challenges , among other
things, the ALJ’s reliance on testimony regarding a “focu sed review” of only five
of his hundreds of cases and the December 5, 2011 directive . PFR File, Tab 1
at 18-19. He further asserts that neither the ALJ nor SSA adequately defined the
requirement that he “adequately summarize ” any off -the-record discussions, and
thus, SSA’s action violates his due process rights. Id. We disagree. Rather,
6 The revised position description did not i nclude such language. IAF, Tab 1 at 15-21;
HT 4 at 213 (testimony of the CALJ); ID at 9 n.6.
10
consistent with HALLEX I-2-6-40,7 the December 5, 2011 directive instructed the
respondent to “s ummarize on the record, all off-the-record discussions c oncerning
amending claims involving CPODs , as well as any other discussions relevant to
the issues in a claima nt’s case.” IAF, Tab 93 at 23. The respondent, who has
advanced degrees and was an ALJ for nearly 10 years , ID at 7; HT 6 at 202
(testimony of t he respondent), should have no difficulty understanding SSA’s
requirement that he summarize such off-the-record discussions . Moreover, we
are not persuaded that SSA’s review of a small portion of the respondent’s cases
warrants a different outcome. We therefore discern no error with the ALJ’s
conclusion that SSA proved specifications 3-4.
¶18 In specifications 5 and 6 of the neglect of duties charge, SSA alleged that
the respondent had a duty to safeguard personally identifiable information (PII),
and he breached this duty in fiscal years 2013 and 2014 . IAF, Tab 1 at 11. On
review, the respondent contends that, either in late 2014 or early 2015, his
first-line supervisor directed him to stop sending PII to unsecured partners, and
he complied with that request . PFR File, Tab 1 at 20; HT 6 at 261-62 (testimony
of the respondent) . As support for his contention that he should not be
disciplined for this misconduct , the respondent discusses Adamek v. U.S. Postal
Service , 13 M.S.P.R. 224, 226 (1982), in which the Board barred an agency from
taking an adverse action against an employee when it already had imposed a
disciplinary action because of the employee’s misconduct. PFR File, Tab 1 at 21.
The respondent recognizes that his first -line supervisor’s counseling regarding PII
did not constitute a disciplinary or an adverse action, but he argues that the
Board’s reaso ning in Adamek should be extended to cases in which the underlying
behavior “has been previously and amicably addressed , discussed , and resolved ”
7 HALLEX I-2-6-40 states, “If a question arises during the course of a hearing that
is not relevant to the issues in the claimant’s case, the ALJ may decide to discuss and
resolve it off -the-record. However, the ALJ must summarize on the record the content
and conclusion of any off -the-record discussion.” IAF, Tab 94 at 10-11.
11
between the agency and employee , and the behavior was not repeated. Id.
(emphasis in original) . We are not persuaded that it is appropriate to extend
Adamek ’s reasoning to a case such as this when there was no prior adverse action.
See, e.g. , Tawadrous v. Department of the Treasury , 477 F. App’x 735 , 738 (Fed.
Cir. 2012) (declining to extend Adamek to a situation when the agency rescinded
the June 2010 removal before there was a judgment on the merits and provided
the appellant with back pay and finding that the prior rescinded action “presents
no obstacle to Treasury’s November 2010 effort to remove [him] on the same
charges ”).8 Because the respondent does not dispute that he failed to safeguard
PII as described during the timeframe identified in the complaint, we affirm the
ALJ’s decis ion to sustain specifications 5-6 of the neglect of duties charg e. ID
at 100-02.
¶19 In specifications 7 and 8 of the neglect of duties charge, SSA alleged that
the respondent had a “duty to act in a fair and impartial manner” and that he
breached this duty in fiscal years 2013 and 2014 . IAF, Tab 1 at 11. SSA relied
on several emails between the respondent and various claimants’ representatives
to support these specifications . IAF, Tab 111 at 29, 68 -69. In the initial
decision, the ALJ found that the respondent had a duty to act in a fair and
impartial manner and that the respondent kn ew of this duty , but SSA did not
prove that he failed to act in a fair and impartial manner because, among other
things, the CALJ could not point to any cases in which a claimant received a more
favorable outcome based on the identity of the claimant’s representative . ID
at 16, 94. In its cross petition for review, SSA argues , among other things, that
the ALJ took “an unreasonably circumscribed view” of the respondent’s duty of
impartiality , arguing that this duty extended beyond his interaction with claimants
and beyond his conduct during hearings . PFR File, Tab 5 at 23-26. We need not
8 The Board may follow a nonprecedential decision of the Federal Circuit when, as h ere,
it finds its reasoning persuasive. LeMaster v. Department of Veterans Affairs ,
123 M.S.P.R. 453 , ¶ 11 n.5 (2016).
12
resolve this issue on review because, even if we affirmed the ALJ’s decision not
to sustain these specifications, we would still sustain the neglect of duties charge
based on our decision to affirm the ALJ’s finding that SSA has proven
specifications 1-6 by preponderant evidence . See Burroughs v. Department of the
Army , 918 F.2d 170 , 172 (Fed. Cir. 1990) (finding that when more than one event
or factual specification supports a single charge proof of one or more, b ut not all,
of the supporting specificatio ns is sufficient to sustain the charge).
SSA proved the conduct unbecoming charge.9
¶20 In the complaint, SSA alleged that the respondent engaged in various
“improper communication[s]” with several claimants ’ represe ntatives , which
constituted conduct unbecoming . IAF, Tab 1 at 11-12. The ALJ sustained
specifications 1, 3-12, and 14 of the conduct unbecoming charge and the charge
itself. ID at 95-115. Both the respondent and SSA challenge the ALJ’s findings
regardi ng the specifications .
¶21 Regarding specifications 1, 3-12, and 14, the respondent contends that the
ALJ erred by imposing discipline for his “collegial” and “flattering” language in
correspondence with counsel. PFR File, Tab 1 at 22. He asserts that SSA is not
represented at hearings and, because the only parties appearing before him are the
claimant and his/her representative, collegial ALJ -counsel relations are an
“essential lubricant” that allows the judicial gears to turn efficiently. Id. at 23.
He also asserts that the ALJ applied a “broad and standardless” rule ; the ALJ
overlooked the “cardinal principle” that one who alleges bias must overcome a
presumption of honesty and integrity ; and a reasonable person with knowledge of
the relevant facts woul d not find that the communications create an appearance
that the law or these standards have been violated . Id. at 22-26. These arguments
are unavailing.
9 SSA does not challenge the ALJ’s conclusion that it did not prove specification 16 of
the conduct unbecoming charge. ID at 110-11; PFR File, Tab 5 at 22 n.11. We
therefore affirm the ALJ’s finding in this regard.
13
¶22 The Board has described conduct unbecoming an ALJ as “conduct which
was improper, unsuitable, or detracting from one’s character or reputation.”
Long , 113 M.S.P.R. 190, ¶ 42. The Board also has held that an agency has proven
a charge of conduct unbecoming if it proves that the employee violated one of the
14 general principles contained in 5 C.F.R. § 2635.101 (b). Schifano v.
Department of Veterans Affairs , 70 M.S.P.R. 275, 281 (1996). T he ALJ relied on
the regulation at 5 C.F.R. § 2635.101 (b)(8), (b)(14) in his analysis of these
specifications.10 ID at 95-97. We discern no error with the analytical framework
used by the ALJ.
¶23 We also affirm the ALJ’s finding that SSA proved that the communications
described in specifications 1, 3 -12, and 14 constitute d conduct unbecoming
because they give the appearance of a lack of impartiality. For example, in
specification 1, the respondent, in agreeing to a CPOD , told the claimant’s
representative that “the fact that it’s you as [the claimant’s] attorney doesn’t hurt
matters,” and that the claimant’s representative was “one of the best attorneys it
has been [his] privilege to know .” IAF, Tab 1 at 11, 40. He also said that she
“prac tice[d] law the way [he] used to, realistically, energetically, and efficiently,”
commenting “What’s not to like about you?” Id. at 40. In specification 3, the
respondent told the claimant’s re presentative, “I just wanted to make sure
your ___ was covered [.] I protect my lawyers (at least those, like you, whom I
like).” Id. at 42. In specification 4, the respondent told the claimant’s
representative that the respondent’s “discretion has a flo or and a ceiling , and [the
representative] always get [s] the ceiling, but to resolve this case without a
10 The regulation at 5 C.F.R. § 2635.101 (b)(8) states that employees “shall act
impartially and not give preferential treatment to any private organization or
individual.” Subsection 2635.101(b)(14) states that employees “shall endeavor to avoid
any actions creating the appearance that they are violating the law or the ethical
standards set forth in this part.” Subsection 2635.101(b)(14) further advises that
“[w]hether particular circumstances create an appearance that the law o r these standards
have been violated shall be determined from the perspective of a reasonable person with
knowledge of the relevant facts.”
14
hearing would require [the respondent ] to ascend to the stratosphere !” Id. at 43.
In a follow -up email, the respondent also stated that he was “flatt ered” to
consider himself one of the claimant’s representative’s “friends.” Id. On their
face, the emails described in specifications 1, 3-4 give the appearance of a lack of
impartiality. We affirm the ALJ’s decision to sustain these specifications.
¶24 The respondent further asserts that specifications 5-10, involving email
correspondence with the same claimant’s representative , do not warrant the
conclusion that these communications created an appearance of impropriety. PFR
File, Tab 1 at 24. We are not persuaded by these arguments . Rather, we find that
a reasonable person would conclude that each of these communications was
improper and /or create d an appearance of preferential treatment . For example, in
the email described in specification 5, the re spondent made improper comments
about claimants’ cases. IAF, Tab 1 at 12, 46 -47. In the email described in
specification 6, the respondent states , “Just to show you the amount of good will
you’ve banked, I set aside a decision I was writing to attend to your email.” Id.
at 12, 47. In the email described in specification 7, the respondent states , “It’s
always a treat to have a lawyer of your ability and dedication to work with.” Id.
at 12, 49. In the email described in specification 8, the respondent d iscussed an
arbitration hearing that he (the respondent) was involved in, referred to an
Associate CALJ as the “Chicago hit man ,” and called him an “anti -judge
bureaucrat.” Id. at 12, 52. The respondent also stated in this email that he would
treat attorneys like the recipient differently than other attorneys. Id. at 53
(“When I have attorneys like you to deal with, I will be the same open, inquiring
person I have always been , and encourage free -wheeling debate and discussion
like we’ve always had. Where I have attorneys I don’t know before me, I’ll ask
no questions other than that of the [vocational expert] . . . . ”). In specification 9,
the respondent made an inappropriate remark about a juvenile claimant to the
claimant’s rep resentative and invited the representative to contact him over the
weekend on his personal email account. Id. at 12, 54, 56. In specification 10, the
15
respondent explicitly acknowledged that his disposition would result in the
claimant’s representative re ceiving a fee for his work in that matter , and he noted
the “effort” that the representative put into the case . Id. at 12, 63. We discern no
error with the ALJ’s analysis of specifications 5-10 or his conclusion that each of
these emails gave the appeara nce of a lack of impartiality and constituted conduct
unbecoming . ID at 100-05.
¶25 In the email described in specification 11, the respondent told th e
claimant’s representative, “if you are telling me as an officer of the court and my
friend that the claim ant did indeed undergo a fusion in October 2013,” then he
would decide the case based on her representation. IAF, Tab 1 at 12, 65. In the
email described in specification 12, the respondent told the claimant’s
representative that she was “one of a group (fairly small group) of attorneys who
may always contact [him], bidden or unbidden” and that he “respect[ed ] [her]
immensely, and value[d ] [her] input consistently .” Id. at 12, 68. We agree that
both of these emails are evidence of conduct unbecoming , and we affirm the
ALJ’s analysis of the se specifications. ID at 105-07.
¶26 In the email described in specification 14, the respondent used his personal
email address and told the claimant’s representative, among other things, that the
representative remin ded him of himself and that he (the respondent) was “never
fortunate enough to have the opportunity to appear before a Judge with whom
[he] could have these types of ‘out of court’ dialogues” regarding a particular
matter. IAF, Tab 1 at 12, 74-79. We agree with the ALJ that this communication
constituted conduct unbecoming . ID at 108-09.
¶27 On review, the respondent contends that the ALJ erred because one who
alleges bias must overcome a presumption of honesty and integrity. PFR File,
Tab 1 at 24-25. Al though this is an accurate proposition of law, see, e.g. ,
Oliver v. Department of Transportation , 1 M.S.P.R. 382, 386 (1980), SSA did not
allege in t he conduct unbecoming specifications —and the ALJ did not find—that
the respondent was biased in favor of or against the claimants whose
16
representatives were communicating with the respondent . Moreover , the
respondent even acknowledged that the communications described in the conduct
unbecoming specifications are “capable of being interpreted nefariously .”
PFR File, Tab 1 at 26 (emphasis in original). For these reasons, we agree with
the ALJ’s decision to sustain specifica tions 1, 3-12, and 14.
¶28 Turning to SSA’s cross petition for review, we agree with SSA that the ALJ
should have sustained specification 15 of the conduct unbecomin g charge.
PFR File, Tab 5 at 28-29. In this specification, SSA alleged that the respondent
forwarded an email to a claimant’s repre sentative with the subject line “[the
CALJ] just violated federal law and thumbed nose at U[.]S[.] Supreme Court .”
IAF, Tab 1 at 12, 80 -82. The forwarded email, from a colleague of the
respondent, called the CALJ a “complete idiot” and included a bulletin which
allegedly “orders S SA ALJs to violate federal law. ” Id. at 80-82. In the initial
decision, the ALJ found unpersuasive SSA’s argument that the respondent’s
decision to forward the email to a claimant’s repre sentative would undermine
public confidence in SSA ; however, he did not provide any explanation for his
decision or cite to any legal authority or the CALJ’s testimony regarding the
effect of the respondent’s distribution of this emai l. ID at 109-10; PFR File,
Tab 5 at 28-29. We disagree with the ALJ’s assessment of this email. Rather, the
respondent’s decision to forward to a claimant’s representative an internal SSA
email with commentary that was critical of the CALJ and discussed “inside
baseball” top ics creates an appearance of a lack of impartiality and constitutes
conduct unbecoming. HT 5 at 279-80 (testimony o f the CALJ). We modi fy the
initial decision in this regard.
¶29 We have considered SSA’s arguments regarding specification 13 of the
conduct unbecoming charge wherein SSA charged that the respondent expressed
concern for a favored attorney’s receiving a fee in a case she was handling before
him and suggested how she might go about securing that fee. PFR File, Tab 5
at 27-28; IAF, Tab 1 at 12, 70-73. We have also considered SSA’s argument
17
regarding specification 2 wherein the agency charged that the respondent’s
decision to use a claimant’s full name and a nother claimant’s last name in an
August 31, 2012 email to a claimant’s repre sentative constitute d improper
transmission of PII and , therefore, con duct unbecoming. PFR File, Tab 5
at 26-27. However , we need not resolve either of these issues because we find
that SSA proved the conduct unbecoming charge based on our decision to affirm
the ALJ’s decision to sustain specifications 1, 3 -12, and 14, and our separate
decision to sustain specification 15. See Burroughs , 918 F.2d at 172.
We modify the initial decision to find that the respondent ’s November 15, 2012
letter to OIG constituted protected activity , but he did not prove that the protected
activity was a contributing factor in SSA’s decis ion to file a complaint
against him.
¶30 As noted above, in the initial decision, the ALJ determined that the
respondent did not prove that he made any whistleblowing disclosures.11
ID at 115-29. In particular, the ALJ found that the respondent’s November 15,
2012 letter to OIG12 did not constitute a protected disclosure because , among
other things, his allegations of “mismanagement” did not rise to the level o f
“gross mismanagement” under 5 U.S.C. § 2302 (b)(8).13 ID at 121-23; IAF,
11 Neither party challenges the ALJ’s analysis of the respondent’s claim of reprisal for
whistleblowing as an affir mative defense or his finding that the respondent did not
make any whistleblowing disclosures. ID at 115-29. Except as modified to discuss the
respondent’s November 15, 2012 correspondence to OIG, we affirm the initial decision
in this regard.
12 In this letter, the respondent reported two instanc es of “serious mismanagement.”
IAF, Tab 95 at 39-40. He described how counsel for a disability claimant in one case
filed a motion to recuse and how counsel for a disability claimant in another case
complained about him to ODAR management. Id. at 40. He further described how SSA
sought to take disciplinary action against him during an October 25, 2012 interview, but
his first -line supervisor, who was present during the meeting, failed to listen to the
complete version of the hearings in those matters. Id.
13 During the pendency of this appeal, the National Defense Authorization Act for
Fiscal Year 2018 (NDAA), Pub . L. No. 115-91, 131 Sta t. 1283, was signed into law on
December 12, 2017. Section 1097 of the NDAA amended various provisions of title 5
18
Tab 95 at 39-40. Although not explicitly raised by the resp ondent on review, we
modify the initial decision to address this finding .
¶31 Under the law in effect a t the time SSA filed this complaint in
October 2015,14 an employee may establish a prima facie case of retaliation for
whistleblowing disclosures and/or protected activity by proving by preponderant
evidence15 that: (1) he made a disclosure described under 5 U.S.C. § 2302 (b)(8)
or engaged in protected activity described under 5 U.S.C. § 2302 (b)(9)(A)(i), (B),
(C), or (D) ; and (2) the whistleblowing disclosure or protected activity was a
contributing factor in the agency’s decision to take a personnel action against
him. 5 U.S.C. § 1221 (e)(1); Alarid v. Department of the Army , 122 M.S.P.R. 600,
¶ 12 (2015); Webb v. Department of the Interior , 122 M.S.P.R. 248, ¶ 6 (2015).
If the employee makes both of these showings by preponderant evidence, the
burden of persuasion shifts to the agency to prove by clear and convincing
evidence that it would have taken the same action in the absence of the protected
activity. Alarid , 122 M.S.P.R. 600, ¶ 14.
¶32 It appears that the ALJ analyzed this claim under 5 U.S.C.
§ 2302 (b)(8)(B)(ii), which states that it is a prohibited personnel practice (PPP) to
take a personnel action against an employee because of “any disclosure . . . to the
Inspector General . . . of information which the employee . . . reasonably believes
evidence s . . . gross mismanagement.” The ALJ’s reliance on this statutory
provision was in error. We need not remand the appeal , though, because the
of the U.S. Code . Our disposition of this matter would be the same under both pre ‑ and
post-NDAA law.
14 Although the respondent’s correspondence to OIG predated the December 27, 2012
effective date of th e Whistleblower Protection Enhancement Act of 2012 (WPEA), Pub.
L. No. 112-199, § 202, 126 Stat. 1465, the Board may consider the provisions of the
WPEA because SSA’s complaint was filed after that date, Carney v. Department of
Veterans Affairs , 121 M.S.P.R. 446 , ¶ 2 n.1 (2014).
15 Preponderant evidence is the degree o f relevant evidence that a reasonable person,
considering the reco rd 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).
19
record is fully developed on this issue. Instead , we conclude that the
respondent’s claim is more appropriately analyzed under 5 U.S.C.
§ 2302 (b)(9)(C), which states that it is a PPP to take an action against an
employee because that employee “disclos[ed] inf ormation to the Inspector
General . . . of an agency . . . in accordance with applicable provisions of law.”
The respon dent’s November 15, 2012 letter satisfies the criteria under section
2302(b)(9)(C) and constitutes protected activity. See, e.g. , Speci al Counsel v.
Hathaway , 49 M.S.P.R. 595, 612 (1991) (finding that section 2302(b)(9)(C)
covers employee disclosures to OIG that do not meet the precise terms of t he
actions described in section 2302(b)(8)), recons. denied , 52 M.S.P.R. 375, aff’d ,
981 F.2d 1237 (Fed. Cir. 1992) .
¶33 We must next determine whether the respondent’s November 15, 2012 letter
to OIG was a contributing factor in SSA’s decision to file the complaint against
him. One way of proving that the respondent ’s protected activity was a
contributing factor in the personnel action is the “knowledge/timing test.” Alarid ,
122 M.S.P.R. 600, ¶ 13 (citi ng Shibuya v. Department of Agriculture ,
119 M.S.P.R. 537, ¶ 22 (2013)). The knowledge/timing test allows an employee
to demonstr ate that the protected activity was a contributing factor in a personnel
action through circumstantial evidence, such as evidence that the official taking
the personnel action knew of the protected activity and that the personnel action
occurred within a p eriod of time such that a reasonable person could conclude
that the protected activity was a contributing f actor in the personnel action.
Alarid , 122 M.S.P.R. 600, ¶ 13; see 5 U.S.C. § 1221 (e)(1) . The ALJ found —and
the resp ondent does not contest —that the CALJ who signed the complaint was not
aware of the respondent’s November 15, 2012 letter to OIG when she authorized
the filing of the complaint in this matter. ID at 53. Thus, the knowledge
component of t he knowledge/timing tes t is not satisfied.
¶34 There are, however, other ways to satisfy contributing factor, such as
evidence pertaining to the strength or weakness of the agency’s reasons for taking
20
the action, whether the protected activity was personally directed at the proposing
or deciding officials, and whether these individuals had a desire or motive to
retalia te against the respondent . Dorney v. Department of the Army ,
117 M.S.P.R. 480, ¶ 15 (2012); Powers v. Department of the Navy , 69 M.S.P.R.
150, 156 (1995). As noted above, there is strong evidence to support SSA’s
charges. The November 15, 2012 letter identifi ed the respondent’s first-line
supervisor by name and criticize d ODAR ’s region one management, IAF, Tab 95
at 39-40, but t here is no evidence that the respondent’s first -line supervisor , or
anyone in ODAR region one management , had any knowledge of the res pondent’s
November 15, 2012 letter to OIG prior to the complaint being filed or that any of
these individuals had a desire or motive to retaliate against the respondent. E.g.,
HT 1 at 281 ( testimony of the respondent’s first -line supervisor ); HT 2 at 277
(testimony of the respondent’ s second -line supervisor ). Finally, we have
considered whether the CALJ had constructive knowledge of the respondent’s
OIG letter, Bradley v. Department of Homeland Security , 123 M.S.P.R. 547, ¶ 15
(2016) , but we are not aware of any evidence in this regard .
¶35 Because we have found that the respondent failed to prove that his protected
activity was a co ntributing factor in SSA’s decision to file the complaint seeking
to remove him, it is unnecessary to determine whether SSA proved by clear and
convincing evidence that i t would have filed the complaint in the absence of the
respondent’s protected activity . See Clarke v. Department of Veterans Affairs ,
121 M.S.P.R. 154, ¶ 19 n.10 (2014) , aff’d , 623 F. App’x 1016 (Fed. Cir. 2015) .
We f ind that there is good cause to remove the respondent .
¶36 The ALJ correctly noted that, in evaluating the penalty in an original
jurisdiction case unde r 5 U.S.C. § 7521 , the Board looks to the facto rs articulated
in Douglas v. Veterans Administration , 5 M.S.P.R. 280, 305 -06 (1981). ID
at 130; Long , 113 M.S.P.R. 190, ¶ 47. In the initial decision, the ALJ evaluated
the Douglas factors, finding , among other things, that the sustain ed misconduct
was “serious , and . . . repeated notwithstanding clear notice and guidance ” from
21
SSA, and the misconduct merited a “substantial ” penalty. ID at 130-43.
However, the ALJ concluded that a 180 -day suspension was a reasonable penalty.
ID at 143-44. On cross petition for review, SSA asserts that the ALJ improperly
considered the following penalty factors as mitigating factors : (1) the
respondent’s past work record; (2) the consistency of the penalty; (3) the
notoriety of the offens e; (4) the respondent’s potential for rehabilitation; an d
(5) the availability of alternative sanctions. PFR File, Tab 5 at 11-22; ID
at 143-44.
¶37 We disagree with SSA’s arguments regarding the ALJ’s evaluation of the
respondent’s past work record. SSA challeng es the ALJ’s finding that the
respondent’s productivity and intelligence were mitigating factors, and it asserts
that the A LJ ignored the fact that SSA referred the respondent to the OIG for
investigation in 2013. PFR File, Tab 5 at 12 -15; ID at 133 -39, 1 41. In the initial
decision, the ALJ cited the testimony of others regarding the respondent’s
productivity and intelligence and found that the respondent had a positive work
ethic and was viewed as intelligent and fair by representatives who appeared
befo re him. ID at 141 -43. SSA argues that the respondent’s high productivity is
illusory given his failure to abide by agency policy, PFR File, Tab 5 at 12-13, but
this fact, even if true, does not warrant a different outcome. The ALJ also noted,
among othe r things, that SSA received numerous complaints against the
respondent, and his supervisor estimated that 80% of his workload in dealing with
complaints against ALJs involved complaints submitted against the respondent.
ID at 141. It therefore appears th at the ALJ identified the relevant evidence
regarding this factor. Even if the ALJ did not discuss the OIG referral in his
analysis of the particular penalty factor, he discussed it in his findings of fact. ID
at 26-27. Additionally, the ALJ’s failure t o mention all of the evidence of record
does not mean that he did not consider it in reaching his decision. Marques v.
Department of Health & Human Services , 22 M.S.P.R. 129 , 132 (1984), aff’d ,
776 F.2d 1062 (Fed. Cir. 1985) .
22
¶38 However, we agree with SSA’ s argument that the ALJ did not properly
evaluate the notoriety of the respondent’s offense. PFR File, Tab 5 at 12-15. The
ALJ acknowledged that a district court decision in Betancourt v. Astrue ,
824 F.Supp.2d 211 (D. Mass. 2011), discussed the respondent’s failure to
memorialize off -the-record conversations, ID at 142, but the ALJ was not
persuaded by SSA’s speculation that claimants and their representatives were
aware of the respondent’s misconduct, and he concluded that the evidence did not
show that the misconduct was notorious or adversely impacted SSA’s reputation.
Id. Yet, as the ALJ noted just paragraphs earlier in his decision, that very same
handling of off -the-record conversations admonished in Betancourt had been the
subject of numerous complaints since at least 2010, resulting in the
aforementioned testimony from the first -line supervisor that 80% of his workloa d
in dealing with complaints against ALJs involved complaints submitted against
the respondent. ID at 140-41. We therefore agree with SSA that, as an ALJ, the
respondent held a prominent, visible, and public position that is subject to
scrutiny, perhaps more so than many other types of agency officials who do not
routinely interact with the public, and that his misconduct, even if not technically
notorious, did reflect negatively on SSA’s reputation.
¶39 We also are persuaded that the ALJ erred in his analy sis of the consistency
of the penalty, the respondent’s potential for rehabilitation, and the availability of
alternative sanctions. For instance, r egarding the consistency of the penalty with
those imposed upon other employees for the same or similar off enses, we agree
with SSA that the ALJ took a narrow view of this factor by failing to mention any
of the misconduct relating to the conduct unbecoming charge. PFR File, Tab 5
at 16; ID at 142. Importantly , the CALJ testified that she sought removal of
another ALJ for only “neglect of duty for failure to follow Agency policy ,” the
appeal of which was then pending, and she stated that the respondent’s
misconduct was “very, very rare.” HT 5 at 291-92 (testimony of the CALJ ).
23
Given the unusual nature of the sustained misconduct, we find that the absence of
comparator evidence is not a mitigating factor .
¶40 Regarding the respondent’s potential for rehabilitation, the ALJ considered
the fact that the respondent improve d his practices regarding PII and also began
memorializing “more” of the content of his off-the-record conversations and
communications. ID at 139, 143 . Although the degree to which the respondent
may have improved his efforts to memorialize his off -the-record conversations i s
unclea r, PFR File, Tab 5 at 19, the ALJ properly considered such evidence in his
assessment of the respondent’s potential for rehabilitation. However, the ALJ
also cited to the respondent’s brief that he was “ ‘able and willing ’ to adjust his
behavior” to support the conclusion that he had a potential for rehabilitation.
ID at 139 (citing IAF, Tab 112 at 73). Statements of a party’s representative in a
pleading do not constitute evidence , Hendricks v. Department of the Navy ,
69 M.S.P.R. 163 , 168 (1995) , and it was error for the ALJ to rely on the
representative’s statements in this regard .16 We find that there is not a strong
potential for rehabilitation here , particularly given the respondent’s failure to
comply with SSA policy regarding CPOD decisions and his numerous improper
communications with claimants ’ representatives that ga ve the appearance of a
lack of impartiality . Indeed , as the ALJ found, the respondent “persistently
challenged and resisted [SSA] direction, maintaining that [SSA’s] policies were
incorrect and that [ his] practices were justified.” ID at 133. Moreover , regarding
his comm unications with claimants ’ representatives, there is no evidence
whatsoever that he improved his communications or judgment in this regard; thus,
we find that there is little potential for rehabilitation.
¶41 Finally, r egarding the adequacy and effectiveness of alternative sanctions,
the ALJ noted that the respondent previously had not been sanctioned in
connection with the sustained misconduct, and he concluded that the record
16 Although the respondent is pro se on review, PFR File, Tab 7, he was represented
during the proceedings below, IAF, Tabs 5, 112.
24
did not show that removal, rather than a lesser sanction, would be more effective
to deter the respondent or others from engaging in similar conduct. ID at 143. In
its cross petition for review, SSA argues , in pertinent part, that the lack of prior
discipline does not make removal inappropriate in this case. PFR File, Tab 5
at 20 (noting that, in cases such as Long , 113 M.S.P.R. 190, and Social Security
Administration v. Steverson , 111 M.S.P.R. 649 (2009) , the Board has foun d good
cause to remove an ALJ even in the absence of prior discipline ). Here, the
respon dent received the December 5, 2011 directive , which advised him that
failure to follow the directive may lead to disciplinary action. IAF, Tab 93 at 23.
Moreover, the ALJ made the following findings: (1) SSA referred the respondent
to OIG in October 2013; (2) OIG conducted an investigation ; (3) it was ODAR’s
practice to hold in abeyance any administrative actions against an employee once
an OIG referral has been made ; and (4) prior to the OIG referral SSA had been
working on potential discipline for the respondent . ID at 26-27. Thus, the fact
that SSA took no action against the respondent from the time of its October 2013
referral to OIG until after it received the OIG reports in December 2014 and
February 2015, ID at 27, does not, under these circumstances, make this
factor mitigating .
¶42 We agree with the ALJ ’s analysis of the nature and seriousness of the
misconduct, which is the most significant Douglas factor, and his conclusion that
the respondent’s misconduct was “serious,” “repeated,” “di rectly pertain[ed] to
[his] responsibilities as an ALJ,” “negatively impact[ed] the legal sufficiency and
defensibility of his [ CPOD ] decisions,” “directly affect[ed] [the respondent’s]
obligation to provide claimants with a full, due process hearing,” and “reflected
poorly on the ALJ position .” ID at 131-32, 143 ; Murry v. General Services
Administration , 93 M.S.P.R. 554, ¶ 8 (2003) , aff’d , 97 F. App’x 319 (Fed. Cir.
2004) . We also agree with the ALJ that the sustained misconduct warrants a
“substantial ” penalty. ID at 143. Although a 180 -day suspension is a significant
penalty , Colon v. Department of the Navy , 58 M.S.P.R. 190, 204 (1993) , we find
25
that, given the serious and re peated nature of the misconduct, the Douglas factors
discussed herein, and the ALJ’s assessment of the remaining factors, SSA has
proven good cause to remove the respondent. See, e.g. , Steverson , 111 M.S.P.R.
649, ¶¶ 2-3, 6-12, 19-21 (finding good cause to remove the respondent ALJ based
on charges of conduct unbecoming, lack of candor, misuse of Government
equipment , and failure to follow agency policy ).
We deny SSA’s request to suspend the respondent from the date the complaint
was filed through the Board’s final decision.
¶43 SSA argued in its complaint that the respondent’s neglect of duties and
conduct unbecoming “fundamentally undermines public confidence” in t he
agency’s adjudicatory process, and, therefore, good cause exists to suspend him
from the date of the October 2, 2015 complaint through the Board’s final decision
in this matter . IAF, Tab 1 at 5, 12 -13. In the initial decision, the ALJ noted that
SSA c ited no authority to support its request for a retroactive suspension , and he
rejected SSA’s request in this regard . ID at 144. In its cross petition for review,
SSA challenges the ALJ’s conclusion, emphasizing that, because Congress
has not defined the term “suspension” in 5 U.S.C. § 7521 , the Board can give it
meaning. PFR File, Tab 5 at 29-32.
¶44 Other than citing to section 7521, SSA provides no legal basis for its
request; rather, SSA only appears to focus on policy arguments. Id. We are not
persuaded by SSA’s arguments . Importantly , section 7521(a) advises that an
agency may not take an action against an ALJ until the Board “establish[es] and
determine [s]” that the agency has made a showing of good cause. 5 U.S.C.
§ 7521 (a); see, e.g. , Social Security Administration v. Boham , 38 M.S.P.R. 540,
546-47 (1988) ( finding that SSA proved good cause to discipline the respondent
ALJ based on his refusal to c omply with reasonable orders concerning case
scheduling and authorizing SSA to suspend him for a period up to 75 days), aff’d ,
883 F.2d 1026 (Fed. Cir. 1989) (Table) . SSA is essentially asking the Board to
approve a time -served suspension. However, the B oard has hel d that the
26
imposition of a time -served suspension is arbitrary. Milligan v. U.S. Postal
Service , 106 M.S.P.R. 414, ¶ 13 (2007); see Gre enstreet v. Social Security
Administration , 543 F.3d 705 , 709 (Fed. Cir. 2008) (“[T]he length of a suspension
is arbitrary when it is based solely on the suspended employee’s ‘time served’
awaiting decision.”). We are not persuaded that it is appropriate to interpret the
statute at 5 U.S.C. § 7521 as authorizing a time -served or retroactive suspension,
and we deny SSA’s request.
ORDER
¶45 We have considered the parties’ remaining arguments, but we find them
unpersuasive . The Board authorizes the petitioner to remove the resp ondent fo r
good cause shown, pursuant to 5 U.S.C. § 7521 .
NOTICE OF APPEAL RIG HTS17
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 de termines the time limit for seeking such review and the appropriate
forum with which to file. 5 U.S.C. § 7703 (b). Although we offer the following
summary of available appeal rights, the Merit Sys tems Protection Board does not
provide legal advice on which option is most appropriate for your situation and
the rights described below do not represent a statement of how courts will rule
regarding which cases fall within their jurisdiction. If you wis h to seek review of
this final decision, you should immediately review the law applicable to your
claims and carefully follow all filing time limits and requirements. Failure to file
within the applicable time limit may result in the dismis sal of your cas e by your
chosen forum.
17 Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise which option is most appropriate in any matter.
27
Please read carefully each of the three main possible choices of review
below to decide which one applies to 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.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
28
were affected by an action that is appealable to the Board and that 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 hav e a
representative in this case, and your representative receives this decision before
you do, then you must file with the district court no later than 30 calendar days
after your representative receives this decision. If the action involves a claim of
discrimination based on race, color, religion, sex, national origin, or a disabling
condition, you may be entitled to representation by a court ‑appointed lawyer and
to waiver of any requirement of prepayment of fees, costs, or other security. See
42 U.S.C. § 2000e -5(f) and 29 U.S.C. § 794a .
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http:/ /www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702 (b)(1). You must file any such request 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:
29
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a me thod requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302 (b)(8) or
other protected activities listed in 5 U.S.C. § 2302 (b)(9)(A)(i), (B), (C), or (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.18 The court of appeals must receive your petition for
review within 60 days of the date of issuance of this decision. 5 U.S.C.
§ 7703 (b)(1)(B).
18 The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of compet ent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115 -195,
132 Stat. 1510.
30
If you submit a petition for j udicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional informa tion about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of P ractice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
Contact information for the courts of appeals can be 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 | COOPERMAN_LEONARD_CB_7521_16_0001_T_1_FINAL_ORDER_1928459.pdf | 2022-05-27 | null | CB-7521-16-0001-T-1 | NP |
4,369 | https://www.mspb.gov/decisions/nonprecedential/BROOKS_JACQUELYN_R_CH_831E_17_0030_I_1_FINAL_ORDER_1928500.pdf | UNITED STATES OF AME RICA
MERIT SYSTEMS PROTEC TION BOARD
JACQUELYN R. BROOKS,
Appellant,
v.
OFFICE OF PERSONNEL
MANAGEMENT,
Agency.
DOCKET NUMBER
CH-831E -17-0030 -I-1
DATE: May 27, 2022
THIS FINAL ORDER IS NONPRECEDENTIAL1
Jacquelyn R. Brooks , Indianapolis, Indiana, pro se.
Carl E. Hobbs, II , Washington, D.C., for the agency.
BEFORE
Raymond A. Limon , Vice Chair
Tristan L. Leavitt , Member
FINAL ORDER
¶1 The appellant has filed a petiti on for review of the initial decision, which
affirmed the final decision of the Office of Personnel Management (OPM)
dismissing her application for disability retirement as untimely filed . Generally,
we grant petitions such as this one only in the followi ng 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 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 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. Therefore, we DENY the
petition for review and AFFIRM the initial decision as MODIFIED to find that
the appellant received sufficient notice of her possible eligibility for disabili ty
retirement.
BACKGROUND
¶2 In October 2010, th e appellant’s employing agency, the Defense Finance
and Accounting Service, removed her from h er position as an accountant for
absence without official leave (AWOL) . Initia l Appeal File (IAF), Tab 4 at 46,
100-02. The appellant filed a Board appeal of the removal , and in a decision
dated March 23, 2012, the Board affirmed an administrative judge’ s initial
decision sustaining the removal. Brooks v. Department of Defense , MSPB Docket
No. CH -0752 -11-0119 -I-1, Final Order (Mar. 23, 2012). On October 5, 2015, the
appellant applied for disability retirement benefits under the Civil Service
Retirement System (CSRS). IAF, Tab 4 at 145 -48, Tab 12 at 3. By initial
decision dated April 20, 2016, OPM dismissed the appellant’s disability
retirement application as untimely filed . IAF, Tab 4 at 7 -8. The appellant
requested reconsideration of OPM’s decision, and on August 30, 2016, OPM
issued a reconsideration decision affirming its initial decision because the
3
appellant did not timely file her application and did not show a basis on which to
waive the filing deadline . Id. at 4-6.
¶3 The appellant timely appe aled OPM’s reconsideration decision to the Board
and requested a hearing. IAF, Tab 1, Tab 7 at 1. Following a hearing, the
administrative judge issued an initial decision that affirmed OPM’s
reconsideration decision. IAF, Tab 15, Initial Decision (ID). The administrative
judge found that the appellant did not show that she became mentally incompetent
within 1 year of her separation from employment such as would warrant a waiver
of the time limit to file an application for disability retirement. ID at 5 -7. She
further found that the appellant did not show that her former employing agency
committed harmful procedural error in failing to notify OPM that she was
disabled or file an application for d isability retirement on her behal f at the time of
her separation, as she was not removed because of her medical condition . ID
at 7-8. The administrative judge also found that the appellant did not show that
the employing agency erred in failing to notify her of her eligibility to apply for
disability retirement, as lack of notice was not a basis on which to waive the time
to file an application for disability retirement . ID at 8 -9.
¶4 The appellant has filed a petition for review in which she argues that t he
employing agency’s failure to notify her of her eligibility for disability retirement
entitles her to equitable tolling of the time limit to file an application for
disability retirement , and that the Bruner presumption should apply such that she
is eli gible for disability retirement benefits.2 Petition for Review (PFR) File,
Tab 1 at 3-9. OPM has not filed a response.
DISCUSSION OF ARGUME NTS ON REVIEW
¶5 An application for disability retirement under the CSRS must be filed with
an employee’s employing agency before the employee separates from service or
2 The appellant appears to refer to Bruner v. Office of Personnel Management , 996 F.2d
290 (Fed. Cir. 1993 ), as discussed in further detail below .
4
with the former employing agency or with OPM within 1 year after the
employee’s separation. 5 U.S.C. § 8337 (b); 5 C.F.R. § 831.1204 (a). This 1 -year
time limit for filing a disability retirement application following an employee’s
separation from service may be waived if the emp loyee is mentally incompetent
at the date of separation or within 1 year thereafter and if the application is filed
with OPM within 1 year from the date the employee is restored to competency or
is appointed a fiduciary, whichever is earlier. King v. Office of Personnel
Management , 112 M.S.P.R. 522 , ¶ 7 (2009) ; 5 C.F.R. § 831. 1204(d). On review,
the appellant does not challenge the administrative judge’s finding that she did
not show that she was mentally incompetent at the date of separation or within
1 year thereafter , and we discern no reason to disturb this finding. ID at 5 -7; see
Clay v. Depa rtment of the Army , 123 M.S.P.R. 245 , ¶ 6 (2016) (finding no reason
to disturb the admin istrative judge’s findings when she consider ed the evidence
as a whole, drew appropriate inferences, and made reasoned conclusions on the
issue of credibility); Broughton v. Department of Health & Human Services ,
33 M.S.P.R. 357 , 359 (1987) (same).
¶6 Rather, the appellant contests the administrative judge’s findi ng that her
employing agency’s failure to inform her of possible eligibility for disability
retirement at the time of her removal did not provide a basis for waiving the
statutory deadline to apply for disability retirement . PFR File, Tab 1 at 6 -9; ID
at 7-9. In support of her argument, the appellant cites the decision of the U.S.
Court of Appeals for the Federal Circui t in Johnston v. Office of Personnel
Management , 413 F.3d 1339 , 1342 -43, revised on recons. , 430 F.3d 1376 (Fed.
Cir. 2005) ,3 which indicated that equitable tolling of the 1 -year time limit for
filing an application for disability retirement may be available when the agency
3 On reconsideration, the Federal Circuit modified its opinion to reflect that the duty to
notify the appellant of his separation and eligibility for disability retirement belonged
primarily to the agency that employed him, rather than OPM. Johnston , 430 F .3d
at 1376 -77.
5
fails to notify an employee of her potential eligibility for disability retirement
benefits. PFR File, Tab 1 at 8 ; see also Winchester v. Office of Personnel
Management , 449 F. App’x 936, 938 -39 (Fed. Cir. 2011) (nonprecedential)
(stating that the Board is not barred fr om equitably correcting a lack of notice of
potential eligibility for disability retirement ).4
¶7 However, we need not rely upon the Federal Circuit’s decision because the
appellant in this case received adequate notice of her potential eligibility for
disability retirement benefits. Under the CSRS, when an agency issues a decision
to remove an employee and not all of the conditions for an agency to file an
application for disability retirement on behalf of an employee are satisfied, but
the removal is based on reasons “apparently caused by a medical condition,” the
agency must advise the employee in writing of her possible eligibility for
disability retirement. 5 C.F.R. § 831.1205 (b)(1). Here, although the appellant
was removed for AWOL, the agency official sustaining the appellant’s removal
discussed in his decision the appellant’s medical condition in connection with her
reque st for reasonable accommodation, concluding that while her absences “may
be medically justified,” the appellant could not be accommodated and did not
dispute the charge of AWOL. IAF, Tab 4 at 100 -02. The removal deci sion
further notified the appellant that , “If you believe your health condition continues
to prevent you from returning to duty, you may wish to explore the option of
disability retirement ,” and provided her with the contact information for human
resources staff should she wish to do so . Id. at 102. Such notice was sufficient to
meet the re quirements of 5 C.F.R. § 831.1205 (b)(1).5 Thus, OPM properly
dismissed the appellant’s applicatio n for disability retirement as untimely filed .6
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 The parallel regulation applicable to disability retirement under F ederal Employees
Retirement System further requires the agency to provide notice of the time limit for
filing an application for disability retirement; however, under the regulation applicable
6
¶8 The appellant did not raise before the administrative judge the argument
that Bruner v. Office of Personnel Management , 996 F.2d 290, 293-94 (Fed. Cir.
1993), which provides that a rebuttable presumption of entitlement to a disability
retirement arises if the employe e is removed for p hysical inability to perform the
essential functions of her position , assuming she is otherwise qualified, applies
here. Accordingly, we do not consider it on review. See Banks v. Department of
the Air Force , 4 M.S.P.R. 268 , 271 (1980) (stating that t he 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 previou sly available
despite the party’ s due diligence ). Moreover, because the appellant’s application
for disability retirement was untimely, we do not reach the merits of her
application for disability retirement and thu s do not reach the issue of whether the
rebuttable presumption set forth in Bruner applies here. Cf. Kleinknecht v. Office
of Personnel Management , 96 M.S.P.R. 198, ¶¶ 7-9 (2004) (finding that the
appellant’s letter constituted a timely application for disability retirement and
remanding the matter for a determination of the appellant’s entitlement to
disability retirement). Accordingly, we affirm the administrative judge’s initi al
decision, as modified by this Final Order.
to the CSRS, no notice of the time limit for filing is required. Compare 5 C.F.R.
§ 831.1205 (b)(1) , with 5 C.F.R. § 844.202 (b)(1).
6 We also agree with the administrative judge that the employing agency was not
required to submit an applicati on for disability retirement on the appellant’s behalf. ID
at 7-8. At a minimum, there is no indication that the appellant was institutionalized or
incapable of making a decision to file an application for disability retirement at the time
of her removal . See 5 C.F.R. § 831.1205 (a)(3) (requiring that the employee be
institutionalized or that the agency conclude that the employee is incapable of making a
decision to file an application for disability retirement before an agency must file a
disability retirement application on an employee’s behalf).
7
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 appro priate
forum with which to file. 5 U.S.C. § 7703 (b). Although we offer the following
summary of available appeal rights, the Meri t Systems Protection Board does not
provide legal advice on which option is most 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 immediate ly review the law applicable to your
claims and carefully follow all filing time limits and requirements. Failure to file
within the applicable time limit may result in the dismissal of your case by your
chosen forum.
Please read carefully each of the t hree main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
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 decis ions. 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 c ourt at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc. uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an app eal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neithe r endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed tha t you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703 (b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. ____ , 137 S. Ct. 1975 (2017). If you have a
representative in this case, an d your representative receives this decision before
you do, then you must file with the district court no later than 30 calendar days
after your representative receives this decision. If the action involves a claim of
9
discrimination based on race, color, religion, sex, national origin, or a disabling
condition, you may be entitled to representation by a court -appointed lawyer and
to waiver of any requirement of prepayment of fees, costs, or other security. See
42 U.S.C. § 2000e -5(f) and 29 U.S.C. § 794a .
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsit es.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702 (b)(1). You m ust file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702 (b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative 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 described in section
2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i),
(B), (C), 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.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 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
8 The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdictio n expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court 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/Cour tWebsites.aspx .
FOR THE BOARD:
Washington, D.C. /s/ for
Jennifer Everling
Acting Clerk of the Board | BROOKS_JACQUELYN_R_CH_831E_17_0030_I_1_FINAL_ORDER_1928500.pdf | 2022-05-27 | null | CH-831E-17-0030-I-1 | NP |
4,370 | https://www.mspb.gov/decisions/nonprecedential/GARZA_RENE_SF_0752_20_0432_I_1_FINAL_ORDER_1928583.pdf | UNITED STATES OF AME RICA
MERIT SYSTEMS PROTEC TION BOARD
RENE GARZA,
Appellant,
v.
DEPARTMENT OF THE NA VY,
Agency.
DOCKET NUMBER
SF-0752 -20-0432 -I-1
DATE: May 27, 2022
THIS FINAL ORDER IS NONPRECEDENTIAL1
Dean E. Benton , Silverdale, Washington, for the appellant.
David Thayer and Thomas Patrick , Bremerton, Washington, for the agency.
BEFORE
Raymond A. Limon, Vice Chair
Tristan L. Leavitt, Member
FINAL ORDER
¶1 The appellant has filed a petition for review of t he initial decision,
which sustained his removal. Generally, we grant petitions such as this one only
in the following circumstances: the initial decision contains erroneous findings
of material fact; the initial decision is ba sed on an erroneous interpretation of
statute or regulation or the erroneous application of the law to the facts 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
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and 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
case; the administrative judge’s rulings during either the course of the appeal or
the initial decision were not consistent with req uired procedures or involved
an abuse of discretion, and the resulting error affected the outcome of the case; or
new and material evidence or legal argument is available that, despite the
petitioner’s due diligence, was not available when the record 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 states that his petition for review is “based on new
information that wasn’t available at the time due to a lack of knowledge on the
part of [his] representative.” In support, he attaches two p reviously unsubmitted
documents, identified as Documents A and B. Document A , supplied by the
Defense Equal Opportunity Management Institute, is a table indicating the
demographic breakdown of respondents in a survey. The document itself does
not identify the survey, but the appellant identifies it as the 2017 Defense
Organizational Climate Survey (DEOCS). According to the appellant, the table
indicates that Hispan ic employees make up about 5.5 percent of the workforce of
the shipyard where he was employed, although he concedes that this figure may
actually refer to survey respondents.
¶3 Document B is an unlabeled chart, which the appellant states he obtained
from an agency representative during a mediation that took place prior to the
Board appeal. The chart identifies ten employees, including the appellant, who
were removed or otherwise discipline d around the time of the appellant’s
removal. The information includ es the unredacted names of the employees, their
races, the charges against them, the penalty imposed, and the dates of the
disciplinary actions. The appellant asserts that 4 of the 10 empl oyees were of
non-white origin, whereas 74 % of the DEOCS respondent s were white.
3
The appellant contends that the information contained in the newly submitted
documents demonstrates the agency’s bias toward non -white employees .
¶4 Under 5 C.F.R. § 1201.115 , the Board generally will not consider evidence
submitted for the first time with a petition for review absent a showing that it was
unavailable before the record was closed before t he administrative judge
despite the party’s due diligence. Avansino v. U .S. Postal Service , 3 M.S.P.R.
211, 213 -14 (1980) . Here, the appellant has indicated that the documents were in
fact available to him before the record closed below . He explains that his
representative , who is not an attorney, did not submit Document A because
he believed the agency representative had already done so. However, it is well
settled that an appellant is responsible for the errors of his chosen representative .
Sofio v. Internal Revenue Service , 7 M.S.P.R. 667 , 670 (1981). Furthermore, the
appellant has not provided an explanat ion for his failure to s ubmit Document B
before the close of the record below. Thus, he has not shown that the newly
submitted evidence was unavailable before the close of the record despite his due
diligence.
¶5 In any event , the information contained in Documents A and B would not
provide a sufficient basis for reversing the administrative judge’s finding that the
appe llant failed to show by preponderant evidence that his race was a motivating
factor in the agency’s decision to remove him.2 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 showi ng that it is of
sufficient weight to warrant an outcome different fr om that of the initial
decision). The appellant’s broader concerns about the agency’s hiring and firing
practices are outside the scope of this appeal.
2 Notably, Document B identifies only one other nonprobationary employee who was
charged with excessive abs ence. The chart indicates that the employee in question was
white, and was also removed.
4
NOTICE OF APPEAL RIG HTS3
You may obtain review of this final decision. 5 U.S.C. § 7703 (a)(1). By
statute, the nature of your claims determines the time limit for seeking such
review and the appropriate forum with which to file. 5 U.S.C. § 7703 (b).
Although we offer the following summary of available appeal rights, the Merit
Systems Protection Board does not provide legal advice on which option is most
appropriate for yo ur situation and the rights described below do not represent a
statement of how courts will rule regarding which cases fall within their
jurisdiction. If you wish to seek review of this final decision, you should
immediately review the law applicable to y our claims and carefully follow all
filing time limits and requirements. Failure to file within the applicable time
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:
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 ind icated 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 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
6
to waiver of any requirement of prepayment of fees, costs, or other security.
See 42 U.S.C. § 2000e -5(f) and 29 U.S.C. § 794a .
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebs ites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702 (b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702 (b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
addr ess of the EEOC is:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be ad dressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to yo u only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302 (b)(8) or
other protected activities listed in 5 U.S.C. § 2302 (b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
7
disposition of allegations of a prohibited personnel practice described in
section 2302(b) other than practices described in section 2302(b)(8), or
2302(b)(9)(A)(i), (B), (C), or (D),” then you may file a petition for judicial
review either with the U.S. Court of Appeals for the Federal Circuit or any court
of appeals of competent jurisdiction.4 The court of appeals must receive your
petition 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.
4 The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115 -195,
132 Stat. 1510.
8
Contact information for the courts of appeals can be found at their
respective websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
FOR THE BOARD:
Washington, D.C. /s/ for
Jennifer Everling
Acting Clerk of the Board | GARZA_RENE_SF_0752_20_0432_I_1_FINAL_ORDER_1928583.pdf | 2022-05-27 | null | SF-0752-20-0432-I-1 | NP |
4,371 | https://www.mspb.gov/decisions/nonprecedential/DELGADO_ADAM_NY_1221_09_0299_X_1_FINAL_ORDER_1928260.pdf | UNITED STATES OF AME RICA
MERIT SYSTEMS PROTEC TION BOARD
ADAM DELGADO,
Appellant,
v.
DEPARTMENT OF JUSTIC E,
Agency.
DOCKET NUMBER
NY-1221 -09-0299 -X-1
DATE: May 26, 2022
THIS FINAL ORDER IS NONPRECEDENTIAL1
Adam Delgado , Fort Meade, Maryland, pro se.
Katherine Meng , Esquire, Washington, D.C., for the agency.
BEFORE
Raymond A. Limon, Vice Chair
Tristan L. Leavitt, Member
FINAL ORDER
¶1 The appellant is seeking enforcement of a settlement agreement that he and
the Bureau of Alcohol, Tobacco, Firearms, an d Explosives (agency) entered into
in resolution of his whistleblower individual right of action appeal. Delgado v.
Department of Justice , MSPB Docket No. NY -1221 -09-0299 -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 dis tinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117 (c).
2
File (CF), Tab 1. In a compliance initial decision issued February 13, 2017, the
administrative judge found the agency partially noncompliant with the settlement
agreement. CF, Tab 10, Compliance Initial Decision (CID). For the reasons
discussed below, we find the agency in compliance and DISMISS the petition for
enforc ement.
DISCUSSION OF ARGUME NTS AND EVIDENCE ON COMPLIANCE
¶2 In the compliance initial decision, the administrative judge found that the
agency had complied with the settlement agreement’s requirements to reinstate
the appellant, cancel his resignation, and return him to duty in the Chicago field
office. CID at 3. However, the administrative judge found that the agency had
not established that it had complied with the settlement agreement’s requirement
that it pay the employer and employee portions of the appellant’s retirement
contributions for the period from April 4, 2006 , through July 16, 2011. Id. at 7.
Therefore, the administrative judge ordered the agency to have the National
Finance Center (NFC) explain its computations regarding the appellant’s s hare
and the agency’s share of the Federal Employee Retirement System (FERS)
retirement contributions for the period from April 4, 2006 , through July 16, 2011;
have NFC make the necessary adjustments, if any; and submit a clear explanation
of NFC’s computa tions. Id. at 7.
¶3 The administrative judge informed the agency that, if it decided to take the
actions ordered in the compliance initial decision, it must submit to the Clerk of
the Board a narrative statement and evidence establishing compliance. CID
at 7-8. In addition, she informed both parties that they could file a petition for
review of the compliance initial decision if they disagreed with the findings
therein. CID at 8-9. Neither party filed any submission with the Clerk of the
Board within the time limit set forth in 5 C.F.R. § 1201.114 . As such, pursuant to
5 C.F.R. § 1201.183 (b)-(c), the administrative j udge’s findings of noncompliance
became final, and the appellant’s petition for enforcement was referred to the
3
Board for a final decision on issues of compliance. Delgado v. Department of
Justice , MSPB Docket No. NY -1221 -09-0299 -X-1, Compliance Referral File
(CRF) , Tab 2.
¶4 The agency submitted a statement of compliance on July 19, 2017. CRF,
Tab 10. The agency stated that, in the process of gathering the information
needed by NFC to determine the correct amounts of retirement contributions, the
agency di scovered that the salary rates for Puerto Rico originally had been used
for the period between 2006 to 2011, rather than the higher rates for Chicago,
which should have been used pursuant to the settlement agreement. Id. at 12, 39.
Therefore, the agency included the Chicago salary rates in the information it sent
to NFC following the issuance of the CID. Id. at 12.
¶5 NFC provided a spreadsheet setting out the figures it used for its
calculations, which were based on the Chicago pay rates. Id. at 13; see CRF,
Tab 11 at 15 -18. The total adjusted employee contribution, which NFC computed
by adding together the yearly amounts, was calculated at $7,326.35. CRF, Tab 10
at 13, n.15. NFC calculated the total agency contribution by adding the “GOV
FERS Retire ment Shares” contribution for each pay period for each of the years
(2006 to 2011) to derive the yearly total. CRF, Tab 10 at 14. See CRF, Tab 11
at 9, 15 -18. These calculations resulted in a total adjusted Agency contribution of
$139,341.22 ($16,760.16 more than the agency’s original payment of
$122,581.06). CRF, Tab 10 at 14, n.18. The agency submitted screen captures
indicating adjustments made in pay periods 7, 8, and 9 in 2017. CRF, Tab 11
at 22-24.
¶6 The agency reported that it had requested th at NFC make necessary
adjustments required by the change in the appellant’s duty station from Puerto
Rico to Chicago, and that, while most of the adjustments were made, there was an
outstanding adjustment in the amount of $6,040.18, which the agency was in the
process of reconciling with NFC. CRF, Tab 10 at 15. This adjustment was due to
4
the difference in the locality pay rates between Puerto Rico and Chicago. Id.
at 15-16.
¶7 The appellant responded to the agency’s proof of compliance on
September 4, 20 17, arguing that the agency had not complied with its obligation
to work with NFC to make the necessary retirement contributions until recently.
CRF, Tab 14 at 4. Because of this delay, the appellant argued that the agency
should be held liable for back wages, other benefits, legal fees, and various other
relocation and transportation costs. Id. at 4-5. The appellant further argued that
the agency could not provide proof that the contributions were made; therefore ,
he assumed they had not been made. Id. at 6. The appellant also attached copies
of earnings statements from his time in Puerto Rico, and disputed the agency’s
conclusion that the settlement agreement required payment under the Chicago
locality pay rate. Id. at 7; see id. at 16 -58. Finally, the appellant requested that
the agency be directed to appoint him to a GS -14 position at its headquarters in
Washington, D.C., because his wife had accepted a new job in Maryland. Id.
at 9-10.
¶8 The appellant submitted an additional statement on February 17, 2018,
which included a draft global settlement proposal. CRF, Tab 15.
¶9 The agency submitted additional evidence of compliance on April 12, 2018.
CRF, Tab 16. The agency stated that the previously -outstanding adjustment of
$6,040.18 to the agency’s share of retirement contributions was made, resulting in
a total paid agency share of $139 ,341.22. Id. at 7, 9 -10. The appellant did not
respond to the agency’s submission.
¶10 The Board issued an order on July 19, 2018, directing the appellant to
respond to the agency’s submissions within 20 calendar days. CRF, Tab 17. In
response, the appellant submitted a statement on July 21, 2018, which argued that
the agency had not provided adequate proof that the adjustments to the
employer’s retirement contributions had actually been made. CRF, Tab 18. The
appellant argued that the agency should have provided “independent”
5
confirmation that the payments were made, preferably from the Office of
Personnel Management (OPM). Id. at 6. He furth er requested that original and
certified copies of NFC’s documents be mailed to him, the agency, and the MSPB
to establish that the payments had been made. Id. at 6-7. The appellant also
contin ued to argue, without support —and to his detriment —that the pay rates
should have been calculated using the lower Puerto Rico locality rate, rather than
Chicago. Id. at 5.
¶11 On November 8, 2020, the appellant submitted a motion for a status update
and summary judgment. CRF, Tab 19. In that motion, he argued that the agency
had not provided “definitive proof” that it made the required retirement
contributions. Id. at 4. He also argued that he did not receive the full amount of
attorney fees that he paid, and stated that he had recently prevailed in two other
whistleblowing appeals in the Court of Appeals for the Seventh Circuit. Id.
¶12 The agency has submitted evidence that it has made retirement
contributions in the amounts of $139,341.22 for the agency share, and $7,326.35
for the employee share. The appellant has not provided any specific objection to
the amounts of the contributions. Rather, he has argued that the agency needs to
provide additional proof that it has made the contributions.
¶13 We reject the appellant’s assertion that independent corroboration from
OPM is necessary to establish compliance in this matter. Rather, we find that the
affidavits, screen captures, and spreadsheets submitted by the agency constitute
sufficient proof that it has complied with the administrative judge’s order
directing i t to have the NFC explain its computations regarding the FERS
contributions for the period from April 4, 2006 , through July 16, 2011 , and have
NFC make the necessary adjustments.
¶14 We further reject the appellant’s contentions that the agency should be
required to pay him back wages, benefits, legal fees, and relocation and
transportation costs, and to appoint him to a GS -14 position at its Washington,
D.C. headquarters. None of the se requirements are found in the settlement
6
agreement. Accordingly, they are outside the scope of this enforcement action,
which is limited to enforcing the terms of the settlement agreement.
¶15 For the reasons above, we find the agency in compliance and D ISMISS the
petition for enforcement. This is the final decision of the Merit Systems
Protection Board in this compliance proceeding. Title 5 of the Code of Federal
Regulations, section 1201.183(c)(1) ( 5 C.F.R. § 1201.183 (c)(1)).
NOTICE TO THE APPELL ANT REGARDING
YOUR RIGHT TO REQUES T
ATTORNEY FEES AND CO STS
You may be entitled to be paid by the agency for your reasonable attorney
fees and costs. To be paid, you must meet the requireme nts set out at title 5 of
the United States Code (5 U.S.C.), sections 7701(g), 1221(g), or 1214(g). The
regulations may be found at 5 C.F.R. §§ 1201.201 , 1201.202, and 1201.203. If
you believe you meet these requirements, you must file a motion for attorney fees
and costs WITHIN 60 CALENDAR DAYS OF THE DATE OF THIS DECISION.
You must file your motion for attorney fees and costs with the office that issued
the initial decision on your appeal.
NOTICE OF APPEAL RIG HTS2
You may obtain review of this final decision. 5 U.S.C. § 7703 (a)(1). By
statute, the nature of your claims determines the time limit for seeking such
review and the appropriate forum with which to file. 5 U.S.C. § 7703 (b).
Although we offer the following summary of available appeal rights, the Merit
Systems Protection Board does not provide legal ad vice on which option is most
appropriate for your situation and the rights described below do not represent a
statement of how courts will rule regarding which cases fall within their
jurisdiction. If you wish to seek review of this final decision, you sh ould
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.
7
immediately review the law applicable to your claims and carefully follow all
filing time limits and requirements. Failure to file within the applicable time
limit may result in the dismissal of your case by your chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more informa tion.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703 (b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your pet ition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s webs ite, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representat ion for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. Th e
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 ha ve claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimi nation
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 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 request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702 (b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is:
9
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial revi ew pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302 (b)(8 ) or
other protected activities listed in 5 U.S.C. § 2302 (b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
disposition of allegations of a prohibited personne l practice described in
section 2302(b) other than practices described in section 2302(b)(8), or
2302(b)(9)(A)(i), (B), (C), or (D),” then you may file a petition for judicial
review either with the U.S. Court of Appeals for the Fe deral Circuit or any court
of appeals of competent jurisdiction. 3 The court of appeals must receive your
petition for review within 60 days of the date of issuance of this decision.
5 U.S.C. § 7703 (b)(1)(B).
3 The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law b y the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of c ompetent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115 -195,
132 Stat. 1510.
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.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 | DELGADO_ADAM_NY_1221_09_0299_X_1_FINAL_ORDER_1928260.pdf | 2022-05-26 | null | NY-1221-09-0299-X-1 | NP |
4,372 | https://www.mspb.gov/decisions/nonprecedential/BAILLIE_WHITNEY_HELEN_DC_1221_20_0838_W_1_FINAL_ORDER_1928321.pdf | UNITED STATES OF AME RICA
MERIT SYSTEMS PROTEC TION BOARD
WHITNEY HELEN BAILLI E,
Appellant,
v.
DEPARTMENT OF ENERGY ,
Agency.
DOCKET NUMBER
DC-1221 -20-0838 -W-1
DATE: May 26, 2022
THIS FINAL ORDER IS NONPRECEDENTIAL1
Whitney Helen Baillie , Syracuse, New York, pro se.
Ida E. Hernandez , Esquire , Albuquerque, New Mexico, for the agency.
BEFORE
Raymond A. Limon, Vice Chair
Tristan L. Leavitt, Member
FINAL ORDER
¶1 The appellant has filed a petition for review of the initial decision, which
dismissed her individual right of action (IRA) appeal for lack of jurisdiction .
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
1 A nonprecedential order is one that the Board has determined does not add
significantly to the 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
or the erroneous application of the law to the facts of the case; the administrative
judge’s rulings during either the course of the appeal or the initial decision
were not consistent with required procedures or involved an abuse of discretion,
and the resulting error affected the outcome of the case; or new and material
evidence or legal argument is available that, despite the petitioner’s due
diligence, was not available when the record closed. Title 5 of t he Code of
Federal Regulations, section 1201.115 ( 5 C.F.R. § 1201.115 ). 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 as
to the administrative judge ’s analysis of why the appellant failed to make a
nonfrivolous allegation that she reasonably believed that she disclosed a violation
of law, rule, or regulation , we AFFIRM the initial decision.
BACKGROUND
¶2 According to the appel lant, in June 2019, she received a 1 -year appointment
as a Graduate Fellow with the agency’s National Nuclear Security Administration
(NNSA) . Initial Appeal File (IAF), Tab 4 at 4; Pacific Northwest National
Laboratory, Graduate Fellowship Program , www.pn nl.gov/projects/ngfp (last
visited May 26 , 2022). In May 2020, NNSA offered the appellant an appointment
as an EN -00 Foreign Affairs Specialist, with a base pay of $59,626. IAF, Tab 6
at 46. The agency specified that the offer was revocable. Id. at 47. Although the
appellant accepted the job offer, she disagreed with the salary and pay band,
arguing that she qualified at the higher EN-03 pay band. Id. at 33 -38, 49. Via
emails she sent to the NNSA’s Acting Deputy Administrator -Management on
May 8 and 26, 2020, the appellant asserted that her education and 1 year of work
experience as a Graduate Fellow with the agency qualified her for the EN -03
band. IAF, Tab 4 at 45-47. She expressed her belief that “abiding by merit -based
principles” and the agency ’s stated policy to fill positions “on the basis of merit”
3
required that she be afforded a higher salary or pay band. Id. at 46. She also
urged that such compensation was required by a 2017 Excepted Service Fact
Sheet and agency policy and guidance regarding pay bands. Id. at 46 -47. On
May 29, 2020, the agency withdrew its offer of employment, advising the
appellant that it had “decided not to fill the position at this time .” IAF, Tab 4
at 51, Tab 6 at 15 .
¶3 The appellant filed this IRA appeal alle ging that the NNSA had rescinded a
job offer in retaliation for her May 8 and 26, 2020 emails . IAF, Tab 1 at 3 -5, 7.
She further asserted that the agency’s failure to hire her for this vacancy and
other positions violated 5 U.S.C. § 2301 (b)(1) and 2302(b)(10) and (b)(12). IAF,
Tab 1 at 5, Tab 4 at 7 -8. With her initial appeal form, the appellant provided an
August 5 , 2020 final determination letter from the Office of Special Counsel
(OSC). IAF, Tab 1 at 9-10.
¶4 The administrative judge issued an order setting forth the appellant’s
burden to establish the Board’s jurisdiction over her IRA appeal. IAF, Tab 3.
The appellant responded , and the agency replied to her response. IAF, Tabs 4, 7.
In an initial decision based on the written record, the administrative judge
dismissed the appeal for lack of jurisdiction. IAF, Tab 1 1, Initial Decision (ID)
at 1-2, 11. The administrative judge found that, while the appellant exhausted her
remedy before OSC , she failed to nonfrivolously allege that she made a protected
disclosure . ID at 7-8, 9-11. Specifically, he found that the appellant’s emails
regarding the agency’s pay band and salary offer did not constitute protected
disclosure s under 5 U.S.C. § 2302 (b)(8) . ID at 10. He reasoned that “her emails
did not show any evidence the agency had violated a law, rule, or regulation ,” as
opposed to agency policy or guidance. Id. He also found that the appellant failed
to show the agency abused its authority in its salary offers . ID at 10-11. He
explained that the Board lack s IRA jurisdiction over an agency’s alleged
violations of merit systems principles and 5 U.S.C. § 2302 (b)(10) and (b)(12) . ID
at 11.
4
¶5 The appellant has filed a petition for review of the initial decision. Petition
for Review (PFR) File, Tab 1. The agency has responded to the appellant’s
petition. PFR File, Tab 3.
DISCU SSION OF ARGUMENTS O N REVIEW
¶6 Under the Whistleblower Protection Enhancement Act of 2012, the Board
has jurisdiction over an IRA appeal if the appellant has exhausted her
administrative remedies before OSC and makes no nfrivolous allegations that
(1) she mad e a protected disclosure described under 5 U.S.C. § 2302 (b)(8) or
engaged in protected activity described under 5 U.S.C. § 2302 (b)(9)(A)(i ), (B),
(C), or (D), and (2) the disclosure or protected activity was a contributing factor
in the agency’s decision to take or fail to take a pe rsonnel action as defined by
5 U.S.C. § 2302 (a). Salerno v. Department of the Interior , 123 M.S.P.R. 230 , ¶ 5
(2016). On review, the parties do not challenge the administrative ju dge’s
finding that the appellant exhausted with OSC her alleged disclosure, and we
discern no basis to disturb it.
We modify the administrative judge’s reasoning as to why the appellant failed to
nonfrivolously allege that she disclosed a violation of law, rule, or regulation.
¶7 The administrative judge concluded that the appellant failed to
nonfrivo lously allege that she made a disclosure of a violation or law, rule, or
regulation . ID at 10. In particular, he found that her “email communications
regarding the salary the agency had offered her” were not protected because she
did not ci te to laws, rules, or regulations, but rather agency guidance regarding
“the appropriate salary to of fer to prospective employees.” Id. He acknowledged
that the appellant also alleged the agency violated 5 U.S.C. §§ 2301 (b)(1) and
2302(b)(10) and (b)(12) . ID at 4 -5. However, he concluded that “it is well
established that such c laims do not come within the ambit of the Board’s IRA
jurisdiction.” ID at 11. Although we agree with the administrative judge ’s
jurisdictional conclusion, we disagree with his reasoning. Therefore, we modify
5
the initial decision as to the basis for con cluding the appellant failed to establish
jurisdiction .
¶8 A nonfrivolous allegation of a protected disclosure is an allegation of facts
that, if proven, would show that the appellant disclosed a matter that a reasonable
person in her position would believe e videnced one of the categories of
wrongdoing specified in 5 U.S.C. § 2302 (b)(8). Salerno , 123 M.S.P.R. 230 , ¶ 6.
In determining if an appellant met the nonfrivolous pleading standard, we look at
her allegations rather than the agency’s contrary evidence or “interpretation of the
evidence.” Hessami v. Merit Systems Protectio n Board , 979 F.3d 1362 , 1368 -69
(Fed . Cir. 2020). The test to determine whether a putative whistleblower has a
reasonable belief in the disclos ure is an objective one: whether a disinterested
observer with knowledge of the essential facts known to and readily ascertainable
by the employee could reasonably conclude that the actions of the agency
evidenced a violation of law, rule, regulation, gros s mismanagement, a gross
waste of funds, an abuse of authority, or a substantial and specific danger to
public health or safety. Salerno , 123 M.S.P.R. 230 , ¶ 6.
¶9 The gravamen of the appellant’s arguments on review is that the
administrative judge erred in finding she failed to nonfrivolously allege she
violated a rule without applying the reasonable person test . PFR File, Tab 1. We
agree. We need not decide here whether the agency documents identified by the
appellant in her disclosures are, in fact, laws, rules, or regulations within the
meaning of whistleblower protection statutes. At the jurisdictional stage, an
appellant need o nly make a nonfrivolous allegation that a person in her position
could reasonably conclude they were .2 Mudd v. Department of Veterans Affairs ,
120 M.S.P.R. 365 , ¶¶ 8 -9 (2013) ; see Mason v. Department of Homeland Security ,
2 Because we agree with the appellant based on the language at 5 U.S.C. § 2302 (b)(8),
we do not reach her argument that the reasonable per son test also is set forth in the
Notification and Federal Employee Antidiscrimination and Retaliation Act of 2002 , also
known as the No FEAR Act . PFR File, Tab 1 at 5.
6
116 M.S.P.R. 135, ¶ 17 (2011) (holding that, at the jurisdictional stage in an IRA
appeal, an appellant is not required to identify the particular statutory or
regulatory provision that the agency violated when his disclosures and the
circumstances of them clearly implicate an identifiable law, rule, or regulation) .
While we agree with her that agency materials she referred to in her disclosures
could appear to a reasonable person to be rules, we are not persuaded that the
appellant nonfrivolously alleged that a reasonable person would believe the
agency violated them.
¶10 In her disclosures , the appellant asserted that by failing to offer her the
position at the higher EN -03 pay band, the agency violated its Policy Letter –
Business Operating Procedure 329.1 ( BOP) wherein it states “[i]t is the policy of
the [agency] to fill positions efficiently and on the basis of merit.” IAF, Tab 4
at 46, Tab 6 at 97. She also asserted that because the BOP stated the higher
EN-03 pay band was equivalent to a GS -12 position , her year of experience as a
Graduate Fellow qualified her for the EN -03 pay band. IAF, Tab 4 at 46, Tab 6
at 100-01. An alleged violation of personnel rules may constitute a protected
disclosure of a violation of law, rule, or regulation. McDonnell v. Department of
Agriculture , 108 M.S.P.R. 443 , ¶ 13 (2008); Ganski v. Department of the Interior ,
86 M.S.P.R. 32 , ¶¶ 9, 11 -13 (2000). Therefore, we consider here whether the
appellant reasonably believed the agency violated its BOP.
¶11 As relevant here, the cited provision in the BOP reflects the agency’s
commitment to hiring on the basis of merit reflects without regard to prohibited
factors such as race, marital status, and sexual orientation . IAF, Tab 6 at 97. It
does not reference or concern salary decisions. Id. Therefore, a reasonable
person reviewing the BOP could not conclude that the agency violated it by
offering the appellant a lower salary or pay band.
¶12 As to the appellant’s contention that she was entitled to an EN -03 position
because she had 1 year of experience as a Graduate Fellow, it was premised on
her assertion that this experience required that she be hired at the GS -12 level.
7
IAF, Tab 4 at 46. She relies on a BOP provision that describes “the level of
duties” of the EN -03 pay ba nd as “equivalent to grade levels GS -12 and GS -13
grade levels of the General Schedule.”3 Id. at 100. Another provision of the BOP
specifically reflects that the agency views a GS -12 salary as “linked” to either a
EN-00 or EN -03 position, and that “[i]nitial salary will be set in the pay bands as
describ ed in the . . . Guidebook.” She does not identify any provision within the
BOP that dictates the setting of pay bands.
¶13 Assuming that the fact that the GS -12 is “ linked” to both the EN -00 or
EN-03 levels in the BOP is significant , we are not persuaded that a reasonable
person in t he appellant’s position would reasonably believe the agency was
required to offer her a position at the higher EN -03 level. Perhaps more
fundamentally, the appellant does not explain t he basis of her belief that the
agency was required by law, rule, or regulation to offer her a position at the
equivalent of the GS -12 level due to her 1 year of experience . IAF, Tab 4 at 46.
Therefore, she has not alleged sufficient facts which, taken as true, would
demonstrate that a rea sonable person in her position c ould believe that an offer at
the EN -00 pay band level violated the BOP .
¶14 The appellant also stated in her disclosures that the setting of her salary at
the EN -00 pay band violated section 7.c. of the Guidebook ,4 citing language that
3 The appellant identified the cited provision as secti on C of the BOP. IAF, Tab 4
at 46. However, section C does not appear to be relevant to her disclosures. Instead, it
states that in the event that a local collective bargaining agreement conflicts with the
BOP, the agreement “will govern.” IAF, Tab 6 at 97. Interpreting this pro se
appellant’s arguments in the light most favorable to her, we have analyzed her
allegations as relating to section K of the BOP , to which we believe she is likely
referring. IAF, Tab 6 at 99 -100; see Miles v. Department of Veterans Affairs ,
84 M.S.P.R. 418 , ¶ 10 (1999) (stating that administrative judges should interpret pro se
appellants’ arguments in the most favorable light ).
4 Similarly, t he appellant disclosed that the EN -00 pay band offer violated a 2017
Excepted Service Fact Sheet. IAF, Tab 4 at 47. The parties did not provide a copy of
the Fact Sheet. Therefore, in considering the appellant’s arguments on review, we have
accepted her characterization of the Fact Sheet as containing , in relevant part, the same
requirements as the Guidebook. Id.; see Hessami , 979 F.3d at 1368 (holding that
8
agency personnel setting salary for entry -level hires “should” give
“consideration” to factors such as education and “relevant work experien ce . . .
and knowledge .” IAF, Tab 4 at 46 -47, Tab 6 at 84 -85. Specifically, t he appellant
expressed concern over the way the agency credited her 1 year of Graduate
Fellows experience, maintaining that she should have been offered a higher salary
or pay b and because the Graduate Fellow and permanent positions involved “the
exact [same] duties .”5 IAF, Tab 4 at 45 -47. The agency determined that “[the
“whe ther the appellant has non -frivolously alleged protected disclosures that
contributed to a personnel action must be determined based on whether the employee
alleged sufficient factual matter, accepted as true, to state a claim that is plausible on its
face”). For the same reasons as discussed below regarding the Guidebook, we f ind the
appellant has failed to make a nonfrivolous allegation that the agency violated the Fact
Sheet.
5 In further support of her claim, she alleged that “[Graduate Fellows] with the same
education and experience qualifications [as her] have been offered EN-03 positions.”
IAF, Tab 4 at 46. She also asserted that other Graduate Fellows were “provided the
same offer as [her]” even though they lacked her educational background and related
work experience. Id. at 45. However, the appellant did not provide any relevant details
regarding such individuals or indicate the basis of her statements . Such conclusory and
unsubstantiated speculation is insufficient to amount to a nonfrivolous allegation that
the appellant reasonably believed the agency made the sam e or different offer s to other
Graduate Fellows . Chambers v. Department of Homeland Security , 2022 MSPB 8 , ¶ 18;
see Huffman v. Office of Personnel Manageme nt, 92 M.S.P.R. 429 , ¶ 10 (2002)
(explaining that an appellant does not make a nonfrivolous allegation that he made
protected disclosure s if his disclosures appear to indicate that he is reporting
unsubstantiated rumors or that he lacked a firm belief that wrongdoing had occurred) .
The appellant also argued below that the fact that the agency offered other Graduate
Fellows the same salary was an abuse of authority . IAF, Tab 4 at 5. The Board has
historically defined an abuse of authority as an arbitrary and cap ricious exercise of
power by a F ederal o fficial or employee that adversely affects the rights of any person
or results in personal gain or advantage to herself or to other preferred persons. Chavez
v. Department of Veterans Affairs , 120 M.S.P.R. 285 , ¶ 22 (2013). However, the U.S.
Court of Appeals for the Federal Circuit has defined it more broadly as an arbitrary and
capricious exercise of authority that is contrary to the agency’s mission. Smolinski v.
Merit Systems Protection Board , 23 F.4th 1345 , 1351 -52 (Fed. Cir. 2022). The
administrative judge found that offering the same salary and grade to all Graduate
Fellows was not an arbitrary or capricious abuse of authority. ID at 10 -11. The
appellant has not disputed this finding on review. In any event, because w e have
concluded the appellant failed to raise a nonfrivolous all egation based on the
conclusory and unsubstantiated nature of her allegations, we need not determine
9
appellant’s] salary offer is commensurate with [her] qualifications.” Id. at 45. It
viewed her 1 year of Graduate Fellow experience as shortening the period of
service the appellant needed for promotion from the EN -00 to EN -03 pay band.
IAF, Tab 6 at 56, 84.
¶15 A communication concerning policy decisions that lawfully exercise
discretionary authority is not a protected disclosure unless the employee
reasonably believes that the disclosure evidences any violation of any law, rule,
or regulation; or gross mismanagem ent, a gross waste of funds, an abuse of
authority, or a substantial and specific danger to public health or safety. Webb v.
Department of the Interior , 122 M.S.P.R. 248 , ¶ 12 n.6 (2015). Section 7.c. of
the Guidebook generally lists factors re levant to salaries for new hires , and states
more specifically that “salary for entry -level hires should be based primarily on
education and acad emic achievement.” IAF, Tab 6 at 84. It goes on to provide
that “it may also be appropriate to consider . . . work experience . . . if that
experience relates directly to the position .” Id. It does not designate any specific
salary amounts based on the se factors, although it generally reflects that certain
education levels fall within the lower, middle, or upper range of salaries for the
EN-00 pay band . Id.
¶16 The cited provision does not provide that external hires may be brought in
at pay band level EN-03, and the appellant has failed to explain why she
reasonably believed it entit led her to this higher pay band . As to salary, we find
that a reasonable person in the appellant’s position could not interpret the
Guidebook as requiring the agency to offer a salary higher than the $59,626 it
offered based on her 1 year of experience because the Guidebook provides no
specific salary amounts. Further, as discussed above, the Guidebook provides
discretion regarding how to factor in education . As such, we find that the
appellant could not have reasonably believed that by expressing her disagreement
whether the administrative judge applied the correct definition of abuse of authority in
making his findings .
10
with the agency’s grade and salary determination s, she disclosed a violation of
law, rule, or regulation.
¶17 According to the appellant, “abiding by merit -based principles would
qualify [her] for a position at the EN -03 pay band.” IAF, Tab 4 at 47. In
particular, she cited to merit systems principles that all employees be treated
“fairly and equitably and provide[d] equal pay or equal work.” Id. On her appeal
form, she specifically alleged the agency violated 5 U.S.C. §§ 2301 (b)(1) and
2302(b)(10 ) and (b)(12). IAF, Tab 1 at 5. The administrative judge found that
the appellant’s allegations concerning these statutory provisions do not fall within
the Board’s IRA jurisdiction. ID at 11. Although we find he was mistaken, we
agree that the appellant failed to make nonfrivolous allegations that she
reasonably believed the agency violated a sta tute.
¶18 Protected disclosures in an IRA appeal can include disclosures that an
agency violated merit systems principles . McDonnell , 108 M.S.P.R. 443 , ¶ 12 ;
Luecht v. Department of the Navy , 87 M.S.P.R. 297 , ¶ 14 (2000). Under 5 U.S.C.
§ 2302 (b)(12), it is prohibited to take or fail to take a personnel action if doing so
violates any law, rule, or regulation implementing or directly concerning merit
system principles. McD onnell , 108 M.S.P.R. 443 , ¶ 12. Pursuant to 5 U.S.C.
§ 2301 (b)(1) , the merit system principles mandate that “[r]ecruitment should be
made from qualified individuals . . . solely on the basis of,” among other factors,
relative knowledge and skills . Assuming, without finding, that “recruitment”
includes salary as well as hir ing, neither in her disclosures nor during the
proceedings below did the appellant provide a basis for believing that the salary
she offered was not based on her education and experience. IAF, Tab 1 at 5,
Tab 4 at 4, 19, 45. Instead, as discussed above, she disagreed with the way in
which the agency credited her 1 year of Graduate Fellow experience. Thus, we
are not persuaded that a reasonable person in her position could reasonabl y
believe that she disclosed a violation of 5 U.S.C. § 2301 (b)(1) or (b)(12).
11
¶19 The appellant also alleged in her initial appeal that after the agency
rescinded her job offer, she provided her résumé at NNSA job fairs and to NNSA
offices . IAF, Tab 1 at 4. She asserted the agency violated 5 U.S.C.
§ 2302 (b)(10) , which generally prohibits discrimination for reasons that do “not
adversely affect . . . performance,” when it did not respond with an offer of
employmen t. Id. While this may be an allegation of an additional personnel
action, it does not support the appellant’s claim that she made a protected
disclosure in May 2020, before she attended these job fairs. Therefore, we have
not considered this alleged vio lation of law further. The administrative judge
also concluded that the appellant’s disclosure did not implicate any other category
of wrongdoing under 5 U.S.C. § 2302 (b)(8). ID at 10. The parti es do not dispute
this finding on review and we discern no basis to disturb it .
¶20 Accordingly, we affirm the decision as modified .
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 the time limit for seeking such review and the appropriate
forum with which to file. 5 U.S.C. § 7703 (b). Although we offer the following
summary of available appeal rights, the Merit Systems Protection Board does not
provide legal advice on which option is most appropriate for your situation and
the rights described bel ow do not represent a statement of how courts will rule
regarding which cases fall within their jurisdiction. If you wish to seek review of
this final decision, you should immediately review the law applicable to your
claims and carefully follow all filin g time limits and requirements. Failure to file
6 Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise which option is most appropriate in any matter.
12
within the applicable time limit may result in the dismissal of your case by your
chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to yo ur particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703 (b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circ uit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Peti tioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attor ney will accept representation in a given case.
13
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that su ch action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703 (b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. ____ , 137 S. Ct. 1975 (2017). If you have a
representative in this case, and your representative receives this decision before
you do, then you must file with the district court no later than 30 calendar days
after your representative receives this decision. If the action involves a claim of
discrimination based on race, color, religion, sex, national origin, or a disabling
condition, you may be entitled to representation by a court -appointed lawyer and
to waiver of any requirement of prepayment of fees, costs, or other security. See
42 U.S.C. § 2000e -5(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:
14
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302 (b)(8) or
other protected activities listed in 5 U.S.C. § 2302 (b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petit ion for review “raises no challenge to the Board’s
disposition of allegations of a prohibited personne l practice described in
section 2302(b) other than practices described in section 2302(b)(8), or
2302(b)(9)(A)(i), (B), (C), or (D),” then you may file a petition for judicial
review either with the U.S. Court of Appeals for the Federal Circuit or any court
of appeals of competent jurisdiction.7 The court of appeals must receive your
petition for review within 60 days of the date of issuance of this decisi on.
5 U.S.C. § 7703 (b)(1)(B).
7 The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 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.
15
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following addres s:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the 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 | BAILLIE_WHITNEY_HELEN_DC_1221_20_0838_W_1_FINAL_ORDER_1928321.pdf | 2022-05-26 | null | DC-1221-20-0838-W-1 | NP |
4,373 | https://www.mspb.gov/decisions/nonprecedential/JENKINS_JASON_D_DA_0752_21_0054_C_1_FINAL_ORDER_1927631.pdf | UNITED STATES OF AME RICA
MERIT SYSTEMS PROTEC TION BOARD
JASON D. JENKINS,
Appellant,
v.
DEPARTMENT OF THE AI R FORCE,
Agency.
DOCKET NUMBER
DA-0752 -21-0054 -C-1
DATE: May 25, 2022
THIS FINAL ORDER IS NONPRECEDENTIAL1
Daniel J. Gamino , Oklahoma City, Oklahoma, for the appellant.
Michael J. Taber , Esquire, and Michele S. McNaughton , Tinker A ir Force
Base, Oklahoma, for the agency.
BEFORE
Raymond A. Limon , Vice Chair
Tristan L. Leavitt, Member
FINAL ORDER
¶1 The appellant has filed a petition for review of the initial decision,
which dismissed his compliance appeal for lack of jurisdiction . On petition for
review, the appellant restates his argument that the parties reached an agreement
that was “the functional equivalent to a settlement agreement,” and 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
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
administrative judge erred by dismissing the compliance appeal for lack of
jurisdiction . Generally, we grant petition s such as this one only in the following
circumstances: the initial decision contains erroneous findings of material fact;
the initial decision is based on an erroneous interpretation of statute or regulation
or the erroneous application of the law to the facts of the case; the administrative
judge’s rulings during either the course of the appeal or the initial decision
were not consistent with required procedures or involved an abuse of discretion,
and the resulting error affected the outcome of the case; or new and material
evidence or legal argument is available that, despite the petitioner’s due
diligence, was not available when the record closed. Title 5 of the Code of
Federal Regulations, section 1201.115 ( 5 C.F.R. § 1201.115 ). After fully
considering the filings in this appeal, we conclude that the petitioner has not
established any basis under section 1201.115 for granting the petition for review.
¶2 As the administrative judge co rrectly concluded, absent a negotiated
settlement agreement from the parties the Board lacks jurisdiction over the
appellant’s petition for enforcement. See 5 C.F.R. § 1201.41 (c)(2)(i) -(ii)
(providing that, if the parties offer a settlement agreement for inclusion in the
record and the judge approves it, it will be made a part of the record and the
Board will retain jurisdiction to ensure compliance with it , but that if a settlement
agree ment is not entered into the record, the Board will not retain jurisdiction to
ensure compliance) ; Delorme v. Department of the Interior , 124 M.S.P.R. 123 ,
¶ 9 (2017) (discussing the Board’s authority to enforce settlement agreements) .
Therefore, we DENY the petition for review and AFFIRM the initial decision,
which is now the Board’s final decision.2 5 C.F.R. § 1201.113 (b).
2 The appellant also argues that new evidence exists that warrants Board review.
Petition for Review File, Tab 1 at 7. The purportedly “new” evidence is an email from
an agency Human Resources official indicating that the rescinded removal action was
not processed until February 2021. Id. at 14 -15. The email is dated April 29, 2021,
which is before the July 15, 2021 initial decision was issued in this case, so the
evidence is not “new.” See O kello v. Office of Personnel Management , 112 M.S.P.R.
3
NOTICE OF APPEAL RIG HTS3
You may obtain review of this final decision. 5 U.S.C. § 7703 (a)(1). By
statute, the nature of your claims determines the time limit for seeking such
review and the appropriate forum with which to file. 5 U.S.C. § 7703 (b).
Although we offer the following 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
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703 (b)(1)(A).
563, ¶ 10 (2009) (noting that under 5 C.F.R. § 1201.115 (d), the Board will not consider
evidence submitted for the first time with a petition for review absent a showing that it
is both new and material). The appellant also included the same email in a pleading
submitted to the administrative judge. Compliance File , Tab 4 at 8 -9; see Meier v.
Department of the Interior , 3 M.S.P.R. 247 , 256 (1980) (explaining that evidence that is
already a part of the record is not new). Accordingly, we have not considered it.
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 in dicated 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 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 representative receives this decision. If the action involves a claim of
5
discrimination based on race, color, religion, sex, national origin, or a disabling
condition, you may be entitled to representation by a court -appointed lawyer and
to waiver of any requirement of prepayment of fees, costs, or other security. See
42 U.S.C. § 2000e -5(f) and 29 U.S.C. § 794a .
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, exclud ing
all other issues . 5 U.S.C. § 7702 (b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702 (b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your represent ative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302 (b)(8) or
6
other protected activities listed in 5 U.S.C. § 2302 (b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
disposit ion of allegations of a prohibited personnel practice described in
section 2302(b) other than practices described in section 2302(b)(8), or
2302(b)(9)(A)(i), (B), (C), or (D),” then you may file a 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 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
4 The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115 -195,
132 Stat. 1510.
7
Board neither endorses the services provided by any attorney nor warrants that
any attorney 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 | JENKINS_JASON_D_DA_0752_21_0054_C_1_FINAL_ORDER_1927631.pdf | 2022-05-25 | null | DA-0752-21-0054-C-1 | NP |
4,374 | https://www.mspb.gov/decisions/nonprecedential/ROBINSON_CHRISTOPHER_PH_315H_20_0373_I_1_FINAL_ORDER_1927647.pdf | UNITED STATES OF AME RICA
MERIT SYSTEMS PROTEC TION BOARD
CHRISTOPHER ROBINSON ,
Appellant,
v.
DEPARTMENT OF THE NA VY,
Agency.
DOCKET NUMBER
PH-315H -20-0373 -I-1
DATE: May 25, 2022
THIS FINAL ORDER IS NONPRECEDENTIAL1
Christopher Robinson , Rochester, New Hampshire, pro se.
Matthew L. Schmid , Portsmouth, New Hampshire, for the agency.
BEFORE
Raymond A. Limon, Vice Chair
Tristan L. Leavitt, Member
FINAL ORDER
¶1 The appellant has filed a petition for review of the initial decision, which
dismissed his termination ap peal 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 interpretati on of statute or regulation or the erroneous
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117 (c).
2
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 abus e 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 R egulations,
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 On petition for review,2 the appellant does not challenge the administrative
judge’s findings that he failed to make a nonfrivolous allegation that the Board
had jurisdiction over his appeal and that he acknowledged that he was terminated
during his proba tionary period. Petition f or Review (PFR) File, Tab 1 at 4-6;
Initial Appeal File (IAF), Tab 5, Initial Decision (ID) at 2-4. The appellant also
does not challenge the administrative judge’s finding that the agency satisfied
the regulatory requirement of providing written notice of the termination . PFR
File, Tab 1 at 4 -6; ID at 4; see 5 C.F.R. § 315.804 (a) (stating that, when an
agency terminates an employee serving a probationary or tr ial period because of
performance or conduct, it must provide the employee written notice as to why
he is being separated and the effective date of the action). Rather, the appellant
2 The appellant filed his petition for review 1 day after the presumptive date on which
the ini tial decision became final , and the Acting Clerk of the Board issued an
acknowledgment letter informing the appellant that his petition appeared to be
untimely. Petition for Review File, Tab 3 at 1 -2. In light of the Board’s finding that it
lacks jurisdi ction over the appeal, we need not address the issue of the timeliness of the
petition for review. See Rosell v. Department of Defense , 100 M.S.P.R. 594 , ¶ 5 (2005)
(explaining that, when the Board clearly lacks jurisdiction over an appeal, and the
existing record suggest s that the question of timeliness is close, the better practice is to
dismiss the case for lack of jurisdiction), aff’d , 191 F. App’x 954 (Fed. Cir. 2006).
3
repeats his arguments about the merits of his termination and maintains that it
was related to his mental health issues. PFR File, Tab 1 at 5; IAF, Tab 1 at 14.
He states that he has been “struggling to find legal representation” and
translation support for his appeal, as he is deaf a nd uses American Sign
Language . PFR File, Tab 1 at 4. Finally, the appellant requests from the Board
“more time to explain [his] jurisdiction about why [he] was wrongly terminated. ”
Id.
¶3 At the time of the appellant’s May 28, 2019 appointment , in order to qualify
as an “employee” of the Department of Defense with Board appeal rights under
chapter 75, an individual appointed to the competitive service had to show that
he was not serving a probationary period or had completed 2 years of “current
continuous service” under appointment to a permanent position. 3 5 U.S.C.
§ 7511 (a)(1)(A) (ii); 10 U.S.C. § 1599e ; Bryant v. Department of the Army ,
2022 MSPB 1 , ¶¶ 8-10 (finding that the appellant, who was appointed to a
competitive service position at the Department of the Army while 10 U.S.C.
§ 1599e was in effect , was subject to a 2 -year probationary period) ; IAF, Tab 4
at 42. For purposes of 10 U.S.C. § 1599e , the “Department of Defense” included
the Department of the Navy , the appellant’s employing agency . See Bryant ,
2022 MSPB 1 , ¶ 8 n.2.
¶4 Effective May 29, 2020, less than 2 years after his initial appointment, the
agency terminated the appellant. IAF, Tab 4 at 38 -41. As noted by the
3 Congress enacted the National Defense Authorization Act for Fiscal Year 2016 (2016
NDAA) on November 25, 2015, Pub. L. No. 114 -92, 129 Stat. 726. The 2016 NDAA
extended the probationary period for an individual appointed to a permanent
competitive -service position at the Department of Defense to a 2 -year probationary
period and provided that such individual only qualifies as an “employee” under
5 U.S.C. § 7511 (a)(1)(A)(ii) if he has completed 2 years of current continuous service.
Pub. L. No. 114 -92, § 1105, 129 Stat. 726, 1023 -24 (codified as relevant here
at 10 U.S.C. § 1599e and 5 U.S.C. § 7511 (a)(1)(A)(ii)). The National Defense
Authorization Act for Fiscal Year 2022, enacted on December 27, 2021, repealed
10 U.S.C. § 1599e and the 2 -year probationary period , effective December 31, 2022.
Pub. L. No. 117 -81, § 1106, 135 Stat. 1541, 1950.
4
administrative judge, the appellant acknowledged that he had not completed his
probationary period at the ti me of his termination. ID at 3; IAF, Tab 1 at 1, 3.
Moreover, the appellant has not alleged that he had 2 years of current continuous
service, and he stated in his initial appeal form t hat his length of Government
service was 1 year. IAF, Tab 1 at 1.
¶5 Finally, there is no regulatory basis for his appeal under the provisions set
forth in 5 C.F.R. part 315, subpart H. Although the appellant repeats on review
his allegations that his termination was related to his mental health condition, a
probationary e mployee may file a termination appeal alleging disability
discrimination only if the discrimination is raised in addition to allegations that
the action is based on marital status or for partisan political reasons, or because
of conditions arising before a ppointment to the position in question. PFR File,
Tab 1; IAF, Tab 1 at 14; see 5 C.F.R. §§ 315.805 -.806(b) -(d). The appellant has
raised no allegations on appeal or review relevant to t he limited regulatory right
of appeal for probationers in the competitive service. PFR File, Tab 1 at 5; IAF,
Tab 1 at 14. Therefore, we agree with the administrative judge that the appellant
has not raised nonfrivolous allegations that the Board has jur isdiction over his
appeal. ID at 4; see Ferdon v. U.S. Postal Service , 60 M.S.P.R. 325 , 329 (1994)
(stating that an appellant is entitled t o a jurisdictional hearing if he presents
nonfrivolous allegations of Board jurisdiction).
¶6 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).
4 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
Although we offer the following summary of available appeal rights, the Merit
Systems Protection Board does not provide legal advice on which option is most
appropriate for your situation and the rights described below do not represent a
statement of how c ourts will rule regarding which cases fall within their
jurisdiction. If you wish to seek review of this final decision, you should
immediately review the law applicable to your claims and carefully follow all
filing time limits and requirements. Failure to file within the applicable time
limit may result in the dismissal of your case by your chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questio ns
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703 (b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington , D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at 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.
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 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.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part , on unlawful discrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circ uit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703 (b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. ____ , 137 S. Ct. 1975 (2017). If you have a
representative in this case, and your representative receives this decision before
you do, then you must file with the district court no later than 30 calendar days
after your represen tative receives this decision. If the action involves a claim of
discrimination based on race, color, religion, sex, national origin, or a disabling
condition, you may be entitled to representation by a court -appointed lawyer and
to waiver of any requirem ent of prepayment of fees, costs, or other security. See
42 U.S.C. § 2000e -5(f) and 29 U.S.C. § 794a .
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed 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
7
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702 (b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302 (b)(8) or
other protected activities listed in 5 U.S.C. § 2302 (b)(9)(A)(i), (B), (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.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
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 Appeal s
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circ uit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the 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 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.
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 | ROBINSON_CHRISTOPHER_PH_315H_20_0373_I_1_FINAL_ORDER_1927647.pdf | 2022-05-25 | null | PH-315H-20-0373-I-1 | NP |
4,375 | https://www.mspb.gov/decisions/nonprecedential/DUGGINS_WANDA_E_AT_315H_17_0582_I_1_FINAL_ORDER_1927669.pdf | UNITED STATES OF AME RICA
MERIT SYSTEMS PROTEC TION BOARD
WANDA E. DUGGINS,
Appellant,
v.
DEPARTMENT OF VETERA NS
AFFAIRS,
Agency.
DOCKET NUMBER
AT-315H -17-0582 -I-1
DATE: May 25, 2022
THIS FINAL ORDER IS NONPRECEDENTIAL1
Wendell J. Echols, Sr. , Tuskegee, Alabama, for the appellant.
W. Robert Boulware , Esquire, Montgomery, Alabama, for the agency.
BEFORE
Raymond A. Limon , Vice Chair
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. Generally,
we grant petitions such as this one only in the following circumstances: the
initial decision contains erron eous findings of material fact; the initial decision is
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or dis tinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117 (c).
2
based on an erroneous interpretation of statute or regulation or the erroneous
application of the law to the facts of the case; the administrative judge’s rulings
during either the course of the appea l or the initial decision were not consistent
with required procedures or involved an abuse of discretion, and the resulting
error affected the outcome of the case; or new and material evidence or legal
argument is available that, despite the petitioner’s due diligence, was not
available when the record closed. Title 5 of the Code of Federal Regulations,
section 1201.115 ( 5 C.F.R. § 1201.115 ). After fully considering the filings in this
appeal, we conclude that the petitioner has not established any basis under
section 1201.115 for granting the petition for review. Therefore, we DENY the
petition for review and AFFIRM the initial decision, which is now the Board’s
final decision. 5 C.F.R. § 1201.113 (b).
BACKGROUND
¶2 On January 8, 2017, the agency appointed t he appellant to the
competitive -service position of WG -06 Motor Vehicle Operator, su bject to a
1-year probationary period. Initial Appeal File (IAF), Tab 5 at 9. Five months
into her appointment, on June 9, 2017, the agency terminated the appellant for
unacceptable conduct. Id. at 10 -13.
¶3 The appellant filed a Board appeal and requ ested a hearing. IAF, Tab 1
at 2, 4. She disputed the merits of her termination, arguing that she demonstrated
good performance, and that the agency failed to give her any warning before
terminating her. Id. at 6. The administrative judg e issued a jurisdictional order,
informing the appellant that the Board may not have jurisdiction over her appeal
and notifying her of the standard for establishing jurisdiction under both 5 C.F.R.
§ 315.806 and 5 U.S.C. chapter 75. IAF, Tab 3. The administrative judge
ordered the appellant to file evidence and argument to prove that the appeal is
within the Board’s jurisdiction. Id. at 4-5. The agency filed a motion to dismiss
the app eal for lack of jurisdiction, IAF, Tab 5, and the appellant filed a response
3
in opposition, arguing that she has Board appeal rights as a reinstatement eligible,
IAF, Tab 6. The administrative judge issued an initial decision, finding that the
appellant f ailed to make a nonfrivolous a llegation of Board jurisdiction and
dismissing the appeal for lack of jurisdiction without a hearing. IAF, Tab 7,
Initial Decision (ID) at 4.
¶4 The appellant has filed a petition for review, reasserting her argument that
she has Board appeal rights as a reinstatement eligible. Petition for Review
(PFR) File, Tab 2. The agency has filed a response. PFR File, Tab 4.
ANALYSIS
¶5 Individuals who are serving a probationary or trial period under an initial
appointment and who have not completed 1 year of current continuous service
have no right to appeal their terminations to the Board under the adverse action
provisions of 5 U.S.C. chapter 75. McCormick v. Department of the Air Force ,
307 F.3d 1339 , 1342 -43 (Fed. Cir. 2002). In this case, i t appears to be undisputed
that the appellant lacked 1 year of current continuous service. However, she
argues that she has chapter 75 appeal rights on the basis that she was eligible for
reinstatement under 5 C.F.R. § 315.401 . PFR File, Tab 1. She seems to imply
that she completed a probationary period under a previous appointment and that
she should therefore not have been required to serve a probationary period during
the appointment at issue . Id.; see 5 C.F.R. §§ 315.402 (b), .801(a)(2) .
¶6 We have considered the appellant’s allegations of fact, but even if they are
true, we find them to be immaterial because an agency’s ability to reinstate an
emplo yee under 5 C.F.R. § 315.401 is discretionary. Hicks v. Department of the
Navy , 33 M.S.P.R. 511, 512 -13 (1987). In other words, even if the appellant were
eligible for reinstatement, this does not mean that she was, in fa ct, appointed by
reinstatement , and there is nothing in the appeal file to indicate that she was. Cf.
Armstrong v. Department of the Navy , 6 M.S.P.R. 273, 274 -75 (1981).
4
¶7 For the reasons explained in the initial decision, we agree with the
administrative judge that the Board lacks jurisdiction over the instant appeal. ID
at 2-4. The appellant do es not qualify as a competitive -service employee w ith
adverse action appeal rights because she was serving a 1 -year probationary period
when she was terminated, and she did not have 1 year of current continuous
service under other than a temporary appointment limited to 1 year or less. See
5 U.S.C. § 7511 (a)(1)(A) ; Hurston v. Department of the Army , 113 M.S.P.R. 34,
¶¶ 9-10 (2010) . In addition, it is undisputed that the appellant was terminated for
postappointment reasons, and she has not alleged that her termination was based
on partisan political reasons or marital status. IAF, Tab 5 at 10 ; see Honea v.
Department of Home land Security , 118 M.S.P.R. 282, ¶¶ 6, 10 (2012) , aff’d ,
524 F. App’x 623 (Fed. Cir. 2013 ); 5 C.F.R. §§ 315.804 , .806(a) -(b).
NOTICE OF APPEAL RIG HTS2
You may obtain review of this final decision. 5 U.S.C. § 7703 (a)(1) . By
statute, the nature of your claims determines the time limit for seeking such
review and the appropriate forum with which to file. 5 U.S.C. § 7703 (b).
Although we offer the following summar y of available appeal rights, the Merit
Systems Protection Board does not provide legal advice on which option is most
appropriate for your situation and the rights described below do not represent a
statement of how courts will rule regarding which cases fall within their
jurisdiction. If you wish to seek review of this final decision, you should
immediately review the law applicable to your claims and carefully follow all
filing time limits and requirements. Failure to file within the applicable time
limit may result in the dismissal of your case by your chosen forum.
2 Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise which option is mos t appropriate in any matter.
5
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703 (b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional informatio n about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Prac tice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono re presentation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC revie w of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
6
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so , you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703 (b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. ____ , 137 S. Ct. 1975 (2017). If you have a
representative in this case, and your representative receives this decision before
you do, then you must file with the district court no later than 30 calendar days
after your representative receives this decision. If t he action involves a claim of
discrimination based on race, color, religion, sex, national origin, or a disabling
condition, you may be entitled to representation by a court -appointed lawyer and
to waiver of any requirement of prepayment of fees, costs, or other security. See
42 U.S.C. § 2000e -5(f) and 29 U.S.C. § 794a .
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
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:
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. 2 0507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302 (b)(8) or
other protected activities listed in 5 U.S.C. § 2302 (b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
disposition of allegations of a prohibited personne l practice described in
section 2302(b) other than practices described in section 2302(b)(8), or
2302(b)(9)(A)(i), (B), (C), or (D),” then you may file a petition for judicial
review either with the U.S. Cour t of Appeals for the Federal Circuit or any court
of appeals of competent jurisdiction.3 The court of appeals must receive your
petition for review within 60 days of the date of issuance of this decision.
5 U.S.C. § 7703 (b)(1)(B).
3 The original statutory provision that provided for judicial review of certain
whistleblower claims by 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
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitione rs and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our websi te at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney w ill accept representation in a given case.
Contact information for the courts of appeals can be found at their
respective websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
FOR THE BOARD:
Washington, D.C. /s/ for
Jennifer Everling
Acting Clerk of the Board | DUGGINS_WANDA_E_AT_315H_17_0582_I_1_FINAL_ORDER_1927669.pdf | 2022-05-25 | null | AT-315H-17-0582-I-1 | NP |
4,376 | https://www.mspb.gov/decisions/nonprecedential/SCOVITCH_JOSEPH_M_DC_3443_15_1049_C_1_FINAL_ORDER_1927741.pdf | UNITED STATES OF AME RICA
MERIT SYSTEMS PROTEC TION BOARD
JOSEPH M. SCOVITCH,
Appellant,
v.
NATIONAL ARCHIVES AN D
RECORDS ADMIN,
Agency.
DOCKET NUMBER
DC-3443 -15-1049 -C-1
DATE: May 25, 2022
THIS FINAL ORDER IS NONPRECEDENTIAL1
Joseph M. Scovitch , College Park, Maryland, pro se.
Hannah Bergman , College Park, Maryland, for the agency.
BEFORE
Raymond A. Limon , Vice Chair
Tristan L. Leavitt , Member
FINAL ORDER
¶1 The appellant has filed a petition for review of the initial decision, which
denied his petition for enforcement . Generally, we grant petitions such as this
one only in the following circumstances: the initial decision contains erroneous
findings of material fact; the initial de cision is based on an erroneous
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case 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 available when the reco rd closed. Title 5
of the Code of Federal Regulations, section 1201.115 ( 5 C.F.R. § 1201.115 ).
After fully considering the filings in this appeal, we conclude that the petitioner
has not established any basis under section 1201.115 for granting the petition for
review. Therefore, we DENY the petition for review and AFFIRM the initial
decision, which is now the Board ’s final decision. 5 C.F.R. § 1201.11 3.
BACKGROUND
¶2 In August 2015, the appellant, a former Archives Technician with the
agency, filed a Board appeal in which he a lleged that he engaged in protected
whistleblowing and that the agency ’s Office of the Inspector General (OIG) failed
to act on a complaint that he filed pertaining to missing and inaccurate records
regarding the Holocaust. On October 7, 2015, the adminis trative judge dismissed
the appeal for lack of jurisdiction. Scovitch v. National Archives and Records
Administration , MSPB Docket No. DC -3443 -15-1049 -I-1, Initial Decision,
(Oct. 7, 2015) ; Initial Appeal File, Tab 18 .
¶3 The appellant filed a petition for r eview of the initial decision, and, on
February 25, 2016, the Board denied his petition for review in a nonprecedential
Final Order. Scovitch v. National Archives and Records Administration , MSPB
Docket No. DC -3443 -15-1049 -I-1, Final Order (Feb. 25, 2016) (I-1 Final Order);
Petition for Review File, Tab 5. The Board found that it lacked jurisdiction over
the appellant ’s claims as an individual right of action (IRA) appeal because he
failed to demonstrate that he exhausted his administrative remedies befor e the
Office of Special Counsel (OSC). I-1 Final Order, ¶¶ 6 -7. The Board further
3
found that it otherwise lacked jurisdiction over the appellant ’s claims regarding
his OIG complaint, and his claims that the agency was committing illegal,
criminal, and fr audulent actions. Id., ¶¶ 8 -9.
¶4 On September 3, 2016, the appellant filed a petition for enforcement .
Scovitch v. National Archives and Records Administration , M SPB Docket
No. DC-3443 -15-1049 -C-1, Compliance File ( CF), Tab 1. The administrati ve
judge denied the petition . CF, Tab 6, Compliance Initial Decision ( CID). She
found that, because no corrective action had been ordered in connection with the
appellant ’s allegations of whistleblower reprisal, he was not e ntitled to relief. Id.
at 2; I-1 Final Order, ¶ 7.
¶5 The appellant has filed a petition for review of the compliance initial
decision denying his petition for enforcement . Scovitch v. National Archives and
Records Administration , MSPB Docket No. DC -3443 -15-1049 -C-1, Compliance
Petition for Review (C PFR) File, Tabs 1 -2. The agency has responded in
opposition to the petition for review, and the appellant has replied. CPFR File,
Tabs 5-6.
DISCUSSION OF ARGUME NTS ON REVIEW
¶6 In his petition for review ,2 the appellant appears to argu e that the
administrative judge erred in failing to order t he agency to provide answers to the
assertions he made in his appeal , and accepting its motion to dismiss as a
sufficient response to his allegations that the Board erroneously did not refer his
allegations of missing and inaccurate records regarding the Holocaust to OSC and
other agencies . CPFR File, Tab 2.
2 As noted, the Board denied the appellant’s petition for review of his IRA appeal on
February 25, 2016, and the appellant filed his peti tion for enforcement more than
6 months later on September 3, 2016. Under the B oard’s regulations, a petition for
enforcement must be filed promptly with the regional office that issued the initial
decision. 5 C.F.R. § 1201.182 (a). Because we are affirming the ad ministrative judge’s
denial of the appellant’s peti tion for enforcement, we need not reach the issue of
whether the petition was filed promptly.
4
¶7 As correctly found by the administrative judge, the Board has jurisdiction to
consider an appellant’s claim of agency noncompliance with a Board order. CID
at 2; see 5 U.S.C. § 1204 (a)(2); 5 C.F.R. § 1201.182 (a); see also Kerr v. National
Endowment for the Arts , 726 F.2d 730 , 733 (Fed. Cir. 1984) (stating that t he
Board has jurisd iction to consider an appellant’ s claim of agency noncompliance
with a Board o rder). Here, the appellant did not prevail in his appeal and , as the
agen cy asserted below, the Board’s Final O rder in the appellant’s appeal did not
require any action on the agency’s part. I -1 Final Order, ¶¶ 6-9; CF, Tab 3 at 5.
Thus, we find that th e appellant has failed to show that the agency is not in
compliance with the Board ’s Final Order, and the administrative judge properly
denied the appellant’s petition for enforcement . See Gingery v. Department of
Defense , 121 M.S.P.R. 423, ¶ 8 (2014) (finding that the administrative judge
correctly denied the appellant’s petition for enforcement when the agency was in
compliance with the Board’s final 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 time 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 ri ghts included in final decisions. As indicated in the notice, the
Board cannot advise which option is most appropriate in any matter.
5
filing time limits and requirements. Failure to file within the applicable time
limit may result in the dismissal of your case by your chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703 (b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional 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.
6
(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 representative receives this decision. I f the action involves a claim of
discrimination based on race, color, religion, sex, national origin, or a disabling
condition, you may be entitled to representation by a court -appointed lawyer and
to waiver of any requirement of prepayment of fees, costs, or other security. See
42 U.S.C. § 2000e -5(f) and 29 U.S.C. § 794a .
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702 (b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702 (b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you su bmit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is:
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 com mercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleb lower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302 (b)(8) or
other protected activi ties listed in 5 U.S.C. § 2302 (b)(9)(A)(i), (B), (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.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 appe als of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower repris al cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court 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 submi t a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the 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 | SCOVITCH_JOSEPH_M_DC_3443_15_1049_C_1_FINAL_ORDER_1927741.pdf | 2022-05-25 | null | DC-3443-15-1049-C-1 | NP |
4,377 | https://www.mspb.gov/decisions/nonprecedential/PATTERSON_FREDERICK_GUY_CH_0752_16_0060_I_1_REMAND_ORDER_1927765.pdf | UNITED STATES OF AME RICA
MERIT SYSTEMS PROTEC TION BOARD
FREDERICK GUY PATTER SON,
Appellant,
v.
DEPARTMENT OF HOMELA ND
SECURITY,
Agency.
DOCKET NUMBER
CH-0752 -16-0060 -I-1
DATE: May 25, 2022
THIS ORDER IS NONPRECEDENTIAL1
Frederick Guy Patterson , Troy, Illinois, pro se.
Aaron Baughman and Joseph Rieu , Esquire, Arlington, Virginia, for the
agency.
BEFORE
Raymond A. Limon , Vice Chair
Tristan L. Leavitt , Member
REMAND ORDER
¶1 The appellant has filed a petition for review of the initial decision, which
dismissed his constructive demotion appeal for lack of jurisdiction. For the
reasons discussed below, we GRANT the appellant’s petition for review 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 administ rative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and 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 Cent ral Regional Office for further adjudication in
accordance with this Remand Order.
DISCUSSION OF ARGUME NTS ON REVIEW
¶2 In September 2015, the agency notified the appellant that it had identified
his I -band Transportation Security Inspector (Cargo) positio n for elimination and,
in accordance with its Human Capital Management (HCM) Policy
No. 351-3, Involuntary Workforce Reduction ( IWR ) Procedures for Non -TSES ,
Non-TSO Positions (HCM Policy No. 351 -3), offered him either voluntary
placement into vacancies wi thin his airport complex (hub/spoke) or a future offer
of placement nationwide. Initial Appeal File (IAF), Tab 4 at 9-12, Tab 14
at 19-22. Effective November 1, 2015, the appellant accepted a voluntary
placement into an H -band position with saved pay for 2 years. IAF, Tab 14
at 24-29. Although the agency subsequently appointed him back to an I -band
position as a Transportation Security Inspector, Explosives Detection Canine
Handler, effective December 27, 2015, IAF, Tab 25 at 5, the appellant filed this
appeal of his demotion to the H -band position, IAF, Tab 1. He requested a
hearing. Id. at 2.
¶3 The administrative judge gave the appellant notice of the elements and
burdens of establishing that his demotion was involuntary . IAF, Tab 3. In
response, the appellant asserted that he had accepted the lower -graded position
under duress due to an on -the-job injury. IAF, Tab 4 at 4 -7. He challenged
several agency decisions regarding who would be demoted and described his
unsuccessful attempt to achieve a late ral transfer to avoid demotion. Id. He also
indicated that he must work in the St. Louis area in order to care for his ill father.
Id. at 77. The agency argued that the Board lacks jurisdiction and moved to stay
the deadlines pending a decision on jurisdiction. IAF, Tab 14. The
administrative judge granted the agency’s requested stay . IAF, Tab 15.
3
¶4 Without holding a hearing, the administrative judge dismissed the appeal
for lack of jurisdiction, finding that the appellant failed to r aise a nonfrivolous
allegation that his decision to accept a lower -graded position was involuntary.
IAF, Tab 30, Initial Decision (ID). In his petition for review, the appellant
essentially repeats the arguments he made in his appeal below. Petition for
Review (PFR) File, Tab 1. The agency responds in opposition to the appellant’s
petition for review.2 PFR File, Tab 3.
¶5 We agree with the administrative judge that the appellant failed to
nonfrivolously allege that his decision to accept the lower -grade d position was
involuntary. ID at 5 -6. Although his options were not attractive, the Board has
long held that having to choose between unpleasant alternatives does not render
the ultimate decision involuntary. E.g., Miller v. Department of Homeland
Secu rity, 111 M.S.P.R. 325 , ¶ 10 (2009) (finding that an appellant’s decision to
retire rather than accept a demotion was not involunta ry), aff’d , 361 F. App’x 134
(Fed. Cir. 2010) . As the administrative judge observed, just because the choices
before the appellant involved the risk of involuntary separation and may have
been dictated by his need to remain in the St. Louis area to care for his ill father,
the appellant nonetheless had a choice. ID at 4-5. The appellant accepted the
lower -graded position in writing, despite the reservations he expressed in doing
so, indicating he volunta rily elected not to wait for a nationwide search that might
have yielded a higher -graded position in another location or to risk involuntary
separation . ID at 3-5; IAF, Tab 4 at 87-89.
2 After the record on review closed, the appellant filed an additional pleading, which the
Clerk of the Board rejected because the Board’s rules do not provide for any pleadings
other than a petition for review, a cross petition for review, a response to the petition
for review or cross petition for revie w, and a reply to the response to the petition for
review within the allotted time. 5 C.F.R. § 1201.114 (a)(5) , (k) ; PFR File, Tab 4 .
Because the appellant failed to follow the Clerk’s instruction to file the required motion
requesting leave to file the additional pleading, we have not considered it. 5 C.F.R.
§ 1201.114 (a)(5 ).
4
¶6 Nevertheless, t he Board has jurisdiction over an appeal challenging a
reduction in force (RIF) action involving an exce pted -service employee of the
Transportation Security Administration (TSA) , like the appellant . Garofalo v.
Department of Homeland Security , 108 M.S.P.R. 169 , ¶ 7 (2008) ; Wilke v.
Department of Homeland Security , 104 M.S.P.R. 662 , ¶ 16 (2007) ; IAF, Tab 1 .
However, title 5 provisions governing RIF action s are not applicable to the
TSA, instead, the Board applies the TSA ’s internal RIF policy, which in this
instance is contained in its HCM Policy No. 351-3. Garofalo , 108 M.S.P.R. 169 ,
¶ 8; IAF, Tab 14 at 19.
¶7 When the Board’s jurisdiction is in doubt, an appellant must receive explicit
information on what is required to establish an appealable jurisdictional issue.
E.g., Alvarez v . Department of Homeland Security , 112 M.S.P.R. 434 , ¶ 9 (2009)
(citing Burgess v. Merit Systems Protection Board , 758 F.2d 641 , 643 -44
(Fed. Cir. 1985)). Here, neither party has submitted a copy of HCM Policy
No. 351-3. However, in a traditional RIF situation, an appellant who appears to
have voluntarily ac cepted a demotion may establish jurisdiction over an agency’s
RIF action by proving: (1) that he accepted a lower -grade d position after the
agency actually informed him that his original position would be abolished and,
(2) that his acceptance of a lower -graded position occurred after the agency
expressly notified him that he would not be assigned to a position at the same
grade as the position which was abolished. E.g., Burger v. U.S. Postal Service ,
93 M.S.P.R. 58 2, ¶ 13 & n.3 (2003) , aff’d sub nom. Hayes v. U.S. Postal Service ,
390 F.3d 1373 (Fed. Cir. 2004) .
¶8 Because the record does not reflect that the administrative judge gave the
appellant proper notice of the element s and burdens of challenging his demotion
as an involuntary RIF action under the agency’s HCM Policy No. 351-3, we must
remand the appeal for proper notice and, if the appellant establishes jurisdiction
over his appeal, adjudication on the merits including any affirmative defenses that
the appellant may interpose on remand . E.g., Garofalo , 108 M.S.P.R. 169 ,
5
¶¶ 7-8, 19 -22. Although it appears that the appellant elected a vo luntary
demotion before he was informed specifically that he would not be placed at the
same grade level , he was not given an opportunity to meet his jurisdiction al
burden regarding a RIF dem otion. In addition, ab sent the record ’s development
concerning the agency’s own RIF policies on voluntary demotion s, we cannot
determine whether the Board’s traditional RIF jurisdictional analysis applies in
this instance .
¶9 On remand, the administrative judge should allow the parties to further
develop the record regarding whether the Board has jurisdiction over the
appellant’s RIF demotion , including providing the appellant with guidance as to
how to meet his jurisdictional burden . Because the administrative judge
previously stayed discovery, she should determine if the parties wish to engage in
discovery on this issue . IAF, Tab 15. If so, she should allow such discovery.
See Parker v. Department of Housing & Urban Development , 106 M.S.P.R. 329,
¶ 9 (2007) (advising an administrative judge on remand to allow discovery that
could lead to relevant evidence regarding the Board’s jurisdiction).
¶10 In addition, t he administrative judge should also provide t he parties with the
opportunity to brief whether any RIF -related action is no w moot. Although not
entirely clear, it appears that the appellant may ultimately have lost no pay or
benefits during the period that he was effectively demoted. As explained above,
his demotion to an H -band position was with 2 years of saved pay . IAF, Tab 14
at 27. In addition, he was provided with an I-band position within those 2 years.
IAF, Tab 25 at 5. However, on the record b efore us, we cannot determine
whether the appellant received status quo ante relief, thus rendering moot any
potential RIF claim. See Hess v. U.S. Postal Service , 123 M.S.P.R. 183 , ¶ 5
(2016) (stating that status quo ante relief generally requires that the agency place
an appellant in her former position or in one substantially equivalent in scope and
status, remove references to the rescinded action, and restore any lost back pay or
benefits). Further, it appears that the appellant attempted to raise a disability
6
discrimination and equal employment opportunity (EEO) retaliation claim below,
which may preclude a finding that the appeal is moot. IAF, Tab 4 at 4 -7;
see Hess v. U.S. Postal Service , 124 M.S.P.R. 40 , ¶¶ 8-20 (2016) (explaining that
an administrative judge may not dismiss an appeal as moot if the appellant has
discrimination or reprisal claim and requests compensatory damages);
Garofalo , 108 M.S.P.R. 169 , ¶¶ 20-21 (finding that an administrative judge
properly found a TSA employee did not prove his EEO affirmative defenses in a
RIF appeal, but directing that administrative judge to revisit those defenses in
light of any additional ev idence gathered on remand).
ORDER
¶11 Accordingly, we vacate the initial decision and remand the appeal for
further proceedings consist ent with this Remand Order.3
FOR THE BOARD:
Washington, D.C. /s/ for
Jennifer Everling
Acting Clerk of the Board
3 The remand initial decision will incorporate the findings from this Order and include a
notice of appeal rights for all claims raised by the appellant. | PATTERSON_FREDERICK_GUY_CH_0752_16_0060_I_1_REMAND_ORDER_1927765.pdf | 2022-05-25 | null | CH-0752-16-0060-I-1 | NP |
4,378 | https://www.mspb.gov/decisions/nonprecedential/HEARD_ZAKAYYIA_SHATEK_AT_315H_17_0776_I_1_FINAL_ORDER_1927775.pdf | UNITED STATES OF AME RICA
MERIT SYSTEMS PROTEC TION BOARD
ZAKAYYIA SHATEK HEAR D,
Appellant,
v.
DEPARTMENT OF VETERA NS
AFFAIRS,
Agency.
DOCKET NUMBER
AT-315H -17-0776 -I-1
DATE: May 25, 2022
THIS FINAL ORDER IS NONPRECEDENTIAL1
Lee D. Winston , Esquire, Birmingham, Alabama, for the appellant.
Michael Rhodes , Montgomery, Alabama, for the agency.
BEFORE
Raymond A. Limon , Vice Chair
Tristan L. Leavitt , Member
FINAL ORDER
¶1 The appellant has f iled a petition for review of the initial decision, which
dismissed for lack of jurisdiction her appeal challenging the agency’s decision to
terminate her from her excepted -service position less than 1 year after her
appointment . On petition for review, she challenges the administrative judge’s
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
require d to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117 (c).
2
finding that she was not terminated for preappointment reasons and argues again
that the agency failed to provide her the notice and opportunity to respond to the
charge required by 5 C.F.R. § 315.805 . Generally, we grant petitions such as this
one only in the following circumstances: the initial decision contains erroneous
findings of material fact; the initial de cision is based on an erroneous
interpretation of statute or regulation or the erroneous application of the law to
the facts of the case; the administrative judge’s rulings during either the course of
the appeal or the initial decision were not consistent with required procedures or
involved an abuse of discretion, and the resulting error affected the outcome of
the case; or new and material evidence or legal argument is available that, despite
the petitioner’s due diligence, was not available when the reco rd closed. Title 5
of the Code of Federal Regulations, section 1201.115 ( 5 C.F.R. § 1201.115 ).
After fully considering the filings in this appeal, we conclude that the petitioner
has not established any basis under section 1201.115 for granting the petition for
review. Therefore, we DENY the petition for review. Except as expressly
MODIFIED to find that the appellant, as an ex cepted -service appointee, was not
entitled to the procedura l protections of 5 C.F.R. § 315.805 and had no regulatory
right of appeal under 5 C.F.R. § 315.806 , we AFFIRM the init ial decision.
¶2 As the administrative judge correctly found, the appellant had no statutory
right to appeal her termination to the Board because she did not meet the
definition of an “employee” with appeal rights under 5 U.S.C. chapter 75. In
addition, he c orrectly found that the appellant did not have a regulatory right to
appeal her termination to the Board. However, as discussed below, we modify
the basis for this finding.
¶3 Under 5 C.F.R. § 315.805 , an individual who is terminated during her
probationary or trial period for reasons, in whole or in part, arising before her
appointment is entitled to notice of the proposed adverse action, an opportunity to
respond , and notice of the adverse decision. Under 5 C.F.R. § 315.806 (c), such
an individual may file a Board appeal on the ground that her termination was not
3
effected in accordance with th ese procedural requirements. In the initial decision,
the administrative judge found that the appellant was not entitled to the
procedural protections of 5 C.F.R. § 315.805 because she was not terminated for
conditio ns arising before her appointment. However, an individual appointed in
the excepted service has no regulatory right to appeal under 5 C.F.R. § 315.806
because this section applies only t o individuals in the c ompetitive service.
Barrand v. Department of Veterans Affairs , 112 M.S.P.R. 210 , ¶ 13 (2009). Thus,
we mod ify the initial decision to find that the appellant, an excepted -service
appointee, was not entitled to notice and an opportunity to respond pursuant to
5 C.F.R. § 315.805 or to appeal to the Board under 5 C.F.R. § 315.806 because
she was not a competitive -service appointee. See id. Her argument on review
that she was terminated, in part, for preappointment reasons, eve n if true,
provides no basis to assert jurisdiction over this appeal.
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 cla ims determines the time limit for seeking such review and the appropriate
forum with which to file. 5 U.S.C. § 7703 (b). Although we offer the following
summary of available appeal rights, the Mer it Systems Protection Board does not
provide legal advice on which option is most appropriate for your situation an d
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
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
within the applicable time limit may result in the dismissal of yo ur case by your
chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circ uit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703 (b)(1)(A).
If you submit a petition for review to the U.S. Court of Appe als for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
5
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful d iscrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703 (b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. ____ , 137 S. Ct. 1975 (2017). If you have a
representative in this case, and your representative receives this decision before
you do, then you must file with the district court no later than 30 calendar days
after your representative receives this decision. If the action involves a claim of
discrimination based on race, color, religion, sex, national origin, or a disabling
condition, you may be entitled to representation by a court -appointed lawyer and
to waiver of any requirement of prepayment of fees, costs, or other security. See
42 U.S.C. § 2000e -5(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
6
address of the EEOC is:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 779 60
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302 (b)(8) or
other protected activities listed in 5 U.S.C. § 2302 (b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raise s no challenge to the Board’s
disposition of allegations of a prohibited personnel practice described in
section 2302(b) other than practices described in section 2302(b)(8), or
2302(b)(9)(A)(i), (B), (C), or (D),” then you may file a 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 | HEARD_ZAKAYYIA_SHATEK_AT_315H_17_0776_I_1_FINAL_ORDER_1927775.pdf | 2022-05-25 | null | AT-315H-17-0776-I-1 | NP |
4,379 | https://www.mspb.gov/decisions/nonprecedential/BAILEY_DIANE_TRYVONNE_DC_0752_16_0463_I_1_REMAND_ORDER_1927780.pdf | UNITED STATES OF AME RICA
MERIT SYSTEMS PROTEC TION BOARD
DIANE TRYVONNE BAILE Y,
Appellant,
v.
UNITED STATES POSTAL SERVICE,
Agency.
DOCKET NUMBER
DC-0752 -16-0463 -I-1
DATE: May 25, 2022
THIS ORDER IS NONPRECEDENTIAL1
Casanova Hambrick , Clarkton , North C arolina, for the appellant.
Brandon L. Truman , Charlotte, North Carolina, for the agency.
BEFORE
Raymond A. Limon , Vice Chair
Tristan L. L eavitt , Member
REMAND ORDER
¶1 The appellant has filed a petition for review of the initial decision, which
sustained he r removal . For the reasons discussed below, we GRANT the
appellant’s petition for review , VACATE the initial decision, and REMAND the
case to the Board’s Washington Regional Office for further adjudication in
accordance with this Remand Order.
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no prece dential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing t o the Board’s case law. See 5 C.F.R. § 1201.117 (c).
2
BACKGROU ND
¶2 On December 8, 2015, the agency proposed the appellant’s removal from
her position as an EAS -17 Customer Service S upervisor for unacceptable conduct
in a notice of proposed removal signed by both a n issuing and a concurring
official . Initial Appeal Fil e (IAF), Tab 5 at 20, 25 , Tab 13, Initial Decision (ID)
at 1-2. The narrative of the charge explained that on September 14, 2015, the
appellant manipulated the clock rings (time cards) for 10 of her subordinates to
incorrectly reflect that they had return ed to the office at or before 1800 hours,
despite being instructed by her supervisor earlier th at day not to make such
changes . IAF, Tab 5 at 20-21. The deciding official sustained the charge, found
the penalty of removal to be appropriate, and notified the appellant that she would
be removed from her position effective March 21, 2016. ID at 1-2, IAF, Tab 5
at 15-17.
¶3 The appellant then filed this removal appeal. IAF, Tab s 1, 11. She alleged
that she, an “African American woman,” was treated different ly than three
“Caucasian men” who also had made “unjustified and/or undocumented changes”
to clock rings . IAF, Tab 11 at 4. She identified the issuing official and two other
supervisors as her alleged comparators and provided time and attendance reports
to support her contentions. Id. at 4, 8-12. She also alleged that she had filed one
equal employment opportunity ( EEO ) complaint against the issuing official and
two EEO complaints against the concurring official, and that their investigation
into her mi sconduct was biased and improper as a result. Id. at 4. She further
asserted that she was harassed and unfairly subj ected to “aggressive discipline ,”
and that her duties were changed in reprisal for filing EEO complaints. Id.
Finally, she alleged that the agency violated her due process rights and
section 651.65 of the agency’s Employee and Labor Relations Manual (ELM) by
failing to consider her written reply and denying her an interview with the
deciding official before issuing the removal decision. Id. at 4-5. She contended
that she sent by “certified” mail her “appeal[] [of] the Notice of Proposed
3
Removal directly to the deciding official,” and she submitted a tracking receipt,
which she argued showed that her reply had arrived at the agency, b ut ha d not yet
been picked up . Id. at 4, 13.
¶4 The administrative judge initially scheduled the appellant’s requested
hearing but later cancelled it after the appellant failed to file her prehearing
submissions or appear for the prehearing conference in accordan ce with the
hearing order . ID at 2; IAF, Tab 1 at 2, Tab 6, Tab 8 at 1. The administrative
judge stated that she would reschedule the hearing if the appellant showed good
cause for her noncompliance. IAF, Tab 8 at 1.
¶5 In her response to the show cause order, the appellant offered the following
explanations: (1) she was focused on responding to the agency’s discovery
requests and preparing for the hearing and had inadvertently ove rlooked the
prehearing conference ; (2) she “experienced technical difficul ties” that delayed
her ability to download and view the filings from the Board’s e -Appeal Online
Repository; and (3) she was “overwhelmed . . . physi cally, mentally and
emotionally . . . from this entire process.” IAF, Tab 9 at 4. She also stated that
her representative had not receive d electronic notifications of the filings, even
though she had designated him as an e -filer. Id. She claimed that an individual
she spoke with at the Washington Regional Office told her that the Board had
changed her repre sentative’s filing status to “US Postal Mail .” Id.
¶6 The administrative judge found that the appellant had received the hearing
order, even if her representative had not, and that the appellant’s claimed medical
and physical conditions were insufficient r easons for her noncompliance. IAF,
Tab 10 at 1. Thus, the administrative judge declined to reschedule the hearing,
decided to issue the initial decision based on the written record, and afforded the
parties time to file additional argument and evidence b efore closing the record.
Id. at 1-2. However, t he administrative judge ’s close -of-record order did not
summarize the issues on appeal or explain the burdens and elements of proof
required to prove the relevant claims before issuing the initial decision.
4
¶7 Following the close of record, t he administrative judge issued an initial
decision affirming the appellant’s removal and denying her EEO affirmative
defenses for failure to present a prima facie case. ID. She did not address the
appellant’s due process or harmful error claims.
¶8 The appellant has filed a petition for review, challenging the administrative
judge’s findings on her EEO affirmative defenses and reasserting her due process
and harmful error claims. Petition for Review (PFR) File, Tab 1 at 4-7, Tab 4
at 4-5. The agency has filed a response, to which the appellant has replied. PFR
File, Tabs 3 -4. The agency also filed a moti on for leave to respond to the new
arguments and evidence contained in the appellant’s reply . PFR File, Tab 5. The
appe llant has opposed the motion . PFR File, Tab 7.
DISCUSSION OF ARGUME NTS ON REVIEW
The administrative judge abused her discretion by cancelling the hearing.
¶9 An administrative judge has the authority to sanction a party when
necessary to serve the ends of ju stice , which includes the right to sanction a party
for failure to comply with an order. Heckman v. Department of the Interior ,
106 M.S.P.R. 210 , ¶ 8 (2007); 5 C.F.R. § 1201.43 (a). An appellant’ s right to a
hearing, however, should not be denied as a sanction absent extraordinary
circumstances. Heckman , 106 M.S.P.R. 210 , ¶ 8; see 5 U.S.C. § 7701 (a)(1)
(providing an appellant a right to a hearing in matters “ appealable to the Board
under any law, rule, or regulation” ); 5 C.F.R. § 1201.43 (e) (explaining that a
hearing may be cancelled for contumacious conduct o r conduct prejudicial to the
administration of justice ). An appellant’s single failure to comply with an
administrative judge’s order is not sufficient to show a lack of due diligence,
negligence, or bad faith in her noncompliance with the order so as to justify the
drastic sanction of cancelling the appellant’s requested hearing . Caracciolo v.
Office of Personnel Management , 82 M.S.P.R. 532 , ¶¶ 6-7 (1999) .
5
¶10 We disagree with the administrative judge that the appellant did not
demonstrate good cause for her failure to submit prehearing submissions and
appear at the prehearing conference . IAF, Tab 6 at 2 -3, 4, Tab 10. The record
reflects that, as asserted by the appellant below , the regional office mailed all
pleadings to the appellant’s representative, despite her status as an e -filer. IAF,
Tab 1 at 3, Tab 3 at 18, Tab 6 at 5. It was not until after the order requiring
prehearing submissions and scheduling the prehearing conference was issued that
this error was corrected at the appellant’s request . IAF, Tab 9 at 4, Tab 10 at 3.
When , as here, the order to which the appellant failed to respond was not
electronically served on he r representative, as elected, then all doubts about
whether the appellant was pr ejudiced by the regional office’s failure to follow the
Board’ s regulations should be resolved in her favor. Gordon v. Department of the
Air Force , 104 M.S.P.R. 358, ¶ 5 (2006) (finding that an administrative judge
abused his discretion by dismissing an appeal for failure to comply with orders
that were n ot served on the appellant’s representative via his chosen method ,
which was e lectronic service ), clarified on other grounds by Williams v. U.S.
Postal Service , 116 M.S.P.R. 377 , ¶ 8 (2011) ; 5 C.F.R. § 1201.14 (j)(1) (providing
that when the Board issues documents, email messages will be sent to e -filers that
notif y them of the issuance) .
¶11 Further , this is not a case where the appellant displayed a pattern of
noncompliance prejudicial to the administration of justice. Cf. Heckman ,
106 M.S.P.R. 210, ¶¶ 6, 9 (finding that the administrative judge did not abuse her
discretion by cancelling the appellant’s requested hearing in light of his repeated
failure to respond to multiple orders over a 2 -month period). Although the
appellant was notified that failure to appear at the hearing may result in its
cancellation, she was not apprised that she could be sanctioned for failing to file
her prehearing submission or appear ing for the prehearing confer ence . IAF,
Tab 6 at 2 . Moreover, she indicated that she was participating in discovery at the
time and actively pursui ng her appeal . IAF, Tab 9 at 4 . She responded promptly
6
to the administrative judge ’s hearing cancellation and show cause order , was
apologetic in explaining her noncompliance , and complied with all prior and
subsequent orders . PFR File, Tab 1; IAF, Tab 9 at 4, Tab 11. Therefore, we find
that t he record does not show that she exhibited a lack of due diligence sufficient
to justify the s evere sanction imposed here. See Ellshoff v. Department of the
Interior , 78 M.S.P.R. 615, ¶¶ 3 -6 (1998) (finding that the appell ant’s failure to
timely comply with a single Board order did not consti tute a lack of due
diligence , negligence, or bad faith justifying an order that she could not present
witnesses or additional evidence at the hearing, despite the fact that her excuses
were that she needed to concentrate on her job, was unsure whether to retain her
attorney , and was embarrassed that she had forgotten the name of her therapist ).
Nor has the agency claimed that it was prejudiced by the appellant’s conduct.
¶12 Accordingly, we find that the appellant’s actions in this appeal do not rise
to the level of “extraordinary circumstances” sufficient to cancel the requested
hearing , and that the administrative judge abused her discretion by doing so .
On remand, t he administrative jud ge should fully adjudicate the appellant’s
affirmative defenses.
¶13 The administrative judge did not inform the appellant of her burden on her
affirmative defenses of race and sex discrimination or EEO reprisal in any of her
orders or the initial decision. ID; IAF, Tabs 3, 6, 8, 10 . While the agency’s
closing argument included discussion of the appellant’s burden, it relied on the
incorrect standard, the burden -shifting analytical framework set forth in
McDonnell Douglas Corp . v. Green , 411 U.S. 792, 802 -04 (1973) . IAF, Tab 12
at 4-10. The McDonnell Douglas framework has no application to Board
proceedings. Savage v. Department of the Army , 122 M.S.P.R. 612, ¶ 46 (2015),
clarified by Gardner v. Department of Veterans Affairs , 123 M.S.P.R. 647 , ¶ 30
(2016) . Rather, the Board relies on the standards set forth in Savage , and its
7
progeny.2 See id., ¶ 51 (explaining the burdens of proof applied by the Bo ard to
title VII claims) ; Gardner , 123 M.S.P.R. 647 , ¶ 30 (clarifying how to analyze
relevant evidence in connection with such cl aims) . Further , in denying the
appellant’s affirmative defenses, the administrative judge did not consider the
appellant’s arguments and evidence. ID at 4 ; IAF, Tab 11 at 5, 8-12.
¶14 Additionally , the administrative judge did not address the appellant’s claims
that the agency violated her due process rights and ELM § 651.65 by failing to
consider her written reply and denying her an interview with the deciding official
2 The Age Discrimination in Employment Act states that “personnel actions . . . shall be
made free from any discrimination based on age.” 29 U.S.C. § 633a (a). Similarly, title
VII requires that such actions “shall be made free from any discrimination based on
race, color, religion, sex, or national origin.” 42 U.S.C. § 2000e -16(a). In Savage ,
122 M.S.P.R. 612 , ¶¶ 48 -50, the Board adopted the analytical framework of Mt. Healthy
City School District Board of Education v. Doyle , 429 U.S. 274 (1977), for analyzing
claims arising under title VII. The Board in Savage held that it first inquires whether
the appellant has shown by preponderant evidence that the prohibited consideration was
a motivating factor in the conte sted personnel action. Savage , 122 M.S.P.R. 612 , ¶ 51.
Such a showing is sufficient to establish that the agency violated title VII. Id. If the
appellant meets her burden, the Board then inquires whether the agency has shown by
preponderant evidence that it still would have taken the contested action in the absence
of the discriminatory or retaliatory motive. Id. If the agency makes that showing, its
title VII violation will not require reversal of the action. Id.
After Savage was decided, the Supreme Court interpreted the language in 29 U.S.C.
§ 633a (a) in Babb v. Wilkie , 589 U.S. ___, 140 S. Ct. 1168 (2020). The Court held that
to obtain “injunctive or other forward -looking relief,” the plaintiff m ust show that age
discrimination “play[ed] any part in the way a decision [was] made.” Babb , 140 S. Ct.
at 1173 -74, 1177 -78. However, a plaintiff “must show that age discrimination was a
but-for cause of the employment outcome” to obtain “reinstatement, backpay, . . . or
other forms of relief related to the end result of an employment decision.” Id.
at 1177 -78. Thus, under both Savage and Babb , some relief is available if the
prohibited consideration was a motivating factor in the challenged personnel a ction, but
full relief is available only if the prohibited consideration was a but -for cause of the
action. Although Savage and Babb appear to diverge on the question of which party has
the burden to prove or disprove but -for causation, we need not decide at this time
whether the analytical framework applied in Savage must be revised in light of Babb.
Because the appellant has not yet proven her initial burden that a prohibited factor
played any part in the agency’s decision, we do not reach the question of whether race
and sex discrimination or EEO reprisal was a but -for cause of that decision.
8
before issuing the final removal decision . PFR File, Tab 1 at 7; ID ; IAF, Tab 11
at 4-5; see 5 U.S.C. § § 7513 (b)(2) (discussing an employee’s right to respond to a
proposed adverse action) , 770 1(c)(2)(A) (providing that an agency’s action will
be reversed if it resulted from harmful p rocedural error ); Cleveland Board of
Education v. Loudermill , 470 U.S. 532 , 546 (1985) (observing that an agency’s
failure to provide a tenured pu blic employee with an opportunity to present a
response, either in person or in writing, to an appealable agency action that
deprives him of his property right in his employment constitutes an abridgement
of his constitutional right to minimum due process of law, i.e., prior notice and an
opportunity to respond ). The appellant’s assertions made below in her closing
argument clearly indicate d her intent to raise due process violation and harmful
error claims.
¶15 Therefore, the appellant was entitled to be appr ised of the applicable
burdens of proving her affirmative defenses and harmful error and due process
claims , as well as the kind of evidence required to meet those burdens, and to
have thos e defenses addressed in a close -of-record order or prehearing confe rence
summary and order . Hulett v. Department of the Navy , 120 M.S.P.R. 5 4, ¶ 10
(2013) . Additionally, as discussed above, she was improperly denied her
requested hearing . For these reasons , we remand this appeal for further
adjudication , including notice to the appellant of her burden to prove her
affirmative defenses, an o pportunity for both parties to submit additional
evidence, and the appellant’s requested hearing. See id. , ¶¶ 10-11 (remanding an
appeal for the administrative judge to provide notice of the appellant’s burdens
and elements of proof as to his affirmative defenses and adjudicate those
defenses ). Because the parties will have an opportunity to further develop the
record on remand , we find it unnecessary to rule on the agency’s motion for leave
to respond to the appellant’s reply to the response to the petit ion for review . PFR
File, Tab 5 at 4-5.
9
ORDER
¶16 For the reasons discussed above, we vacate the initial decision and remand
this case to the Washington Regional Office for further adjudication in
accordance with this Remand Order .
FOR THE BOARD:
Washingt on, D.C. /s/ for
Jennifer Everling
Acting Clerk of the Board | BAILEY_DIANE_TRYVONNE_DC_0752_16_0463_I_1_REMAND_ORDER_1927780.pdf | 2022-05-25 | null | DC-0752-16-0463-I-1 | NP |
4,380 | https://www.mspb.gov/decisions/nonprecedential/ZEITZ_BRIAN_CH_0752_19_0553_X_1_FINAL_ORDER_1927782.pdf | UNITED STATES OF AME RICA
MERIT SYSTEMS PROTEC TION BOARD
BRIAN ZEITZ,
Appellant,
v.
DEPARTMENT OF VETERA NS
AFFAIRS,
Agency.
DOCKET NUMBER
CH-0752 -19-0553 -X-1
DATE: May 25, 2022
THIS FINAL ORDER IS NONPRECEDENTIAL1
Brian Zeitz , Hebron, Kentucky, pro se.
Demetrious A. Harris , Esquire and Kimberly Huhta , Esquire, Dayton, Ohio,
for the agency.
BEFORE
Raymond A. Limon, Vice Chair
Tristan L. Leavitt, Member
FINAL ORDER
¶1 In a January 19, 2021 compliance initial decision, the administrative judge
found the a gency in partial noncompliance with the Board’s March 5, 2020 final
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case 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
decision reversing the appellant’s constructive removal and ordering the agency
to retroactively restore him with back pay, including interest, and benefits. Zeitz
v. Department of Vetera ns Affairs , MSPB Docket No. CH -0752 -19-0553 -C-1,
Compliance File, Tab 14 , Compliance Initial Decision (CID ). For the reasons
discussed below, we find the agency in compliance and DISMISS the appellant’s
petition for enforcement.
DISCUSSION OF ARGUME NTS AND EVIDENCE ON COMP LIANCE
¶2 In the compliance initial decision, the administrative judge found the
agency in partial noncompliance with the Board’s final order to the extent it had
failed to pay the appellant the proper amount of back pay owed, with interes t.
CID at 4. Accordingly, the administrative judge granted the appellant’s petition
for enforcement and ordered the agency to: (1) pay the appellant his back pay,
with interest; and (2) provide the appellant with an explanation of the agency’s
updated b ack pay calculations. Id.
¶3 The administrative judge informed the agency that, if it decided to take the
actions ordered in the compliance initial decision, it must submit to the Clerk of
the Board a narrative statement and evidence establishing compliance. CID
at 4-5. In addition, she informed both parties that they could file a petition for
review of the compliance initial decision if they disagreed with the findings
therein. CID at 5-6. Neither party filed any submission with the Clerk of the
Board wi thin the time limit set forth in 5 C.F.R. § 1201.114 . Accordingly,
pursuant to 5 C.F.R. § 1201.183 (b)-(c), the admi nistrative judge’s findings of
noncompliance became final, and the appellant’s petition for enforcement was
referred to the Board for a final decision on issues of compliance. Zeitz v.
Department of Veterans Affairs , MSPB Docket No. CH -0752 -19-0553 -X-1,
Compliance Referral File (CRF), Tab 1.
¶4 On February 24, 2021, the Board issued an acknowledgment order directing
the agency to submit, within 15 calendar days, evidence showing that it had
3
complied with all actions identified in the compliance initial decisi on. CRF,
Tab 1 at 3. The acknowledgment order notified the appellant that he may respond
to any submission from the agency by filing written arguments with the Clerk of
the Board within 20 calendar days of the date of service of the agency’s
submission. Id. The agency filed a response on March 8, 2021, stating that it had
provided the Defense Finance and Accounting Service (DFAS) with the required
documentation that DFAS needed in order to take the actions identified in the
compliance initial decision. CRF, Tab 3 at 4 -5. However, according to the
agency, DFAS had not yet taken these actions as DFAS needed to review the
appellant’s records to identify any overlap during the backpay period wherein the
appellant had started with his new employer, the Department of the Army. Id.
at 5, 15.
¶5 In a supplemental response filed on September 9, 2021, the agency
informed the Board that, through its coordination with DFAS, it had paid the
appellant $45,792.65 in gross back pay and $3,095.63 in back pay int erest, and
had also restored his leave balances, on or before September 9, 2021. CRF, Tab 4
at 3, 7, 21. As evidence of its compliance, the agency provided copies of the
appellant’s DFAS Pay Audit Report; DFAS Leave Audit Report; and Leave
Restoration Ce rtificate. Id. at 4-23. The appellant did not respond to either the
agency’s March 8 or September 9, 2021 submissions.2
¶6 On October 25, 2021, the Board issued an order directing the appellant to
submit, within 20 calendar days, a response to the agency’s compliance
submissions if he was still not satisfied with the agency’s compliance in this
matter. CRF, Tab 5 at 2. This order further cautioned the appellant that, if he did
not respond to the agency’s evidence of compliance within those 20 calendar
2 Prior to the agency’s submissions, the appellant responded to the acknowledgment
order on February 26, 2021, to state that the agency had not yet paid him his back pay.
CRF, Tab 2 at 4.
4
days , the Board “may assume that the appellant is satisfied and dismiss the
petition for enforcement.” Id. Again, the appellant did not respond.
ANALYSIS
¶7 When the Board finds a personnel action unwarranted or not sustainable, it
orders that the appellant be placed, as nearly as possible, in the situation he would
have been in had the wrongful personnel action not occurred. House v.
Department of the Army , 98 M.S.P.R. 530 , ¶ 9 (2005). The agency bears the
burden to prove its compliance with a Board order. An agency’s assertions of
compliance must include a clear explanation of its compliance actions supported
by documentary evidence. Vaughan v. Department of Agriculture , 116 M.S.P.R.
319, ¶ 5 (2011). The appellant may rebut the agency’s evidence of compliance by
making “specific, nonconclusory, and supported assertions of continued
noncompliance.” Brown v. Office of Personnel Management , 113 M.S.P.R. 325 ,
¶ 5 (2010).
¶8 Here, the agency has demonstrated that it has paid the appellant $45,792.65
in gross back pay and $3,095.63 in back pay interest, and has also restored his
leave balances. The appellant has not responded to either of the agency’s
compliance submissions, despite twice being notified of his opportunity to do so,
including having been cautioned that the Board may assume he is satisfied and
dismiss his petition for enforcement if he did not respond. CRF, Tab 5.
Accordingly, we assume that the appellant is satisfied with the agency’s
compliance. See Baumgar tner v. Department of Housing & Urban Development ,
111 M.S.P.R. 86 , ¶ 9 (2009).
¶9 In light of the foregoing, we find that the agency is now in compliance and
dismiss the appellant’s petition for enforcement. This is the final decision of the
Merit Systems Protection Board in this compliance proceeding. Title 5 of the
Code of Federal Regulations, section 1201.183(c)(1) ( 5 C.F.R. § 1201.183 (c)(1).
5
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 a ppeal rights, the Merit
Systems Protection Board does not provide legal advice on which option is most
appropriate for your situation and the rights described below do not represent a
statement of how courts will rule regarding which cases fall within thei r
jurisdiction. If you wish to seek review of this final decision, you should
immediately review the law applicable to your claims and carefully follow all
filing time limits and requirements. Failure to file within the applicable time
limit may result i n the dismissal of your case by your chosen forum.
Please read carefully each of the three main possible 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 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:
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
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U. S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of 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
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703 (b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. ____ , 137 S. Ct. 1975 (2017). If you have a
representative in this case, and your representative receives this decision before
you do, then you must file with the district court no later than 30 calendar days
after your representative receives this decision. If the action involves a claim of
discrimination based on race, color, religion, sex, national origin, or a disabling
condition, you may be entitled to representation by a court -appointed lawyer and
7
to waiver of any requirement of prepayment of fees, cos ts, or other security. See
42 U.S.C. § 2000e -5(f) and 29 U.S.C. § 794a .
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues. 5 U.S.C. § 7702 (b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702 (b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you s ubmit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C . 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302 (b)(8) or
other protected activities listed in 5 U.S.C. § 2302 (b)(9)(A)(i), (B), (C), or (D). If
so, and your judicial peti tion for review “raises no challenge to the Board’s
8
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 decis ion.
5 U.S.C. § 7703 (b)(1)(B).
If you submit a petition for 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.
4 The original statutory provision t hat provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court 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 | ZEITZ_BRIAN_CH_0752_19_0553_X_1_FINAL_ORDER_1927782.pdf | 2022-05-25 | null | CH-0752-19-0553-X-1 | NP |
4,381 | https://www.mspb.gov/decisions/nonprecedential/WILDER_LAWRENCE_V_PH_844E_08_0524_I_7_FINAL_ORDER_1927279.pdf | UNITED STATES OF AME RICA
MERIT SYSTEMS PROTEC TION BOARD
LAWRENCE V. WILDER, SR.,
Appellant,
v.
OFFICE OF PERSONNEL
MANAGEMENT,
Agency.
DOCKET NUMBER S
PH-844E -08-0524 -I-7
PH-1221 -08-0452 -W-7
DATE: May 24, 2022
THIS FINAL ORDER IS NONPRECEDENTIAL1
Lawrence V. Wilder, Sr. , Wilmington, North Carolina, pro se.
Ernest Hammond and Karla W. Yeakle , Washington, D.C., for the agency.
BEFORE
Raymond A. Limon, Vice Chair
Tristan L. Leavitt , Member
FINAL ORDER
¶1 The appellant has filed a petition for review of the initial decision, which
dismissed without prejudice his joined appeals that were automatically refiled by
the Board on November 25, 2 015. Generally, we grant petitions such as this one
only in the following circumstances: the initial decision contains erroneous
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
require d to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117 (c).
2
findings of material fact; the initial decision is based on an erroneous
interpretation of statute or regulation or the erroneous a pplication of the law to
the facts of the case; the administrative judge’s rulings during either the course of
the appeal or the initial decision were not consistent with required procedures or
involved an abuse of discretion, and the resulting error affec ted the outcome of
the case; or new and material evidence or legal argument is available that, despite
the petitioner’s due diligence, was not available when the record closed. Title 5
of the Code of Federal Regulations, section 1201.115 ( 5 C.F.R. § 1201.115 ).
After fully considering the filings in this appeal, we conclude that the petitioner
has not established any basis under section 1201.115 for granting the petition for
review. The refore, we DENY the petition for review and AFFIRM the initial
decision, which is now the Board’s final decision. 5 C.F.R. § 1201.11 3.
¶2 In a disability retirement appeal, the Board has authority to request pro
bono representation for an appellant who asserts that he is incompetent.2 French
v. Office of Personnel Management , 37 M.S.P.R. 496 , 499 (1988). Here, the
appellant asserted his incompetence and asked the administrative judge for help
finding representati on for his disability retirement appeal , MSPB Docket No.
PH-844E -08-0524 -I-7, which the administrative judge joined with his appeal in
MSPB Docket No . PH-1221 -08-0452 -W-7. Initial Appeal File, Tab 5, Initial
Decision (ID) at 1 -2; Petition for Review (PFR) File, Tab 2 at 1 . The
administrative judge repeatedly provided the appellant with names and contact
information of available counsel and dismiss ed the joined appeals without
prejudice , subject to automatic refiling in 180 days, to afford the appellant
additional time to obtain counsel . ID at 2 -4. In addition to continu ally providing
the appellant with names of pro bono representatives, the administrative judge
found an attorney willing to represent the appellant , but the appellant did not
want to wor k with that attorney because he was not located nearby . ID at 2 -3.
2 It appears the appellant is raising similar or identical claims in these appeals that he
has made in approximately three dozen prior Board appeals.
3
¶3 Following the latest refiling of these appeal s, the administrative judge
found that the appellant failed to demonstrate that he was restored to competency
or to designat e a representative to proceed on his behalf . ID at 4 . The
administrative judge found it readily apparent from the appellant’s pleadings that
he remained mentally unfit to pursue his appeals pro se. Id. The administrative
judge also noted that the appellant himself indica ted that he was ruled
incompetent in proceedings before the Superior Court of New Hanover County,
North Carolina. Id. The administrative judge foun d that all attempts to assist the
appellant in obtaining representation had been exhausted and that his only option
was to dismiss these appeals without prejudice , for a final time, pending the
appellant’s return to competency or his securing of representation to permit the
processing of his appeals to move forward. Id.
¶4 The appellant , acting pro se, filed a petition for review of the initial
decision, raising disturbing and unsubstantiated allegations against the
administrative judge and request ing his recusal . PFR File, Tab 1. The appellant
also raises additional claims in a narrative that demonstrates his continued
inability to represent himself , and he asks the Board to provide him with
additional attorney referrals .3 Id. at 12 .
¶5 A dismissal without prejudice is a procedural option committed to the sound
discretion of the administrative judge. See Keene v. Department of the Interior ,
47 M.S.P.R. 41 , 44 (1991). We find that the administrative judge correctly
followed the Board’s French procedures by dismissing the se joined appeals
without prejudice until such time as the appellant becomes competent to proceed
or he obtains representation . ID at 5; see French , 37 M. S.P.R. at 499. It is
3 The appellant also sought review of the June 8, 2007 initial decision in MSPB Docket
No. PH-0353 -07-0330 -I-1. PFR File, Tab 2 at 1. However, t he Clerk of the Board
notified the appellant that the case was close d—the Board having issued the final
decision on December 10, 2007 —and the Board will not take any further action
concerning that appeal . Id.
4
undisputed that the appellant lacks the competence to pursue his appeals pro se
and he has not designated a representative. ID at 4; PFR File, Tab 1 at 12.
¶6 Moreover, although the appellant asks the Board to provide “new [French ]
attorney referrals,” we agree with the administrative judge’s finding that all
attempts to assist the appellant in obtaining representation have been exhausted .
ID at 4; PFR File, Tab 1 at 12. Consequently, in accordance with the Board’s
procedures in French , the administrative judge properly dismissed the joined
appeal s without prejudice until the circumstances are c onducive to fair
adjudication. ID at 4; see French , 37 M.S.P.R. at 499. We therefore deny the
petition for review .
NOTICE OF APPEAL RI GHTS4
You may obtain review of this final decision. 5 U.S.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
appr opriate for your situation and the rights described below do not represent a
statement of how courts will rule regarding which cases fall within their
jurisdiction. If you wish to seek review of this final decision, you should
immediately review the law a pplicable to your claims and carefully follow all
filing time limits and requirements. Failure to file within the applicable time
limit may result in the dismissal of your case by your chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
4 Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise whic h option is most appropriate in any matter.
5
about whether a particular forum is the appropriate one to review your case, you
should contact that 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.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
6
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703 (b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. ____ , 137 S. Ct. 1975 (2017). If you have a
representative in this case, and your representative receives this decision before
you do, then you must file with the district court no later than 30 calendar days
after your representative receives this decision. If the action involves a clai m of
discrimination based on race, color, religion, sex, national origin, or a disabling
condition, you may be entitled to representation by a court ‑appointed lawyer and
to waiver of any requirement of prepayment of fees, costs, or other security. See
42 U.S.C. § 2000e -5(f) and 29 U.S.C. § 794a .
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http:// www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702 (b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702 (b)(1) . If you have a representative in this case,
and your representative receives this decision before you do, then you must file
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
7
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal 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.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 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:
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, si gned into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115 -195,
132 Stat. 1510.
8
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional informatio n about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Prac tice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono re presentation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
Contact information for th e courts of appeals can be found at their
respective websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
FOR THE BOARD:
Washington, D.C. /s/ for
Jennifer Everling
Acting Clerk of the Board | WILDER_LAWRENCE_V_PH_844E_08_0524_I_7_FINAL_ORDER_1927279.pdf | 2022-05-24 | null | S | NP |
4,382 | https://www.mspb.gov/decisions/nonprecedential/SHEIMAN_MICHAEL_E_SF_0752_15_0372_I_2_FINAL_ORDER_1927421.pdf | UNITED STATES OF AME RICA
MERIT SYSTEMS PROTEC TION BOARD
MICHAEL E. SHEIMAN,
Appellant,
v.
DEPARTMENT OF THE TR EASURY,
Agency.
DOCKET NUMBER
SF-0752 -15-0372 -I-2
DATE: May 24, 2022
THIS FINAL ORDER IS NONPRECEDENTIAL1
Ryan Green , Washington, D .C., for the appellant .
Mikel C. Deimler , Esquire, San Francisco, California, for the agency.
BEFORE
Raymond A. Limon, Vice Chair
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
to a 30 -day suspension. For the reasons discussed below, we GRANT the petition
for review, DENY the cross petition for review, REVERSE the initial decision,
and SUSTAIN 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 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 The agency received an anonymous letter dated September 16, 2011,
alleging that the appellant, a GS -13 Senior Appraiser for the agency’s Internal
Revenue Service (IRS) in Honolulu, Hawaii, was abusing his work time by,
among other things, “golfing in the e arly afternoons during the work week.”
Sheiman v. Department of the Treasury , MSPB Docket No. SF -0752 -15-0372 -I-1,
Initial Appeal File (IAF), Tab 10 at 13 -14. From September 26, 2011, to
February 18, 2014, the Treasury Inspector General for Tax Administr ation
(TIGTA) conducted an investigation which purportedly found that between
August 2006 , and August 2013, the appellant “golfed during official IRS duty
hours on at least 205 days for which he claimed no annual leave on his official
IRS timesheets.” Id. at 4. The investigative report also showed that out of those
205 days, the appellant claimed sick leave on 30 days, was on official travel for
5 days, and either he or his vehicle were observed at various Hawaii golf courses
during official duty hours on 4 days. Id.
¶3 The agency issued an October 24, 2014 notice proposing the appellant’s
removal on 2 charges comprising 168 specifications of providing false
information regarding his official time and attendance records, and
29 specifications of providing misleading information regarding his official time
and attendance records. IAF, Tab 9 at 120 -36. Under each specification of the
first charge, the agency contended that the appellant had golfed during duty hours
but did not take leave. Id. at 120 -33. U nder each specification of the second
charge, the agency alleged that the appellant had played golf on a day that he took
sick leave and had failed to use that leave for the purpose intended. Id. at 133 -36.
The appellant made a written reply to the notic e in which he asserted that despite
the fact that he may have played golf on any particular workday, he had a flexible
schedule and always worked an 8 -hour day, such that he did not intentionally
provide false or misleading information regarding his offici al time and attendance
records. IAF, Tab 24 at 45 -51. After considering the evidence and the
3
appellant’s written response, the agency issued a decision sustaining all the
specifications and charges and removing the appellant effective February 6, 2015.
IAF, Tab 7 at 31 -35. The appellant elected to retire effective February 5, 2015.2
Id. at 29.
¶4 The appellant appealed his removal. IAF, Tab 1. After holding a 2 -day
hearing, the administrative judge found that the agency failed to prove the first
charg e, sustained the second charge, rejected the appellant’s affirmative defenses,
and mitigated the removal to a 30 -day suspension. Sheiman v. Department of the
Treasury , MSPB Docket No. SF -0752 -15-0372 -I-2, Refiled Appeal File (RAF),
Tab 19, Initial Decisio n (ID).
¶5 The administrative judge found that the agency failed to establish its first
charge, providing false information regarding time and attendance records,
determining after an exhaustive review of each specification that the agency
failed to demonst rate that the appellant had the intent to defraud or deceive
necessary to prove a falsification charge. ID at 12 -13. She found that the
agency’s hearsay evidence, obtained from the Golf Handicap and Information
Network (GHIN) website, was insufficient to prove that the appellant golfed
during duty hours because GHIN was “not designed for the purpose of keeping an
accurate record of golf tee times and dates,” and was inconsistent with other
agency evidence. ID at 6 -7.
¶6 More importantly, the administrativ e judge found that the appellant’s
consistent explanation of his understanding that he had the discretion to fashion
his own schedule as long as he worked for 8 hours per day and 40 hours per week
was not inherently improbable. ID at 12. She also found t hat his understanding
was consistent with the agency’s time reporting system, which only required him
2 If an employee elects to retire after receiving a removal decision, the Board retains
jurisdiction over the removal action, regardless of the effective retirement date.
5 U.S.C. § 7701 (j); Mays v. Department of Transportation , 27 F.3d 1577 , 1579 -81
(Fed. Cir. 1994).
4
to record the total hours for each day and not his starting or ending time. Id.
She found that the appellant’s testimony before her was sincere, straigh tforward
and believable, as compared to the equivocal testimony of the agency’s witnesses.
ID at 12 -13. Thus, she found the appellant understood that he was allowed to
work a flexible schedule based on his duties and assignments, most of which
occurred i n the field and not in the office due to his work as an appraiser. Id.
The administrative judge also found that the appellant’s testimony about his work
hours was corroborated by the testimony of one of his colleagues, who also began
his workdays early and reported observing the appellant in the office as early as
5:00 a.m. ID at 13; Hearing Transcript, October 2, 2015 (Tr. 2) at 21 -23
(testimony of the appellant ’s colleague ).
¶7 The administrative judge sustained the second c harge, which she interpreted
as akin to a lack of candor, thus requiring a lesser showing of intent than
falsification. ID at 14 -15. She sustained 8 out of the 29 specifications of
providing misleading information regarding official time and attendance r ecords,
finding that the appellant requested and took sick leave on 8 days when he was
neither seeking medical treatment nor incapacitated from work and that he knew
or should have known that paid sick leave is for il lness or medical treatment,
not for eng aging in recreational activity. ID at 18 -19. For each of the remaining
specifications in the second charge, the administrative judge either found that the
agency failed to show that the appellant played golf on that day or determined
that because he had taken 4 hours or less of sick leave, and the agency could not
establish the actual time that he played, it was not unlikely that the appellant
attended a medical appointment and then played golf later in the same day.
ID at 15-16.
¶8 The administrative jud ge found that the appellant failed to prove his due
process defenses because the ex parte communications at issue were not likely to
result in undue pressure on the deciding official, and the appellant also failed to
meet the significant burden necessary t o demonstrate that the deciding official
5
was biased. ID at 19 -22. The administrative judge also found that the appellant
failed to prove his harmful error defense because he did not show that any
procedural error likely caused the agency to reach a conc lusion different from the
one it would have reached absent the error.3 ID at 22.
¶9 Although the administrative judge found that the agency established a nexus
between the appellant’s misconduct and the efficiency of the service,
she nevertheless mitigated the penalty to a 30 -day suspension, finding that
removal was outside the tolerable limits of rea sonableness. ID at 23 -25.
She reasoned that, despite the loss of trust and the potential for notoriety that the
agency cited in support of its choice of pena lty, there were strong mitigating
factors present , including the appellant’s 9 years of discipline -free Federal
service and his rehabilitative potential, as demonstrated by his remorsefulness and
his consistent compliance with time and attendance practices since his first
TIGTA interview on the subject in February 2014. ID at 24.
¶10 In its petition for review, the agency argues that it proved the first charge.
Petition for Review (PFR) File, Tab 3 at 10. It contends that the administrative
judge gave the evidence from GHIN insufficient weight, arguing that it is not
hearsay but instead represents an exception to the hearsay rules as an admission
against interest. Id. at 10 -13. Alternatively, the agency argues that even if the
GHIN evidence is hearsay, it is entitled to significant weight and reliably
demonstrates that the appellant played golf on the dates he entered information
into GHIN. Id. at 13 -14. The agency further argues that the totality of the
circumstances demonstrated that the appellant’s actions were deliberate and not a
mistake, showing the intent required to establish the first charge. Id. at 16 -21.
3 The parties do not contest th e administrative judge’s findings on the appellant’s due
process and harmful error defenses. Therefore, we decline to revisit them on review.
See Roche v. Department of Transportation , 110 M.S.P.R. 286 , ¶ 13 (2008) (explaining
that the Board generally does not consider issues that are not raised on review), aff’d ,
596 F3d 1375 (Fed. Cir. 2010); 5 C.F.R. § 1201.115 (“The Board normally will
consider only issues raised in a timely -filed petition or cross -petition for review.”) .
6
The agency also defends the choice of removal as w ithin its reasonable discretion,
arguing that the appellant was only remorseful after TIGTA discovered his
misconduct. Id. at 22 -23. It contends that the administrative judge placed too
much reliance on the appellant’s performance and assigned insufficie nt weight to
the loss of his supervisors’ trust and confidence. Id. at 23 -24.
¶11 The appellant responds in opposition to the agency’s petition for review and
submits a cross petition for review in which he argues that the administrative
judge erred in sust aining the second charge. PFR File, Tab 5. The appellant also
argues that the administrative judge erred in finding that he knew that his use of
sick leave to play golf was improper and that he sought to deceive the agency
when he submitted time and atte ndance information. Id. at 16 -18. Following the
October 1 -2, 2015 hearing, the appellant filed motions regarding efforts by the
agency to collect debts totaling $33,105.83, including fees, interest, and penalties.
RAF, Tabs 13, 17. In his cross petitio n for review, the appellant argues that the
administrative judge abused her discretion by not addressing the debt iss ue,
and contends that the issue was ripe for adjudication. PFR File, Tab 5 at 18 -23.
¶12 The agency has submitted a reply to the appellant’s response to the petition
for review, and a response in opposition to the appellant’s cross petition for
review. PFR File, Tabs 6 -7.
DISCUSSION OF ARGUME NTS ON REVIEW
The administrative judge properly concluded that the agency failed to prove the
falsif ication charge because it did not show that the appellant acted with the
requisite intent.
¶13 To establish a charge of falsification, the agency must prove by
preponderant evidence that the appellant knowingly supplied incorrect
information and that he did so with the intention of defrauding the agency. E.g.,
O’Lague v. Department of Veterans Affairs , 123 M.S.P.R. 340 , ¶ 6 (2016), aff’d
per curiam , 698 F. App’x 1034 (Fed. Cir. 2017); Boo v. Department of Homeland
Security , 122 M.S.P.R. 100 , ¶ 12 (2014). For t he reasons explained below,
7
we agree with the administrative judge that the agency failed to prove that the
appellant intended to deceive or defraud the Government when he completed his
time and attendance records . ID at 13 -14.
¶14 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 “suffici ently sound” reasons for doing so.
Haebe v. Department of Justice , 288 F.3d 1288 , 1301 (Fed. Cir. 2002) . Based on
the testimony before her, th e administrative judge found the appellant’s
explanation of his time and attendance practices was plausible and credible.
ID at 14. By contrast, she found the testimony of the agency’s witnesses
regarding the appellant’s tour of duty and the flexibility afforded him was
equivocal, and supported the appellant’s understanding that it was acceptable for
him to work a flexible schedule based on his duties and assignments. ID at 13.
She also found that the appellant’s supervisors consistently accepted his ti me and
attendance submissions, even when they knew that he obviously was working
more than 8 hours on occasion. ID at 12 -13. For example, when the appellant
was on travel, he did not record his extra time , and his first -level supervisor
would permit him to use unofficial credit hours, essentially ratifying this practice.
Id.
¶15 The agency identifies no sufficiently sound reasons to disturb the
administrative judge’s demeanor -based conclusion that the appellant did not
intend to defraud or deceive the Gove rnment when he completed his time and
attendance records. Id. Thus, we agree with the administrative judge that the
agency failed to prove its first charge.
The administrative judge gave the GHIN evidence proper weight.
¶16 On review, as noted above, the agency challenges the administrative judge’s
finding that the GHIN evidence is hearsay , arguing that it falls within
an exception to the hearsay rule for admission s agains t interest. PFR File, Tab 3
8
at 10-14 (citing Federal Rule of Evidence 801(d)(2)). In support of its argument,
the agency cites Social Security Administration v. Whittlesey , in which the Board
found that an agency proved an employee was engaged in the unapproved outside
practice of law through documents he s ubmitted to a state agency before which
he practiced. Whittlesey , 59 M.S.P.R. 684 , 692 (1993), aff’d per curiam , 39 F.3d
1197 (Fed. Cir. 1994) (Table) ; PFR File, Tab 3 at 13. The Board found that these
documents were not hearsay because they contained admissions. Whittlesey ,
59 M.S.P.R. at 692.
¶17 However, w e find it unnecessary to determine whether the evidence w ould
more properly have been considered by the administrative judge as non -hearsay
evidence. Regardless of how the GHIN evidence is characterized, we agree with
the administrative judge that it had limited probative weight because the appellant
did not ne cessarily enter data on the website on th e same date that he golfed.
ID at 6-7. We agree with the administrative judge that this evidence, at most,
indicates that the appellant played golf on a particular day, and does not purport
to indicate what time o f day he did so or whether it was during his duty hours.
ID at 6. Specifically, the columns on the GHIN website include the date of a
particular game, but not the time that the game was played, and the only time
reflected in the database is the time that the user updated the record. IAF, Tab 10
at 124. Thus, as the administrative judge aptly pointed out, although GHIN
reflects that the appellant played golf on June 10, 2012, there is no information in
GHIN as to what time he played that day ; GHIN merely shows that the appellant
updated the record on June 14, 2012 , at 10:55 p.m. Id.; ID at 6-7.
¶18 The agency also argues that it did not need to establish that the appellant
played golf at any specific time, only that it was mo re likely than not true that
he was not engaged in the performance of official duties during all his work
hours. PFR File, Tab 3 at 15 (citing Minyard v. Department of Health & Human
Services , 21 M.S.P.R. 229 , 230 -31 (1984)). Although the cases bear significant
similarities, both involving an anonymous tip that an employee was playing golf
9
during duty hours, we do not agree with the agency that the administrative judg e
misconstrued the charge. Rather, she correctly found that the agency’s proof was
insufficient. The proof offered in the instant matter pales in comparison to the
strong case built by the agency in Minyard , which included testimony from the
golf professional at the course where the appellant in that case allegedly played,
sign-in logs for each of the games, and affidavits from two of that appellant’s
frequent golf partners. Minyard , 21 M.S.P.R. at 230 -31.
¶19 The agency’s evidence in this case is not of the same weight and contains
almost no corroboration for the agency ’s allegations , supporting only 3 out of
168 specifications in the first charge with a first -hand observation of the appellant
at a golf cours e during his alleged duty hours. ID a t 8. Thus, as noted above,
the agency failed to establish that it was more likely than not that the appellant
provided false information regarding his official time and attendance records .
The administrative judge p roperly sustained the second charge of providing
misleading information.
¶20 In his cross petition for review, the appellant contends that the agency
failed to prove the second charge, providing misleading information regarding his
official time and attendance records. PFR File, Tab 5 at 16 -18. He argues that
the administrative judge erred in finding that he had knowledge of the agency’s
rules for sick leave because she improperly placed the burden on him instead of
the agency. Id. at 17. The appellant also argues that the administrative judge
erred in finding that he was deceptive by claiming sick leave for the same days
he played golf. Id. at 18.
¶21 In her initial decision, the administrative judge painstakingly reviewed the
agency’s evidence on each speci fication, finding that the agency established that
the appellant took 8 hours of sick leave and played golf during the work day on
8 out of the 29 dates it specified he had done so. ID at 14 -19. The administrative
judge did not sustain the specification for the remaining 21 dates. She found that
although the appellant had taken up to 4 hours of sick leave (or, in one instance,
10
administrative leave) and had reported on GHIN that he had golfed on that
particular date, the GHIN data did not establish that h e golfed during hours
he was taking sick leave. ID at 15 -17. As noted above, the administrative judge
found it was not unlikely under the circumstances that the appellant attended a
medical appointment and then played golf later in the day. ID at 15 -16.
¶22 The appellant does not dispute that he golfed on the 8 days which the
administrative judge found he had taken a full work day of sick leave. He instead
argues that the agency failed to prove that he knew or should have known “that
using paid sick leave for self -treating a poor disposition excluded the game of
golf and was prohibited.” PFR File, Tab 5 at 18. The administrative judge
considered and rejected the appellant’s contention that he was not aware that such
use of sick leave was proscribed. As noted above, based on the testimony before
her, which included the appellant’s explanation of his justification for golfing
while on sick leave, the administrative judge found that the appellant “knew or
should have known that paid sick leave was for illne ss or medical treatment, not
for engaging in a recreational activity or sport such as golfing.” ID at 18 -19;
Tr. 2 at 68 -73 (testimony of the appellant). As noted above, the Board must defer
to an administrative judge’s credibility determinations when th ey are based,
explicitly or implicitly, on witness demeanor , and may overturn such
determinations only when it has “sufficiently sound” reasons for doing so.
Haebe , 288 F.3d at 1301. The appellant’s assertions here provide no such basis
for disturbing th e initial decision. Broughton v. Department of Health & Human
Services , 33 M.S.P.R. 357 , 359 (1987) (finding no reason to disturb t he
administrative judge’s findings when she considered the evidence as a whole,
drew appropriate inferences, and made reasoned conclusions on issues of
credibility); see Gray v. U.S. Postal Service , No. 05 -3074, 2005 WL 1368093,
at *3 (Fed. Cir. June 9, 20 05) (finding that an administrative judge did not err in
11
concluding that an employee with 9 years of service had knowledge that working
another job while on sick leave was against the rules).4
Removal is a reasonable penalty for the sustained charge .
¶23 Because the agency did not prove one of its charges, the administrative
judge reweighed some of the penalty factors . ID at 23 -25; Douglas v. Veterans
Administration , 5 M.S.P.R. 280 , 305 -06 (1981) ( providing a nonexhaustive list of
factors relevant to penalty determinations) . She found the deciding official gave
insufficient mitigating weight to the appellant’s expressions of remorse an d
rehabilitative potential, as well as his 9 years of discipline -free service. Compare
ID at 24 -25, with IAF, Tab 7 at 32 -33. On review, the agency disagrees with the
administrative judge’ s assessment of these factors a nd reasserts that removal is
an appropriate penalty for the two charges. PFR File, Tab 3 at 22 -24. The
appellant argues that, because the administrative judge did not sustain the first
charge, she properly mitigated the penalty . PFR File, Tab 5 at 14 -16. While we
have agree d with the ad ministrative judge that the agency proved only one of its
charges , we find that she erred in reweighing some of the Douglas factors on this
basis . We sustain the appellant’s removal.
¶24 The Board will review an agency imposed penalty only to determine if the
agency conscientiously considered all the relevant factors and exercised
management discretion within tolerable limits of reasonableness. Douglas ,
5 M.S.P.R. at 306. The Board will give due weight to the agency ’s primary
discretion in matters of employee discipline and efficiency , recognizing that the
Board ’s function is not to displace management responsibility but to assure that
managerial judgment has been properly exercised . Id. at 302. When the Board
sustains fewer than all of the agency’s charges, and the agency either indicates
that it would have imposed the same penalty based on the sustained charges,
4 The Board may rely on unpublished decisions of the U.S. Court of Appeals for the
Federal Circuit if it finds the court ’s reasoning persuasive, as we do here. See, e.g.,
Mauldin v. U.S. Postal Service , 115 M.S. P.R. 513 , ¶ 12 (2011).
12
or does not indicate to the contrary, the Board’s role is not to independently
determine the penalty, but to decide whether the agency’s ch oice of penalty is
appropriate. Negron v. Department of Justice , 95 M.S.P.R. 561 , ¶ 32 (2004)
(citing Lachance v. Devall , 178 F.3d 1246 , 1258 -59 (Fed. Cir. 1999)) ; see Blank
v. Department of the Army , 85 M.S.P.R. 443 , ¶ 9 (2000) (explaining that when
not all of the agency’s charges are sustained and the agency has not indicated it
desires a lesser penalty under this eventuality, the Board may presume that the
agency desires the maximum reasonable penalty and must examine whether the
agency -imposed penalty is within the maximum limits of reasonableness ), aff’d ,
247 F.3d 1225 (Fed. Cir. 2001) . The Board cannot “substitute its will” for that of
the agency, wh ich is entrusted with managing its workforce. Negron ,
95 M.S.P.R. 561 , ¶ 32 (quoting Lachance , 178 F.3d at 1258). Rather, the Board
“may mitigate an unreasonably severe agency penalty to bring the penalty within
the bounds of reasonableness.” Id. (quoting Lachance , 178 F.3d at 1258).
¶25 In the instant case, the deciding official stated in his decision letter that
removal was an appropriate penalty for each charge independently. IAF, Tab 7
at 31-32. Without acknowledging this statement, the administrative judge
reweighed the penalty, determining it was appropriate to mitigate to a 30 -day
suspension based on the appellant’s expressions of remorse and rehabilitative
potential, 9 years of service, and lack of prior discipline. ID at 24 -25. In light of
the deciding official’s determination that removal was the appropriate penalty for
either charge, we fin d the administrative judge erred in revisiting his penalty
assessment on the basis that the agency only proved one of its two charges .
¶26 We also disagree with the administrative judge’s assessment of the
appellant’s rehabilitative potential. T he administrat ive judge found the appellant
was remorseful, acknowledged that he made mistakes in his time and attendance
practices, and complied with all time and attendance requirements after his first
interview with the TIGTA investigator. ID at 24. She also consid ered that the
majority of the proven misconduct occurred 4 years or more before the
13
appellant ’s removal. Id. We discern no basis to disturb the administrative
judge ’s credibility determination that the appellant expressed sincere remorse for
some of his conduct. See Purifoy v. Department of Veterans Affairs , 838 F.3d
1367 , 1372 -73 (Fed. Cir. 20 16) (holding that an administrative judge ’s finding of
rehabilitative potential is entitled to special deference when it is based explicitly
or implicitly on witness demeanor).
¶27 Nevertheless, we find that the administrative judge failed to consider all of
the relevant evidence in concluding that the appella nt could be rehabilitated , and
therefore this finding is not entitled to deference. See Faucher v. Department of
the Air Force , 96 M.S.P.R. 203 , ¶ 8 (2004) (recognizing that the Board d oes not
owe defere nce to the administrative judge’ s credibility determination when his
findings are incomplete, inconsistent with the weight of the evidence, and do not
reflect the record as a whole ). First, the administrative judge did not consider
that the appellant only admitted to his “timekeeping errors” after being
confronted about them by the TIGTA Special Agent. This warrants a reduction
in the weight accorded this factor. See S aiz v. Department of the Navy ,
122 M.S.P.R. 521 , ¶ 13 (2015) (giving reduced weight to the appellant’s
expressions of remorse because he made them only after his misconduct was
discovered); Singletary v. Department of the Air Force , 94 M.S.P.R. 553 , ¶ 15
(2003) (explaining that the timing of expressions of remorse is relevant in
assessing rehabilitative potential), aff’d per curiam , 104 F. App’x 155 (Fed. Cir.
2004). Second, t he appellant’s admissions only concerned the unproven
misconduct set forth in the falsification charge. The appellant has never owned
up to his misuse of sick leave or expressed any remorse for his lack of candor in
the matter. In fact, the appellant has maintained throughout the agency ’s
predecisional process and these Board proceedings, including on petition for
review , that playing golf in order to relax and destress is an appropriate use of
sick leave. IAF, Tab 1 at 14 -15, Tab 10 at 5, Tab 12 at 128 , Tab 24 at 5 ; Tr. 2
14
at 72-73, 83 -84 (testimony of the appellant); PFR File, Tab 5 at 18. We find that
the appellant ’s rehabilitative potential is at best , entitled to minimal weight .
¶28 Acknowledging the existence of some mitigating factors in this appeal, such
as the appellant’s 9 years of service and consistently above -average performance ,
we conclude that removal is within the tolerable limits of reasonableness for his
sustained misconduct . IAF, Tab 13 at 8 -39; Hearing Transcript, October 1, 2015
(Tr. 1 ) at 44 (testimony of the appellant’s former supervisor), 204 (testimony of
the deciding official). The nature and seriousness of the offense and its
relationship to the appellant’s duties, position, and responsibilities is the primary
factor tha t the Boar d will consider in assessing an agency’s penalty
determination. See Arena v. U.S. Postal Service , 121 M.S.P.R. 125 , ¶ 6 (20 14),
aff’d per curiam , 617 F. App’x 996 (Fed. Cir. 2015). As explained above, the
agency proved 8 of the 29 specifications of providing misleading information
because, on the dates in question, the appellant took sick leave when he was
neither seeking med ical treatment nor medically incapacitated from work but was
playing golf instead, and in so doing he knowingly provided inaccurate
information on his time and attendance rec ords. IAF, Tab 9 at 133 -36;
ID at 15 19. The deciding official considered this f actor as aggravating, stating
that the appellant’s misconduct was severe and egregious. IAF, Tab 7 at 32; Tr. 1
at 201-02, 240 (testimony of the deciding official). We agree. L ack of candor is
a serious offense that strikes at the heart of the employer -employee relationship.
Ludlum v. Department of Justice , 87 M.S.P.R. 56 , ¶¶ 28 -29 (2000), aff’d ,
278 F.3d 1280 (Fed. Cir. 2002) .
¶29 This is particularly so considering the nature o f the appellant’s position.
As the deciding official observed, the appellan t often worked remotely, and
he was in a position of public trust that required him to have contact with the
public. IAF, Tab 7 at 32 ; Tr. 1 at 203, 211 (testimony of the deciding official).
This lack of on -site supervision require d that the agency be able to trust the
appellant on time and attendance matters. ID at 24; see Corbett v. Department of
15
the Treasury , 21 M.S.P.R. 544 , 545-46 & n.2 (1984) (finding that removal was
reasonable for an IRS employee who engaged in outside employment and
falsified an official statement , notwithstanding his above -average performance,
lack of prior discipline, and the allegedly mitigating circumstances surrounding
his misconduct, because his position necessitated honesty and integrity and
required him to work without continuous s upervision) . It is clear from the
deciding official’s testimony that his loss of trust and confidence in the appellant
played a major role in his decision. IAF, Tab 7 at 32 -33; Tr. 1 at 203 -05, 210 -12,
219 (testimony of the deciding official). Consider ing the facts of this case,
including the nature of the appellant’s offense, his position within the IRS, and
his continued attempts to justify his misuse of sick leave, the deciding official’s
loss of trust is an aggravating factor. See Casteel v. Depart ment of the Treasury ,
97 M.S.P.R. 521 , ¶¶ 2, 8-10 (2004) (finding that removal was a reasonable
penalty for a IRS Tax E xamining Assistant with 22 years of service and
acceptable performance because, as relevant here, her failure to pay her
Government credit card bill on time and false claim of no prior instances of
outstanding balances caused the agency to lose trust and c onfidence in her).
¶30 Further, as the administrative judge acknowledged, and the agency reasserts
on review, removal is within the range of penalties in IRS’s Guide to Penalty
Determinations for a first offense of making misleading statements. IAF, Tab 14
at 81; ID at 25 n.11; PFR File, Tab 3 at 24 . To the extent that the administrative
judge found mitigation appropriate because less er penalties were available, we
disagree. ID at 25 n.11. The Guide states that “[p]ersons in positions of trust, or
who deal directly with taxpayers, can be held to higher standards .” IAF, Tab 14
at 71; see Southers v. Veterans Administration , 36 M.S.P.R. 213 , 214-15 (finding
that the penalty of removal was appropriate for charges of intentional
falsification and false testimony , relying in part on the deciding official’s
testimony that trust was pa rticularly important because the appellant’s position
required t hat he work independently and meet with the public when performing
16
his duties) , aff’d per curiam , 862 F.2d 321 (Fed. Cir. 1988) (Table) . The
appellant is employed by an agency that must maintain public confidence in its
image of integrity, depending as it does essentially on voluntary compliance of
the public . See Fike v. Internal Revenue Service , 10 M.S.P.R. 113 , 116 (1982) ;
see also Acree v. Depar tment of the Treasury , 80 M.S.P.R. 73 , ¶ 19 (1998)
(considering fact that the appellant’s actions undermined public confidence in an
agency in affirming the penalty of removal ), aff’d per curiam , 215 F.3d 1347
(Fed. Cir. 1999) (Table) . As the deciding observed, the appellant’s misconduct
came to light through an anonymous source, and if the media found out, they
would have a “field day.” Tr. 1 at 207 (testimony of the deciding official). We
agree with the administrative judge that the deciding official properly considered
this potential noto riety as a valid concern, especially for a politically sensitive
organization like the IRS. ID at 23 -24.
¶31 Although not addressed by the administrative judge or the parties on
review, w e also find that the deciding official appropriately considered
alternat ive sanctions. See Douglas , 5 M.S.P.R. at 306. The deciding official
testified that he considered suspending the appellant and reassigning him out of
Hawaii, but because all field employees encumber positions of trust, he decided
against that course of a ction. Tr. 1 at 205, 211 -12 (testimony of the deciding
official).
¶32 Having carefully considered the evidence and weighed the pertinent
Douglas factors as a whole, we discern no basis to disturb the determination of
the deciding official that removal is a reasonable penalty for the sustained
charges and specifications. Although the appellant has 9 years of good
performance and demonstrated remorse , we find that these factors are outweighed
by the nature and seriousness of his offense as it relates to his pos ition, duties,
17
and responsibilities, particularly considering his employment by the IRS and the
level of trust that is required for a Senior Appraiser.5
The Board currently has no jurisdiction over the agency’s debt collection action.
¶33 As noted above, follo wing the hearing, the appellant filed motions
regarding the agency’s efforts to offset his retirement benefits to collect debts
totaling $33,105.83, including fees, interest, and pe nalties. RAF, Tabs 13, 17.
In his cross petition for review, the appellan t argues that the administrative judge
abused her discretion by not addressing the debt issue, contending it was ripe for
adjudication. PFR File, Tab 5 at 18 -23. He asserts that the administrative judge
erred in failing to ensure that the agency afforded him due process in conjunction
with the alleged debt. Id. at 22. Although the agency argues that the debt is “not
integral to the issues regarding the appeal,” it appears that a portion of the debt
may relate to the appellant’s use of sick leave at issu e in his removal. PFR File,
Tab 7 at 8, 11.
¶34 Regardless of whether the debt is related to the use of sick leave underlying
the removal, the Board is without authority to order cancelation or amendment of
the debt in this appeal. Mattern v. Department of the Treasury , 88 M.S.P.R. 65,
¶¶ 3-4, 11, 14 -15 (2001) (finding that the Board could not award either back pay
or status quo ante relief for the appellant’s placement on restricted leave or
administrative leave, even though these actions were related to his subsequent
removal, which the Board reversed), aff’d, 291 F.3d 1366 (Fed. Cir. 2002) . If the
appellant believes that the debt itself amounts to a suspension of more than
14 days, or a furlough of 30 days or less, he may wish to file a separate Board
appeal of any such alleged adverse action. 5 U.S.C. § 7512 (2), (5); see Engler v.
Department of the Army , 121 M.S.P.R. 547, ¶ 6 (2014) (explaining that a
5 Even if the Board had mitigated the appellant’s removal and the appellant had been
entitled to back pay, any back pay amount would need to be offset by his retirement
annuity. See Crazy Thunder -Collier v. Department of the Interior , 115 M.S.P.R. 82 ,
¶ 11 (2010); 5 C.F.R. § 550.805 (e)(2)(i).
18
suspension is temporarily placing an employee in a nonpay, nonduty status );
Harris v. U.S. Postal Service , 119 M.S.P.R. 583, ¶ 8 (2013) (explaining that a
furlough is temporarily placing an employee in a nonduty, nonpay status because
of lack of work or funds o r for other nondisciplinary reasons ). We lack sufficient
information to determine whether the Board would have jurisdiction over such a
claim.
¶35 In addition, if the Office of Personnel Management (OPM) attempts to
collect the alleged debt through administrative offset of the appellant’s retirement
annuity payments, t he Board may have authority to conduct a limited review .
See Ramirez v. Department of the Army , 86 M.S.P.R. 211 , ¶¶ 6, 8 -11 (2000)
(explaining that, in the context of an OPM offset, the Board can review whether
an appellant’s former employing agency afforded him a hearing in connection
with a debt, but not whether he is liable); see also Fagone v. Office of Personnel
Management , 85 M.S.P.R. 49 , ¶ 9 (2000) (the Board generally lacks jurisdiction
over an appeal of an OPM action absent a final decision or evidence that OPM
does not intend to issue such a decision) . The appellant alleges that the
Department of Treasury has suggested his retirement benefits may be offset by his
debt. IAF, Tab 17 at 5; PFR File, Tab 5 at 22. However, he does not allege that
the agency has actually sought to do so and he has not provided copies of the
relevant correspondence or indicated that OPM has initiated such offsets.
¶36 Accordingly, the administrative judge properly denied his motions seeking
to stop collection.
NOTICE OF APPEAL RIG HTS6
This is the final decision of the Merit Systems Protection Board in this
appeal . 5 C.F.R. § 1201.113 (c). You may obtain review of this final decision.
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 an y matter.
19
5 U.S.C. § 7703 (a)(1). By statute, the nature of your claims determines the time
limit for seeking such review and the appropriate forum with which to file.
5 U.S.C. § 7703 (b). Although we offer the following summary of available
appeal rights, the Merit Systems Protection Board does not provide legal advice
on which option is most appropriate for your situation and the rights described
below do not represent a statement of how courts will rule regarding which cases
fall within their jurisdiction. If you wish to seek review of this final decision,
you should immediately review the law applicable to your claims and carefully
follow all filing time limits and requirements. Failu re to file within the
applicable time limit may result in the dismissal of your case by your chosen
forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have quest ions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must fil e a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must 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
20
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants 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.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in pa rt, on unlawful discrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Ci rcuit), within 30 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 .
21
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, exclud ing
all other issues . 5 U.S.C. § 7702 (b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702 (b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your represent ative 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
disposit ion 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
22
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 Ma dison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals 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 expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdicti on.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115 -195,
132 Stat. 1510.
23
Contact information for the courts of appeals can be found a t their
respective websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
FOR THE BOARD:
Washington, D.C. /s/ for
Jennifer Everling
Acting Clerk of the Board | SHEIMAN_MICHAEL_E_SF_0752_15_0372_I_2_FINAL_ORDER_1927421.pdf | 2022-05-24 | null | SF-0752-15-0372-I-2 | NP |
4,383 | https://www.mspb.gov/decisions/nonprecedential/JOLLEY_WILLIAM_B_AT_300A_18_0139_I_1_FINAL_ORDER_1926847.pdf | UNITED STATES OF AME RICA
MERIT SYSTEMS PROTEC TION BOARD
WILLIAM B. JOLLEY,
Appellant,
v.
DEPARTMENT OF HOUSIN G AND
URBAN DEVELOPMENT,
Agency.
DOCKET NUMBER
AT-300A -18-0139 -I-1
DATE: May 23, 2022
THIS FINAL ORDER IS NONPRECEDENTIAL1
William B. Jolley , Brunswick, Georgia, pro se.
Samuel Williams , Atlanta, Georgia, for the agency.
BEFORE
Raymond A. Limon , Vice Chair
Tristan L. Leavitt , Member
FINAL ORDER
¶1 The appellant has filed a petition for review of the initial decision, which
dismissed his employment practices appeal for lack of jurisdiction. On petition
for review, the appellant argues that he did, in fact, establish the Board’s
jurisdiction over his appeal , that the administrative judge made certain errors in
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117 (c).
2
adjudicating the appeal, and that he exhibited bias toward the appellant.
Generally, we grant petitions such as this one only in the following
circumstances: the initial decision contains erroneous findings of material fact;
the initial decision is based on an erroneous interpretati on 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 abus e 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 R egulations, section 1201.115 ( 5 C.F.R. § 1201.115 ). After fully
considering the filings in this appeal, we conclude that the petitioner has not
established any basis under section 1201. 115 for granting the petition for review.
Therefore, we DENY the petition for review and AFFIRM the initial decision,
which is now the Board’s final d ecision. 5 C.F.R. § 1201.113 .
NOTICE OF APPEAL RIGHTS2
You may obtain review of this final decision. 5 U.S.C. § 7703 (a)(1). By
statute, the nature of your claims determines the time limit for seeking such
review and the appro priate forum with which to file. 5 U.S.C. § 7703 (b).
Although we offer the following summary of available appeal rights, the Merit
Systems Protection Board does not provide legal advice on which option is most
appropriate for your situation and the rights described below do not represent a
statement of how courts will rule regarding which cases fall within their
jurisdiction. If you wish to seek review of this final decision, you should
immediate ly review the law applicable to your claims and carefully follow all
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 advi se which option is most appropriate in any matter.
3
filing time limits and requirements. Failure to file within the applicable time
limit may result in the dismissal of your case by your chosen forum.
Please read carefully each of the t hree main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703 (b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the c ourt at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc. uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an app eal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neithe r endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
4
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed tha t you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703 (b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. ____ , 137 S. Ct. 1975 (2017) . If you have a
representative in this case, and your representative receives this decision before
you do, then you must file with the district court no later than 30 calendar days
after your representative receives this decision. If the action involves a claim of
discrimination based on race, color, religion, sex, national origin, or a disabling
condition, you may be entitled to representation by a court -appointed lawyer and
to waiver of any requirement of prepayment of fees, costs, or other security. See
42 U.S.C. § 2000e -5(f) and 29 U.S.C. § 794a .
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702 (b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702 (b)(1 ). If you have a representative in this case,
and your representative receives this decision before you do, then 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 court 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
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
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 | JOLLEY_WILLIAM_B_AT_300A_18_0139_I_1_FINAL_ORDER_1926847.pdf | 2022-05-23 | null | AT-300A-18-0139-I-1 | NP |
4,384 | https://www.mspb.gov/decisions/nonprecedential/JOLLEY_WILLIAM_B_AT_3330_18_0138_I_1_REMAND_ORDER_1926851.pdf | UNITED STATES OF AME RICA
MERIT SYSTEMS PROTEC TION BOARD
WILLIAM B. JOLLEY,
Appellant,
v.
DEPARTMENT OF HOUSIN G AND
URBAN DEVELOPMENT,
Agency.
DOCKET NUMBER
AT-3330 -18-0138 -I-1
DATE: May 23, 2022
THIS ORDER IS NONPRECEDENTIAL1
William B. Jolley , Brunswick, Georgia, pro se.
Samuel Williams , Atlanta, Georgia, for the agency.
BEFORE
Raymond A. Limon , Vice Chair
Tristan L. Leavitt , Member
REMAND ORDER
¶1 The appellant has filed a peti tion for review of the initial decision, which
dismissed his appeal under the Veterans Employment Opportunities Act of 1998
(VEOA) for lack of jurisdiction. For the reasons discussed below, we GRANT
the appellant’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
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.
DISCUSSION OF ARGUME NTS ON REVIEW
¶2 Previously, in the context of an appeal in which he alleged a violation of his
rights under the Unifor med Services Employment and Reemployment Rights Act
of 1994 , the appellant , a 10 -point preference eligible, also alleged that the agency
violated his rights under VEOA when he applied for two positions advertised by
the agency as 17 -HUD -269 and 17-HUD -270-P, but was not selected . The
administrative judge docketed the VEOA claim as a separate appeal which he
dismissed for lack of jurisdiction on the basis that the appellant failed to show
that he exhausted his remedy with the Department of Labor (DOL)’s Secretary of
Labor as required under 5 U.S.C. § 3330a (d)(1). Jolley v. Department of Housing
& Urban Development , MSPB Docket No. AT -3330 -18-0074 -I-1, Initial Decision
at 1-3 (Nov. 27, 20 17). The initial decision became the Board’s final decision on
January 1, 2018, when neither party filed a petition for review.2
¶3 Meanwhile, on December 4, 2017, the appellant filed the instant appeal
challenging the agency’s failure to “appoint ” him to th e GS-15 positions of Field
Office Director for Louisville, Kentucky and Columbia, South Carolina, in
connection with the same vacancy announcements that were at issue in his prior
appeal . Initial Appeal File (IAF), Tab 1 at 7 . With this appeal , the appel lant
submitted a copy of a November 29, 2017 letter he received from DOL’s Office
of the Assistant Secretary for Veterans’ Employment and Training Service
(VETS), addressing the appellant’s complaint, timely filed with VETS on
November 7, 2017. Id. at 12 -13. The letter explained that, after an investigation ,
it had determ ined that the evidence did not support the appellant’s allegation that
2 The appellant sought review of this matter with the U.S. Court of Appeals for the
Federal Circuit and the court affirmed the Board ’s final decision. Jolley v. Me rit
Systems Protection Board , 752 F. App ’x 964 (Fed. Cir. 2018).
3
the agency violated his veterans’ preference rights, that it had closed his claim as
without merit, and that he had a right to appeal his case to the Board within
15 days. Id.
¶4 During pendency of the appeal, the administrative judge perceived as
dispositive the issue of whether, based on the status of the appellant’s first
appeal, adjudication of th e instant appeal might be barred by res judicata or
collateral estoppel, and he ordered the appellant to file evidence and argument to
show good cause why his appeal should not be dismissed under either of the two
doctrines. IAF, Tab 9.
¶5 In an initial decision based on the written record, the administrative judge
found that the appellant was barred by collateral estoppel from relitigating the
Board’s jurisdiction over his VEOA claim, and he dismissed the appeal for lack
of jurisdiction . IAF, Tab 14, Initial Dec ision (ID) at 1 -3. The appellant has filed
a petition for review, Petition for Review (PFR) File, Tab 1, to which the age ncy
has responded in opposition, PFR File, Tab 4 .
¶6 To establish that the Board has jurisdiction over his appeal under VEOA,
the appella nt must: (1) show that he exhausted his remedy with DOL; and
(2) make a nonfrivolous allegation that (a) he is a preference eligible within the
meaning of VEOA , (b) the action at issue took place on or after the October 30,
1998 enactment of VEOA, and (c) the agency violated his rights under a statute or
regulation relating to veterans’ preference. Haasz v. Department of Veterans
Affairs , 108 M.S.P.R. 349 , ¶ 6 (2008).
¶7 To meet the VEOA exhaustion requirement, the appellant must establish
that: (1) he filed a co mplaint with the Secretary of Labor; and (2) the Secretary
of Labor was unable to resolve the complaint within 60 days or has issued a
written notification that the Secretary’s efforts have not resulted in resolution of
the complaint. Davis v. Department of Defense , 105 M.S.P.R. 604 , ¶ 7 (2007).
Based on the appellant ’s failure to provide sufficient proof of exhaustion in his
first appeal, the administrative judge appro priately determined that the Board
4
lacked jurisdiction over his appeal under VEOA. However, in the instant appeal,
at the very outset, the appellant submitted evidence showing that he exhausted the
DOL complaint process concerning his nonselection for the same GS-15 positions
under the same vacancy announcements . IAF, Tab 1 at 12-13.
¶8 Moreover, the record reflects that the appellant satisfied the remaining
requirements for establishing the Board’s jurisdiction over his VEOA appeal.
Specifically, he nonfri volous ly alleg ed that: (a) he is a preference eligible within
the meaning of VEOA ; (b) the action at issue took place after the October 30,
1998 enactment of VEOA; and (c) the agency violated his veterans’ preference
rights. IAF, Tabs 1, 7; see Miller v. Federal Deposit Insurance Corporation ,
121 M.S.P.R. 88 , ¶ 7 (2014) , aff’d , 818 F.3d 1361 (Fed. Cir. 2016 ); Haasz ,
108 M.S.P.R. 349 , ¶ 7 (explaining that an appellant’s allegation, in general terms,
that his veterans preference rights were violated is sufficient to meet the
nonfrivolous allegation requirement).
¶9 Accordingly, we find that the appellant exhausted the DOL complaint
process and established the Board’s jurisdiction under VEOA based on an alleged
violation of the veterans’ preference right s concerning his nonselection for the
positions advertised under vacancy announcements 17-HUD -269 and
17 HUD -270-P. The record further reflects that the appellant timely filed his
VEOA appeal with the Board on December 4, 2017, which is within 15 days after
the date he received written notice from DOL of the results of its investigation.
5 U.S.C. § 3330a (d)(1); IAF, Tab 1.
5
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 | JOLLEY_WILLIAM_B_AT_3330_18_0138_I_1_REMAND_ORDER_1926851.pdf | 2022-05-23 | null | AT-3330-18-0138-I-1 | NP |
4,385 | https://www.mspb.gov/decisions/nonprecedential/EXZABE_ALTON_J_CB_1208_22_0013_U_1_ORDER_ON_STAY_REQUEST_1927028.pdf | UNITED STATES OF AME RICA
MERIT SYSTEMS PROTEC TION BOARD
SPECIAL COUNSEL
EX REL. ALTON J. EXZ ABE,
Petitioner,
v.
DEPARTMENT OF THE AR MY,
Agency .
DOCKET NUMBER
CB-1208 -22-0013 -U-1
DATE: May 23, 2022
THIS STAY ORDER IS N ONPRECEDENTIAL1
Elisabeth R. Brown , Esquire, Oakland, California, for the petitioner .
Jenn Chun , Esquire, San Francisco, California, for the petitioner .
Elena Onaga , Esquire, Honolulu, Hawaii, for the relator.
Lorraine Marie Sult , Esquire , Shofield Barracks, Hawaii, for the agency .
BEFORE
Tristan L. Leavitt, Member
ORDER ON STAY REQUES T
¶1 Pursuant to 5 U.S.C. § 1214 (b)(1)(A), the Office of Special Counsel (OSC)
requests a 45 -day stay of the proposed removal of Alton Exzabe so that it may
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the B oard’s case law. See 5 C.F.R. § 1201.117 (c).
2
investigate whether his removal would be a prohibited personnel practice under
5 U.S.C. § 2302 (b)(12). For the reasons set forth below, I DENY OSC’s request .
BACKGROUND
¶2 In its May 18, 2022 sta y request, OSC alleges that it has reasonable grounds
to believe that the Department of the Army has violated Mr. Exzabe’s due process
rights in connection wi th its proposal to remove him from his Environmental
Protection Specialist position at the U.S. Army Garrison Hawa ii. Stay Request
File (SRF) , Tab 1 at 12. OSC alleges that , on or about August 18, 2021, the
Army proposed Mr. Exzabe’s removal based on a charge of inability to perform
his assigned duties due to his lack of access to the installation.2 Id. at 22-25.
OSC further alleges that Mr. Exzabe’s lack of access to the installation is a result
of a February 23, 2021 indef inite standard debarment order that bar s
Mr. Exzabe’s entry to any Garrison installation for any reason.3 Id. at 9.
Regarding the basis for the standard debarment order, OSC assert s that the
Garrison Commander “said his order was for ‘sexual offenses’ bu t provided no
additional facts.” Id.
¶3 According to OSC, the proposed removal violates Mr. Exzabe’s due process
rights because it does not notify Mr. Exzabe of the specific reasons for the
debarment on which the proposal is based or provide a meaningful opportunity
2 The notice of proposed removal informed Mr. Exzabe of his right to reply orally
and/or in writing , that any reply would be fully considered , and that he would receive a
written decision on the proposed action. SRF, Tab 1 at 23. OSC does not allege that
any such decision has been issued .
3 Prior to this, OSC contends that Mr. Exzabe had been issued two limited debarment
orders re lated to his off -duty sexual misconduct, under which he had been permitted
limited access to the Garrison only to perform his job duties. SRF, Tab 1 at 7 -8. OSC
avers that Mr. Exzabe challenged both of the limited debarment orders and the standard
debarm ent order to various Department of the Army officials . Id. at 7-10. In
challenging the standard debarment order , OSC states that Mr. Exzabe conveyed his
confusion as to why he was no longer allowed access to the installation to perform his
work after his criminal conviction was nullified. Id. at 9.
3
for him to respond to those reasons . In particular, OSC states that , “it would be a
prohibited personnel practice to remove [Mr. Exzabe] for not reporting to work
without giving him notice of, or a meaningful opportunity to respo nd to, the
specific reasons for his removal, i.e. , the alleged off -duty misconduct that led to
the debarment.” SRF, Tab 1 at 12-13.
¶4 OSC requests a stay of Mr. Exzabe’s proposed removal for 45 days and an
order that the Department of the Army return Mr. Exzabe to full pay and duty
status until the stay expires.4 Id. at 20.
ANALYSIS
¶5 Under 5 U.S.C. § 1214 (b)(1)(A)(i), OSC may request that any member of
the Merit Systems Protection Board order a s tay of any personnel action for
45 days if OSC determines that there are reasonable grounds to believe that the
personnel action was taken, or is to be taken, as a result of a prohibited personnel
practice. Such a request shall be granted unless the Board member determines
that, under the facts and circumstances involved, such a stay would not be
appropriate. 5 U.S.C. § 1214 (b)(1)(A)(ii) .
¶6 Under 5 U.S.C. § 2302 (b)(12), it is a prohibited personnel practice to “take
or fail to take any other personnel action if the taking of or failure to take such
action violates any law, rule, or regulati on implementing, or directly concerning,
the merit system principles contained in section 2301 of this title.” One of the
merit system principles states that “[a]ll employees and applicants for
employment should receive fair and equitable treatment in all aspects of
personnel management . . . with proper regard for their privacy and constitutional
rights.” 5 U.S.C. § 2301 (b)(2). Thus, OSC contends that the proposed removal,
4 Due to the debarment order, OSC states that Mr. Exzabe has been absent without leave
since August 30, 2021. SRF, Tab 1 at 5 n.1. On November 19, 2021, Mr. Exzabe
appealed his lack of duties and pay to MSPB as a constructive indefinite suspension.
Alton J. Exzabe v. Department of Army , MSPB Docket No. SF-0752 -22-0101 -I-1.
4
if taken , would consti tute a prohibited personnel practice because it would violate
Mr. Exzabe’s constitutional due process rights.5
¶7 OSC’s stay reques t thus presents the issue of whether an agency action that
violates an employee’s constitutional rights is a prohibited person nel practice
under 5 U.S.C. § 2302 (b)(12) . I need not reach this issue, however, because the
disciplinary process is ongoing , and it would be premature under the facts and
circumstances of this case to find that there are reasonable grounds to believe that
a due process violation is likely to occur.
¶8 Due process is a flexible concept that calls for such procedural protections
as the particular situation demands. See, e.g. , Gajdos v. Department of the Army ,
121 M.S.P.R. 361 , ¶ 18 (2014); Buelna v. Department of Homeland Security ,
121 M.S.P.R. 262 , ¶ 16 (2014). At its core, d ue process requires that “an
individual be given an opportunity for a hearing before he is deprived of any
significant property interest. ” Cleveland Board of Education v. Loudermill ,
470 U.S. 532 , 542 (1985) (emphasis in o riginal). This requires notice and a
“meaningful opportunity to invoke the discretion of the decisionmaker” before the
personnel action is effected. Id. at 542-43; see Hodges v. U.S. Postal Service ,
118 M.S.P.R. 591 , ¶ 6 (2012) . Thus, the Board has held that an employee has a
due process right to notice of the grounds in support of the adverse action and a
meaningful opportunity to i nvoke the discretion of a deciding official with the
authority to select an alternative outcome, to the extent an alternative penalty may
have been feasible. See Grimes v. Department of Justice , 122 M.S.P.R. 36 , ¶ 7
(2014); Flores v. Department of Defense , 121 M.S.P.R. 287 , ¶ 10 (2014).
¶9 Here, b ecause the removal process has been ongoing since August 18, 2021 ,
it is purely speculative whether a due process violation will occur. To so
speculate , would, in essence, amount to an improper advisory opinion regarding
5 OSC further assert s that it is convinced that “the Garrison breached its own regulation
when it escalated [Mr.] Exzabe’s deba rment from a limited to standard debarment.”
SRF, Tab 1 at 18 .
5
whether the Department of the Army could properly remove Mr. Exzabe under the
circumstances presented or whether to do so would violate his due process rights.
See 5 U.S.C. § 1204 (h) (prohibiting the Board from issuing advisory opinions);
Winston v. Department of the Treasury , 114 M.S.P.R. 594 , ¶ 8 (2010) ( noting that
the Board does not have the authority to advise an agency concerning the removal
of an employee , but only to review an agency’s decision to take such action).6
¶10 Under the facts and circumstances described above, I find that a stay of the
proposed removal is not appropriate at this time .
ORDER
¶11 For the reasons set forth above, OSC’s stay request is denied .
FOR THE BOARD:
Washington, D.C. /s/ for
Jennifer Everling
Acting Clerk of the Board
6 Compare 5 U.S.C. § 2302 (b)(12), proscribing “any other personnel action if the taking
or failure to take such action violates any law, rule, or regulation implementing, or
directly concerning, the merit system principles,” with 5 U.S.C. § 2302 (b)(8) or (b)(9),
under which merely proposing a retaliatory personnel action may be prohibited as
“threaten[ing] to take . . . [such] a personnel action.” | EXZABE_ALTON_J_CB_1208_22_0013_U_1_ORDER_ON_STAY_REQUEST_1927028.pdf | 2022-05-23 | null | CB-1208-22-0013-U-1 | NP |
4,386 | https://www.mspb.gov/decisions/nonprecedential/JOLLEY_WILLIAM_B_AT_3330_17_0060_I_1_FINAL_ORDER_1926492.pdf | UNITED STATES OF AME RICA
MERIT SYSTEMS PROTEC TION BOARD
WILLIAM B. JOLLEY,
Appellant,
v.
DEPARTMENT OF HOUSIN G AND
URBAN DEVELOPMENT,
Agency.
DOCKET NUMBER S
AT-3330 -17-0060 -I-1
AT-4324 -17-0235 -I-11
DATE: May 20, 2022
THIS FINAL ORDER IS NONPRECEDENTIAL2
Alan David Tucker , Esquire, Brunswick, Georgia, for the appellant.
Sam Williams , Atlanta, Georgia, for the agency.
BEFORE
Raymond A. Limon , Vice Chair
Tristan L. Leavitt , Member
FINAL ORDER
¶1 The appellant has filed petition s for review of the initial decision s, which
denied his request for corrective action in connection with his Veterans
Employment Opportunities Act (VEOA) appeal and dismissed for lack of
1 We have joined these cases on review based on our determination that doing so would
expedite their processing and would not adversely affect the interests of the parties.
5 C.F.R. § 1201.36 (a)(2), (b).
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 administrat ive judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and 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
jurisdiction his Uniformed Services Employment and Reemployment Rights Act
(USERRA) 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 base d 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. Ti tle 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
establish ed any basis under section 1201.115 for granting the petition for review
as to the VEOA appeal and we therefore DENY that petition for review and
AFFIRM the initial decision, which is now the Board’s final decision. 5 C.F.R.
§ 1201.11 3. As to the USERRA appeal , we modify the administrative judge ’s
dismissal of the claim for lack of jurisdiction and accept her alternative finding
that, even if the appellant did establish Board jurisdicti on over his appeal, he
would not be entitled to corrective action.
BACKGROUND
¶2 In 20 12, the appellant, a preference -eligible veteran , retired from his
position with the agency as a GS -15 Field Office Director (FOD) in Boise, Idaho .
Jolley v. Department of Housing & Urban Development , MSPB Docket
No. AT-3330 -17-0060 -I-1, Initial Appeal File ( 0060 IAF), Tab 17 at 13. On
April 28, 2016, the agency advertised a GS -15 FOD position in Charleston, West
Virginia , under merit promotion procedures, 16 -HUD -714, id. at 20-26, and under
the agency’s delegated examining authority, 16 -HUD -715-P, id. at 27 -32. The
appellant was eligible to, and did, apply under both announcements. 0060 IAF,
3
Tab 28 at 32. The Human Resources Specialist who reviewed the applications
found that the appellant failed to provide any supporting documentation or
evidence that he had 1 year of experience at the GS -14 level of difficulty and
responsibility “overseeing disaster preparedness and d isaster recovery,” as
required under both announcemen ts, and she therefore rated him as “Not
Qualified – Specialized Experience” (“NQSE”). Id. at 37. The agency made a
selection for the pos ition from the 16 -HUD -715-P announcement. Id. at 44. The
appellant filed a Freedom of Information Act request for in formation relating to
the sele ction and , based on the review conducted in connection with that request ,
the agency advised the appellant that he had been erroneously disqualified for
consideration for the position and that he w ould be afforded priority consideration
for a future position at the grade 15 level in the Charleston office. 0060 IAF,
Tab 1 at 17 -18.
ANALYSIS
AT-3330 -17-0060 -I-1—the VEOA appeal
¶3 The appellant filed a VEOA complaint with the Department of Labor
challenging his nonselect ion for the Charleston FOD posit ion. 0060 IAF, Tab 1
at 14-16. The Office of the Assistant Secretary for Veterans’ Employment and
Training Service conducted an investigation, after which it notified the appellant
of its conclusion that the evidence did n ot support his allegation that the agency
violated his veterans’ preference rights , id. at 11 , and that he had a right to appeal
to the Board, id., which he did , alleging a violation of his right to compete under
5 U.S.C. § 3304 (f)(1) .3 Id. at 1-3. He requested a hearing , id. at 2, but later
withdrew that request. 0060 IAF, Tab 18.
3 5 U.S.C. § 3304 (f)(1) provides that preference eligibles or veterans who have been
separated from the armed forces under honorable conditions after 3 years or more of
active service may not be denie d the opportunity to compete f or vacant positions for
which the agency making the announcement will accept applications from individuals
outside its own workforce under m erit promotion procedures.
4
¶4 In response to the appeal, the agency submitted evidence in which it
explained that, despite having indicated that it would afford the appellant priority
consideration, it did not, in fact, erroneously disqualify him from consideration
for the FOD position, and that it elected to offer him priority consid eration, even
though it was not required legally o r by policy or practice to do so . 0060 IAF,
Tab 17 at 8 -9, 34 .
¶5 In his Order and Summary of Close of Record Conference, the
administrative judge found that the appellant had established the Board’s
jurisdiction over his VEOA appeal. 0060 IAF, Tab 27 at 2. She afforded the
parties the opportunity to submit further evidence and argument in support of
their respe ctive positions , which they did . 0060 IAF, Tabs 28 -31.
¶6 Thereafter, the administrative judge issued an initial decision in which she
found that the appellant failed to establish that the agency den ied him the right to
compete for the Charleston FOD position. 0060 IAF, Tab 32, Initial Decision
(0060 ID) at 5. Specifically, the administrative judge found that the appellant
was allowed to submit an application, and that it was considered, but that he was
found not qualified because he failed to include specific information in his
application packet demonstrat ing his experience overseeing emergency
preparedness and recovery , a requirement under both v acancy announcements .
The administrative judge further found, based on undisputed evidence submitted
by the agency, that prior employment as an FOD does not automatically qualify
an applicant for a ll FOD position s because the skill sets and job requiremen ts
vary depending on the location of the FOD position , and that the agency’s
decision to afford the appellant priority consideration for a future vacancy did not
negate the fact that , as to the Charleston FOD position, he failed to follow the
instructions in the vacancy announcement s to include the required relevant
experience on his résumé. Id. Accordingly, the administrative judge denied the
appellant’s request for corrective action. 0060 ID at 2, 6.
5
¶7 The appellant has filed a petition for review, Jolle y v. Department of
Housing & Urban Development , MSPB Docket No. AT -3330 -17-0060 -I-1,
Petition for Review ( 0060 PFR) File, Tab 1, the agency has responded, 0060 PFR
File, Tab 3, and the appellant has submitted a reply , 0060 PFR File, Tab 4.
¶8 As noted, s ubsec tion (f)(1) of 5 U.S.C. § 3304 , “Competitive service;
examinations,” expressly provides preference eligibles with a right to compete for
vacant positions under certain circumstances. Boctor v. U.S. Postal Service ,
110 M.S.P.R. 580 , ¶ 6 (2009). The circumstances under which such preference
eligibles may not be denied the o pportunity to compete are those in which the
agency making the announcement will accept applications from individuals
outside its own workforce. Id. That is the case here. As such, t he issue is
whether the appellant was, in fact, afforded the opportunity to compete for the
position.
¶9 The VEOA does not provide that veterans will be considered eligible for
positions for which they are not qualified. Ramsey v. Office of Personnel
Management , 87 M.S.P.R. 98 , ¶ 9 (2000). The right to compete under
section 3304(f)(1) does not preclude an agency from eliminating a veteran or
preference eligible from further consideration for a position based on his
qualifications for the position. Harel lson v. U.S. Postal Service , 113 M.S.P.R.
534, ¶ 11 (2010); cf. Montee v. Department of the Army , 110 M.S.P.R. 271, ¶ 9
(2008) ( finding that section 3304 does not exempt veterans or preference eligibles
from the qualification requirements of the positions for which they may apply).
Moreover, there is no requirement that the veteran or prefe rence eligible be
considered at every stage of the selection process, up to that process’s final stage.
Instead, it is only required that the individual be permitted to compete on the
same basis as other candidates. Hare llson, 113 M.S.P.R. 534, ¶ 11.
¶10 Here, the agency allowed the appellant to compete for the Charleston FOD
position, but determined that he did not meet the qual ifications. 0060 IAF,
6
Tab 17 at 33 , Tab 28 at 42. Both vacancy announcements for the position
included the following qual ifications:
For the GS -15: You must have one year of specialized experience
at a level of difficulty and responsibility equivalent to the GS -14
grade level in the Federal Service. Specialized experience for this
position includes:
Directing or managing housing and community or
economic development program s in rural or urban
communities; AND
Collaborating with elected Federal, State, an d/or local
official and heads of industry professional organizations
regarding housing a nd community development issues;
AND
Overseeing disaster preparedness and disaster recovery.
0060 IAF, Tabs 17 at 23, 29. The appellant’s application package included a
résumé which stated, regarding his prior FOD experience, that “I was responsible
for the management and guidance of HUD program (sic).” Id. at 61. A second
résumé, submitted by the appellant below along with his claim that it was the one
that he provid ed with his application, 0060 IAF, Tab 18 at 3 n.6, adds that “I
conducted briefing programs for Members of Congress and for other federal,
state, and local government officials to inform and guide them with respect to
HUD programs. I represented the Department to the mortgage industry; financial
organizat ions; housing industry; the construction industry; non -profit entities;
and the public at large.” Id. at 5. Neither résumé reflects, on the appellant’s part,
any experience equivalent to the GS -14 level in overseeing disaster preparedness
and disaster re covery.
¶11 Therefore, we agree with the administrative judge that the agency did not
violate the appellant’s veterans’ preference rights under 5 U.S.C. § 3304 (f)(1)
when it considered but did not sele ct him for the Charleston FOD positon because
7
he did not meet the requirements for the position.4 Harel lson, 113 M.S.P.R. 534,
¶ 11; Clarke v. Department of the Navy , 94 M.S.P.R. 604, ¶ 8 (2003).
¶12 On review, the appellant disput es the qualifications of the individual who
was selected for the position. 0060 PFR File , Tab 1 at 2, 5-10, Tab 4 at 11 . Such
a challenge , however, is not relevant to the matter before the Board in this appeal ,
which is whether the appellant was afford ed the right to compete for the FOD
Charleston position . Having determined that he was, we agree with the
administrative judge that no further issue remains before the Board , including any
challenge by the appellant to the qualifications of the selectee.5 0060 ID at 6 n.7.
¶13 The appellant also argues on review that the administrative judge erred in
not requiring the agency to timely provide the list of candidates for 16 -HUD -714
and 16 -HUD -715-P in accordance with the administrative judge’s
acknowledgment o rder, and that th is information was not “revealed” until the date
the record closed . 0060 PFR File, Tab 1 at 7 -8. In th e acknowledgment order,
the administrative judge directed the agency to provide a narrative response to the
appeal and to submit copies of all other relevant and material documents within
20 days of October 25, 2016 (by November 14, 2016). 0060 IAF, Tab 2 at 6, 9.
The agency moved to stay the filing deadline for its response, 0060 IAF, Tab 4,
after which the administrative judge scheduled , and later rescheduled, a status
4 Our finding in this regard is unaffected by the agency’s decision to offer the appellant
priority consideration for a future position. The agency’s statement in the letter to him
that he had been “erroneously disqualified for consideration,” 0060 IAF, Tab 17, does
not constitute an admission on the agency’s part in the face of contrary evidence
showing that it did initially consider him, but denied him further consideration based on
his failure to demonstrate the specialized ex perience required by the vacancy
announcements. Hare llson, 113 M.S.P.R. 534 , ¶ 11; 00 60 IAF, Tab 17 at 33 , Tab 28
at 37, 42.
5 For the same reason, we reject the appellant’s claims on review that the agency
committed a criminal act in violation of 18 U.S.C. § 1917 (2) when it “falsely . . .
report[ed] on the examination” of the selectee in reviewing her résumé, 0060 PFR File,
Tab 1 at 5, and that it violated 5 U.S.C. § 3317 (a) when it made a selection based on a
certificate of eligibles that included fewer than three names , id. at 3-4.
8
conference . 0060 IAF, Tab s 12, 15. During that conference, the administrative
judge directed the agency to submit its response to the appeal no later than
February 8, 2017. 0060 IAF, Tab 16 at 2. The agency filed a subm ission on
February 9, 20 17. 0060 IAF, Tab 17. During a subsequent t elephonic prehearing
conference when the appellant withdrew his reque st for a hearing, 0060 IAF,
Tab 18 at 3, the administrative judge set May 17 , 2017 , as the date the record
would close . 0060 IAF, Tab 23. The agency requested an extension of that date
until May 19, 2017, 0060 IAF, Tab 26, and the administrative judge granted the
request , 0060 IAF, Tab 27. She also directed the agency to respond to certain
specific issues. Id. at 3. The agency made its final submission , including the two
lists of candidates , on May 19, 2017. 0060 IAF, Tab 28. Based on that
submission, and after the record had closed, the appellant submitted additional
evidence related to the qualifications of the se lectee . 0060 IAF, Tabs 30-31.
¶14 When the appellant waives his right to a hearing, the record closes on the
date the administrative judge sets as the final date for the receipt or filing of
submissions of the parties and, once the record closes, additional evidence or
argument will ordinarily not be accepted unless, as in this case, it is in rebuttal to
new evidence or argument submitted by the other party just before the record
closed. 5 C. F.R. § 1201.59 (b), (c)(2). Here, the administrative judge considered
the evidence and argument submitted by the appellant in this regard, but found
that it did not impact the outcome of the appeal , 0060 ID at 6 n.7 , and, a s set forth
above, we agree with the administrative judge that the qualifications of the
selectee are not relevant to the dispositive issue in this appeal . Under these
circumstances, we find that the appellant has not shown that the administrative
judge e rred or otherwise abused her discretion regarding the close of the record in
this appeal.
AT-4324 -17-0235 -I-1—the USERRA appeal
¶15 During adjudication of his VEOA appeal , the appellant raised a claim under
USERRA of discrimination based on his performance of duty in the uniformed
9
service in connection with his nonselection for the Charleston FOD position .
0060 IAF, Tab 1 at 3. The appellant also claimed that, in not selecting him for
that position, the agency retaliated against him for pursuing his rights un der
USERRA . 0060 IAF, Tab 9 . On that basis, the administrative judge do cketed a
separate USERRA appeal, Jolley v. Department of Housing & Urban
Development , MSPB Docket No. AT -4324 -17-0235 -I-1, Initial Appeal File ( 0235
IAF), Tab 2, and set out for the appellant his burden s to establish Board
jurisdiction over such an appeal and to prevail on the merits. 0235 IAF, Tab 3.
Because the appellant did not request a hearing , the administrative judge set a
date for the record to close, 0235 IAF, Tab s 12-13.
¶16 In an initial decision based on the written record , the administrative judge
found that the appellant nonfrivolously alleged, and that the agency did not
dispute, that he performed military service in the U .S. Air Force from
March 1950 , to December 1959 , and served in the Korean War, and that he
applied, but was not selected, for the position of Charleston FOD. 00235 IAF,
Tab 17, Initial Decision ( 0235 ID ) at 4. She found, however, that the appellant
failed to nonfrivolously allege that the agency’s failu re to select him was due to
his performance of a duty in the uniformed service. 0235 ID at 4-5. Accordingly,
she dismissed the USERRA appeal for lack of jurisdiction. 0235 ID at 2, 5.
¶17 The appellant has filed a petition for review, Jolley v. Department o f
Housing & Urban Development , MSPB Docket No. AT -4324 -17-0235 -I-1,
Petition for Review ( 0235 PFR ) File, Tab 1, the agency has responded, 0235 PFR
File, Tab 3, and the appellant has submitted a reply , 0235 PFR File, Tab 4.
¶18 On review, the appellant disputes the admin istrative judge’s ruling below
docketing as a separate appeal his claim that the agency discriminated against him
in violation of USERRA when it did not select him for the Charleston FOD
position. 0235 PFR File, Tab 1 at 1 -2; 0060 IAF, Tab 16. The administrative
judge correctly determined that the Board lacks jurisdiction under VEOA to
consider the appellant’s discrimination claim , Slater v. U.S. Postal Service ,
10
112 M.S.P.R. 28, ¶ 6 (2009) , but that the appellant’s discrimination claim merited
consideration as a potential appeal under USERRA. The appellant has failed to
show that the administrative judge erred or otherw ise abused her discretion in
adjudicating his USERRA appeal separately from his VEOA appeal.
¶19 To establish jurisdiction under 38 U.S.C. § 4311 (a)6 of the USERRA
statute, an appellant must allege that: (1) he performed duty or has an obligation
to perform duty in a uniformed service of the United States; (2) the agency denied
him initial employment, reemployment, retention, promotion, or any benefit of
employment; and (3) the denial was due to the performance of duty or obligation
to perform duty in the uniformed service. Williams v. Department of the
Treasury , 110 M.S.P.R. 191, ¶ 8 (2008). The agency has not challenged the
administrative judge’s finding that the appellant nonfrivolously alleged that he
satisfied the first two prongs set forth above, 0235 ID at 4, and we discern no
basis upon whic h to disturb that finding. However, bearing in mind that claims of
discrimination under USERRA are to be broadly and liberally construed in
determining whether they are nonfrivolous, Williams , 110 M.S.P.R. 191, ¶ 8, we
find that the appellant also nonfrivolously alleged that his nonselection was due
to his performance of duty in the uniformed service. Specifically, he alleged that
the agency hired a nonveteran instead of him, 0235 IAF, Tab 7, and that that is
sufficient to constitute a nonfrivolous allegation of discrimination sufficient to
establish USERRA jurisdiction. See, e.g. , Davis v. Department of Defense ,
105 M.S.P.R. 604 , ¶¶ 2, 6 (2007).
6 Under 38 U.S.C. § 4311 (b), an employer may not retaliate against an individual for
pursuing or assisting another individual in pursuing his USE RRA rights. As noted
above , the appellant originally raised such a claim in this appeal. 0235 IAF, Tab 1 at 4,
14. Although the administrative judge provided him with information regarding how to
establish Board jurisdiction and how to prevail on the me rits of such a claim, 0235 IAF,
Tab 3, the appellant did not further address it, and the administrative judge did not, in
her initial decision, analyze the claim under 38 U.S.C. § 4311 (b). 0235 I D. Because
the appellant has not challenged the initial decision in this regard in his petition for
review, we have not addressed it.
11
¶20 Nonetheless, we agree with the administrative judge ’s alternative finding ,
0235 ID at 5 n.5, that, even if the appellant did establish Board jurisdiction, he
failed to prove that his military service was a substantial or motivating factor in
his nonselection because he did not dispute the agency’s evidence that he failed in
his application to include evidence that he possessed specific, specialized
experience overseeing disaster preparedness and recovery as required by the
vacancy announcements and that, as a result, he was deemed not qualified for the
position. Heckman v. Department of the Interior , 109 M.S.P.R. 133 , ¶ 26 (2008),
overruled on other grounds by Garcia v. Department of Agriculture ,
110 M.S.P.R. 371 (200 9); 0235 ID at 5. We therefore find that the proper
disposition of this USERRA appeal is to deny the appellant ’s request for
corrective action.
¶21 On re view, the appellant refers to the statement in the agency’s letter to him
stating that he had been “erroneously disqualified for consideration” and that he
would therefore be offered priority consideration for a future FOD vacancy at
Charleston. 0235 PFR File, Tab 1 at 1; 0060 IAF, Tab 17. As noted, in the
appellant ’s VEOA appeal , we found that that statement did not constitute an
admission of wrongdoing on the agency’s part in the face of contrary evidence
showing that it did initially consider the appellant for t he position, but denied him
further consideration based on his failure to demonstrate the specialized
experience required by the vacancy announcements . Similarly, we find here that
the agency’s letter in no way establishes that the appellant ’s military se rvice was
a substantial or motivating factor in his nonselection in the face of evidence
showing that he did not, in fact, meet the requirements for the position.
¶22 The appellant also argues on review that the agency’s use of dual
announcements violated his rights under USERRA. 0235 PFR File, Tab 1 at 2.
However, our reviewing court specifically found to the contrary in one of the
12
appellant ’s previous USERRA cases. Jolley v. Department of Housing & Urban
Development , 299 F. App’x 966 , 968 (Fed. Cir. 2008).7
¶23 In his petition for review, the appellant refers to other USERRA/VEOA
appeals he has filed, going back to 200 7. 0235 PFR File, Tab 1 at 2 -3. None has
any bearing on the instant case. He specifically notes Jolley v. Merit Systems
Protection Board , 636 F. App’x 567 (Fed. Cir. 2016) . 0235 PFR File, Tab 1 at 4.
There, the court affirmed the Board’s finding s that the appellant did not show that
his 2010 retirement was involuntary or that the agency coerced his retirement in
retaliation for protected whist leblower disclosures, id. at 569, but that the Board
failed to address his assertion that his 2008 directed reassignment which led to his
retirement was a USERRA violation. Finding the appellant ’s allegations in that
regard sufficient to establish the Boa rd’s jurisdiction, t he court remanded the case
to the Board for consideration of the merits of the appellant ’s US ERRA challenge
to his directed reassignment. Id. at 570. According to t he appellant , because the
court remanded that case to the Board for consideration of his USERRA claim,
“[he] put all of those prior undecided USERRA claims in the case at hand to
try to get a decision,” and the Board has ignored the Court’s command.
0235 PFR File, Tab 1 at 4 -5 (emphasis in original) . The matter that is the subject
of the court’s remand decision is currently pending before the Board. Jolley v.
Department of Housing & Urban Development , MSPB Docket Nos. SF -0752 -13-
0583 -M-1, SF -0752 -14-0286 -M-1. However, n othing in th e court’s de cision
provides the Board a basis to review any of the appellant’s other prior appeals.
¶24 On review, the appellant argues that the administrative judge improperly
relied on the Board’s decision in Kitlinski v. Department of Justice , 123 M.S.P.R.
41 (2015), aff’d in part , vacated in part , and remanded , Kitlinski v. Department
of Justice , 857 F.3d 1374 , 1382 (Fed. Cir. 2017) . The administrative judge cited
7 The Board may follow nonprecedential decisions of the U.S. Court of Appeals for the
Federal Circuit to the extent , as h ere, that it finds them to be persuasive. Weed v.
Social Security Administration , 113 M.S.P.R. 221 , ¶ 11 (2010).
13
Kitlinski as support for the appellant ’s jurisdictional burden of proof in a
USERRA appeal. 0235 ID at 2. According to t he appellant , the administrative
judge erred in citing Kitlinski as precedential because it was decided by only two
Board members. 0235 PFR File, Tab 1 at 4. The court considered, but rejected ,
this claim in its decision on the appellant ’s case, cited above. There, the court
found that the Board has statutory authority to prescribe such regulations as may
be necessary for the performance of its functions, and that that grant of authority
covers 5 C.F.R. § 1200.3 , the regulation allowing the continuing function of the
Board with two members when one seat is unfilled. Jolley , 636 F. App’x at 570 ;
Weed v. Social Security Administration , 113 M.S.P.R. 221 , ¶ 8 (2010) .8
NOTICE OF APPEAL RIGHTS9
You may obtain review of this final decision in MSPB Docket
No. AT-3330 -17-0060 -I-1. 5 U.S.C. § 7703 (a)(1). The initial decision, as
supplemented by this Final Order, constitutes the Board’s final decision in MSPB
Docket No. AT -4324 -17-0235 -I-1. 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 Mer it 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 y ou wish to seek review of
8 The appellant als o argues on review that the administrative judge erred in not
requiring the agency to timely provide certain evidence relating to his VEO A claim in
accordance with her acknowledgment o rder. 0235 PFR File, Tab 1 at 5. We have
addressed that claim in our a nalysis of the appellant’s VEOA appeal; it has no bearing
on this USERRA appeal.
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, t he
Board cannot advise which option is most appropriate in any matter.
14
this final decision, you should immediately review the law applicable to your
claims and carefully follow all filing time limits and requirements. Failure to file
within the applicable time limit may result in the dismissal of yo ur case by your
chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circ uit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703 (b)(1)(A).
If you submit a petition for review to the U.S. Court of Appe als for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protec tion Board appellants before the Federal Circuit. The
15
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discr imination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of t his decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 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
16
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 p ractice described in
section 2302(b) other than practices described in section 2302(b)(8), or
2302(b)(9)(A)(i), (B), (C), or (D),” then you may 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.10 The court of appeals must receive your
10 The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court 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
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 | JOLLEY_WILLIAM_B_AT_3330_17_0060_I_1_FINAL_ORDER_1926492.pdf | 2022-05-20 | null | S | NP |
4,387 | https://www.mspb.gov/decisions/nonprecedential/LANTZ_GREGORY_C_PH_0752_13_1161_I_2_FINAL_ORDER_1926537.pdf | UNITED STATES OF AME RICA
MERIT SYSTEMS PROTEC TION BOARD
GREGORY C. LANTZ,
Appellant,
v.
DEPARTMENT OF THE AR MY,
Agency.
DOCKET NUMBER
PH-0752 -13-1161 -I-2
DATE: May 20, 2022
THIS FINAL ORDER IS NONPRECEDENTIAL1
Gregory C. Lantz , Marlborough, Massachusetts, pro se.
Kyle Hayden , New York, New York, for the agency.
BEFORE
Raymond A. Limon , Vice Chair
Tristan L. Leavitt , Member
FINAL ORDER
¶1 The appellant has filed a petition for review of the initial decision, which
affirmed the agency’s action furloughing him for 6 days. Generally, we grant
petitions such as this one only in the following circumstances: the initial decision
contains erroneous findings of material fact; the initial de cision is based on an
erroneous interpretation of statute or regulation or the erroneous application of
1 A nonprecedential order is one that the Board has determined does not add
significantly to the 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 law to the facts of the case; the administrative judge’s rulings during either
the course of the appeal or the initial decision were not consistent with required
procedures or involved an abuse of discretion, and the resulting error affected the
outcome of the case; or new and material evidence or legal argument is available
that, despite the petitioner’s due diligence, was not available when the reco rd
closed. Title 5 of the Code of Federal Regulations, section 1201.115 ( 5 C.F.R.
§ 1201.115 ). After fully considering the filings in this appeal, we conclude that
the petitioner has not established any basis under section 1201.115 for granting
the petition for review. 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 an Information Technology Specialist with the U.S. Army
Corps of Engineers, Enterprise Information Technology. On June 3, 2013, he
received a Notice of Proposed Furlough explaining that an administrative
furlough was necessitated by the “extraordinary and serious budgetary challenges
facing the Department of Defense (D OD) for the remainder of Fiscal Year (FY)
2013, the most serious of which is the sequester that began on March 2, 201 3.”
Lantz v. Department of the Army , MSPB Docket No. PH -0752 -13-1161 -I-1, Initial
Appeal File (IAF), Tab 1 at 9 -11. The appellant was further advised that the
furlough would be on discontinuous days, beginning on July 8, 2013 , through
approximately Septe mber 30, 2013, and that, as a full -time employee, he would
be furloughed no more than 11 workdays or 88 hours. Id. On June 28, 2013, the
agency issued a Notice of Decision to Furlough.2 Id. at 12 -13.
¶3 The appellant filed an appeal in which he stated that other employees within
his organization whose positions were designated as civil works funded were
2 In fact, the appellant was furloughed for only 6 days. Lantz v. Department of the
Army , MSPB Docket No. PH -0752 -13-1161 -I-2, Appeal File, Tab 7 at 41.
3
exempted from the furlough but that he was not because his position was
designated as military funded, and he suggested that this distinction should not
have been dispositive. Id. at 5. He also alleged that the agency committed
harmful procedural error in subjecting him to the furlough because his position
had been vacant from October 1, 2012, until he reported for duty on January 26,
2013, and that the “la ck of salary expense” during that time actually saved the
agency money. Id. He declined a hearing before the Board. Id. at 2.
¶4 The assigned administrative judge subsequently dismissed the appeal
without prejudice pending the Board’s consideration on petition for review of
Corps of Engineers/Pacific Ocean v. Department of the Army , MSPB Docket
No. SF-0752 -14-0290 -I-1, an appeal tha t raised a similar issue; specifically,
whether the agency had a legitimate management reason for utilizing Unit
Identification Codes (UIC) in determining which positions would be exempt or
subject to the furlough. The administrative judge stated that the appellant’s
appeal would be automatically refiled once the Board issued an Opinion and
Order in Corps of Engineers/Pacific Ocean . IAF, Tab 6, Initial Decision .
¶5 After the appeal was reinstated for adjudication,3 and following receipt of
submissions by the parties, a different administrative judge closed the record and
issued an initial decision affirming the agency’s action. Lantz v. Department of
the Army , MSPB Docket No. PH -0752 -13-1161 -I-2, Appeal File ( I-2 AF), Tab 11,
Initial Decision (I -2 ID) at 1, 10. He found that the furlough actions were a
reasonable management solution to the significant financial restrictions faced by
3 The administrative judge explained that th e then two sitting Board members had been
unable to agree on a disposition in the Corps of Engineers/Pacific Ocean case or
another case that raised a similar issue and that therefore the initial decisions in those
cases had become final; that the U.S. Cour t of Appeals for the Federal Circuit had
addressed the use of UICs in a consolidated appeal, Steffen v. Department of the Army ,
640 F. App’x 938 (Fed. Cir. 2016), concluding, albeit in an unpublished opinion, that
UICs were a legitimate basis on which to d istinguish among employees for the purpose
of furlough; but that the two -member Board could not agree on the application of
Steffen to Corps of Engineers/Pacific Ocean , and so had issued a split decision,
rendering the initial decision in that case final. IAF, Tab 8 at 1 -3.
4
the agency due to sequestration, that employees with a military UIC were
potentially subject to furlough procedures in accordan ce with Corps of Engineers
policy,4 and that therefore the agency proved that the appellant was furloughed
for a cause that promotes the efficiency of the service. I-2 ID at 5-7 (citing
Chandler v. Department of the Treasury , 120 M.S.P.R. 163 , ¶ 8 (2014)). The
administrative judge further found that the agency’s use of UICs was an
appropriate neutral criterio n in determining which positions were subject to
furlough, Steffen v. Department of the Army , 640 F. App’x 938, 941 (Fed. Cir.
2016) ,5 and that the agency imposed the furlough in a full and even manner by
treating similar employees similarly and justifying any deviations with legitimate
management reasons. I -2 ID at 7 -8 (citing Chandler , 120 M.S.P.R. 163 , ¶ 8).
Finally, the administrative judge considered the errors alleged by the appellant to
have occurred during the processing of the furlough action but found that they
were either not errors at all or, if they were, they were not shown to be harmful.
I-2 ID at 8 -9.
¶6 The appellant has filed a petition for review , Petition for Review (PFR)
File, Tab 1, to which the agency has responded in opposition, PFR File, Tab 3.
ANALYSIS
¶7 On review, the appellant argues that the administrative judge failed to
properly consider that the agency did not treat similar employees similarly in his
case because his position was vacant for a period of time and therefore not
occupied the entire time during FY13, unlike most other furloughed employees.
PFR File, Tab 1 at 4 -5. While the question of which employees are similarly
4 The agency’s reasoning was that there was sufficient civil works funding to avoid
furlough for Corps of Engineers civil works employees because they were not part of
the D OD-Military appropriations. I-2 AF, Tab 7 at 28.
5 The adminis trative judge acknowledged that the Board may rely on unpublished
Federal Circuit decisions if the Board finds the court’s reasoning persuasive.
Mauldin v. U.S. Postal Service , 115 M.S.P.R. 513 , ¶ 12 (2011).
5
situated for purposes of an adverse action furlough is decided on a case -by-case
basis, the Board has stated that it is guide d by reduction -in-force (RIF) principles
in making that determination.6 Chandler , 120 M.S.P.R. 163 , ¶ 8. The appellant
has not shown, nor do we perceive, that his claim regarding his position having
been vacant for a period of time during FY13 is affected by any RIF principle.
See 5 C.F.R. part 351. In addition, he has not challenged the administrative
judg e’s finding, based on evidence presented by the agency, that future savings
through furlough actions were deemed necessary to avoid adverse impacts on
military readiness, regardless of past savings. I-2 ID at 8; I-2 AF, Tab 7 at 17;
Department of the Army ’s Administrative Record at 49, 50 -59. We find,
therefore, that the appellant has not, by this claim, established that the agency did
not treat similar employees similarly.
¶8 The appellant next states on review that his appeal remained a “standalone,”
and h e questions why the Board did not consolidate his case with the appeals of
others in his organization and in his geographical location who also were
furloughed. PFR File, Tab 1 at 4. The Board’s regulations provide that an
administrative judge may consol idate cases on his own motion or on the motion
of a party when doing so would expedite processing of the cases and not
adversely affect the interests of the parties. 5 C.F.R. § 1201.36 (b). The appellant
has not suggested that he requested consolidation below. Nor has he shown any
prejudice to his substantive rights in the administrative judge’s failure to
consolidate the appellant’s case with others, and therefore he has not shown any
abuse of discretion. See Lee v. Environmental Protection Agency , 115 M.S.P.R.
533, ¶ 7 (2010) (finding no reversible error in the adminis trative judge’s
prehearing rulings because the appellant did not show that the administrative
6 A furlough of 30 days or more is appealable to the Board as a RIF action. 5 C.F.R.
§ 351.901 . Due to th e basic similarities between RIF and adverse action furloughs, the
Board has found that RIF principles are instructive in determining the scope of its
review of adverse action furloughs. Chandler , 120 M.S.P.R. 163 , ¶ 7.
6
judge committed an abuse of discretion or a procedural error that prejudiced his
appeal).
¶9 The appellant also asserts on review that, when he was offered a positio n in
December 2012, the agency knew that there was a significant probability of
furloughs during FY13, and that therefore it should have included a statement on
his job announcement indicating that the position may be subject to furlough.
PFR File, Tab 1 at 4-5, 12 -15. The appellant did not raise this argument below.
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
previou sly available despite the party’ s due diligence. Banks v. Department of
the Air Force , 4 M.S.P.R. 268 , 271 (1980). Absent such a showing by the
appellant , we have not consi dered this argument.
¶10 In addition, t he appellant alleges on review that there were numerous delays
and procedural errors throughout the entire processing of his appeal. PFR File,
Tab 1 at 5-9. First, he argues, as he did below, that the agency filed its r esponse
to the administrative judge ’s second order to respond 6 days late. Id. at 6. The
order to which the appellant refers was dated September 26, 2016, and it directed
the agency to respond within 15 days, or by October 11, 2016. I-2 AF, Tab 3. On
September 29, 2016, however, the case was reassigned to a new administrative
judge , I-2 AF, Tab 4, and, on October 6, 2016, he issued a close -of-record notice,
stating that the parties could file pleadings up until October 21, 2016, but that ,
consistent with the Board’s regulations, they would be permitted to respond to
submissions received just prior to the close of the record. I-2 AF, Tab 5. The
agency made its final submission on October 17, 2016. I-2 AF, Tab 7. Although
the appellant suggests that he did not have sufficient time to fully review the
agency’s response, PFR File, Tab 1 at 6 -7, he did, in fact, respond to the agency’s
submission on October 18, 2016, I-2 AF, Tab 9. And while the appellant also
asserts that he did not have time “to initiate any engagement of discovery if
necessary,” PFR File, Tab 1 at 6 -7, he has not alleged that he, at any time,
7
requested to engage in discovery. Therefore, we find that the appellant has not
established that any error occurred regarding thi s matter.
¶11 Finally, t he appellant alleges on review that there were substantial delays in
the Board’s processing of his appeal. Id. at 7-8. While we acknowledge that
some case processing times were adversely affected as a result of the Board’s
unprecede nted receipt of thousands of furlough appeals, the appellant has not
shown that any such delays prejudiced his substantive rights. See Lee,
115 M.S.P.R. 533 , ¶ 7.
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
jurisdiction. If you wish to seek review of this final decision, you should
immediately review the law applicable to your claims and carefully follow all
filing time limits and requirements. Failure to file within the applicable time
limit may result in the dismissal of your case by your chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
7 Since the issuance of the initial decision in this matter, the Board may have update d
the notice 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 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
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil 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
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
representative in this case, and 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 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:
10
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.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
8 The original statutory provision that provided for judicial review of certain
whistleblower cl aims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in cer tain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court 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/CourtWebsites.aspx .
FOR THE BOARD:
Washington, D.C. /s/ for
Jennifer Everling
Acting Clerk of the Board | LANTZ_GREGORY_C_PH_0752_13_1161_I_2_FINAL_ORDER_1926537.pdf | 2022-05-20 | null | PH-0752-13-1161-I-2 | NP |
4,388 | https://www.mspb.gov/decisions/nonprecedential/JOLLEY_WILLIAM_B_SF_0752_13_0583_M_1_FINAL_ORDER_1926548.pdf | UNITED STATES OF AME RICA
MERIT SYSTEMS PROTEC TION BOARD
WILLIAM B. JOLLEY,
Appellant,
v.
DEPARTMENT OF HOUSIN G AND
URBAN DEVELOPMENT,
Agency.
DOCKET NUMBER S
SF-0752 -13-0583 -M-1
SF-0752 -14-0286 -M-1
DATE: May 20, 2022
THIS FINAL ORDER IS NONPRECEDENTIAL1
William B. Jolley , Brunswick, Georgia, pro se.
Jo Ann Riggs , Seattle, Washington, for the agency .
BEFORE
Raymond A. Limon , Vice Chair
Tristan L. Leavitt , Member
FINAL ORDER
¶1 The U.S. Court of Appeals for the Federal Circuit has remanded this case to
the Board for further adjudication . Jolley v. Merit Systems Protection Board and
Department of Housing & Urban Development , 636 F. App’x 567, 570 (Fed. Cir.
2016) . The court affirmed the Board’s decision in part, but vacated it in part,
1 A nonprecedential order is one that the Board has determined does not add
significantly to the 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
finding that the Board failed to properly address the appellant’s claim that the
agency’s action in directing his reassignment in 2008 was a violation of his rights
under the Uniformed Services Employm ent and Reemployment Rights Act of
1994 (USERRA) . Id. at 6. Upon further review, we find that the appellant has
not established his claim that the agency violated his USERRA rights in this
regard and we therefore deny his request for corrective action .
BACKGROUND
¶2 In 2008, the agency directed the appellant’s reassignment from his
nonsupervisory GS-15 Operations Specialist position in Jacksonville, Florida to a
supervisory GS-15 Field Office Director position in Boise , Idaho. Jolley v.
Department of Housing & Urban Development , MSPB Docket No. SF -0752 -13-
0583 -I-1, Initial Appeal File (IAF), Tab 10 at 12 , Tab 11 at 165 . The agency
similarly directed the reassignments of s everal other nonsupervisory GS -15s to
supervisory positions in other geographical locations as part of its effort to
promote greater efficiency and better utilize human capital resources. The
appellant , who is a preference eligible, IAF, Tab 11 at 134, accepted the
reassignment but elected not to relocate his family. IAF, Tab 10 at 4. According
to the appellant, he sought different assignment s so that he would be closer to
home, id. at 5, and, for the same reason, also asked to be allowed to “swap”
positions with a coworker, id. at 5-6, but was unsuccessful. Id. at 6. In 2010, he
retired . IAF, Tab 11 at 134 . He claimed that he felt compelled to do so in order
“to be closer to family and personal interests .” IAF, Tabs 5, 9 -10.
¶3 On appeal, the appellant challenged his retirement as involuntary and
argued, inter alia, that the a ction was in violation of 38 U.S.C. §§ 4311 (a) and
(b). Specifically, he alleged that the a gency was aware that he was a veteran and
that he had filed prior USERRRA appeals2 and had assisted other employees in
2 Of the several USERRA appeals the appellant has filed , none were resolved in his
favor. See, e.g., Jolley v. Department of Justice , MSPB Docket No. SF-4324 -14-0405 -
3
their appeals and otherwise advocated for the rights of veterans . IAF, Tab 13.
The administrative judge issued a Notice of USERRA Proof Requirements ,3
setting forth the elements of proving a claim of retaliation for the performance of
uniformed service or the enforcing of a protection afforded under 38 U.S.C .
chapter 43, testifying in such a proceeding, assisting or participating in such an
investigation, or exercising such a right.4 IAF, Tab 16.
¶4 After reviewing the parties’ written submissions, t he administrative judge
issued an initial decision that dismissed the appeals for lack of jurisdiction. IAF,
Tab 36, Initial Decision (ID) at 3, 12. He found no evidence that the appellant’s
directed reassignment and the agency ’s decision s not to trans fer him or agree to
his suggested position “swap” were in any way motivated by a desire to coerce
his retirement , that the appellant had a choice to continue working in Boise or to
retire, and that the fact that he did not desire to do either d id not render his
decision to retire involuntary. ID at 8 -9. Finally, the administrative judge found
that the appellant’s discrimination and retaliation claims did not support a finding
that his retirement was involuntary. ID at 9 -12. The Board denied the appellant’s
petition for review of that decision . Jolley v. Department of Housing & Urban
I-1, Final Order (Aug. 28 , 2014), aff’d , 602 F. App’x 805 (Fed. Cir. 2015); Jolley v.
Department of Housing & Urban Development , MS PB Docket No. AT -3443 -08-0162 -
I-1, Initial Decision (Mar. 25, 2008), aff’d , 299 F. App’x 966 (Fed. Cir. 2008 ); Jolley v.
Department of Housing & Urban Development , MSPB Docket No. AT -4324 -08-0316 -
I-1, Initial Decision (May 23, 2008), aff’d , 299 F. App’x 969 (Fed. Cir. 2008 ).
3 The appellant declined a hearing. IAF, Tab 1 at 2.
4 While that appeal was pending, the appellant filed an other appeal, again a rguing that
his retirement was involuntary, this time claiming that it was in retaliation for his
protected whistleblowing disclosures. Jolley v. Department of Housing & Urban
Development , MSPB Docket No. SF -0752 -14-0286 -W-1, Initial Appeal File ( 0286
IAF), Tab 1. The appellant alleged that he disclosed a violation of law, rule, or
regulation, and gross mismanagement by the agency in connection with his directed
reassignment, and various irregularities in the Department of Justice’s Assistant U.S.
Atto rney’s representation of the agency in separate litigation. Id. at 5, 7 -10. Again, the
appellant specifically declined a hearing. Id. at 2. The administrative judge joined the
two appeals for adjudication. 0286 IAF, Tab 16, Initial Decision at 1 n.1.
4
Development , MSPB Docket Nos. SF -0752 -13-0583 -I-1, SF -0752 -14-0286 -I-1,
Final Order at 2 (June 16, 2015).
¶5 On appeal of the Board’s decision , the court found no basis to disturb the
Board’s determination that the appellant did not show that his retirement was
involuntary. Jolley , 636 F. App’x at 569 . The court also did not disturb the
Board’s finding that the appellant failed to support, as an alleged basis for
involuntariness, his claim that the agency coerced his retirement in retaliation for
protected whistleblower disclosures.5 Id. The court found, however, that the
Board incorrectly concluded that the appellant presented his appeal solely as an
involuntar y retirement claim , and that it failed to address his assertion that his
reassignment to Boise was a USERRA violation. Id. The court considered the
appellant’s allegation s that he was denied a benefit of employment in being
reassigned to Boise because “he was not allowed to choose from other available
and more geographically advantageous positions” and that he was reassigned
based on his USERRA -related activities, specifica lly his having previously filed
several USERRA claims against the agency. Id. at 570. Finding the appellant’s
allegations sufficient to establish the Board’s jurisdiction over his USERRA
reassignment claim , id., the court remanded this case to the Board for
consideration of the merits of the appellant’s USERR A challenge to his directed
reassignment .
ANALYSIS
¶6 Title 38 U.S.C. § 4311 (a) provides that:
[a] person who is a member of, applies to be a m ember of,
performs, has performed, applies to perform, or has an obligation
to perform service in a uniformed service shall not be denied
initial employment, reemployment, retention in employment,
promotion, or a ny benefit of employment by an employer on t he
basis of that membership, application for membership,
5 Neither of these matters is implicated in the court’s remand order.
5
performance of service, application for service, or obligation [to
perform service ].
¶7 Title 38 U.S.C. § 4311 (b) provides that:
An employer may not discriminate in employment against or take
any adverse employment action against any person because such
person (1) has taken an action to enforce a protection afforded
any person under this chapter, (2) has testified or otherwise made
a statement in or in connection with any proceeding under this
chapter, (3) has assisted or otherwise participated in an
investigation under this chapter, or (4) has exercised a right
provided for in this chapter. . . .
¶8 To prevail on the merits of a USERRA claim under 38 U.S.C. § 4311 (a), an
appellant must prove by preponderant evidence that his uniformed service was a
substantial or motivating factor in the agency’s action , unless the agency can
show that it would have taken the same action for a valid reason without regard to
his uniformed service . 38 U.S.C. § 4311 (c); McMillan v. Department of Justice ,
120 M.S.P.R. 1 , ¶ 19 (2013). To prevail on the merits of a USERRA claim under
38 U.S.C. § 4311 (b), an appellant must prove by preponderant evidence that his
protected activity was a motivating factor in the employer ’s action , unless the
employer can prove that the action would have been taken in the absence of the
appellant ’s protected activity . 38 U.S.C. § 4311 (c)(2); Burroughs v. Department
of the Army , 120 M.S.P.R. 392 , ¶ 7 (2013).
¶9 An employee’s military service is a motivating factor for an adverse
employment action if the employer “relied on, took into account, considered, or
conditioned its decision” on that service. McMillan , 120 M.S.P.R. 1 , ¶ 20. The
factual question of discriminatory motivation or intent may be proven by either
direct or circumstantial evidence. Sheehan v. Department of the Navy , 240 F.3d
1009 , 1014 (Fed. Cir. 2001). Discriminatory motivation under USERRA “may be
reasonably inferred from a variety of factors, incl uding proximity in time between
the employee’s military activity and the adverse employment action ,
inconsistencies between the proffered reason and other actions of the employer,
an employer’s expressed hostility towa rd members protected by the statute
6
together with knowledge of the employee’s military activity, and disparate
treatment of certain employees compared to ot her employees. . . .” Id. In
determining whether the employee has proven that his protected status was part of
the agency’s motivation f or the agency’s conduct, all record evidence may be
considered, including the agency’s explanation for the actions taken. Id. Because
the “motivating factor” language is identical in both statutory sub sections,
Burroughs , 120 M.S.P.R. 392 , ¶ 7, it is appropriate to app ly the language in the
same fashion to the appellant ’s claims regarding his protected activity under
38 U.S.C. § 4311(b).
¶10 We first examine the appellant’s claim that he was denied a benefit of
employment under 38 U.S.C. § 4311(a) when he was reassigned to Boise because
he was not allowed to choose from other available and more geographically
advantageous positions that were available. We construe this claim to also
include the appellant’s assertions that he was not selected for other positions after
his reassignment and th at th e agency deni ed his request for a “swap” of positions.
The evidence of record clearly reflects that the appellant is a preference eligible,
IAF, Tab 11 at 134, and the agency has not challenge d his claim that he served in
the U.S. Air Force from 1950 to 1954. IAF, Tab 1 at 8.
¶11 Regarding the appellant’s directed reassignment and the related actions , he
has not produced any direct evidence that the agency was motivated by or
intended to discrim inate against him because of his military service. As to
circumstantial evidence, there are decades between the appellant’s military
service and the actions of which he complains and therefore no proximity. Nor
has the appellant submitted evidence reflec ting an y expressed hosti lity by agency
officials toward those with military service. He acknowledges that other
nonsupervisory employees also received directed reassignments when he did, and,
although he suggests that theirs were not so personall y onerous , IAF, Tab 20
at 8-9, he has not indicated whether any of those individuals had military service.
Id. The appellant alleg es that , following his directed reassignment , he applied for
7
other positions but was not selected, IAF, Tab 5 at 5 , Tab 10 at 5 , Tab 20 at 8, but
he has submitted no evidence supporting his claim or otherwise demonstrating
that the reason he was not selected was his military s ervice . As to the appellant’s
assertion that the agency denied his request to “swap” positions, he has shown
that he and another Field Office Director who was located in Springfield , Illinois ,
first proposed the “swap” to management in August 2009 , and the appellant
alleges that t he Deputy Director and the two Regional Directors affected
approved the request . IAF, Tab 20 at 11. However, the agency submitted
evidence that the Assistant Deputy Secretary notified the appellant on August 28,
2009, that the matter was “on hold” and that the Deputy was putting all
field -related movements on hold until “the broader transformation initiative is
determined.” IAF, Tab 11 at 148. The agency also submitted evidence that the
Acting Assistant Deputy Secretary notified the appellant in February 2010 , that
she had discussed the matter wi th the Deputy Secretary and the Secretary who
both indicated a desire to make no permanent moves until they decided how the
Office of Field and Policy Management “will fare in the Transformation
initiative.” Id. at 140-41, 145 -57. Even if we were to find that the appellant has
shown that the agency in fact denied his request for a job “swap” (he retired on
March 31, 2010), he has not shown that the reason f or the denial was his military
service . In sum, as to the appellant’s directed reassignment and his claims that he
was not thereafter selected for other positions and that the agency denied his
request for a job “swap,” we find that he has not proven by preponderant evidence
that his military service was a motivating factor in those actions.
¶12 We now exa mine the appellant’s claim that , by these same actions, the
agency violated his rights under 38 U.S.C. § 4311 (b). We already have found,
and the agency does not dispute, that the appellant has fi led several USERRA
appeals. IAF, Tab 9 at 7 -8, Tab 11 at 10. The appellant also alleges that he
exhibited activism as to veterans’ issues and assisted other employees in their
appeals , IAF, Tab 1 at 2, Tab 5 at 5, Tab 9 at 15, Tab 10 at 6, Tab 11 at 16 -17,
8
and that “it is likely” that his activities in that regard were known to agency
management. IAF, Tab 13 at 17. Notwithstanding , the appellant has not provided
any evidence in support of this part of his claim ed protected activity . Burro ughs ,
120 M.S.P.R. 392, ¶ 6.
¶13 Neither has the appellant produced any direct evidence that , regarding his
directed reassignment and related actions, the agency was motivated to or
intended to discriminate against him because of his prior USERRA appeals and
related activity . As to circumstantial evidence, at least some of th e appeals he
filed were in close proximity to the timing of th e actions of which the appellant
complains. However, he has submitted no evidence reflecting hostility by agency
officials toward him because of his prior USERRA activity. We already have
addressed, and found unsupported by the record evidence , the appel lant’s claims
that other employees received more favorable directed reassignments than did he,
that he was not selected for other positions, and that the agency denied his request
to “swap” positions. As we found that , as to these actions, the appellant failed to
demonstrate that the agency was motivated to or intended to discriminate against
him because of his military service, we similarly find that he has not
demonstrated that the agency was motivated to or intended to retaliate against
him for his protected activity . Burroughs , 120 M.S.P.R. 392, ¶ 6.
¶14 We conclude, therefore, that on the record presented, the appel lant has not
proven by preponderant evidence that the agency, by its actions, violated his
rights under 38 U.S.C. § 4311 (a) or (b). Sheehan , 240 F.3d at 1015. Therefore
his request for correctiv e action is denied.
9
NOTICE OF APPEAL RIGHTS6
You may obtain review of this final decision. 5 U.S.C. § 7703 (a)(1). By
statute, the nature of your claims determines the time limit for seeking such
review and the appropriate forum with which to file. 5 U.S.C. § 7703 (b).
Although we offer the following summary of available appeal rights, the Merit
Systems Protection Board does not provide 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 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. As indicated in the notice, the
Board ca nnot advise which option is most appropriate in any matter.
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 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
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
11
to waiver of any requirement of prepayment of fees, costs, or other security. See
42 U.S.C. § 2000e -5(f) and 29 U.S.C. § 794a .
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWeb sites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702 (b)(1) . You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702 (b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, th e
address of the EEOC is:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302 (b)(8) or
other protected activities listed in 5 U.S.C. § 2302 (b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
12
disposition of allegations of a prohibited personne l practice described in
section 2302(b) ot her than practices described in section 2302(b)(8), or
2302(b)(9)(A)(i), (B), (C), or (D),” then you may file a petition for judicial
review either with the U.S. Court of Appeals for the Federal Circuit or any court
of appeals of competent jurisdiction.7 The court of appeals must receive your
petition for review within 60 days of the date of issuance of this decision.
5 U.S.C. § 7703 (b)(1)(B).
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Co urt of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Me rit Systems Protection Board appellants before the 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 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.
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 | JOLLEY_WILLIAM_B_SF_0752_13_0583_M_1_FINAL_ORDER_1926548.pdf | 2022-05-20 | null | S | NP |
4,389 | https://www.mspb.gov/decisions/nonprecedential/RIVERA_ROBERTO_NY_0714_21_0158_R_1_REMAND_ORDER_1926025.pdf | UNITED STATES OF AME RICA
MERIT SYSTEMS PROTEC TION BOARD
ROBERTO RIVERA,
Appellant,
v.
DEPARTMENT OF VETERA NS
AFFAIRS,
Agency.
DOCKET NUMBER
NY-0714 -21-0158 -R-1
DATE: May 19, 2022
THIS ORDER IS NONPRECEDENTIAL*
Alan E. Wolin , Jericho, New York, for the appellant.
Jean M. Rummel , Bedford, Massachusetts , for the agency.
BEFORE
Raymond A. Limon, Vice Chair
Tristan L. Leavitt, Member
REMAND ORDER
¶1 The Board reopens this appeal on its ow n motion p ursuant to its authority
under 5 U.S.C. § 7701 (e)(1)(B) and 5 C.F.R. § 1201.118 . Please note that the
docket number in this appeal has been changed in accordance with Board practice
when an appeal is reopened.
* A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or dis tinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117 (c).
2
¶2 Consistent with our decision in Wilson v. Department of Veterans Affairs ,
2022 MSPB 7 (2022), we hold that the appellant timely filed his appeal under the
procedures and time limits of 5 U.S.C. § 7702 , 5 C.F.R. § 1201.154 , and
29 C.F.R. § 1614.302 (d). We therefore VACATE the Board’s final decision in
NY-0714 -21-0158 -I-1 and REMAND this case to the New York Field Office for
adjudication on the merits .
FOR THE BOARD:
Washington, D.C. /s/ for
Jennifer Everling
Acting Clerk of the Board | RIVERA_ROBERTO_NY_0714_21_0158_R_1_REMAND_ORDER_1926025.pdf | 2022-05-19 | null | NY-0714-21-0158-R-1 | NP |
4,390 | https://www.mspb.gov/decisions/nonprecedential/PINSONNEAULT_APRIL_NY_315H_17_0203_I_1_REMAND_ORDER_1926047.pdf | UNITED STATES OF AME RICA
MERIT SYSTEMS PROTEC TION BOARD
APRIL PINSONNEAULT,
Appellant,
v.
DEPARTMENT OF THE AR MY,
Agency.
DOCKET NUMBER
NY-315H -17-0203 -I-1
DATE: May 19, 2022
THIS ORDER IS NONPRECEDENTIAL1
April Pinsonneault , West Point, New York, pro se.
Matthew J. Geller , Esquire, West Point, New York, for the agency.
BEFORE
Raymond A. Limon , Vice Chair
Tristan L. Leavitt , Member
REMAND ORDER
¶1 The appellant has filed a petition for review of the initial decision, which
dismissed her probationary termination appeal for lack of jurisdiction . For the
reasons discussed below, we GRANT the appellant’s petition for review ,
AFFIRM the finding that the Board lacks jurisdiction over the appellant’s
termination appeal under 5 U.S.C. chapter 75 and 5 C.F.R. part 315 , 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 order s,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and 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
finding that the appellant failed to nonfrivolously allege jurisdiction under the
Uniformed Services Employment and Reemployment Rights Act of 1994
(USERRA), and REMAND the case to the New York Field Office for further
adjudication in accor dance with this Remand Order.
BACKGROUND
¶2 Effective September 19, 2016, the U.S. Military Academy appointed the
appellant to an Information Technology Specialist position in the competitive
service. Initial Appeal File (I AF), Tab 1 at 8 , Tab 5 at 9 . Although originally
subjected to a 1 -year probationary period, this was corrected to a 2 -year
probationary period due to the National Defense Authorization Act for Fiscal
Year 2016 (NDAA for 2016 ), Pub. L. No. 114 -92, § 1105(a )(1), 129 Stat. 726,
1023 -24 (2015) (codified at 10 U.S.C. § 1599e ), which requir es 2-year
probationary periods for employees hired within the Department of Defense after
November 25, 2015. IAF, Tab 1 at 7. On August 1, 2017, the agency terminated
the appellant, prior to the completion of both the original 1 -year probationary
period and the correct ed 2-year probationary period. Id. at 11-15.
¶3 The appellant filed an appeal challenging her termination, alleging
“Harmful procedural Error and Violation of Uniformed Services Employment
Rights.” Id. at 5. She further asserted that she was being terminated for failure to
follow “processes that don’t exist [and] that aren’t followed by anyone ,” and that
there is no cognizable justification for her termination . Id. Finally, she stated , “I
verbally notified [the agency] on July 11 th, 2017 that I’d been selected for a
mobilization tour date with start date of August 19 th, 2017 and waiting for my
orders.” Id.
¶4 In an acknowledgment order, the administrative judge notified the appellant
of how to establish jurisdiction over her appeal. IAF, Tab 2 at 2 -5. In a
subsequent jurisdiction al order, the administrative judge recognized that the
appellant’ s initial appeal appeared to include an allegation of a USERRA
3
violation and thus notified the appellant of how to establish jurisdiction over such
USERRA claims. IAF, Tab 3.
¶5 In her response to the jurisdiction order, the appellant reiterated her claim
of a violation of “Unifo rmed Services Employment Rights ,” and she c ited
USERRA ’s prohibition on discrimination under 38 U.S.C. § 4311 (a).2 IAF, Tab 9
at 7 , 24 . She also submitted documentation of a successful performance
evaluation, dated March 30, 2017, and a resulting 16-hour time off award given
less than 2 months before her termination . Id. at 27 -29. Additionally, the
appellant cited 5 C.F.R. § 1201.56 (c)(1) for the proposition that the Board has
jurisdiction over her claim that the agency committed harmful error in arriving at
its decision to terminate her. Id. at 6.
¶6 The administrative judge issued an initial decision, d ismissing this appeal
for lack of jurisdiction . IAF, Tab 12, Initial Decision (ID). She found that
(1) the appellant failed to show that she was an “employee” as defined by
5 U.S.C. § 7511 (a), (2 ) the appellant failed to nonfrivolously allege jurisdiction
under 5 C.F.R. §§ 315.805 –.806, and (3) the appellant failed to nonfrivolously
allege jurisdiction under USERRA. I D at 4-8. Specifically, the administrative
judge found that the appellant failed to nonfrivolously allege that her
mobilization was a “substantial or motivating factor ” in the agency’s decision to
terminate her during her probationary period. ID at 7 . Moreover, the
administrative judge held that, to meet her jurisdictional burden of showing that
her military service was a motivating factor in her termination, the appellant
“must nonfrivolously allege the agency ‘relied on, took into account, considered,
or conditioned its decision’ on her military service.” Id. (quoting Erickson v.
U.S. Postal Service , 571 F.3d 1364 , 1368 (Fed. Cir. 2009) (discus sing the
2 In her response, the appellant incorrectly cited 5 C.F.R. § 1201.56 (a)(3) for
establishing jurisdiction over a USERRA allegation, but that section specifically says it
does not apply to USERRA allegations. 5 C.F.R. § 1201.56 (a)(3); IAF, Tab 9 at 7.
Presumably, she meant to cite to 5 C.F.R. § 1201.57 (a)(3), which applies to USERRA
appeals.
4
appellant’s initial burden during adjudication of the merits phase of a USERRA
claim)). The administrative judge additionally found that, even after being given
an opportunity to respond to the USERRA jurisdictional order, “the appellant’s
subseq uent pleading s were devoid of any additional information shedding any
additional light on her claim.” ID at 8.
¶7 The appellant has filed a petition for review disputing the facts underlying
her termination . Petition for Review (PFR) File, Tab 1 at 4 -5. She further states
that she was mobilized for military service “within 3 weeks of [the agency]
unfairly terminating me in the midst of a mobilization process.” Id. at 4. The
remainder of the appellant’s petition focuses on her dissatisfaction with the
appeal process and lack of rights afforded to probationary employees. Id. at 4-5.
The agency has responded to her petition for review. PFR File, Tab 3.
DISCUSSION OF ARGUME NTS ON REVIEW
The Board lacks jurisdiction over the appellant’s probationary term ination claim
under 5 U.S.C. chapter 75 and 5 C.F.R. part 315 .
¶8 The Board’s jurisdiction is limited to those matters over which it has been
given jurisdiction by law, rule, or regulation. LeMaster v. Department of
Veterans Affairs , 123 M.S.P.R. 453 , ¶ 7 (2016). Generally, t o qualify as an
“employee” with adverse action appeal rights to the Board, an individu al in the
competitive service must show that she is no t serving a probationary period under
an initial appointment or has co mpleted 1 year of current continuous service
under an appointment other th an a temporary one limited to 1 year or less.3
5 U.S.C. § 7511 (a)(1)(A); Henderson v. Department of the Treasury ,
3 As the administrative judge observed, the agency corrected the appellant’s Standard
Form 50 to reflect a 2 -year probationary period. ID at 2; IAF, Tab 5 at 10. It made this
change to comply with the NDAA for 2016 . 10 U.S.C. § 1599e . In the initial decision,
the administrative judge incorrectly cited section 1599a for this proposition , but was in
fact referencing 1599e. ID at 2. Because the ap pellant was terminated within 1 year,
the Board need not d etermine whethe r a 1 - or 2-year probationary period is applicable
here.
5
114 M.S.P.R. 149, ¶ 9 (2010). Additionally, the Board has jurisdiction over the
termination of a probationary employee if her termination was based on marital
status or partisan political reasons. 5 C.F.R . § 315.806 (b); see Green -Brown v.
Department of Defense , 118 M.S.P.R. 327 , ¶ 5 (2012) (discussing the two -step
process for establishing Board jurisdiction over such claims) . Furthermore, under
5 C.F.R. § 315.806 (c), a probationer whose termination was based on
preappointment reasons may appeal on the gro und that her termination was not
effected in accordance with the procedural requirements of section 315.805. West
v. Department of Health & Human Services , 122 M.S.P.R. 434 , ¶ 7 (2015) .
¶9 The appellant began working for the agency on September 19, 2016 , and
was terminated effective August 1, 2017. IAF, Tab 1 at 8, 11. She has not
claimed any prior F ederal civilian employment and he r prior active -duty military
servi ce does not count towards the 1 year of current continuous service
requirement . Cunningham v. Department of the Army , 119 M.S.P.R. 147 , ¶ 6
(2013). As such, we agree with the administrative judge that the appellant is not
an “employee” for purpose s of chapter 75 and thus the Board does not have
jurisdiction over her terminatio n appeal .
¶10 Moreover, the appellant has not alleged that her termination was based on
marital status , partisan political reasons , or pre appointment reasons . As such, we
furthe r agree with the administrative judge that the appellant has failed to make a
nonfrivolous allegation that she has a regulatory appeal right under 5 C.F.R.
§ 315.806 .
¶11 The administrative j udge did not address the appellant’s claims of harmful
error. IAF, Tab 1 at 5 , Tab 9 at 6. Nevertheless, we find this oversight harmless.
See Karapinka v. Department of Energy , 6 M.S.P.R. 124 , 127 (1981) (finding the
administrative judge ’s procedural error is of no legal consequence unless it is
shown to have adversely affected a party ’s substantive rights). Because the
Board has no jurisdiction over the appellant’s termination as an otherwise
appealable action, the Board has no independent jurisdiction to adjudicate her
6
harmful error claims. Hurston v. Department of the Army , 113 M.S.P.R. 34 , ¶ 11
(2010). The regulation cited by the appellant as supporting Board jurisdiction
over her harmful error claim does not change that result. Section 1201.56(c)(1)
requires reversing an otherwise appealable action if the appellant shows harmful
error. Because the appellant has not established jurisdiction over an otherwise
appealable action, this regulation’s discussion of harmful error is inap plicable
here.
The appellant has established jurisdiction over her USERRA discri mination claim
under 38 U.S.C. § 4311 (a).
¶12 Under USERRA, the Board has jurisdiction over a “person ” alleging
discri mination in Federal employment on account of prior military service or
military obligations . 38 U.S.C. §§ 4311 (a), 4324(b); Henderson v. U.S. Postal
Service , 95 M.S.P.R. 454 , ¶ 5 (2004). Regardless of the appellant’s status as an
“employee” outlined above, individuals wh o have not compl eted 1 year of current
continuous service nonetheless qualify as “person [s]” under USERRA, and thus
are not excluded from filing appeals under t he provisions of that statute.
Henderson , 95 M.S.P.R. 454 , ¶ 6.
¶13 USERRA provides in relevant part that “[a] person who is a member of . . .
or has an obligation to perform service in a unifor med service shall not be
denied . . . retention in employment . . . on the basis of that membership . . . or
obligation. 38 U.S.C. § 4311 (a). To establish Board jurisdiction over a USERRA
discrimination appeal, the appellant must nonfrivolousl y allege (1) she performed
duty or has an obligation to perform duty in a uniformed service of the
United States ; (2) the agency denied her initial employment, reemployment,
retention , promotion, or any benefit of employment; and (3) the denial was due to
the performance of duty or obligation to perform duty in the uniformed service.4
4 An allegation generally will be considered nonfrivolous when, under oath or penalty
of perjury, an individual m akes an allegation that is more than conclusory, is plausible
on its face, and is material to the legal issues in the appeal. 5 C.F.R. § 1201.4 (s).
7
Wilson v. Department of the Army , 111 M.S.P.R. 54 , ¶ 8 (2009); 5 C.F .R.
§ 1201.57 (b).
¶14 It is undisputed that the appellant both previously performed duty and had
an obligation to perform duty in a uniformed service of the United States. IAF,
Tab 1 at 1, Tab 9 at 555 -56. Additionally, the appellant’s termination during her
probationary period constitutes a denial of “retention in employment.” Pruitt v.
Department of Veterans Affairs , 97 M.S.P.R. 495 , ¶ 5 (2004) (finding that
termination during probation is denying “retention in employment” within the
meaning of 38 U.S.C. § 4311 (a)). The only remaining question is whether the
appellant has nonfrivolously alleged that the agency’s denial was “due to” the
performance or obligation to perform her duty in a uniformed service . We find
that she has .
¶15 Contrary to the administrative judge’s analysis, the appellant’s requirement
to prove that her military obligation was a “substantial or motivating factor” in
the agency’s action does not arise at the jurisdictional stage and is not analyzed
under the nonfrivolous standard . See Lazard v. U.S. Postal Service , 93 M.S.P.R.
337, ¶ 9 (2003) ( distinguishing between the sufficiency of allegations at the
jurisdictional stage and the merits stage of a USERRA appeal ). Likewise, t he
administrative judge incorrectly held that, to prove her military obligation was a
motivating factor in her termination, the appellant must no nfrivolously all ege the
agency relied on, took into account, consider ed, or conditioned its decision on her
military obligation . ID at 7. This finding incorrectly conflates the appellant’s
burden at the jurisdictional and merits determination stages. The Erickson
decis ion, on which the administrative judge relied, applies that standard to a
merits determination, not to a jurisdiction al finding . Erickson , 571 F.3d at 1368.
¶16 It is well established that a claim of discrimination under USERRA should
be broadly and liberally construed in determining whether it is nonfrivolous for
jurisdictional purposes , particularly when , as here, the appellant is pro se.
Wilson , 111 M.S.P.R. 54 , ¶ 9. The weakness of the assertions in support of a
8
claim is not a basis to dismiss a USERRA appeal for lack of jurisdiction; rather,
if the appellant fails to develop her contentions, her USERRA claim should be
denied on the merits. Id. An appellant’s allegation in general terms that the
agency denied her retention in employment due to her uniformed service is
sufficient to establish USERRA jurisdiction. See Searcy v. Department of
Agriculture , 115 M.S.P.R. 260 , ¶ 8 (2010) (finding vague and unspecific
allegations that the agency denied employment in a position because of pr ior
uniformed service was sufficient to establish USERRA jurisdiction); Swidecki v.
Department of Commerce , 113 M.S.P.R. 168 , ¶ 9 (2010) (finding that the
appellant established USERRA jurisdiction when he asserted that he performed
duty in a uniformed service of the United States, the agency was aware of his
prior uniformed service, and it denied him employment in a temporary positio n in
part because o f his prior uniformed service).
¶17 We recognize that the appellant did not submit any concrete evidence to
substantiate her claims that the agency terminated her during her probationary
period because of her prior duty and obligation to p erform duty in a uniformed
service. However, the appellant has alleged that she was terminated within
1 month of notifying the agency of her mobilization, and that her termination
violated her rights as a member of the uniformed services. She also has alleged
that the agency’s proffered reasons for termination were disprovable , and
suggested that other employees engaging in similar conduct are not terminated .
This, coupled with the fact that her termination was less than 2 months after she
received a tim e off award , is sufficient to establish a nonfrivolous allegation that
her termination was due to her obligation to perform duty in the uniformed
services of the United States. See Sheehan v. Department of the Navy , 240 F.3d
1009 , 1014 (Fed. Cir. 2001) ( explaining that discriminatory motivation under
USERRA may be reasonably inferred from factors such as the p roximity in time
between the military activity and the adverse action, inconsistencies between the
9
agency’s proffered reason s and other actions of the employer, and disparate
treatment of the appellant compared to similarly situated employees) .
¶18 Having foun d that the Board has jurisdiction over the appellant’s USERRA
claim, we find that the appellant is entitled to a remand for further development
of the record and adjudication on the merits of her USERRA claim . The appellant
elected not to request a hearin g in her appeal when she originally filed. IAF,
Tab 1 at 2. In light of this remand, the administrative judge should provide the
appellant with another opportunity to request a hearing if she so chooses. See
Swidecki , 113 M.S.P.R. 168 , ¶ 6 (finding an appellant who raises a USERRA
claim has an unc onditional right to a hearing).
ORDER
¶19 For the reasons discussed above, we remand this case to the New York Field
Office for further adjudication in acc ordance with this Remand Order.5
FOR THE BOARD:
Washington, D.C. /s/ for
Jennifer Everling
Acting Clerk of the Board
5 The remand initial decision will incorporate the findings from this order and include a
notice of appeal rights f or all claims raised by the appellant. | PINSONNEAULT_APRIL_NY_315H_17_0203_I_1_REMAND_ORDER_1926047.pdf | 2022-05-19 | null | NY-315H-17-0203-I-1 | NP |
4,391 | https://www.mspb.gov/decisions/nonprecedential/WEAVER_PARRISH_F_DC_315H_16_0392_I_1_FINAL_ORDER_1926117.pdf | UNITED STATES OF AME RICA
MERIT SYSTEMS PROTEC TION BOARD
PARRISH F. WEAVER,
Appellant,
v.
DEPARTMENT OF LABOR,
Agency.
DOCKET NUMBER
DC-315H -16-0392 -I-1
DATE: May 19, 2022
THIS FINAL ORDER IS NONPRECEDENTIAL1
Norman Jackman , Esquire, Lincoln, New Hamps hire, for the appellant.
Beth Heleman , Esquire and Christine Han , Esquire, Washington, D.C., for
the agency.
BEFORE
Raymond A. Limon , Vice Chair
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 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 dist inguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and 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
inter pretation 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 Fe deral 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 secti on 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. § 1201.1 13(b).
¶2 On February 25, 2016 , the appellant filed an appeal of his January 26, 2013
termination from his Procurement Analyst position during his 1 -year probationary
period for poor performance, excessive tardiness, and excessive absences. Initial
Appea l File (IAF), Tab 1 at 4, Tab 9 at 2, Tab 11 at 13 -15. The administrative
judge dismissed the appeal for lack of jurisdiction , finding that the app ellant did
not allege that he is an employee who has a statutory right of appeal to the Board
under 5 U.S.C. chapter 75 or that his termination was based upon either partisan
political r easons or marital status, which would give rise to a regulatory right of
appeal under 5 C.F.R § 315.806(b).2 IAF, Tab 14, Initial Decision (ID) at 5.
Additionally, the administ rative judge found that the Board lacks jurisdiction
pursuant to 5 C.F.R. § 315.806 (c) because the appellant was terminated for
postappointment reasons. ID at 4 -5. Finally, the adminis trative judge found that,
absent an otherwise appealable action, the Board lacks jurisdiction to consider the
appellant’s allegations that the agency committed harmful error by failing to
2 The administrative judge did not address the timelines s of the appeal. IAF, Tab 14
at 2 n.1. Because we agree with the administrative judge’s finding that the Board lacks
jurisdiction , we similarly decline to addr ess the timeliness issue. See, e.g. , Rosell v.
Department of Defense , 100 M.S.P.R. 594 , ¶ 5 (2005) , aff’d , 191 F. App’ x 954 (Fed .
Cir. 2006).
3
comply with the notice provisions of its collective bargaining agr eement and it
committed sexual harassment and falsifi ed G overnment documents in terminating
him. ID at 5. For the reasons set forth in the initial decision, we agree with the
administrative judge that the Board lacks jurisdiction over the appeal.
¶3 On revie w, the appellant argues for the first time that his termination was
based on his marital status and resulted because he was not part of his
supervisor’s “singles clique .” Petition for Review (PFR) File, Tab 1 at 4-8. To
support his argument, he submits n umerous documents for the fir st time on
review , including, among other things, three employee declarations , his 2012
performance rating, a 2012 training certificate, and a January 10, 2013 cash
award . Id. at 15-52. The Board will not consider evidence or 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); Avansino v.
U.S. Postal Service , 3 M.S.P.R. 211, 214 (1980); see 5 C.F.R. § 1201.115 (d). To
constitute new and material evidence, the information contained in the
documents, not just the documents themselves, must have been un available
despite the appellant’s due diligence when the record closed.3 Grassell v.
Department of Transportation , 40 M.S.P.R. 554 , 56 4 (1989) ; see 5 C.F.R.
§ 1201.115 (d).
¶4 Despite receiving notice of the Board’s jurisdictional requirements, IAF,
Tab 9, the app ellant did not argue below that his termination was based on his
marital status. On review, the appellant asserts that he failed to raise such an
argument because he suffers from severe health and mental problems , which
cause an inability to focus and articulate thoughts . PFR File, Tab 4 at 4 -6. We
3 The appellant also sub mits additional documents, such as a copy of a security
clearance investigation, which he previously submitted below . PFR File, Tab 1
at 17-19. Evidence that is already a part of the record is not new. Meier v. Depa rtment
of the Interior , 3 M.S.P.R. 247 , 256 (1980).
4
find that the appellant has not establish ed that his health problems impaired his
ability to adequately pursue his appeal below . The appellant was represented by
counsel below and submitted argument concerning the circumstances surrounding
his termination and the B oard’s jurisdiction. Moreover, he has not submitted any
medical documentation regarding his medical condition or how it prevented him
from raising certain argument s during the proceedings below. Accord ingly, we
decline to consider the appellant’s new argument and evidence for the first time
on review.
¶5 On review, the appellant also asserts that there is no evidence to support the
agency’s contention in his termination notice of his poor performance because he
received a satisfactory performance rating and a cash award. PFR File, Tab 1 at
9. He also contends that he was not absen t from work as charged, but rather ,
attending three offsite training courses. Id. at 9-10. These arguments pertain to
the merits of the termination decision, rather than the Bo ard’s jurisdiction over
the appeal, and do not provide a basis to disturb the initial decision. See
Schmittling v. Department of the Army , 219 F. 3d 1332 , 1337 (Fed. Cir. 2000)
(finding that a decision on the merits would be a nullity in the absence of Board
jurisdiction); Sapla v. Department of the Navy , 118 M.S.P.R. 551 , ¶ 7 (2012)
(finding that an appellant’s arguments on review regarding the merits of an
agency action were not r elevant to whether the Board has jurisdiction over an
appeal).
¶6 Accordingly, for the reasons discu ssed above, we deny the appellant’s
petition for review and affirm the initial decision dismissing his probationary
termination appeal for lack of jurisdiction .4
4 The appellant filed several motions for leave to file an additional pleading. PFR File,
Tabs 6, 8, 12. In these motions, he seeks leave from the Board to submit evidence
concerning a second background investigation following his termination, which he
summarily contends “validates [his] nonfrivolous allegation as stated in his PFR.” PFR
File, Tab 12 at 4. Although the evidence that the appellant seeks leave to submit
appears to postdate the initial decision, he has failed to explain how it would warrant an
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 repres ent a
statement of how courts will rule regarding which cases fall within their
jurisdiction. If you wish to seek review of this final decision, you should
immediately review the law applicable to your claims and carefully follow all
filing time limits an d requirements. Failure to file within the applicable time
limit may result in the dismissal of your case by your chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, 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.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703 (b)(1)(A).
outcome different from the initial decision or would establish Board jurisdiction over
his appeal. Accordingly, the appellant’ s motions for leave to submit additional
evidence and argument on review are denied .
5 Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review rights included in final d ecisions. As indicated in the notice, the
Board cannot advise which option is most appropriate in any matter.
6
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madi son Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and A ppellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will acce pt representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of A ppeals for the Federal Circuit), within 30 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
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 information for U.S. district courts can be found at their respective
websites, which can be acces sed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) o f your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702 (b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after yo u receive
this decision. 5 U.S.C. § 7702 (b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative 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 77 960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This 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 “ra ises no challenge to the Board’s
disposition of allegations of a prohibited personnel practice described in
section 2302(b) other than practices described in section 2302(b)(8), or
2302(b)(9)(A)(i), (B), (C), or (D),” then you may file a petition for judic ial
review either with the U.S. Court of Appeals for the Federal Circuit or any court
of appeals of competent jurisdiction.6 The court of appeals must receive your
petition for review within 60 days of the date of issuance of this decision.
5 U.S.C. § 7703 (b)(1)(B).
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is th e court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Fed eral Circuit, you may visit our 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 jurisdi ction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. C ourt of Appeals
for the Federal Circuit or any other circuit court 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 atto rney 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 | WEAVER_PARRISH_F_DC_315H_16_0392_I_1_FINAL_ORDER_1926117.pdf | 2022-05-19 | null | DC-315H-16-0392-I-1 | NP |
4,392 | https://www.mspb.gov/decisions/nonprecedential/WHITE_CYNTHIA_V_DC_315I_16_0852_I_1_FINAL_ORDER_1926129.pdf | UNITED STATES OF AME RICA
MERIT SYSTEMS PROTEC TION BOARD
CYNTHIA V. WHITE,
Appellant,
v.
DEPARTMENT OF HOUSIN G AND
URBAN DEVELOPMENT,
Agency.
DOCKET NUMBER
DC-315I -16-0852 -I-1
DATE: May 19, 2022
THIS FINAL ORDER IS NONPRECEDENTIAL1
Susan L. Kruger , Esquire, Washington, D.C., for the appellant.
Elan Cameron , Washington, D.C., for the agency.
BEFORE
Raymond A. Limon , Vice Chair
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 findings of material fac t; the initial decision is based on an erroneous
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
require d to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117 (c).
2
interpretation of statute or regulation or the erroneous application of the law to
the facts of the case; the administrative judge’s rulings during either the course of
the appeal or 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 agency appointed the appellant to a GS -15 Supervisory Budget Analyst
position effective October 4, 201 5, and, based on her subsequent performance,
terminated her supervisory position and d emoted her to a nonsupervisory GS -14
Budget Analyst posi tion, effective July 26, 2016 . Initial Appeal File (IAF ), Tab 8
at 19, 33, 34-35. In her timely appeal of the ag ency’s action, the appellant argued
that, because she was not serving in an initial probationary period and the agency
did not inform her of the require ment to serve a supervisory probation ary period,
the agency improperly failed to provide her with the pr ocedures required by
5 U.S.C., chapters 43 and 75 . IAF, Tab 1 at 6.
¶3 The administrative judge advised the appellant of the elements and burdens
of establishing jurisdiction over her appeal , i.e., that she was not servi ng in a
supervisory probationary period or that she was entitled to the limited right of
appeal set forth in 5 C.F.R. § 315.908 (b). IAF, Tab 2. In response , the appellant
assert ed that: (1) nothing required the agency to advise her of a requirement for
her to serve a supervisory probationary period, but she interpreted the comments
on her Standard Form 50 ( SF-50) to be a determination that her prior supervisory
3
service satisfied any such requirement ; (2) the regulations a llowed tacking of her
prior supervisory service to satisfy the requirement ; and (3) without discovery,
she was unable to answer whether the agency had any policy regarding the use of
prior experience to except an employee from the requirement of a supervis ory
probationary period . IAF, Tab 16, at 4 -6. She also argued that the agency did not
contend that she was serving a probationary period until after it became
dissatisfied with her performance. Id. at 7.
¶4 Without holding the requested hearing, the admi nistrative judge issued an
initial decision dismiss ing the appeal for lack of jurisdiction. IAF, Tab 1 at 2,
Tab 18, Initial Decision (ID). She first found that the appellant was required to
serve a supervisory probationary period and that the agency’s a lleged failure to
advise her of the requirement to do so did not waive the requirement . ID at 4-7.
The administrative judge then found that the appellant failed to make a
nonfrivolous allegation that she had completed her supervisory probationary
period prior to transferring to the position at issue here, finding her prior
experience in several positions insufficient to be counted toward completin g the
required supervisory probationary period. ID at 7-8. Thus, based on her finding s
that the appellant failed to nonfrivolously allege that she had comp leted a
supervisory probationary period, and that the appellant failed to allege that the
agency demoted her based on marital status discrimination or partisan political
reasons, the admi nistrative judge dismissed the appeal for lack of jurisdiction.
ID at 9.
¶5 In her petition for review, the appellant reiterates the arguments she made
below, contending that she was not required to serve a supervisory probationary
period because of her pr ior supervisory experience. Petition for Review (PFR)
File, Tab 1 at 4 ; IAF, Tab 16 at 4 -6. She also argues that there is an agency
policy permitting the use of prior experience to satisfy the requirement of a
supervisory probationary period and that she should have been permitted
4
discovery on the issue . PFR File, Tab 1 at 4-5, 8. The agency responds in
opposition. PFR File, Tab 3.
DISCUSSION OF ARGUME NTS ON REVIEW
¶6 To be entitled to a jurisdictional hearing, an appellant need only raise
nonfrivolous allegations that the Board has jurisdiction over her appeal. Garcia
v. Department of Homeland Security , 437 F.3d 1322 , 1344 (Fed. Cir. 2006). A
nonfrivolous allegatio n is an assertion that, if proven, could establish the matter
at issue. 5 C.F.R. § 1201.4 (s). Under 5 U.S. C. § 3321 , an individual serving in
an initial appointment as a supervisor or manager in the competitive service is
required to serve a probationary period. Burton v. Department of the Air Force ,
118 M.S.P.R. 210 , ¶ 7 (2012). An individual in the competitive service who has
been promoted to a supervisory position and who does not satisfactorily complete
the probati onary period , “shall be returned to a position of no lower grade and
pay than the position from which the individua l was . . . promoted.” 5 U.S.C.
§ 3321 (b); see 5 C.F.R. § 315.907 (a). Employees reassigned under the se
provisions have no appeal right to the Board unl ess they allege that the agency’ s
action is based on partisan political affiliation or marital status. See Burton ,
118 M.S.P.R. 210 , ¶ 7.
The appellant failed to present a nonfrivolous allegation that she was not subject
to a s upervisory probat ionary period , that she had completed such a probationary
period, or that her reassignment resulted from partisan political affiliation or
marital status.
¶7 An “initial appointment as a supervisor” does not “become[ ] final” until
the appointee completes a s upervisory probation ary period . 5 U.S.C. § 3321 (a);
Levy v. Department of Labor , 118 M.S.P.R. 619 , ¶ 11 (2012) . The regulations
implementing 5 U.S.C. § 3321 (a) provide that an employee “is required to serve a
probationary period prescribed by the agency upon initial a ppointment to a
supervisory . . . position.” 5 C.F.R. § 315.904 (a); see Levy , 118 M.S.P.R. 619 ,
¶ 11. An employee who was promoted to a supervisory position and does not
5
satisfactorily compl ete the supervisory probationary period “shall be returned to a
position of no lower grade and pay than the position from which the individual
was . . . promoted.” 5 U.S.C. § 3321 (b); Levy , 118 M.S.P.R. 619 , ¶ 11. A return
to a lower -graded position under such circumstances is not appealable to the
Board as an adverse action under 5 U.S.C. §§ 7512 (3) and 7513(d). Levy ,
118 M.S.P.R. 619 , ¶ 11. Whe n, as here, the facts suggest that the appellant would
have been a probationary supervisor at the time of the alleged reduction in grade,
the appellant must show that she was not required to serve a supervisory
probationary period or that she completed such a probati onary period before the
reduction in grade to establish jurisdiction. Id.
¶8 We agree with the administrative judge that the appellant was required to
serve a supervisory probationary period. ID at 4, 6 ; see 5 U.S.C. § 3321 ; 5 C.F.R.
§§ 315.901 , .904(a) . Moreover, the record reflects that the agency gave the
appellant notice of this requirement in the September 25, 2015 welcome l etter it
sent to her before she reported for duty and in a corrected SF -50 it processed
contemporaneously with the other SF-50 the appellant submitted with her initial
appeal. IAF, Tab 8 at 19, 33 , Tab 1 at 8. We also agree that the appellant failed
to m ake a nonfrivolous allegation that she comp leted her supervisory
probationary period , either in the Supervisory B udget Analyst position or prior to
transferring into it. ID at 7. The administrative judge found that only one of the
appellant’s former positions , a Senior Financial Analyst position at the
Department of Transportation (DOT), required a supervisory probationary period ,
but the appellant ser ved for less than a year in the position . ID at 2 -3, 7. We
agree with the administrative judge that the appellant’s service at DOT does not
count towa rd the supervisory probationary period here because she did not
transfer to the Supervisory B udget Analyst position directly from her supervisory
position at DOT . ID at 7; IAF, Tab 6 at 38 , Tab 8 at 19, 3 3; see 5 C.F.R.
§ 315.906 (a).
6
¶9 The administrative judge also found that the appellant failed to
nonfrivolously allege that her service was creditable under agency policy as
provided in 5 C.F.R. § 315.906 (d). ID at 7 -8. In her petition for review, the
appellant argues that the agency presented contradictory information regarding
such a policy and that the administrative judge should have permitted discovery
to address the issue. PFR File, Tab 1 at 8. Nevertheless, the record reflects that
the administrative judge gave the parties notice of the Board’s discovery
procedures in her acknowledgment order , and it does not re flect that the
appellant, who was represented by counsel in this proceeding, filed a motion to
compel discovery before the record closed on the jurisdictional issue . IAF, Tab 2
at 4-5, Tab 11 at 5. Because the appellant did not file a motion to compel
discovery, she has failed to p reserve the issue for the Board’ s review. See Szejner
v. Office of Personnel Management , 99 M.S.P.R. 275 , ¶ 5 (2005), aff’d, 167 F.
App’ x 217 (Fed. Cir. 2006).
¶10 Moreover, the declarations the appellant cites in her petition for review do
not conflict but instead address two different issues. In one declaration , the
declarant states that the agency has no policy of its own regarding the use of prior
service in this context and instead r elies on the provisions set forth in the C ode of
Federal Regulations. IAF, Tab 17 at 45 -46 (declaration of L.H. ). The other
declarant specifically asserts that, under guidance from the Office of Personnel
Management, he determined that the appellant ’s individual experience as a code 7
team leader at the Consumer Products Safety Commission was insufficient to
waive the supervisory probationary requirement. IAF, Tab 9 at 10-11
(declaration of B.G. ), 13, 24 , Tab 6 at 40. Neither declara nt indicates or
identifies that the agency has a policy regarding whether service is creditable in
situations whe n an employee has failed to complete a probationary period.
5 C.F.R. § 315.906 (d). Thus, we agree with the administrative judge that the
agency did not have a policy to make the service in the appellant’s prior
incomplete supervisory probationary period creditable for tacking that service to
7
her most recent service for the purpose of complet ing her supervisory
probationary period. ID at 7 -8.
¶11 Accordingly, we find that the administrative judge correctly dismissed the
appeal based on the written record without holding a hearing. See Garcia ,
437 F.3d at 1344 .
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 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 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.
8
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703 (b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of partic ular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by a n action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703 (b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. ____ , 137 S. Ct. 1975 (2017). If you have a
representative in this case, and your representative receives this decision before
9
you do, t hen you must file with the district court no later than 30 calendar days
after your representative receives this decision. If the action involves a claim of
discrimination based on race, color, religion, sex, national origin, or a disabling
condition, you may be entitled to representation by a court -appointed lawyer and
to waiver of any requirement of prepayment of fees, costs, or other security. See
42 U.S.C. § 2000e -5(f) and 29 U.S.C. § 794a .
Contact information for U.S. district courts can be found at th eir respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702 (b)(1). You must file an y such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702 (b)(1). If you have a representative in this case,
and your rep resentative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EE OC is:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
10
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302 (b)(8) or
other protected activities listed in 5 U.S.C. § 2302 (b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no 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
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.
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.
11
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit 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.
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 | WHITE_CYNTHIA_V_DC_315I_16_0852_I_1_FINAL_ORDER_1926129.pdf | 2022-05-19 | null | DC-315I-16-0852-I-1 | NP |
4,393 | https://www.mspb.gov/decisions/nonprecedential/BROWN_CECILIA_A_PH_0752_19_0341_I_3_FINAL_ORDER_1925675.pdf | UNITED STATES OF AME RICA
MERIT SYSTEMS PROTEC TION BOARD
CECILIA A. BROWN,
Appellant,
v.
DEPARTMENT OF THE AI R FORCE,
Agency.
DOCKET NUMBER
PH-0752 -19-0341 -I-3
DATE: May 18, 2022
THIS FINAL ORDER IS NONPRECEDENTIAL1
Louis P. McFadden, Jr. , Northfield, New Jersey, for the appellant.
Brian J. Stabley , Esquire, Joint Base Andrews, Maryland, for the agency.
BEFORE
Raymond A. Limon , Vice Chair
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 21 -day suspension . On petition for
review, the agency argues that the administrative judge improperly failed to defer
to the agency’s penalty determination and erred in his application of the factors
for assessing th e reasonableness of the penalty for misconduct set forth in
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required t o follow or distinguish them in any fu ture decisions. In contrast,
a precedential decision issued as an Opinion and 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
Douglas v. Veterans Administration , 5 M.S.P.R. 280 , 305 -06 (1981 ). 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 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).
ORDER
¶2 We ORDER the agency to cancel the remo val and s ubstitute in its place
a 21-day suspension effective June 13, 2019 . 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.
¶3 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
Manag ement’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 in formation 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,
3
and/or other benefits, we ORDER the agency to pay the appellant the undisputed
amount no later than 60 calendar days af ter the date of this decision.
¶4 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 notifi ed, should ask
the agency about its progress. See 5 C.F.R. § 1201.181 (b).
¶5 No later than 30 days after the agency tells the appellant that it has fully
carried out the Board’s Order, t he 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 appe llant 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).
¶6 For a gencies 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 adjust ments resulting from a Board decision
are attached. The agency is ORDERED to timely provide DFAS or NFC with all
documentation necessary to process payments and adjustments resulting from the
Board’s decision in accordance with the attached lists so that payment can be
made within the 60 -day period set forth above.
NOTICE TO THE APPELL ANT REGARDING
YOUR RIGHT TO REQUES T
ATTORNEY FEES AND CO STS
You may be entitled to be paid by the agency for your reasonable attorney
fees and costs. To be paid, you must meet the requirements set forth at title 5 of
the United States Code (5 U.S.C.), 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
4
and costs WITHIN 60 CALENDAR DAYS OF THE DATE OF THIS DECISION.
You must file your motion for attorney fees and costs with the office that issued
the initial decision on your appeal.
NOTICE OF APPEAL RIG HTS2
You may obtain review of this final decision. 5 U.S.C. § 7703 (a)(1). By
statute, the nature of your claims determines the time limit for seeking such
review and the appropriate forum with which to file. 5 U.S.C. § 7703 (b).
Although we offer the following summary of available appeal rights, the Merit
Systems Protection Board does not provide legal advice on which option is most
appropriate for your situation and the rights described below do not represent a
statement of how cour ts will rule regarding which cases fall within their
jurisdiction. If you wish to seek review of this final decision, you should
immediately review the law applicable to your claims and carefully follow all
filing time limits and requirements. Failure to file within the applicable time
limit may result in the dismissal of your case by your chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for 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).
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 whic h 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, 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
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 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 addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C . 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This 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 the U.S. Court of Appeals for the Federal Circuit or any court
of appeals of competent jurisdiction.3 The court of appeals must receive your
petition for review within 60 days of the date of issuance of this decision.
5 U.S.C. § 7703 (b)(1)(B).
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circui t
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petiti oners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our we bsite at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
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, si gned into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court 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 attorne y will accept representation in a given case.
Contact information for the courts of appeals can be found at their
respective websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
FOR THE BOARD:
Washington, D.C. /s/ for
Jennifer Everling
Acting Clerk of the Board
9
DEFENSE FINANCE AND ACCOUNTING SERVICE
Civilian Pay Operations
DFAS BACK PAY CHECKLIST
The following documentation is required by DFAS Civilian Pay to compute and pay back pay
pursuant to 5 CFR § 550.805 . Human resources/local payroll offices should use the following
checklist to ensure a request for payment of back pay is complete. Missing documentation may
substantially delay the processing of a back pay award. More information may be found at:
https://wss.apan.org/public/DFASPayroll/Back%20Pay%20Process/Forms/AllItems.aspx.
NOTE: Attorneys’ fees or other non -wage payments (such as damages) are paid by
vendor pay, not DFAS Civilian Pay.
☐ 1) Submit a “SETTLEMENT INQUIRY - Submission” Remedy Tick et. Please identify the
specific dates of the back pay period within the ticket comments.
Attach the following documentation to the Remedy Ticket, or provide a statement in the ticket
comments as to why the documentation is not applicable:
☐ 2) Settle ment agreement, administrative determination, arbitrator award, or order.
☐ 3) Signed and completed “Employee Statement Relative to Back Pay”.
☐ 4) All required SF50s (new, corrected, or canceled). ***Do not process online SF50s
until notified to do so by DFAS Civilian Pay.***
☐ 5) Certified timecards/corrected timecards. ***Do not process online timecards until
notified to do so by DFAS Civilian Pay.***
☐ 6) All relevant benefit election forms (e.g. TSP, FEHB, etc.).
☐ 7) Outside earnings docu mentation. Include record of all amounts earned by the employee
in a job undertaken during the back pay period to replace federal employment.
Documentation includes W -2 or 1099 statements, payroll documents/records, etc. Also,
include record of any unem ployment 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 revers ed, there is no authority
under 5 U.S.C. § 5551 for the reinstated employee to keep the lump sum annual leave payment
they may have received. The payroll office must collect the debt from the back pay award. The
annual leave will be restored to the employee. Annual leave that exceeds the annual leave
ceiling will be restored to a separate leave account pursuant to 5 CFR § 550.805(g).
10
NATIONAL FINANCE CEN TER CHECKLIST FOR BA CK PAY CASES
Below is the information/documentation required by National Finance Center to process
payments/adjustments agreed on in Back Pay Cases (settlements, restorations) or as ordered by
the Merit Systems Protection Board, EEOC, and courts .
1. Initiate and submit AD -343 ( Payroll/Action Request) with clear and concise information
describing what to do in accordance with decision.
2. The following information must be included on AD -343 for Restoration:
a. Employee name and social security number.
b. Detailed explanation of reque st.
c. Valid agency accounting.
d. Authorized signature (Table 63).
e. If interest is to be included.
f. Check mailing address.
g. Indicate if case is prior to conversion. Computations must be attached.
h. Indicate the amount of Severance and Lump Sum Annual Leave Payment to be
collected (if applicable).
Attachments to AD -343
1. Provide pay entitlement to include Overtime, Night Differential, Shift Premium, Sunday
Premium, etc. with number of hours and dates for each entitlement (if applicable).
2. Copies of SF -50s (Personnel Actions) or list of salary adjustments/changes and amounts.
3. Outside earnings documentation statement from agency.
4. If employee received retirement annuity or unemployment, provide amou nt 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 emplo yee 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 include d 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. | BROWN_CECILIA_A_PH_0752_19_0341_I_3_FINAL_ORDER_1925675.pdf | 2022-05-18 | null | PH-0752-19-0341-I-3 | NP |
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